) ) CHANTALE SABOURIN Applicant – v. –, 2013 ONSC 2644

CITATION : Sabourin v. Champagne, 2013 ONSC 2644 COURT FILE NO.: 09-1147 DATE: 2013-05-07 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) CHANTALE SABOURIN Applicant – and – KEVIN CHAMPAGNE Respondent ) ) ) ) ) ) ) ) ) ) ) ) ) Edward C. Castle, for the Applicant Eric Lavictoire, for the Respondent ) ) ) ) HEARD: Written submissions costs endorsement Kershman J. Introduction [ 1 ] The motion was brought by the Applicant (“Mother”) against the Respondent (“Father”) for certain relief. Certain matters were resolved on consent at the beginning of the motion. [ 2 ] On March 21, 2012, the Court made the following order:

a) The Father was ordered to pay $1,856.00 for child support commencing February 1, 2013 by way of post-dated cheques;

b) The Mother was ordered to pay the Father $200.00 per month for travelling expenses for his increased costs of access to a maximum of $2,400.00 per year;

c) The Father was ordered to pay the Mother $58,516.00 for child support arrears at the rate of $800.00 per month by way of post-dated cheques;

d) The Father was ordered to pay the Mother $100.00 per month toward the children’s s. 7 expenses;

e) The payment of child support, arrears of child support and s. 7 expenses were not to be enforced by the Family Responsibility Office but were to be paid directly to Mother. Provision was made that in the event of default, the payments could be enforced by the Family Responsibility Office;

f) The Father was to designate the Mother as the beneficiary in trust of his two life insurance policies as opposed to his mother. [ 3 ] The Mother made an Offer to Settle pursuant to Rule 18 of the Family Law Rules , O. Reg. 114/99. [ 4 ] The Father made two proposals by way of letter to settle the matter. The Court finds that these proposals are not Offers to Settle in accordance with Rule 18 of the Family Law Rules .

Factors [ 5 ] The factors to be considered when fixing costs are set out in Rule 24 of the Family Law Rules and include that the successful party is presumed to be entitled to costs, the reasonableness of the behaviour of each party, any offer to settle, any acts of bad faith by any party, the importance, complexity or difficulty of the matter, the scale of costs, hourly rates and time spent, and the reasonable expectations of the losing party. Success [ 6 ] The Mother was successful in obtaining a majority of the relief sought.

The Father was only successful in obtaining a set off for his increased costs of access up to $200 per month and not $656-$786.00 per month sought. In addition, the amount of s. 7 expenses was fixed at $10.00 per month lower than the amount requested by the Mother. As a result, the Court concludes that the success is that of the Mother.

Complexity and Importance [ 7 ] The matter was of average complexity and the issues were important to both parties. [ 8 ] As to the behaviour of the parties, the Father did not disclose his annual income until 2012 notwithstanding the order of Justice Duchesnau-McLachlin dated September 27, 2007 which required him to disclose his income annually and that child support be adjusted on June 1 of every year. The Father’s non-disclosure of his income and his non-adjustment of child support on an annual basis was unreasonable.

Scale of Costs and Offers to Settle [ 9 ] The monetary results on the motion were greater than the Offer to Settle dated October 19, 2012. The Court is satisfied that costs in this case should be on a substantial indemnity basis from the date of the Offer to Settle based on: 1. the non-disclosure of the Father’s income; 2. the very large amount of child support arrears (approximately $58,000); and 3. the Offer to Settle. Hourly Rate and Time Spent [ 10 ] Mr. Castle’s hourly rate of $300 per hour is reasonable based on his years of practice. The time spent should be reduced from 34.15 hours to 30 hours.

Costs should be on a partial indemnity basis from September 2, 2012 to October 18, 2012 and on a substantial indemnity basis thereafter. [ 11 ] Based on the Court’s calculations, the costs are assessed as follows: a) 9 hrs x $300.00 per hour x 0.6 = $1,620.00 (partial indemnity) b) 21 hrs x $300.00 per hour x 0.8 = $5,040.00 (substantial indemnity)

c) Total fees: $6,660.00

d) HST: $865.80

e) Total fees and HST : $7,525.80 [ 12 ] The disbursements are fixed at $211.59 inclusive of HST. Amount the Unsuccessful Party would Reasonably Expect to Pay [ 13 ] The Court is satisfied that the unsuccessful party would reasonably expect to pay the sum of $7,525.80 inclusive of HST together with $211.59 for disbursements including HST. Disposition

[ 14 ] Success on the motion was in favour of the Mother. [ 15 ] For the reasons set out above, the Mother is awarded costs fixed at $7,737.39 including disbursements and HST. [ 16 ] Of the amount for costs awarded above, the sum of $7,200.00 inclusive of HST and disbursements relates to child support. [ 17 ] Order accordingly. Kershman J. Released: 2013-05-07 CITATION : Sabourin v. Champagne, 2013 ONSC 2644 COURT FILE NO.: 09-1147 DATE: 2013-05-07 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: CHANTALE SABOURIN Applicant – and – KEVIN CHAMPAGNE Respondent Costs endosement Kershman J. Released: 2013-05-07