Odorico v. Odorico, 2021 ONSC 401

COURT FILE NO.: 329/16

DATE: 20210118

SUPERIOR COURT OF JUSTICE, FAMILY COURT

RE: Eddy Steve Odorico, Applicant

AND:

Tina-Mariea Odorico, Respondent

BEFORE: The Honourable Justice R. B. Reid

COUNSEL: Counsel, for Applicant, K. Garland

Counsel, for the Respondent, V. Workman (on motion), O. Ayoola (on costs submissions)

HEARD: March 25, 2019; Costs submissions due January 11, 2021

DECISION ON COSTS OF MOTIONS

[1] The parties argued a contested motion brought by the respondent before me on March 25, 2019. A cross-motion by the applicant was adjourned to a later date and was ultimately heard on consent by Justice L. Walters who made an order dated August 12, 2019. The costs of the respondent’s motion found at tab 19 of the Continuing Record Volume 1 and of the applicant’s motion found at tab 22 of the Continuing Record Volume 2, were to be determined by me following written submissions. Those submissions have now been received.

[2] The respondent sought an order for payment of interim child support retroactive to the date of separation in June 2015 with income imputed to the applicant at no less than $105,000 per year. The respondent asked that arrears created by the requested interim order, estimated in the amount of $27,036, were to be payable forthwith. As well, the respondent sought an order that the applicant pay 85 percent of the children’s s. 7 expenses and that the applicant be ordered to remove his name from the bank accounts held jointly with the respondent at the Meridian Credit Union, the contents of which are held in trust for the children, so that the respondent may use the funds for the benefit of the children.

[3] The applicant’s motion sought an increase in parenting time for him. The motion was adjourned, pending receipt of a s. 30 assessment. Following receipt of that report, the parties resolved the parenting time issue on a temporary basis by the consent order of August 12, 2019.

Background:

[4] The parties are the parents of O.B., born April 12, 2010 and E.B., born November 28, 2011. The parties were married in March 2012 and separated in May 2015. The children have lived primarily with the respondent since the date of separation.

[5] The applicant made child support payments in the amount of $400 biweekly from June 2015 through to March 2018. From that time until the motion hearing, support was paid at the rate of $991 per month. The applicant established those payment amounts based on the Child Support Guidelines applied to his income as reported at line 150 of his income tax return.

[6] Each of the parties hired accountants to perform an analysis of the applicant’s income for support purposes. At the motion, it was agreed that a support order on a without prejudice basis should be based on the applicant’s report in which he was shown to have annual income of $67,000. That led to the order of $1,021 per month.

[7] The support order was made effective March 1, 2019. Further retroactivity is a matter for trial.

[8] A temporary order was made for the sharing of s. 7 expenses based on the parties’ respective annual incomes for 2017 payable at the rate of 70 percent by the applicant and 30 percent by the respondent.

[9] No order was made removing the applicant’s name from the joint bank accounts held as savings for the children.

Costs:

[10] Each party claimed success on the respondent’s motion and claimed that the other acted unreasonably. Both relied on formal offers to settle.

[11] The applicant claimed costs on a full recovery basis in the amount of $25,108.60 inclusive of HST and disbursements. The disbursements included $3,022.75 for the accountant’s analysis of the applicant’s income for support purposes. Counsel for the applicant identified 65.6 hours of work on the motions. No claim was made for services after the argument of the motion on March 25, 2019 including services leading to the resolution of the second motion.

[12] The respondent claimed costs on a full recovery basis in the amount of $27,473.38 inclusive of HST and disbursements. The disbursements included $5,650 for the analysis of the applicant’s income. Counsel for the respondent identified 42.5 hours of work on the matter. The hours were not broken down as to when the services were incurred or for what aspect of the motions.

[13] The Court’s discretion to award costs is found in s. 131 of the Courts of Justice Act, and the factors to be considered in exercising that discretion are set out in rule 24 of the Family Law Rules. There is a presumption that the successful party is entitled to costs and if success is divided, the court may apportion costs as appropriate. In deciding whether either party has behaved unreasonably, the court can look at behaviour and offers to settle made and rejected. The court must also consider the reasonableness and proportionality of factors set out in subrule 24(12).

Success:

[14] Although the respondent was successful in receiving a support order, it was not at the level or with the retroactivity she sought. The applicant did not oppose an interim support order pursuant to the Child Support Guidelines based on his income for support purposes established by his accountant. The issue of retroactivity was deferred to trial, as the applicant requested. The respondent was unsuccessful in having the applicant’s name removed from the children’s savings accounts. She was successful in receiving an order for the apportioning of s. 7 expenses, but not at the percentage she requested.

[15] Although it appears that the applicant was successful in his motion increasing parenting time to about 50-50, that result was on consent as opposed to an order made after a decision on the merits. Therefore, it is not appropriate to make a costs award in the applicant’s favour based on the result of his motion.

Offers to Settle:

[16] Rule 18(14) provides that: “A party who makes an offer to settle is, unless the court orders otherwise, entitled to costs to the date the offer was served and a full recovery of costs from that date,” provided that certain conditions are met including that the party who made the offer obtains an order that is as favorable as or more favorable than the offer.

[17] The applicant’s offer was served January 10, 2019 and the respondent’s offer was served January 9, 2019. Neither offer had expired. Neither offer was withdrawn.

[18] The applicant’s offer proposed retroactive child support to January 1, 2019 in an amount based on the Child Support Guidelines using the applicant’s income of $67,000 per year. The offer proposed adjourning the parenting time issue until after the s. 30 report had been received. The offer proposed that the claim for retroactive child support, access to the children’s savings funds and retroactive s. 7 expenses be adjourned to the trial. However, unlike the order received, the offer proposed that the percentage sharing of s. 7 expenses also be adjourned to trial.

[19] The respondent’s offer proposed retroactive child support to January 1, 2017 in an amount based on the Child Support Guidelines using the applicant’s income of $67,000 per year. Support arrears were to be paid within 12 days. Specific amounts were required as s. 7 expenses to be paid by the applicant without any indication of the percentage sharing. The offer proposed that the parenting time variation and the request for access to the children’s savings funds be adjourned pending receipt of the s. 30 assessment. Costs of the motion were to be reserved to the trial judge.

Other factors:

[20] Both parties alleged that the motion was complex and that the issues were important to them. Both alleged that the other made the matter more difficult by various means including failure to provide prompt income disclosure on the part of the applicant and the filing of lengthy affidavits by the respondent to which the applicant needed to file responses.

Analysis and Conclusion:

[21] The objectives of the costs-shifting policy behind costs awards are well-defined: to indemnify litigants for costs incurred, to encourage settlement, to discourage and sanction inappropriate behaviour, and to ensure that cases are dealt with justly. Costs at the quasi-punitive level of a substantial or full indemnity scale often follow inappropriate conduct or reward successful offers to settle.

[22] In this case, neither party achieved exactly what they wanted at the motion, although it appears that the result was much closer to the position adopted by the applicant. As a result, success was divided. The offers to settle were both within a reasonable range of the outcome, but neither party obtained an order that was as favorable as or more favorable than the offer.

[23] The issues were hotly contested, and of obvious importance to both parties. It is not possible to look at the lengthy affidavits filed and determine that one party was responsible for making the matter more complex or time consuming than necessary. The fact that positions were moderated at the hearing and that the applicant’s motion was resolved on consent is to the credit of the parties.

[24] Although both bills of costs include a disbursement for the report as to income for support purposes, I consider that to be a matter which more properly belongs to the costs of the application, to be determined when it is resolved either at settlement or after trial, and therefore I am removing both those disbursements from my consideration in this costs award. Therefore, the revised total claim by the applicant is $21,692.89. Likewise, the revised total claim by the respondent is $21,823.38.

[25] The hourly rates and time expended by both counsel appear reasonable and proportionate.

[26] On balance, it is appropriate that the applicant receive an award of costs payable by the respondent. While success was divided, the order made was much closer to the position of the applicant than that of the respondent.

[27] As to the proper scale of costs, there is no reason to make an award on either a full or substantial indemnity basis. Therefore, there will be an order that the respondent pay the applicant on a partial indemnity basis the sum of $13,015.74 inclusive of HST and disbursements, which sum does not include the costs of the applicant’s income analysis. The costs are to be payable “in any event of the cause”, meaning that they are payable at the end of the application, regardless of its outcome.

Reid J.

Date: January 18, 2021