Boland v. Boland (No. 2), 2011 ONCJ 739

Cambridge Registry No. 09-3143 DATE: 2011·V·11 CITATION: Boland v. Boland (No. 2) , 2011 ONCJ 739 ONTARIO COURT OF JUSTICE BETWEEN: KIMBERLY ANN BOLAND, Applicant — AND — PHILIP WAYNE BOLAND, Respondent Before Justice Paddy A. Hardman Reasons for Judgment released on 11 May 2011 Application for costs Theresa L. Wilhelm ................................................................................... counsel for the applicant Brian R. Kelly ........................................................................................ counsel for the respondent [ 1 ] JUSTICE P.A.

HARDMAN:— In the original matter before the court, there was an application issued April 16, 2009 by the applicant mother seeking custody, an order allowing a permanent move to Newfoundland, access, child support, retroactive child support and other terms. On July 19, 2010 there was a final order on consent withdrawing her application for all claims except retroactive support and withdrawing completely the respondent father’s cross-claim for custody, access and support. [ 2 ] The trial regarding the outstanding support issues was held October 27, 2010 and submissions received November 26, 2010.

The decision was reserved. [ 3 ] On February 11, 2011, the court released its decision. A term of that order was that any party seeking costs must file submissions with proof of service within 30 days. A party seeking to respond was to do so with proof of service within 20 days of receipt of the submissions. The initial party had 10 days to serve and file any reply. [ 4 ] Counsel for the applicant made served cost submissions March 10, 2011. The respondent’s response was served March 29, 2011 and the applicant’s reply April 6, 2011.

APPLICANT’S POSITION [ 5 ] The applicant’s counsel has submitted a Bill of Costs covering the period March 4, 2009 to March 7, 2011. The amount being sought of $12,926.65 includes fees charged at a partial rate for the time period of March 4, 2009 to November 16, 2009 when an Offer to Settle was made by the applicant and full rate afterwards. A copy of the Offer to Settle dated November 17, 2009 which is signed by both the applicant and her counsel and was open until after the commencement of trial was filed with the submissions.

The applicant takes the position that she was fully successful on the matters at trial as she was awarded more than her Offer outlined. [ 6 ] The submissions note that the matter was complex, the issues important, and the conduct of the respondent unreasonable.

The applicant takes the position that: • the respondent failed to provide financial disclosure forcing the mother to bring an application • the respondent failed to acknowledge his obligation to pay child support in accordance with income • the respondent failed to promptly retain the handwriting expert despite the consent by the mother January 2010 • despite the applicant’s concession regarding the child support in 2005, the respondent insisted on calling the handwriting analyst at trial • the respondent never made an offer and he should have accepted the one made by the applicant November 17, 2009

RESPONDENT’S POSITION [ 7 ] The respondent’s submissions note that he was successful in defending the applicant’s application for sole custody in her attempt to move the children to Newfoundland.

He indicates that it was not until July 19, 2010 that that application was formally off the table. [ 8 ] While he does not challenge either counsel’s rates or the time spent on the matter, the respondent does not feel that the matter was complex or difficult although he agrees that it was important. [ 9 ] While he appears to concede that the mother was successful, he feels that the claim by the mother should be limited to the time period after the Offer being the amount of $10,000. [ 10 ] Essentially the respondent argues two issues: • at no time was there an agreement that there should not be any costs paid to the respondent for his necessary defence against the sole custody and moving of the child out of province- the part of the application that was withdrawn • it was necessary to call the handwriting evidence at trial because the applicant would not acknowledge that she had signed the receipts [ 11 ] Therefore the respondent seeks half of his $5304.45 legal costs of for the period of time from May 7, 2009 to August 14, 2009 as these costs were incurred while he was defending the applicant’s application for custody and moving.

Therefore respondent seeks to be credited with $2500 of his costs. [ 12 ] It also appears that he is seeking full reimbursement for the forensic analyst, the handwriting expert, although the figure identified in the submissions appears to be incorrect. According to the attached Forensic Examiners accounts, it would appear that the father was billed $3282.20 on October 22, 2010 and a further $3282.58 on November 1, 2010, a total of $6564.78. The mistake perhaps lies in the deduction of the father’s $1500 from the first account.

APPLICANT’S REPLY [ 13 ] The applicant submits that the cost of retaining of the expert outweighed the benefit given the small difference ultimately between the respective positions of the applicant and respondent for the year. She points out that the difference did not warrant the expenditure.

Further once the applicant was prepared to accept a figure for the arrears based on the receipts even though she could not remember signing them, calling the expert at trial became completely unnecessary. [ 14 ] Further, the father knew as of the settlement conference that the only issue for trial was child support arrears.

The applicant after hearing the justice’s view at the settlement conference, immediate abandoned the claims for sole custody and moving and the respondent was well aware of this fact which was confirmed in the subsequent trial management conference. [ 15 ] The applicant argues that if the respondent had been seeking costs regarding the withdrawn parts of the application, he should have done so at the time as costs are to be sought at each step.

DECISION [ 16 ] First it is clear that the applicant’s Offer to Settle complies completely with the requirements of Rule 18: • it was signed by the applicant and counsel • it was made at least seven days before the trial • it was open until a minute into the trial and did not expire nor was it withdrawn before the hearing started • the offer was not accepted • the applicant who made the offer obtained an order that was more favourable than the offer [ 17 ] Therefore according to Subrule 18(14) the applicant should be entitled to “costs to the date of the offer was served and full recovery of costs from that date forward”.

The costs of $12,926.65 being sought reflect the partial costs before the Offer and the full recovery after. [ 18 ] I also find that while the matter was not complex in a legal way, it certainly proved somewhat complicated in a mathematical sense given the changing parameters of earnings and child support guidelines. I also agree that the matter was important given the financial straits of the children and their best interests. [ 19 ] The first issue is the respondent’s costs up to the withdrawal of the part of the application.

While I cannot find the issued order in the Endorsement Record in the file, the endorsement from the trial management conference of July 19, 2010 records the withdrawal of part of the applicant’s application as well as the withdrawal of the respondent’s cross-claims. However, the court also made the following order:

[ 20 ] “Order: Costs regarding the withdrawn application may be considered by the trial judge.” [ 21 ] Given that the order was made in a conference without argument, I can only presume that it was made on consent. While it is true that costs should be asked at each step, in my view the respondent was asking for costs but was prepared to delay the submissions until trial and the applicant appears to have agreed to the adjournment. [ 22 ] Perhaps the real question is to what extent was the resolution of the matter delayed by the withdrawn claim?

It was made clear at least by November 16, 2009 in an earlier trial management conference that the only issue was retroactive support January 2005- May 2009 and yet despite the resolution of the other matters, the issue of child support arrears still ended up going to trial on October 27, 2010. Would the respondent’s costs have been any different had the applicant only sought guidelines child support and retroactive child support? Given the respondent’s failure to make an offer to settle, even in response to the applicant’s, it would appear that perhaps this matter was destined for trial regardless.

Had costs in this matter been argued back at the time of the withdrawal of parts of the application, the court at that time would have looked at whether there were legal costs related to those withdrawn issues being before the court. Without the settlement of the balance of the matters, those costs are hard to fix. Perhaps the legal work was a bit more complex requiring a bit more time with the lawyer but that would be the only impact. [ 23 ] As for the issue of the handwriting expert, it is true that the mother’s faulty memory caused the problem in the beginning.

Further, the expert did discuss the report with the applicant’s lawyer. Having said that, surely some kind of offer should have been made early on to take into account the receipted payments and maybe the applicant would have accepted it. Instead, the respondent insisted on calling the expert witness to trial presumably to try to prove that the applicant was not credible. However, one could not expect that the applicant under oath at trial should tell the court that she executed those receipts when she has no memory of doing so.

She simply accepted that given that evidence she should not continue to seek a retroactive variation based on her original position. In other words, before trial the applicant conceded that issue given the evidence and narrowed the issues for trial.

That was the appropriate thing to do. [ 24 ] As the expert opinion was no longer necessary to adjust the support arrears in the time period affected by the receipts due to the acceptance by the applicant of the respondent’s payments based on the receipts, it was not necessary or reasonable to call the expert at trial. [ 25 ] Therefore, the court is prepared to find: • the respondent should have a small portion of his legal costs in the defence of the issues eventually withdrawn fixed at $1500 • the respondent should have a portion of the costs of the initial account of the expert being the costs of obtaining the report (most of the costs in the second account were trial related) fixed at $1500 • the applicant should have her costs of partial indemnity before the Offer and full recovery after in the amount of $12,926.65 [ 26 ] Therefore the respondent would owe (12,926.65-3000) $9,926.65 in costs payable to the applicant. [ 27 ] Besides the requirements of Rules 18 and 24, it is also appropriate prior to any order that the court consider the circumstances of the respondent.

The Courts of Justice Act subsection 131(1) expects that a court will take into account the circumstances of any payor prior to making an order of costs in exercising its discretion. This is particularly significant when that same payor as in this case has a current obligation of child support as well as an order of child support arrears to meet. [ 28 ] Given the particular financial circumstances of the respondent, it would appear to me that the costs as set out should be ordered but perhaps in periodic payments to allow him to meet his other obligations. ORDER [ 29 ] Therefore, the court orders as follows: 1.

The respondent shall pay the sum of $9,926.65 to the applicant as costs in this matter as follows: $250/month commencing June 1, 2011 and first monthly thereafter. 2. Should the respondent fail to pay any of the monthly payments on time, the entire balance of the costs outstanding shall become immediately due and payable at the request of the applicant. Released: 11 May 2011 Justice Paddy A. Hardman