2013 ONSC 1649, 2013 ONSC 1649

CITATION : Abel v. Abel, 2013 ONSC 1649 KITCHENER COURT FILE NO.: 08-41444 DATE: 2013/03/18 SUPERIOR COURT OF JUSTICE - ONTARIO RE: CARMEN ANNETTE ABEL v. RODNEY JOHN LAWRENCE ABEL BEFORE: The Honourable Madam Justice W.L. MacPherson COUNSEL: J.

Mark Coffey, for the Applicant Lorrie Stojni, for the Respondent C O S T S E N D O R S E M E N T [ 1 ] The Applicant brought a Motion to Change a child support order made on July 10, 2009 to reflect changes in the income of the Respondent; the fact that child support was no longer payable for Andrew, a child residing with the Respondent; and that Matthew, the child residing with the Applicant, had commenced college in September 2011. [ 2 ] The Motion was heard as a long motion on February 1, 2013.

The Applicant was successful in that the child support was adjusted based on changes in the Respondent’s income and the end of the support obligation for Andrew; the Respondent was obligated to contribute toward Matthew’s post-secondary education expenses ($3,487 for Year 1; $2,492 for Year 2), with directions being provided as to the expenses to be contributed to on a pro rata basis for the third year of studies. [ 3 ] The Applicant claims partial indemnity fees to the date of an offer to settle (March 27, 2012) and substantial indemnity fees thereafter.

The total fees claimed were $11,070.05 inclusive of HST of $1,273.55 plus disbursements of $608.81 inclusive of HST of $69.35, for a total claim of $11,672.85. The account

summary showed a total of 54.36 hours being spent on the file, with the partial indemnity rate of $150 per hour and a substantial indemnity rate of $200 per hour. [ 4 ] The Respondent submits that there should be no order as to costs. This position is based on the Applicant’s failure to discuss the post-secondary education expenses in advance and that the amount claimed by the Applicant was excessive and she did not provide proper receipts.

The Respondent did submit three offers to settle, but it is clear from those offers that he continued to take the position that he had overpaid child support during Matthew’s high school year; he maintained the position that education funds should have been utilized (which had been in the control of the Applicant) and that he should not have to contribute toward the Year 1 expenses; and it was his position that the purchase of a vehicle and related expenses were neither reasonable nor necessary.

The Respondent failed to succeed on any of these arguments on the Motion, and it is not appropriate to attempt to re-argue the Motion in the cost submissions. [ 5 ] While I accept that the Applicant’s estimate of expenses for second year were higher than the final receipts submitted, it should have been abundantly clear that the Respondent would need to contribute more than the $763 he paid in first year and the $1,500 he paid in second year. The child was living with his mother in Kitchener and attending Mohawk College in Brantford, with no other feasible alternative for transportation.

The Respondent was not expected to contribute toward the purchase price of the vehicle, but only the gas, insurance, maintenance/repairs and parking during the school year. It was clear that the vehicle expenses were reasonable and necessary in the circumstances. [ 6 ] It had been agreed between the parties that Matthew was to contribute one-third of the post-secondary education expenses. The Respondent’s pro rata share of the remaining two-thirds of the expenses was less than $6,000.

Despite an income of more than $150,000, the Respondent opposed this and, as is apparent from the Bill of Costs submitted by his counsel, he has incurred legal fees and disbursement in excess of $9,000 to oppose this contribution to his son’s education expenses.

[7] Having reviewed the Bill of Costs submitted by the Applicant’s counsel, the costs claimed cannot be allowed. The Applicant’sclaims for the Year 2 expenses were more than the actual costs incurred. While the lawyer’s hourly rates were appropriate given thelength of time that her counsel has been in practice, this was not a complex case and certainly did not warrant more than 50 hours of timebeing spent. [8] In any event, a cost award is not simply a mechanical calculation of the time properly spent, but should reflect what is a fair andreasonable amount to be paid by an unsuccessful party. (Boucher v.

Public Accountants Council for Province of Ontario (2004) (ON CA), 71 O.R. (3d) 291 (On CA)). [9] I would also note that Rule 24 (10) makes it clear that costs should be dealt with at each step in a proceeding. This has beenconfirmed by the Court of Appeal in Islam v. Rahman 2007 ONCA 622 , [2007] O.J.

No. 3416 and as such, the amount claimedfor preparing and attending at the Case Conference and Settlement Conference cannot be included in any costs awarded. [10] After considering the circumstances of this case, that the Applicant is the successful party and is presumed to be entitled to costsand the factors set out in Rule 24 (11), the Respondent shall pay costs to the Applicant in the amount of $4,500 inclusive, with the coststo be paid within 60 days. ___________________________ MacPherson J. DATE: March 18, 2013 CITATION: Abel v. Abel, 2013 ONSC 1649 KITCHENER COURT FILE NO.: 08-41444 DATE: 2013/03/18

SUPERIOR COURT OF JUSTICE - ONTARIO RE: CARMEN ANNETTE ABEL v. RODNEY JOHN LAWRENCE ABEL BEFORE: The Honourable Madam Justice W.L. MacPherson COUNSEL: J. Mark Coffey, for the Applicant, Lorrie Stojni, for the Respondent, COSTS ENDORSEMENT MacPherson J. DATE: March 18, 2013