Millette v. Reid, 2012 ONCJ 389

COURT FILE No.: Goderich 118-2011 DATE: 2012·05·17 Citation: Millette v. Reid , 2012 ONCJ 389 ONTARIO COURT OF JUSTICE BETWEEN: Robert Florente Millette Applicant — AND — Kimberly Jean Reid (Crawford) Respondent Before Justice Brophy After written submission with respect to costs Reasons for Ruling on Costs released on 17 May 2012 A. Paul Parlee ........................................................................................................ for the applicant Jennifer M.

McMillan .......................................................................................... for the respondent Brophy J.: [ 1 ] The Applicant seeks costs with respect to this Motion to Change. Counsel for the Applicant has provided a Bill of Costs that contains the details of his client’s costs. BACKGROUND [ 2 ] The Motion to Change was brought by the Applicant on 26 October 2011 to terminate his child support payments that arose out of a Separation Agreement dated 24 September 1999.

His argument was that the child for whom the support owing had reached the age of 18 and was not in school. [ 3 ] The support obligation for the child was $450.00 per month and had not changed since the signing of the Agreement. The Respondent never made any inquiries about changes in the Applicant’s income and had never sought a variation. Equally the Applicant never volunteered any fresh information. [ 4 ] The Respondent filed a Response to the Motion to Change asking for disclosure of financial information and prospective and retroactive child support.

The basis for these claims was firstly that the child intended to go on to post secondary education and support therefore should continue and secondly that the Respondent had not requested updated financial information from time to time out of fear of the Applicant. [ 5 ] It was also advanced by the Respondent that the child had been admitted to university commencing the fall of 2011 and had deferred attending so that she could work for a year and save money for her education and planned to attend in the fall of 2012. [ 6 ] A Case Conference was held on 3 January 2012 and a Settlement Conference was scheduled for 22 June 2012.

A Financial Statement by the Applicant was then filed on 24 January 2012. [ 7 ] On 31 January 2012 the parties consented to an interim without prejudice Order suspending the child support payments. [ 8 ] The Respondent asserts that on that same date, 31 January 2012, the child moved out of her mother’s home. Whatever the reason for this decision, it motivated the Respondent to instruct her counsel to serve and file a Notice of Withdrawal of her Response on 3 February 2012.

It would appear that the Respondent decided that it was no longer reasonable to press her claims. [ 9 ] A Final Order was made on consent on 27 March 2012 terminating the child support. Costs were reserved. The parties provided written submissions with respect to costs on 24 April 2012. [ 10 ] No information has been given to the court with respect to any Offers to Settle. COSTS

[ 11 ] Rule 24 of the Family Law Rules governs costs in a matter of this nature. [i] [ 12 ] In this case the Applicant has been wholly successful and is presumptively entitled to costs in accordance with Rule 24(1). Further the Applicant has not behaved in an unreasonable manner as contemplated in Rule 24(4) and therefore has not disqualified himself from costs. [ 13 ] It should be noted that the Applicant seeks costs on a partial indemnity basis. This is in effect an acknowledgment by the Applicant that the Respondent has not acted in bad faith. See Rule 24(8). [ 14 ] Rule 24(10) directs that costs are to be decided in a

summary manner after each step. In this case there were four steps taken. The first appearance was on 29 November 2011. The Applicant did not appear and counsel of the Respondent acted as agent for both sides. Leave was given to the Respondent to file her Response that had been served on 23 November 2011 and a Case Conference date was set for 3 January 2012. This appearance was not substantive and was done efficiently and cooperatively and no costs were ordered with respect to same. The second step was the Case Conference. Both counsel appeared.

The issues were discussed and the matter was set for a Settlement Conference. Neither party gained a victory that day. No costs were ordered. Then on 31 January 2012 a consent Order was made suspending child support. No one appeared. No costs were ordered. Finally on 27 March 2012 on consent a Final Order was made terminating child support. Again no one appeared and no order was made for costs. [ 15 ] This history does not mean that there should be no costs in this proceeding. The over arching question is still the same.

Should the Respondent have to pay some costs in that she failed in the action, even though a parsing of the individual steps results reveals no costs being ordered as the case progressed? [ 16 ] In my view costs is remains a live issue. The case involved more than the minor court appearances. The case was larger than the individual steps taken in court. There were actions the parties took outside of the courtroom that had consequences. [ 17 ] The core question is did the Applicant have to go to court to accomplish his goal. The answer is yes.

Without an agreement by the Respondent he could not make any change in his child support obligations. As a result it was perfectly reasonable for him to bring the Motion to Change. He was then met with a firm Response that argued that not only should he continue to pay support but that he should also pay retroactive support. Ultimately the Respondent backed down and withdrew her Response. In sum the Applicant had to bring the Motion to Change and then had to deal with it as a contested matter, albeit for a short period of time. [ 18 ] In my view clearly costs are appropriate.

The question is what should the quantum be? FACTORS [ 19 ] Rule 24(11) directs the court to a number of factors that merit consideration. They are as follows: [ 20 ] Importance, complexity, difficulty – The matter was important but not complex or difficult. The issues concerning the termination of child support and post secondary school expenses are well known and there is ample guidance in the case law. Further it is noted that in the Bill of Costs and submissions the Applicant states that a Motion for

Summary Judgment was prepared but not served. This was premature particularly in light of the consent Order to suspend the payment of child support. It also lends support to the idea that this was not a complex matter. If the Applicant thought a Motion for

Summary Judgment would be successful it illustrates that the law and facts were straightforward and the result predictable. Any time spent on a Motion for

Summary Judgment that was not in fact served is not compensable. [ 21 ] Reasonableness – The parties all acted reasonably. The Respondent thought she should maintain a claim for child support because she thought the child wanted to continue in school and remain at home. When the facts changed she immediately abandoned her claim. As for the claim for retroactive support, I accept that as a reasonable tactical position to advance.

Although it may not have been successful on its own it kept the issue in play. [ 22 ] Rates – The hourly rate for counsel for the Applicant is extremely high at $320.00, notwithstanding his seniority. The hourly rate for his articling student is also excessive, aside from the question as to whether the student should have been engaged in the matter to the extent claimed. [ 23 ] Time properly spent – The amount of time spent on this matter was excessive. There was only one court appearance by counsel. The issues were not complex and the fact situation was not complicated.

Counsel indicates that he spent 10.31 hours on the matter. His law clerk staff spent a total of 9.35 hours and his articling student spent 29.65 hours. This totals 49.31 hours. This is far too much. [ 24 ] Disbursements – These seem in order with respect to copies and other miscellaneous expenses. CONCLUSION [ 25 ] In my view the costs should be calculated in the following manner. There properly should be a counsel fee for 10.31 hours at $250.00 per hour totalling $2,577.50. The non clerk disbursements at $579.67 are in order.

There should also be an allowance for clerk time for 9.35 hours at $60.00 per hour for $561.00. Lastly the student time bears some recognition and I assess it at five hours at $100.00 per hour for $500.00. This totals $4,198.17. HST on the total is $545.76. The grand total is therefore is $4,743.93. [ 26 ] That number would represent full indemnity. In this case partial indemnity is fair and reasonable. One half of the full amount is the proper level of costs. [ 27 ] I have considered the means and circumstances of the Respondent and the facts that conspired against her with respect to proceeding with the case.

The change in plans was unfortunate but the responsibility for that cannot be laid at the feet of the Applicant. This was her misfortune. As for her personal financial circumstances, as they are expressed by her counsel, they are not of such an

extreme nature that they excuse responsibility for the costs in this case. [ 28 ] The court therefore Orders that the Respondent shall pay costs the Applicant forthwith in the amount of $2,371.96 inclusive of HST. Released: 17 May 2012. Signed: “Justice Brophy” [i] The Applicant references Rule 57.01(1) as the applicable rule. This is a reference to the Rules of Civil Procedure as opposed to the Family Law Rules. Although Rule 57.01(1) provides some useful guidance, Rule 24 of the Family Law Rules is a complete code related to costs in family law matters.