Anita Marie Simoneau v. Shawn Jason Kennedy, 2015 ONCJ 792

Court File and Parties

Ontario Court of Justice

Date: 2015-12-21

Court File No.: Belleville Ontario 98/14

Between:

Anita Marie Simoneau Applicant

— And —

Shawn Jason Kennedy Respondent

Before: Justice W. Malcolm

Reasons for Judgment released on: November 30, 2015

Costs decision released on: December 21, 2015

Counsel

Jeffery Van de Kleut counsel for the applicant(s)

Cheryl R. Lean counsel for the respondent(s)

Decision

Malcolm, J.:

1On November 30, 2015 I delivered a decision concerning the primary residence of the child of the parties. I ordered that the child reside in the primary care of her mother who lives in Ottawa. The father lives in Trenton. Both parties are in the military.

2The trial lasted three days and the costs submissions were made in writing. The mother asks for costs in the amount of $4000. The father asks that there be no costs or, if costs are awarded, that they be nominal.

3Rule 24(1) of The Family Law Rules provides that a successful party is entitled to the costs of a case. The mother was successful.

4There was no bad faith on the part of the mother or father and both acted reasonably. The father made a written offer to settle on November 11, 2014. The litigation commenced on March 14, 2014. The father's offer was that the mother would have custody of the child subject to reasonable access to the father. He also offered to pay child support in accordance with the child support guidelines.

5After the mother was accepted into the Armed Forces and started basic training in February 2015 the parties consented to an order of joint custody with the child being in the primary care of the father. The order was without prejudice and in consideration of the mother attending basic training. When the mother was subsequently posted to Ottawa in August 2015 the focus of the trial became mobility. The father did not make another offer to settle.

6The mother did not make a Rule 18 offer to settle but submits that the offer to settle made in her settlement conference brief should be considered as a formal offer. The date for the settlement conference was August 24, 2015. The offer made by the mother provided for joint custody of the child, primary residence to the mother, generous access to the father and no child support.

7However Rule 17(23) provides that no brief, evidence or statement made at the settlement conference is to be disclosed unless in an agreement reached at the settlement conference or an order. There is no exception to disclose offers to settle contained in a settlement conference brief. At para 44 of Entwistle v. MacArthur, 2007) 773, Justice Pazaratz confirmed that Rule 17(23) precludes a Judge from considering an offer to settle contained in a settlement conference brief. Further a stand alone offer to settle should have been made.

8The trial occurred in November 2015. The mother's legal fees from September to November were approximately $6000.

9Prior to the trial the parents had resolved the issue of parenting time during weekends and holidays.

10Mobility is a difficult issue for the court and parents. It is not unreasonable that the father who had his child with him while the mother was in basic training wanted the child to remain with him. Under Subsection (11) of Rule 24 I consider that the issue was important, complex and difficult, and had to be litigated.

11Costs orders serve many purposes including indemnity, controlling behavior by discouraging frivolous suits, and promoting and encouraging settlements as set out in paragraph 22 of the decision of Fong v. Chan. In this case the trial was not frivolous and settlement would have been difficult without a trial.

12In Van Rassel v. Van Rassel, 61 R.F.L.(6th) 364, paragraph 9, Mdm. Justice Mossip, after hearing a mobility case, considered the following in determining entitlement to costs:

1. The results and who was more successful
2. Offers to settle
3. Conduct of the parties
4. Reasonableness of costs claimed
5. Financial means of the unsuccessful party including the issue of the impact on the child to the paying party of a large costs order

13Although the mother was more successful at trial, because she did not make a formal offer to settle and given that the issue was so important to the parties, costs at a full recovery would be inappropriate.

14Costs are ordered to be paid by the father to the mother at $2500. The father has 6 months in which to pay unless the mother agrees in writing to an extension for time to pay.