CITATION: Wylie v. Sheehan, 2013 ONSC 7367 COURT FILE NO.: 844-2012 DATE: 2013/11/28 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) CINDY WYLIE Applicant – and – ROBERT SHEEHAN Respondent ) ) ) ) ) ) ) ) ) Julie Audet , counsel for the ApplicantChristian Pilon, counsel for the Respondent ) ) ) HEARD: September 27th, 2013 RULING ON ISSUE OF COSTS LALIBERTE, J. Introduction [1] Having ruled on the merits of the applicant’s Motion to Change under Rule 15 of the Family Law Rules, the Court is nowasked to decide the issue of costs.

Both parties have filed written submissions coupled with their respective bill of costs. [2] Counsel for the applicant has provided a bill of costs totalling $11,164.13. Her position is that Ms. Wylie should be awardedher costs on a substantial indemnity basis. She is claiming an amount of $8,800.00. [3] The respondent has filed a bill of costs which totals $9,322.04. His view is that each party should bear their own costs. Inthe alternative, he argues that the applicant should be liable for costs on a partial indemnity basis.

He is requesting the sum of$4,995.39. [4] The end result is that these proceedings have collectively generated legal expenses in the amount of $20,486.17. The issuesfor the Court are: 1. Who is liable for these costs? 2. What is the quantum of liability, if any? The Law [5] A proper determination of costs in family law proceedings requires the Court to reflect on a myriad of factors. It is morethan a simple mathematical or mechanical exercise. (Boucher et al v. Public Accountants Council for the Province of Ontario (ON CA), [2004] O.J. No. 2634 (Ontario Court of Appeal).

As stated by the Ontario Court of Appeal in Somers v.Fournier (ON CA), [2002] O.J. No. 2543 at paragraph 17: “Thus, costs are both a discretionary indemnification device and a mechanism by which abuses of the Court’s processes may be deterredand penalized. Costs are routinely used by Ontario Courts to reward or sanction the conduct of parties prior to and during the litigationprocess…” [6] The fundamental purposes of costs rules have been identified as follows: 1. To partially indemnify successful litigants for the cost of litigation; 2. To encourage settlement;

3. To discourage and sanction inappropriate behaviour by litigants. Serra v. Serra 2009 ONCA 395 , [2009] O.J. No. 1905 (Ontario Court of Appeal) [7] The Court is bound to consider the framework set out in the Family Law Rules. While our Court of Appeal in C.A.M. v.D.M. (ON CA), [2003] O.J.

No. 3707 confirms a degree of discretion, “…It is apparent that the Family Law Ruleshave circumscribed the broad discretion…” which is granted to Judge’s under section 131(1) of the Courts of Justice Act. [8] The Family Law Rules which are relevant to this matter are as follows: Rule 2: - Court is required to apply rules to promote the primary objective which is to deal with cases justly - Parties and lawyers are required to help the Court promote this objective Rule 18: - The ramification of offers to settle made by a party Rule 24: - 24(1): The successful party is presumed entitled to costs. - 24(2): The presumption of entitlement based on success may be rebutted if successful party acted unreasonably. - 24(3): In deciding if a party acted unreasonably, Court considers: ➢ Behaviour in relation to issues from the time arose, including whether an offer to settle was made; ➢ Reasonableness of offer made; ➢ Any offer party withdrew or refused. - 24(6): Costs may be apportioned in accordance with success. - 24(8): Consequences of a party acting in bad faith. - 24(11): In setting the amount of costs to be paid by the party who is found to be liable, the Court must consider: ➢ The importance, complexity or difficulty of the issues; ➢ The reasonableness or unreasonableness of party’s behaviour; ➢ The lawyers’ rates; ➢ The time properly spent on the case; ➢ Expenses properly paid or payable; ➢ Any other relevant matter.

Discussion

A) Which party is liable for costs? [9] The successful party is presumptively entitled to costs under Family Law Rules 24(1).

Through their written submissions,both parties claim success. [10] The applicant’s position is that while not all of her requests were granted, the Court did order payment of $7,212.00 in arrearsof child support as well as monthly child support in the amount of $596.00 She also notes that the Court dismissed the respondent’sclaim for retroactive overpayment of child support. [11] In his written submissions, the respondent opines that by reason of the divided success, both parties having been successful onsome arguments and unsuccessful on others, each should bear their own costs.

In the alternative, he argues that he was more successfulsince the Court did not disrupt the various agreements between the parties since 2008. More importantly, the Court did not imputecorporate income as sought by the applicant. [12] On a purely mathematical accounting or measurement of what was claimed by the parties and what was ultimately granted bythe Court, devoid of any concept of what is just in the circumstances, success can certainly be seen as having been divided amongst theparties.

However, the principles are such that success is not limited to a comparison of what is sought in the pleadings and what isultimately decided by the Court. This is only one part of the equation. Proceedings must be analyzed in a context. [13] As noted by the Court in the October 10th, 2013 ruling, the parties had signed a separation agreement on March 20th, 2008. From 2008 to 2011, they agreed to vary the amount of child support. These changes reflected, in part, the fact that the children were

now in a shared custody setting. [14] In December 2011, the respondent unilaterally stopped paying child support. Attempts by the applicant to resolve this issuedirectly and through counsel proved futile. The respondent did not pay any child support from December, 2011 to February, 2013. Heresumed to pay only once legal proceedings were initiated by the applicant. The children were deprived from his support when in thecare of the applicant mother. There is no indication that he did not have the means to pay support.

His position was as stated in his e-mail of December, 2011: “I pay for them when they are here and you for them when they are there.” [15] It is also obvious to the Court that the respondent resisted the request for disclosure. He failed to respond to counsel’srequest. It is through litigation that he was compelled to provide disclosure of his personal and corporate financial situation. [16] The true measure of success in these proceedings is found in the applicant having successfully advocated for child support onbehalf of the children.

While the Court did not impute corporate income and did not re-visit the $400.00 without prejudice interim orderof February, 2013, the Court did order payment of arrears and found ongoing child support obligations. When looked at in the context ofthe respondent’s position as stated in the above-noted e-mail and his lack of cooperation, the Court’s decision is seen as beingsubstantially more favourable to the applicant. [17] Both parties failed to convince the Court to re-visit the period during which they were able to agree on how much childsupport was to be paid.

As stated by the Supreme Court of Canada in D.B.S. v. S.R.G. 2006 SCC 37 , [2006] S.C.J. No. 37: “…agreements reached by the parents should be given considerable weight…it is often unwise for Courts to disrupt the equilibriumachieved by the parents.” [18] Since both parties failed to convince the Court to re-visit how much was historically paid whether as overpayments orunderpayments, very little weight is given to this in terms of success for costs purposes. [19] As indicated in Serra v. Serra op. cit., the Court must consider the appropriateness of the litigants’ behaviour in deciding whois liable for costs.

Proper conduct will logically favour entitlement. Inappropriate conduct should be discouraged and sanctionedthrough costs. [20] The Court finds that the applicant acted properly in the circumstances. In fact, once she was told by the respondent that hewas not paying any child support as of December, 2011, the applicant was duty bound to act as she did in order to protect the children’sright to support. Not to have done so, would have amounted to a failure to fulfil her obligations towards her children. The SupremeCourt of Canada in D.B.S. v.

S.R.G. op. cit. explained that there is a duty to act on a recipient parent to preserve a child’s right tosupport from the other parent. At paragraph 103, the Court states the following: “The second important concern is that recipient parents not be encouraged to delay in seeking the appropriate amount of support for theirchildren.

From a child’s perspective, a retroactive award is a poor substitute for past obligations not met…Recipient parents must actpromptly and responsibly in monitoring the amount of child support paid…Absent a reasonable excuse, uncorrected deficiencies on thepart of the payor parent that are known to the recipient parent represent the failure of both parents to fulfil their obligations to theirchildren.” [21] The Court also finds that the respondent attempted to resolve the issue of child support. As already noted, there is arelationship between a litigant’s attempt at settlement and costs entitlement.

On balance, the Court finds that the applicant attempted toresolve the issue personally and then through counsel. The respondent did not respond to any attempts to avoid litigation. [22] The Court agrees with the respondent that the offer to settle of March 28th, 2013 that was served on the respondent does nottrigger rule 18(4) in terms of costs consequences. However, the court is taking into account this offer as provided for in rule 18(16). Itis an attempt at settlement which favours the applicant. [23] As already discussed, improper conduct by a litigant attracts costs consequences.

The Court finds that the respondent did notact properly in the circumstances. Specifically, this finding is based on the following considerations:

i) His decision to arbitrarily stop paying child support as of December, 2011, and not paying any support until compelledthrough litigation; as stated by the Ontario Court of Appeal in Tauber v. Tauber (ON CA), [2000] O.J. No. 2133 atparagraph 55: “…the first objective of the Child Support Guidelines is to establish “a fair standard of support for children that ensures that theycontinue to benefit from the financial means of both spouses after separation.

Where as here the custodial parent is required to pursuelitigation to vindicate that purpose, neither that parent nor the child should be penalized…ordinarily, the custodial parent should not bearthe cost of litigation that is for the benefit of the child.” ii) His lack of openness and cooperation in disclosing financial information; iii) There are no indications to suggest that the respondent attempted to settle the issue either pre or post litigation. [24] Therefore, the Court finds that the applicant is entitled to partial indemnification for costs stemming from this litigation to bepaid by the respondent.

B) How much should the Respondent pay? [25] As stated by the Ontario Court of Appeal in Serra v. Serra op. cit, an award for costs should reflect what the Court views is afair and reasonable amount that should be paid by the unsuccessful party. In deciding on the proper quantum, the Court has consideredthe following:

- This was an important issue as it involved child support; - The determination of income under

section 15 to 19 of the Child Support Guidelines is relatively complex; - The finding that the applicant acted reasonably; - The finding that the respondent did not act reasonably; - The respective bill of costs filed by both parties which appear reasonable; - The fact that the respondent did have some measure of success; - The fact that the respondent must pay $7,212.00 in retroactive child support for 2012 on or before April, 2014; - There is no evidence to suggest that the respondent is unable to pay costs. [ 26 ] The Court finds that a fair and reasonable amount is $6,500.00.

Conclusion [ 27 ] The Court orders that the respondent pay the applicant costs in the amount of $6,500.00 (all inclusive) and that this is to be paid on or before April 18 th , 2014. Justice Ronald M. Laliberte Jr. Released: November 28 th , 2013 CITATION : Wylie v. Sheehan, 2013 ONSC 7367 COURT FILE NO.: 844-2012 DATE: 2013/11/28

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: CINDY WYLIE Applicant – and – ROBERT SHEEHAN Respondent RULING ON ISSUE of COSTS Justice Ronald M. Laliberte Jr. Released: November 28 th , 2013