



COURT OF APPEAL FOR ONTARIO

CITATION: Holman v.
    Holman, 2016 ONCA 67

DATE: 20160122

DOCKET: C58098

Hoy A.C.J.O., Simmons and Tulloch JJ.A.

BETWEEN

Carol Dianne Holman

Respondent (Appellant)

and

Bruce Holman

Applicant (Respondent)

Frances M. Wood and Marvin Kurz, for the appellant

Evelyn Huber and Joost K. Heersche, for the respondent

Heard: December 19, 2014

On appeal from the order of Justice Irving W. Andr
é
of the Superior Court of Justice, dated November
    22, 2013.

COSTS ENDORSEMENT

[1]

On July 28, 2015, this court released its appeal
    decision, allowing the appeal in part and recalculating the amounts of child
    and spousal support owing.  In the interests of expediency, the court viewed
    the record as sufficient to arrive at an appropriate result without the need to
    order a new trial, while permitting counsel to make further written submissions
    if necessary.  The court also permitted written submissions on costs if the
    parties were unable to agree.

[2]

The parties made further submissions on both
    issues.

(1)

Calculation of Child Support

[3]

Dealing first with the child support
    calculations, each party submitted a calculation correction relating to
    circumstantial details that were not previously clear to this court:  namely,
    that one of the children, K., was actually living at home with her mother for
    the 17 months during 2011-13, and that in 2011 the other daughter, P., had no
    s.7 expenses.

[4]

As we noted in footnote #4 of the original
    decision, we had to make an assumption about where K. was living during the
    relevant period.  Counsel for the father also concedes that K. was living with
    her mother during that time.  Accordingly, subject to a minor calculation error
    in the mothers submissions, we have no concerns about making the first requested
    correction.  Taking account of para. 41 of the trial judges reasons, we also
    accept the fathers submission in relation to P.s s.7 post-secondary expenses
    in 2011.  Accordingly, we accept the submissions of both parties for the corrections
    in relation to child support that affect paragraphs 48 to 50 and 55 of the
    appeal judgment.  These paragraphs are to be corrected as follows:

[48]
Given my conclusions
    above, and based on a 2009 income of $105,331, 2010 income of $121,791 and a
    2011 income of $120,075
3
, Mr. Holman's table child support
    obligations, as modified by the 2010 order, from June 1, 2010 to May 1, 2013
    should have been:

Based on 2009 income of $105,331:

June 1, 2010 to Aug. 31, 2010 (3 months): $1481/ month (2
    children) = $4443

Sept. 1, 2010 to Feb. 28, 2011 (6 months): $922/ month (1
    child, P.; K. away) = $5532

March 1, 2011 to May 31, 2011 (3 months): $1481/ month (2
    children) = $4443

Based on 2010 income of $121,791:

June 1, 2011 to Aug. 31, 2011 (3 months): $1682/ month (2
    children) = $5046

Sept. 1, 2011 to Dec. 31, 2011 (4 months): $1682/ month (2
    children) = $6728

Jan. 1, 2012 to Feb. 28, 2012 (2 months): $1052/month (1 child,
    K.; support for P. ended Dec. 31, 2011) = $2104

March 1, 2012 to May 21, 2012 (3 months): $1052/ month (1
    child, K.) = $3156

Based on 2011 income of $120,075:

June 1, 2012 to May 1, 2013 (11 months): $1038/ month (1 child,
    K.) = $11, 418

Adding all of the above equals a total table support sum for
    the months between June 1, 2010 and May 1, 2013 (35 months) of
$42,870.

[49]    In terms of s.7 expense payments, the 2010 consent
    order required Mr. Holman to pay $833/month for both children. This means that
    from June 1, 2010 to Dec. 31, 2010 (7 months) when he was required to pay
    support for both children, he should have paid $833 x 7 months = $5831. Once
    his s.7 obligation for P. ended, I conclude that the motion judge appropriately
    reduced the $833/month in s.7 expenses by half to $416.50/month. For Jan, 1, 2011
    to May 1, 2013 (28 months) this amounts to $416.50/month x 28 months = $11,662,
    for a total of $11,662 + $5,831 = $17,493. Taking into account the $8,000
    credited to Mr. Holman for K.'s contribution to her own s.7 expenses above,
    this reduces the s.7 payment amount to $17,493 - $8,000 =
$9,493
.

[50]    This brings the total table and
    s. 7 support amounts that Mr. Holman should have paid under the 2010 consent
    order from June 1, 2010 to May 1, 2013 to $42,870 in table support plus $9,493
    in s. 7 expenses = $52,363.



[55]    I would allow the appeal in part. I would delete
    paragraph 4 of the November 22, 2013 Order and replace it with the following:
    Ms. Holman shall pay Mr. Holman $30,792 on account of child support which Mr.
    Holman overpaid. Mr. Holman shall pay Ms. Holman $11,204 on account of spousal
    support which he underpaid.

(2)

Costs at trial and on appeal

[5]

At trial, the father was awarded $22,000 in costs.  He submits that the
    costs awarded below should stand, given that the order of the court remains
    significantly more favourable to him than his offer to the mother.  The mother submits
    that the appeal decision significantly changed the support orders below such
    that there should be no costs below.

[6]

We reject the mothers submissions. In arriving
    at his costs award, the trial judge considered a number of factors, including:
    the complexity of the issues, the conduct of the parties, success achieved and
    the offers that had been made. The outcome of the appeal does not change the
    outcome below in a manner that affects the trial judges exercise of
    discretion.

[7]

On the eve of trial, the fathers offer stood as follows:  (1) the mother
    need not repay any child support amounts; (2) the father would pay the mother
    $1,250 per month in spousal support until he reaches age 65.

[8]

At trial, the father was awarded a repayment of $42,277 in child support
    less $1,990 on account of spousal support owing to the mother and spousal
    support was terminated.

[9]

On appeal, the mothers child support repayment was reduced to
$30,792 and the father was ordered to pay $11,204 on account of
    underpayments of spousal support.  The order terminating spousal support was
    upheld.

[10]

The offer the father made prior to trial remains considerably more
    generous than the result obtained by the mother.

[11]

The costs award made by the trial judge is
    affirmed.

Alexandra
    Hoy A.C.J.O.

"J.
    Simmons J.A."

"M.
    Tulloch J.A."


