Court File and Parties

Court File No.: FC-17-2493 Date: 2022/02/11 Superior Court of Justice - Ontario

Re: J. L., Applicant And D. L., Respondent

Before: Justice Engelking

Counsel: Kellie Stewart, for the Applicant Jack Pantalone, for the Respondent

Heard: September 29, October 1, 4-7 and 12, 2021

Reasons for Decision

[1] A trial of this matter was before the court in November of 2020. On the sixth of the scheduled ten-day trial, the parties reached a settlement regarding the parenting portion of the trial and agreed as follows with respect to the outstanding financial issues:

Spousal Support

10. The parties previously settled the issue of spousal support by agreement dated 1 December 2020, in accordance tihe the Partial Minutes of Settlement attached as Schedule “A”.

11. The parties hereby agree to a partial payment of the agreed upon spousal support by the respondent to the applicant in the amount of $20,000 on or before December 15, 2020, with the remaining $30,0 to be addressed by Justice Engelking by the end of May 2021 (whether by written submissions or persona/virtual attendance) and having regard to the terms of the parties’ December 1, 2020 Minutes of Settlement.

Retroactive Child Support/Section 7 Expenses/Other Expenses

12. Unless they are able to resolve this issue between themselves, the parties shall make written submissions to Justice Engelking re section 7 expenses, retroactive child support and matrimonial expenses for final determination. The parties shall make their written submissions by the end of March 2021 on this issue.

Costs

13. The parties shall make submissions on costs of the trial to Justice Engelking on or before the end of May 2021.

[2] The court received written submissions from Ms. Stewart on behalf of Ms. L. and from Mr. L. on his own behalf. These are my reasons for decision on these issues based on the written submissions received.

Positions of the Parties

[3] Ms. L. is seeking an order for payment of retroactive section 7 expenses and child support from Mr. L, as well as a contribution from him for the outstanding balance owing for Dr. Worenklein’s appearance at trial. She also asks the court to dismiss Mr. L.’s claim for expenses related to the former matrimonial home.

[4] Ms. L. seeks a payment by Mr. L. of $13,476.25 in retroactive section 7 expenses, $15,949 in retroactive child support, the dismissal of Mr. L.’s claim and an order for Mr. L. to pay Dr. Worenklein the outstanding balance of his attendance at trial of $1,437.19.

[5] Mr. L.’s position is that he should not be required to pay retroactive section 7 expenses for activities which were unilaterally decided upon by Ms. L. and that income should be imputed to her in relation to her proportionate share of any section 7 expenses that are to be shared. Additionally, Mr. L.’s position is that Ms. L. owes him for expenses related to the matrimonial home prior to its sale, and that she also owes him for section 7 expenses he made for the boys.

[6] Mr. L. states that he owes Ms. L. only $4,542.17 in retroactive section 7 expenses while Ms. L. owes him $3,210.03 in same, that he owes only $10,346 in retroactive child support, that Ms. L. owes him $17,111.06 for expenses related to the matrimonial home and that Ms. L. owes him $467.88 for Dr. Worenklein’s assessment, and he owes nothing for the outstanding balance of Dr. Worenklein’s testimony at the 2020 trial.

Analysis

Ms. L.’s income for support purposes

[7] Ms. L. seeks an order for retroactive section 7 expenses and retroactive child support based on her actual income for the years 2017, 2018, 2019 and 2020, which are as follows:

• 2017 – $42,356 [1]
• 2018 – $45,240 [2]
• 2019 – $45,240 [3]
• 2020 - $37,410 [4]

[8] In her Financial Statement sworn on October 28, 2020, Ms. L. indicated that her total annual income for 2020 was expected to be $47,307.

[9] Mr. L. submits that Ms. L.’s income should be imputed to “at least” $52,739, which is the income the parties agreed to on December 1, 2020 for the purposes of calculating spousal support payable by Mr. L. to Ms. L. This income was based on Ms. L. working a 40-hour work week. In that agreement, Mr. L. was to make an immediate “lump sum, non-taxable spousal support payment to the Applicant in the amount of $50,000”, after which Ms. L. was to be “deemed to have received monthly spousal support payments of $700 per month before taxes.” It is unclear from a straight reading of the agreement whether any of the spousal support payable was retroactive.

[10] Ms. L. has worked 30 hours per week since her return to work as a dental assistant in 2011. I received no evidence that Ms. L. could not work more hours a week for educational reasons or because of the needs of the children. Indeed, in her testimony, Ms. L. indicated that she works all the hours offered by her employer, and that 30 hours a week is what is available. She has not sought out other employment or additional hours elsewhere. However, the law supports that parents are required to earn the income they are capable of earning in order to support their dependent children. It is reasonable, in my view, that an income be imputed to Ms. L. for a 40-hour work week for the years in question to determine the parties’ respective support obligations.

[11] The parties agreed in 2020 that Ms. L.’s income for 2021 would be imputed to $52,739, which is $5,432 more than her anticipated income in 2020 of $47,307. Given that Ms. L.’s income was less in previous years, the adjustment should also be slightly less. I, therefore, find that for support purposes, Ms. L.’s income for the years 2017 to 2020, shall be imputed to:

• 2017 - $42,356 + $5000 = $47,356
• 2018 - $45,240 + $5200 = $50,440
• 2019- $45,240 + $5200 = $50,440
• 2020 - $47,307 + $5,300 = $52,607

[12] Mr. L.’s income shall be as follows:

• 2017 - $131,603 [5]
• 2018 - $133,266 [6]
• 2019 - $134,726 [7]
• 2020 - $134,726 as per his 2019 return

[13] Mr. L. submits that his child support should be payable on his base salary, however, he has consistently worked overtime hours and also received bonus pay. His support obligation is based on his total income. As the parties did not have complete 2020 income for Mr. L. at the time of the trial, and as his most recent Financial Statement was sworn on February 11, 2019 [8], his 2020 income will be based on his 2019 ITR.

Retroactive Section 7/Extraordinary Expenses Claimed by Ms. L.

[14] Ms. L. submits that Mr. L. should pay his proportionate share of section 7/extraordinary expenses for the boys as follows:

• Basketball - $1,433
• Hockey - $12,626.38
• Camp - $545
• Ultimate Frisbee - $280
• School Fees - $605; and,
• Medical/Dental (orthodontic) $4,345

[15] Mr. L. disputes that he should be paying for extracurricular activities for the boys about which he was never consulted and to which he never consented. In particular, he takes issue with paying for Triple A hockey for D., as he was not consulted prior to D. being registered for same and he did not provide his consent. Mr. L. is prepared to pay his proportionate share for the cost of Double A hockey, which he agrees D. would have participated in but for Ms. L.’s unilateral registration in the higher level.

[16] Ms. L. relies on an email exchange between the parties in April of 2018 to support that Mr. L. was agreeable to D. playing Triple A hockey. At the time of that email, Mr. L. was advocating for D. to tryout and Ms. L. was not agreeing due the cost for same. Mr. L., therefore, did not register D. for the tryout in 2018. One year later, without consulting Mr. L. in advance or obtaining his consent, Ms. L. registered D. for the Triple A hockey tryout and then communicated to Mr. L. that D. made the team and Mr. L. would be responsible for his proportionate share of the cost thereof. Mr. L. objects to paying for Triple A hockey for D. because, although he favored D. playing Triple A hockey, he was not able to discuss the change, let alone agree to it. By August 25, 2019, when he received Ms. L.’s email advising him of the costs to which he would be expected to contribute, Mr. L. had not seen or had any contact with D. for nine months. He was not made aware of D.’s interest, and he was not able to have any discussions with Ms. L. about the financial implications of him trying out and/or making the team. In this, he has a point.

[17] However, in the email exchange of April 14, 2018, where they originally discussed the possibility of D. trying out for Triple A hockey, Mr. L. stated: “… have you asked D. what he wanted to do?...we both know that he will be playing there if. [sic] It this year certainly the next season …I surely hope that this isn’t the beginning of trying to discourage him of playing AAA at that point since his peers will also be trying out and on the team.” (Emphasis added). Although this message appears to contain a typo (“if. It this” as opposed to “if not this”), it seems clear that Mr. L. is prepared to have D. play Triple A hockey for the following season. Indeed, he does not want Ms. L. to discourage D. from doing so. Additionally, in a text message exchange on August 20, 2019, Ms. L. advises Mr. L. that “D. also moves on to the third phase of tryouts”, to which he responds: “Fantastic all around.” On August 22, 2019, Ms. L. informs Mr. L. by text message: “D. is officially a 67’s player”, to which Mr. L. responds: “glad he’s happy and proud. As am I.” Mr. L. submits he was put in an untenable position, in that he could only support D. once the unilateral decision was made. There is no doubt that Ms. L. ought to have discussed D. trying out for the 67’s in 2019 with Mr. L. and obtained his consent prior to registering him. She may, however, have reasonably believed that Mr. L. wanted D. to play Triple A hockey based on their exchange the previous season. Under the circumstances, it seems disingenuous for Mr. L. to suggest that he would not have been in favour of D. playing hockey at that level. I find that it is reasonable for Mr. L. to contribute his proportionate share to D.’s Triple A hockey expenses. This includes gear purchased for D. as Mr. L. has indicated he is willing to pay his share.

[18] Although Mr. L. makes a similar argument with respect to orthodontic expenses for D., namely that he was not consulted nor did he consent in advance, I find it is reasonable for the parents to pay their proportionate share as these are necessary expenses which fall within s. 7(1)(c) of the Federal Child Support Guidelines. D. is covered under Mr. L.’s health insurance plan with his employer. Mr. L. shall, therefore, submit all claims for orthodontic expenses to his insurer and reimburse Ms. L., who has paid for the service out-of-pocket, for the portion covered by his insurer. The parties shall then proportionally share in the amount not covered by insurance.

[19] The same goes for extra school fees, which fall under s. 7(1)(d) of the Federal Child Support Guidelines.

[20] Mr. L. shall also pay a proportionate share of the expense for basketball for E., mainly because he has also claimed expenses for E.’s basketball. However, I find that Mr. L. is not required to contribute towards the children’s Ultimate Frisbee expenses, for which Ms. L. registered them because they wanted “to try it out” for one season. Mr. L. was not in agreement with this expense and voiced his objection at the time.

[21] Mr. L. shall, therefore, be requited to pay to his proportionate share of the following to Ms. L:

• Basketball - $1,433
• Hockey - $12,626.38
• Camp - $545
• School fees - $605
• Medical/Dental - $4,345 (or the portion thereof not covered by his insurance)

[22] Ms. L. has not broken them down by year in her written submissions but will be required to do so for the purposes of my order so that the appropriate percentage of proportional contributions can be applied to them.

Retroactive Section 7/Extraordinary Expenses Claimed by Mr. L.

[23] Mr. L. submits that he has made the following payments on behalf of the children to which Ms. L. should be required to pay her proportionate share:

• School expenses of $617.50
• Hockey/Lacrosse expenses of $5,143.50
• Various MasterCard and Visa expenses of $3,966.37

[24] Ms. L. submits that there are several expenses claimed by Mr. L. which she agrees are proper s.7 expenses to which she should contribute her proportionate share, but several are not. She disputes claims for popcorn ($5.25 x 2), Booster Juice ($28.50 x 2) and a trip to Calypso ($25.00), all through school. She also disputes that credit card receipts presented by Mr. L. support that purchases made by him qualify as s. 7 expenses. Nor, she submits can Mr. L. submit more receipts as part of his written submissions than were entered into the trial. On this latter point, Ms. L. is correct. For the purposes of the trial, Mr. L. provided receipts for claimed s. 7 expenses at Tab 13 of the Respondent’s Documents on the Sync drive. He is limited to addressing those expense. Given, however, that Ms. L. has included hotel costs for hockey tournaments in her claimed expenses, though not food and transportation, I will permit Mr. L. to also claim hotel costs for hockey tournaments. These include a charge for the Courtyard Marriott in Kingston dated April 24, 2017 for $328.22, a charge for the Holiday Inn Express in North York dated April 30, 2017 for $369.51, and a charge for the Holiday Inn Ex Waterloo dated October 22, 2017 for $539.01.

[25] The other claims agreed to by Ms. L. include school fees, hockey and basketball and are clearly s.7 expenses. In 2017, they total $3,165. In 2018, they total $2,998.50. However, she appears to have missed one additional payment of $205 for hockey paid by Mr. L. in 2018. I would also include the trip to Calypso as a school trip in 2017.

[26] Thus, the sum paid for by Mr. L. that I find shall be proportionally shared in 2017 is $4,426.74 and in 2018 is $3,203.50.

Retroactive Child Support

[27] Child support shall be calculated based on the incomes found at paragraphs 11 and 12 above and, for reasons given below, shall commence as of June 1, 2018.

Mr. L.’s Claims Expenses Relating to the Matrimonial Home

[28] Mr. L. seeks to be recompensated for post-separation expenses related to the matrimonial home, including mortgage, insurance, property tax and HELOC expenses, as well as expenses for repairs. He submits that Ms. L. owes his one half of those expenses from March of 2017 (though Ms. L. did move out until on or about April 22, 2012) until the sale of the home on May 18, 2018. He is seeking a payment from her of $17,111.06.

[29] Ms. L.’s position is that the property issues were settled by virtue of the Partial Separation Agreement entered into on December 21, 2018, which provided for an equalization payment of $93,763.02 to be paid to Ms. L. by Mr. L. The agreement acknowledged that the net proceeds of the sale of the matrimonial home were being held in trust and it provided for them to be paid out. At paragraph 2.6 of the agreement, the equalization payment was noted to be “in full satisfaction of the equalization of net family property”, but for Mr. L.’s pension, which is dealt with later in the agreement. Paragraph 4 provides releases; paragraph 4.1 (a) provides:

4.1 In consideration of and on completion of our mutual obligations in this Agreement, and except as otherwise provided in this Agreement, we:

(a) Release each other from all claims either of us may have against the other now or in the future under the terms of any statute, in equity or the common law, including all claims under the Divorce Act, the Family Law Act, and the Succession Law Reform Act, for:

(i) Possession of property; (ii) Ownership of property; (iii) Division of property; (iv) Compensation for contributions to property; (v) Monetary or proprietary remedies for unjust enrichment including claims where there is a joint family venture; (vi) Claims in trust, including any claims to a constructive or resulting trust; and (vii) An equalization payment. (Emphasis added).

[30] Nowhere is it “otherwise provided in this Agreement” for Mr. L.’s contributions to the matrimonial home between separation and its sale to be addressed in a separate venue. In fact, “compensation for contributions to property” specifically forms part of the release. Mr. L. argues that: “A release relating to the contribution to property, is intended to address and preclude one from making a constructive trust claim in relation to property in the other’s name; it was not intended to address the issue of reimbursement for payment of all of the expenses related to the matrimonial home.” Mr. L. submits further that it was their mutual intention to deal with the issue of his contributions to the matrimonial home expenses at a latter date based on Ms. L. stating in paragraph 8 of her affidavit sworn on June 29, 2019: “We were able to resolve property issues and we did sign a partial separation agreement in 2018. The respondent is correct, I am not in agreement with the releasing the balance of the money in trust from the sale, as there are financial issues with remain unresolved in the litigation, including my claim for retroactive child support and spousal support, and the respondent’s claim for household expenses.” This, in my view, does not establish mutual intention about the meaning of the Partial Separation Agreement, though it does acknowledge that Mr. L. is still making a claim several months after the agreement was signed.

[31] Notwithstanding that Ms. L. made no contributions to the matrimonial home between separation and its’ sale, she received (or is entitled to receive) one half of the proceeds of the sale. Ms. L. submits that the time to have dealt with this issue was in December of 2018 in the context of equalization and the Partial Separation Agreement. I agree. The plain wording of paragraph 4.1 of the agreement precludes me from dealing with the issue at this stage. However, to prevent an inequity where Ms. L. receives the full benefit of her one-half interest in the matrimonial home (as well as the parties’ condo property) while paying none of the expenses related thereto from April of 2017 to May of 2018, and where Mr. L. carried those expenses to the benefit of Ms. L., I am going to order that no retroactive child support be payable prior to June 1, 2018.

Dr. Worenklein

[32] Mr. L. claims that Ms. L. owes him one half of the sum for Dr. Worenklein’s assessment not covered by his insurance of $935.76, (one half being $467.88), and Ms. L. is requesting that Mr. L. be required to pay the outstanding balance of $1,437 for Dr. Worenklein’s attendance at court. Given the parties agreed to the assessment Ms. L. shall pay one half of the remaining $467.88, for the assessment. Given that Ms. L. has paid the bulk of Dr. Worenklein’s attendance fee for trial, Mr. L. shall be required to pay the outstanding balance of $1,437.

Order

[33] There shall be a final order as follows:

1. The parties are to calculate their respective proportionate shares of s.7/extraordinary expenses on the approved expenses and incomes as set out above;
2. For clarity, Ms. L. shall be entitled to receive a proportionate share from Mr. L. for approved expenses (as outlined above) that she paid in 2017 on an annual income for Ms. L of $47,356 and an annual income for Mr. L. of $131,603;
3. Ms. L. shall be entitled to receive a proportionate share from Mr. L. for approved expenses (as outlined above) that she paid in 2018 on an annual income for Ms. L. of $50,440 and an annual income for Mr. L. of $133,266;
4. Ms. L. shall be entitled to receive a proportionate share from Mr. L. for approved expenses (as outlined above) that she paid in 2019 on an annual income for Ms. L. of $50,440 and an annual income for Mr. L. of $134,726;
5. Ms. L. shall be entitled to receive a proportionate share from Mr. L. for approved expenses (as outlined above) that she paid in 2020 on an annual income for Ms. L. of $52,607 and an annual income for Mr. L. of $134,726;
6. Mr. L. shall be entitled to receive a proportionate share from Ms. L for the $4,426.74 in expenses he paid in 2017 on an annual income for Ms. L. of $47,356 and an annual income for Mr. L. of $131,603;
7. Mr. L. shall be entitled to receive a proportionate share from Ms. L for the $4,426.74 in expenses he paid in 2018 on an annual income for Ms. L. of $50,440 and an annual income for Mr. L. of $133,266;
8. Commencing June 1, 2018, the parties shall pay set-off child support an annual income for Ms. L. of $50,440 and an annual income for Mr. L. of $133,266;
9. Commencing January 1, 2019, the parties shall pay set-off child support an annual income for Ms. L. of $50,440 and an annual income for Mr. L. of $134,726;
10. Commencing January 1, 2020, the parties shall pay set-off child support an annual income for Ms. L. of $52,607 and an annual income for Mr. L. of $134,726;
11. Mr. L. shall receive credit for any sums paid for child support from May 1, 2017 to December 31, 2020, and adjustments made accordingly;
12. The remaining sum of $30,000 of the lump sum payment of $50,000 made pursuant to their December 1, 2020 agreement and being held in trust shall be immediately released to Ms. L. As per their agreement, commencing January 1, 2021, Ms. L. shall be deemed to receive $700 per month for the purposes of calculating child support and sharing s.7 expenses for a period of ten years and two months therefrom;.
13. Mr. L. shall pay Dr. Worenklein $1,437 for the outstanding balance from his attendance at the 2020 trial; and,
14. Ms. L. shall pay to Mr. L. $467.88 for her share of the outstanding balance on Dr. Worenklein’s assessment.

[34] If the parties are unable to agree on a draft order approved as to form and content, after having completed DivorceMate calculations as set out above, an appearance before me can be arranged through the office of the Trial Coordinator.

Costs

[35] The parties were to provide their submissions on costs for the trial by the end of May 2021. As noted, the parties resolved the issue of parenting and only the financial issues as outlined above remained to be dealt with by the court, along with the issue of costs to that point. As indicated, the trial settled on its’ sixth day out of a scheduled ten.

[36] Mr. L. has submitted that because, in his view, Ms. L. failed to uphold the Minutes of Settlement of December 7, 2020, significant costs should be ordered against her. He appears to be seeking an order of costs on a full recovery basis in the amount of $112,677.38, including HST and disbursements. He has submitted a Bill of Costs from his counsel which covers the period of October 18, 2017 to December 7, 2020.

[37] However, in my endorsement of December 11, 2020, I set out a process to follow if the reunification counselling either did not proceed or was not successful. Mr. L. followed that process, and the issue of costs on his Motion to Change are distinct from those of the November/December 2020 trial.

[38] Ms. L. submits that Mr. L. pay her $80,000 in costs, as well as $6,543.45 for HST and disbursements. She submits that Mr. L. was unreasonable by not agreeing to reunification counselling for the children prior to trial.

The Law

[39] The Ontario Court of Appeal has held that the Family Law Rules on costs are “designed to foster three fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement, and; (3) to discourage and sanction inappropriate behaviour by litigants.” [9]

[40] Rule 24(12) of the Rules sets out a list of factors the court shall consider in determining an appropriate amount of costs, including that there be reasonableness and proportionality in any costs award. [10] Factors to be considered include each parties’ behaviour, their time spent, any offers to settle, legal fees, expert witness fees and any other properly paid expenses. [11] Rule 18(14) provides that there are cost consequences to not accepting an offer if the criteria in that rule are met. [12]

Analysis

[41] In terms of the conduct of the trial, both parties acted reasonably.

[42] Ms. L. served formal Offers to Settle dated February 22, 2018 and November 18, 2020, with the latter pertaining to the issue of spousal support. She also included offers in her Settlement Conference Brief dated February 8, 2019 and Trial Management Conference brief for November 13, 2020 and made an informal offer by email dated October 3, 2019. I am not considering the February 8, 2019 or November 13, 2020 offers, as they do not seem to have been served as separate formal offers.

[43] Mr. L. served a Former Offer to Settle dated May 25, 2018.

[44] Regarding parenting, both parties’ early offers were for shared custody (decision-making authority) and equal parenting time (week on/week off, as they were then exercising).

[45] There appears to have been no formal or informal written offer for the parties to participate in reunification counselling with a local counsellor in the months leading up to the commencement of the trial, which is what they ultimately settled on. However, Mr. L. brought a motion scheduled for August 5, 2019 seeking a temporary order for precisely that relief. [13] Indeed, in it he requested: “An order that the parties shall retain Dr. Adrienne Matheson (or, if she is unavailable, then one of her associates), or another mutually agreeable therapist to conduct individual and confidential therapeutic counselling with both children, with the goal of repairing the children’s relationship with their father. The parties (either separately or jointly) shall participate in the therapeutic process as recommended by the therapist.”

[46] Ms. L. was aware from their interactions with Ms. Mahler that the children were not interested in engaging with Mr. L. at that point. She was, thus, likely between a rock and a hard place in terms of consenting to such an order, fearing that reunification counselling was either counter-indicated or would not be successful. However, had she consented to same, whether successful or not, a further 15 months of litigation may have been avoided.

[47] Instead, the parties consented to an order for an assessment and settled on Dr. Worenklein. Once Dr. Worenklein made the recommendation for the family to participate in the Family Bridges program in his report of March 23, 2020, that became Mr. L.’s focus. He cannot be faulted for seeking that result when Ms. L. was unwilling to consent to something less. Once that became his focus, however, in the absence of a written offer to settle for reunification counselling, Ms. L. can equally not be faulted for proceeding to trial to oppose it. In the circumstances, I am of the view that full recovery costs of Mr. L. should be born by Ms. L. from the preparation of his August 2019 motion to the release of Dr. Worenklein’s March 2020 report. The parties must otherwise carry their own costs on the parenting issues.

[48] Mr. L.’s counsel billed him for 38.05 hours of his time and .35 hours of law clerk’s time over that period, none of which I find unreasonable. At $400 per hour for Mr. Pantalone, that amounts to $15,220 and at $150 per hour for his law clerk, that amounts to $52.20, for a total of $15,272.20 in legal fees. When HST of $1,985 is added thereto, the amount totals $17,272.20.

[49] On the financial issues, there was mixed success. Ms. L. was successful in obtaining an order for Mr. L. to contribute to most of the s. 7 expenses she set out, including for D.’s Triple A hockey, which was by far the costliest. However, Mr. L. was successful in having income imputed to Ms. L. for support purposes, and in obtaining a proportionate contribution from her for certain s. 7 expenses he paid. I also ordered that no retroactive child support would be payable prior to June 1, 2018.

[50] The outcome of the trial on the financial issues is less favourable to Mr. L. than his Offer to Settle dated May 25, 2018. It is as or more favourable to Ms. L. than her Offer to Settle dated February 22, 2018, in that although no child support is payable for 2017 and income is imputed to Ms. L. in the trial outcome, Ms. L. was proposing a reduced income of $125,000 for Mr. L. for 2018, and for child support and section 7 expenses to be proportional in accordance therewith. Moreover, in her October 3, 2019 informal offer, which may be considered pursuant to Rule 18(14) of the Family Law Rules, Ms. L. proposed that her annual income be deemed to be $50,709 or her actual income, whichever was greater, for support purposes for 2019 and onwards, which is higher that the income I imputed to her for 2019.

[51] I find that as the more successful party on the financial issues, Ms. L. is also entitled to some of her costs being born by Mr. L.

[52] The major issues in the trial was that of parenting. Indeed, while evidence was led and/or filed for the outstanding financial issues, submissions were agreed to be in writing. In reviewing the Bills of Costs for both Ms. L. and Mr. L’ counsel, the financial issues were often intertwined with the parenting issues, and it is difficult to determine whether time spent by each counsel on those issues was reasonable. However, I calculate that approximately one third of their overall time should be dedicated to the issues of child support, s. 7 and other expenses.

[53] Additionally, given the mixed success on the financial issues, I would order costs on a partial recovery basis only.

[54] Mr. L. submits that he cannot afford to pay Ms. L.’s costs in that he has had to continuously litigate since November of 2018 to regain a relationship with his children. Be that as it may, he did not need to continuously litigate on the financial issues, particularly on child support and section 7 expenses, when favourable offers were made to him. While financial restraints may be taken into consideration in setting the quantum of costs payable, they do not detract from liability for same.

[55] Partial recovery costs for one third of a bill of $80,000 in legal fees is approximately $16,000. When HST of $2,080 plus disbursements of $2,181.15 ($6,543.45/3) are added in, the total becomes $20,261.15. From that, I deduct $17,272.20, and find that Mr. L. shall pay costs of $2,988.95 to Ms. L. for the November 20 to December 7, 2020 trial, which amount may be deducted from the $30,000 immediately payable to Ms. L. pursuant to paragraph 33, item #12 above.

Justice Engelking

Date: February 11, 2022

COURT FILE NO.: FC-17-2493 DATE: 2022/02/11 ONTARIO SUPERIOR COURT OF JUSTICE RE: J. L., Applicant AND D. L., Respondent BEFORE: Justice Engelking COUNSEL: Kellie Stewart, for the Applicant Jack Pantalone, for the Respondent REASONS FOR DECISION Engelking J.

Released: February 11, 2022

[1] Trial Exhibit #3, 2017 ITR for Ms. L. [2] Trial Exhibit #4, 2018 Notice of Assessment for Ms. L. [3] Trial Exhibit #5, 2019 Notice of Assessment for Ms. L. [4] Trial Exhibit $6. October 19, 2020 Letter from M. Cherun [5] 2017 ITR of Mr. L., Respondent’s Document #30 [6] 2018 Income Tax Return Information of Mr. L, Respondent’s Document #31 [7] 2019 Income Tax Return Information of Mr. L., Respondent’s Document #32 [8] Trial Record, Part I, Tab 7 [9] Mattina v. Mattina, 2018 ONCA 867, paragraph 10 [10] Rule 24(12), Family Law Rules, O.Reg. 114/99, as am. [11] Ibid. [12] A party is entitled to costs on a full recovery basis if the offer was made at least one day before the motion, did not expire or was not withdrawn, is not accepted and the order made is as or more favorable than the offer. [13] Trial Exhibit #42, Respondent’s Notice of Motion dated June 19, 2019