Ontario Court of Justice
Date: April 21, 2023 Court File No.: DFO-21-16296
Between:
Sirad Mohamoud Applicant
— AND —
Mohamed Farah Respondent
COSTS ENDORSEMENT
Counsel: Stephanie Okola, for the applicant Lenard Kotylo, for the respondent
Justice W. Kapurura:
Part One – Introduction
1On March 3rd, 2023, the court released its reasons for decision regarding a trial about the parenting and support arrangements for the parties’ 6-year-old son (the child). The court also made orders for relocation and spousal support. See Mohamoud v. Farah, 2023 ONCJ 103.
2The trial lasted six days.
3Both parties were legally represented.
4The parties were given the opportunity to make costs submissions.
5The applicant mother (the mother) seeks her costs of $30,860.87. Her request for these costs pertains to her trial preparation from January 5th, 2023, up to the preparation of her costs submissions on March 27th, 2023.
6She also seeks costs of $1,793.88 for an urgent motion for parenting time that was brought by the respondent father (the father) and heard by Justice S. O’Connell on November 10, 2022. Costs for the appearance were reserved by Justice S. O’Connell.
7The father seeks to have the mother’s request for costs dismissed. It is the father’s position that a trial was necessary to determine the issues.
Part Two – General costs principles
2.1 General costs principles
8The determination of costs is a two-stage process. First, the court must decide whether either party is liable to pay costs. Second, if liability for costs is established, the court must then determine the appropriate amount of the costs award. [1]
9Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended, provides that costs orders are in the discretion of the court.
10Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.
11The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 set out that modern costs rules are designed to foster four fundamental purposes:
(1) to partially indemnify successful litigants; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants and; (4) to ensure that cases are dealt with justly under subrule 2 (2) of the Family Law Rules (all references to the rules in this decision are to the Family Law Rules).
12While these four objectives provide a general framework for the analysis of costs, the court must also ensure that the law of costs does not become an impediment to the pursuit of justice. Accordingly, in seeking to advance these objectives, the court should also consider the importance of not unduly deterring potential litigants from pursuing legitimate claims for fear of overly burdensome costs consequences. See: Weber v. Weber, 2020 ONSC 6855 (Ont. S.C.J.) at para. 11.
13An award of costs is subject to the factors listed in subrule 24 (12), subrule 24 (4) pertaining to unreasonable conduct of a successful party, subrule 24 (8) pertaining to bad faith, subrule 18 (14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party. See: Berta v. Berta, 2015 ONCA 918, at paragraph 94.
2.2 Success
14Subrule 24(1) creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. See: Sims-Howarth v. Bilcliffe, [2000] O.J. No. 330 (SCJ- Family Court).
15To determine whether a party has been successful, the court should examine who was the successful party, based on the positions taken in the litigation. See: Lazare v. Heitner, 2018 ONSC 4861. The court may also take into account how the order compares to any settlement offers that were made. See: Lawson v. Lawson, [2008] O.J. No. 1978 (SCJ); Todor v. Todor, 2021 ONSC 3463.
16Subrule 24 (6) sets out that if success in a step in a case is divided, the court may apportion costs as appropriate.
17“Divided success” does not necessarily mean “equal success”. And “some success” may not be enough to impact on costs. It requires a comparative analysis. Most family cases have multiple issues. They are not equally important, time-consuming or expensive to determine. See: Jackson v. Mayerle, 2016 ONSC 1556 (Ont. S.C.J.), at para. 66.
18Where there are multiple issues before the court, the court should have regard to the dominant issue in determining success. See: Firth v. Allerton, [2013] O.J. No. 3992 (Ont. S.C.J.); Mondino v. Mondino, 2014 ONSC 1102 (Ont. S.C.J.).
19The determination of whether success was truly “divided” requires a contextual analysis that takes into consideration the importance of the issues that were litigated and the time and expense that were devoted to the issues that required adjudication. Most family cases have multiple issues. They are not equally important, time-consuming or expensive to determine. See: Kachra v. Skeaff, 2014 ONSC 2014, at para 19; Scipione v. Del Sordo, 2015 ONSC 5890, at para. 68.
2.3 Offers to settle and subrule 18(14)
20Subrule 18 (14) sets out the consequences of a party’s failure to accept an offer to settle that is as good as or better than the trial result of the person making the offer. It reads as follows:
COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER
18(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:
- If the offer relates to a motion, it is made at least one day before the motion date.
- If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
- The offer does not expire and is not withdrawn before the hearing starts.
- The offer is not accepted.
- The party who made the offer obtains an order that is as favourable as or more favourable than the offer.
21The onus of proving that the offer is as or more favourable than the trial result is on the person making the offer. See: Neilipovitz v. Neilipovitz, 2014 ONSC 4400.
22The court is not required to examine each term of the offer as compared to the terms of the order and weigh with microscopic precision the equivalence of the terms. What is required is a general assessment of the overall comparability of the offer as contrasted with the order. See: Wilson v Kovalev, 2016 ONSC 163.
23Close is not good enough to attract the costs consequences of 18 (14). The offer must be as good as or more favourable than the trial result. See: Gurley v. Gurley, 2013 ONCJ 482.
24Courts have discussed the value of severable offers. See: Lawson v. Lawson, 2004 O.J. No. 3206 (SCJ); Paranavitana v. Nanayakkara 2010 ONSC 2257 , [2010] O.J. No. 1566 (SCJ). In Lawson, Quinn J., wrote at paragraph 26:
26 I would discourage the making of all-or-nothing offers. The severable variety allows for the prospect that some of the outstanding issues might be settled, thereby reducing the length and expense of the motion or trial, as the case may be. All-or-nothing offers sometimes have a heavy-handed air about them and certainly they possess a much lower chance of being accepted than severable offers.
Part Three – Analysis
3.1 The parties’ offers to settle
25The mother sent an offer to settle to the father on January 13, 2023, ten days before the trial. The offer was not withdrawn prior to trial.
26The offer was as favourable or was more favourable to the father than the trial result on the following issues:
i. decision-making responsibility. ii. regular parenting time. iii. March break parenting time. iv. winter break parenting time. v. costs associated with the father’s exercise of his parenting time. vi. application for or renewal of the child’s official government-issued documents. vii. child support. viii. spousal support, and; ix. relocation.
27The mother’s offer was open until one minute after the commencement of the trial.
28The father did not respond to the mother’s offer to settle.
29The offer states that terms within parts I, IV, and V are not severable and must be accepted together. Given that the offer does not specifically prohibit severing any of the other terms or any of the parts for purposes of acceptance, the court will treat each part and the balance of the terms of the offer as severable.
30The father did not make an offer to settle.
31In her offer, the mother asked for sole decision-making responsibility. She offered that before making any major decisions, she would advise the father in writing, and consider his input (if any), prior to making the decision.
32The final order granted the mother sole decision-making responsibility. The final order does not require the mother to inform the father in advance, nor to consider his input on a decision. The mother’s offer regarding decision-making responsibility meets the requirements under subrule 18(14). She is presumptively entitled to full recovery of her costs on this issue and that presumption has not been rebutted. She will get full recovery of her costs on the issue of decision-making responsibility.
33The mother offered to relocate with the child to Ottawa. The final order granted her permission to relocate with the child to Ottawa. Her offer regarding relocation meets the requirements under subrule 18(14). She is presumptively entitled to full recovery of her costs. However, under subrule 18(14), the court has the discretion to “order otherwise”. In C.A.M v. D.M., it was held that even if the terms of subrule 18(14) are followed, the court still has the discretion not to order full recovery costs. The mother’s decision to relocate the child to Ottawa without the father’s consent or a court order was unreasonable. The mother was legally represented throughout this proceeding. She should have sought a temporary order for relocation instead of engaging in self-help tactics. The court will not award her costs on the relocation issue.
34On the issue of regular parenting time, the mother offered the father to have two weekends a month. On the first weekend of the month, he would have parenting time in Ottawa from Friday after school until Sunday at 5:00 p.m. On the second weekend of the month, he would see the child in Toronto from Friday after school until Sunday at 3:00 p.m., with the mother bringing the child to Toronto for the exchanges.
35The final order awarded the father parenting time with the child on alternate weekends from Friday evening or after school until Sunday at 4:00 p.m. The visits will alternate between Toronto and Ottawa. For visits in Toronto, the mother will be responsible for all transportation arrangements. The final order mirrors the terms of the mother’s offer. The mother’s offer regarding regular parenting time meets the requirements under subrule 18(14). She is presumptively entitled to full recovery of her costs on this issue and that presumption has not been rebutted. She will get full recovery of her costs for the regular parenting time issue.
36The mother offered to contribute to the costs associated with the father’s exercise of parenting time in Ottawa. She offered to pay him $120.00 per month.
37The final order provides that the mother shall be responsible for a train ticket (economy) for the father when he exercises his regular parenting time in Ottawa (for the return trip from Ottawa to Toronto). If the father decides to drive, the mother shall pay the father $120.00 for the trip. The mother’s offer meets the requirements under subrule 18(14). She is presumptively entitled to full recovery of her costs on this issue and that presumption has not been rebutted. She will get full recovery of her costs for the travel costs issue.
38The mother offered to alternate March break (spring break), on an annual basis, with one parent having the child during odd-numbered years, and the other parent having the child in even-numbered years. The final order made by the court mirrors the mother’s offer. The mother’s offer meets the requirements under subrule 18(14). She is presumptively entitled to full recovery of her costs on this issue and that presumption has not been rebutted. She will get full recovery of her costs on the issue of parenting time during March break.
39The mother offered the father to have parenting time with the child over the winter break (Christmas break), for one week, from the Monday after schools close to the following Monday at 5:00 p.m.
40The final order provides that the child shall spend equal time with the parents during the winter school break, with each parent spending half of the winter break with the child. Winter break is two weeks. The mother’s offer meets the requirements under subrule 18(14). She is presumptively entitled to full recovery of her costs on this issue and that presumption has not been rebutted. She will get full recovery of her costs on the issue of parenting time during winter school break.
41As per the mother’s offer, the father would pay support to the mother for one child of $246.00 per month, for the period April 1, 2021, to December 1, 2022, based on an imputed annual income of $28,884.00. She then offered that he pays monthly child support of $275.00 per month, commencing January 1st, 2023, and ongoing, based on an imputed annual income of $32,240.00.
42At trial, the father’s annual income was imputed at $35,000.00. He was ordered to pay the mother monthly child support for the child from April 1st, 2021, and ongoing, at the Guideline amount of $304.00 per month. The mother’s offer was better than what was awarded at trial. Her offer meets the requirements under subrule 18(14). She is presumptively entitled to full recovery of her costs on this issue and that presumption has not been rebutted. She will get full recovery of her costs for the child support costs issue.
43The mother offered to pay the father a lump sum spousal support amount of $16,368.00.
44At trial, the mother was ordered to pay the father spousal support of $423.00 each month, starting on April 1st, 2023, for a period of 10 months, after which time spousal support will terminate. The total spousal support amount pursuant to the final order is $4,230.00. The mother’s offer was better than the spousal support award at trial. Her offer meets the requirements under subrule 18(14). She is presumptively entitled to full recovery of her costs on this issue and that presumption has not been rebutted. She will get full recovery of her costs for the spousal support costs issue.
45The mother offered to apply for and to renew the child’s government-issued documents and passport, without the father’s signature or consent. The final order allows the mother to obtain or renew all government documentation for the child, including the child’s passport, without the father’s consent. Her offer meets the requirements under subrule 18(14). She is presumptively entitled to full recovery of her costs on this issue and that presumption has not been rebutted. She will get full recovery of her costs for this issue.
3.2 Determination of success
46Given that the mother is entitled to her costs on a full recovery basis pursuant to the analysis on her offer to settle above, the following analysis addresses success on the remaining issues.
47The mother’s position at trial was that the parties separated on January 1st, 2018. The father’s position was that they separated on April 1st, 2021.
48In the final order, the court determined that the parties separated on January 1st, 2018.
49The mother succeeded on the issue of the separation date. She is entitled to her costs on the issue.
50At trial, each parent sought primary residence with the child. The child’s primary residence was awarded to the mother. She succeeded on this issue.
51The father sought an order for police enforcement at trial. The issue was not pled in his materials, but he included it in his affidavit for his examination-in-chief. The mother’s position on the issue was not clear at trial. The father did not succeed as the court declined to make a police enforcement clause.
Part Four – Factors in determining the amount of costs
52Subrule 24 (12) reads as follows:
24 (12) In setting the amount of costs, the court shall consider,
a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:
(i) each party’s behaviour, (ii) the time spent by each party, (iii) any written offers to settle including offers that do not meet the requirements of rule 18, iv) any legal fees, including the number of lawyers and their rates, v) any expert witness fees, including the number of experts and their rates, vi) any other expenses properly paid or payable; and
(b) any other relevant matter.
53This case was important for the parties.
54It was made more complex and difficult due to the father’s conduct, particularly regarding his failure to provide financial disclosure. The matter was also complicated by the mother’s relocation with the child from Toronto to Ottawa without the father’s consent or a court order.
55The mother and the father did not act reasonably by trying to undermine the other parent’s involvement with the child during their cohabitation. The court found that both parents tried to overstate their involvement with the child and attempted to understate the other parent’s involvement with the child for the period they cohabited. The court concluded that both parents were actively involved in raising the child. Their involvement was structured around their work schedules.
56The mother acted reasonably by:
i. making a reasonable offer to settle. ii. offering to contribute towards the father’s costs associated with the exercise of his parenting time in Ottawa.
57The mother did not act reasonably by:
i. relocating the child from Toronto to Ottawa without the father’s consent or a court order. ii. failing to provide an acknowledgment of expert’s duty regarding her handwriting expert.
58The father acted reasonably by:
i. reducing the number of trial witnesses. He decided not to call one of his witnesses, Adam Soleiman. ii. not calling his own handwriting expert after the court declined to admit the expert report prepared by the mother’s handwriting expert.
59The father did not act reasonably by:
i. failing to provide an offer to settle. ii. failing to respond to the mother’s offer to settle. iii. failing to pay child support following separation. iv. taking the position that he will only pay child support for his son if ordered by a court to do so. v. receiving significant family loans and failing to use part of those funds to support his son. vi. failing to provide proof of family loans. vii. failing to provide updated information regarding the social benefits he is receiving. viii. failing to provide updated medical disclosure to support claims regarding a work injury, and its impact upon his ability to work. ix. failing to provide basic financial disclosure such as his income tax returns (2017, 2018, 2019, 2020, 2021) and notices of assessment (2021). He stated that he has not filed his taxes for the year 2021. When he was questioned during cross-examination about his failure to file his 2021 taxes, his response was that he had other more important matters to attend to. x. trying to resile from his emails sent to the mother on October 2nd and 3rd, 2017, and then seeking to rely on the contents of the same emails. xi. introducing new materials at trial that had not been provided to the mother ahead of the trial, for example, the father’s chart showing his income and his list of family debts.
60The mother’s counsel, Ms. Okola, was called to the bar in 2014. She has been in practice for almost 9 years. Her hourly rate is $300.00. The court finds her hourly rate to be reasonable.
61The court finds that the amount of time claimed by the mother in her bill of costs is reasonable.
62The following disbursements requested by the mother are reasonable:
i. Printing - $143.00 (before HST) ii. Process server - $70.00 (before HST).
63The mother seeks costs in the amount of $30,860.87.
64The mother provided a reasonable offer to settle and enjoyed significant success at trial.
65Despite her success on the issue of relocation (and her offer on the issue), no costs will be awarded to her on the issue of relocation.
66The mother called a handwriting expert as part of her case. About a day of trial time was spent on the mother’s handwriting expert. The father objected to the inclusion of the expert’s report into evidence. The court qualified her as a handwriting expert but did not admit her report into evidence. The father’s costs submissions state that he spent $3,000.00 on his own handwriting expert to challenge the mother’s expert’s evidence, if necessary. Given that the mother’s expert’s report was excluded, the father did not have to call his own expert. The court will consider this issue in fixing the amount of costs payable.
67The court will make an order for costs in favour of the mother. However, for the reasons provided above, particularly considering the issues pertaining to relocation and the time and costs spent mother’s handwriting expert, the court will not award the full amount sought by the mother.
68The court considered the father’s financial circumstances in making this order. [See: MacDonald v. Magel (2003), 67 O.R. (3d) 181 (Ont. C.A.)]. He is of modest means. The court will address any hardship to the father, by permitting him to pay an affordable amount of costs over a reasonable amount of time.
69The court will order the father to pay the mother costs for the trial fixed at $18,000.00, inclusive of fees, disbursements, and HST.
Part Five – The father’s urgent motion/Form 14B motion
4.1 Positions of the parties
70The mother seeks costs of $1,793.88 for an urgent motion that was brought by the father on November 10th, 2022, seeking parenting time. In his costs submissions, the father does not specifically request or respond to the mother’s claim on the 14B issue. However, the father provided a bill of costs showing a total of $3,678.15 (inclusive of HST), spent by the father on the urgent motion.
71In their costs submissions, the parties do not provide the court with any background information regarding the father’s 14B request. This is particularly concerning given that the trial judge was not the same judge who presided over the father’s 14B motion.
72A review of the file shows the following information.
73On October 28th, 2022, the father filed a Form 14B motion seeking permission to bring an urgent motion for parenting time. He requested the motion to be heard on November 4th, 2022, or November 10th, 2022. He stated that he would seek to have parenting time every Saturday from about 12:00 p.m. until about 7:00 p.m. In his Form 14B, the father stated that he had not seen the child since October 1st, 2022, in breach of the existing parenting order, and the mother had not provided make-up parenting time. He further stated that the mother had provided no assurances that she would abide by the parenting terms in the future. He stated that the mother had relocated to Ottawa around August 29th, 2022, ‘without legal authorization’ and a court order was necessary to address the issue of the father’s parenting time.
74On November 4th, 2022, Justice S. O’Connell adjourned the 14B motion to November 10th, 2022, at 4:00 p.m. The mother filed an affidavit dated November 3, 2022 in response to the father’s motion, stating that the parenting issue was not urgent.
75Justice S. O’Connell’s endorsement dated November 10, 2022, states that the request had not met the test for urgency under the Rules, and further provides as follows:
.. Notwithstanding the above, there needs to be some new temporary orders in place pending the trial in this matter as it appears that the resolution that the parties were attempting over the past several court appearances has fallen apart. …
Therefore, this court makes the following temporary without prejudice order pending trial, replacing the temporary order of March 8, 2022:
i. Commencing Saturday, November 19, 2022, the father shall have unsupervised parenting time in Toronto with the child, on alternating Saturdays from 12:00 p.m. to 7:00 p.m. ii. The father shall also have Zoom or video calls with the child every week on Tuesdays and Thursday evenings from 7:00 p.m. to 7:30 p.m., or at other days and times that may be agreed upon by the parties. The mother’s counsel to provide Zoom link or details to father’s counsel. iii. The mother shall provide a medical report or note from the child’s doctor confirming the child’s illness when canceling a visit. The mother shall provide a medical note confirming the child is ill this weekend (November 12, 2022). .. iv. The parties shall proceed to a trial management conference on December 16, 2022, at 4:00 p.m. v. This matter shall be placed in the January 2023 trial sittings. vi. The issue of costs is reserved.
4.2 Legal principles – costs for prior events
76Legal principles pertaining to a claim for costs for prior events were summarized by Justice S.B. Sherr in Thomas v. Saunchez, 2022 ONCJ 532 (paragraphs 20 to 31). Some of the legal principles are as provided below.
77Subrule 24 (11) provides that the failure of the court to order costs in relation to a step in a case does not prevent it from awarding costs in relation to the step at a later stage in the case.
78However, courts continue to be cautious about awarding costs at the trial stage where costs were not awarded at earlier steps in a case. See: Baezner v. Brunnenmeir, 2018 ONCJ 956 ; Nabwangu v. Williams, 2019 ONCJ 171 .
79In Cameron v. Cameron, 2018 ONSC 6823, Justice Marvin Kurz interpreted the changes to the costs rules regarding prior steps in a case as creating a rebuttable presumption against ordering costs for these steps if they were not addressed or reserved by the judge hearing the step. He wrote at paragraphs 83 to 88:
[83] In sum, a trial judge has the jurisdiction under R. 24(11) to determine the costs of earlier steps in the proceeding. However, in light of the continued application of R. 24(10), it should be presumed that a judge who does not determine or reserve the costs of a step before her or him does not find that the conduct of the parties during the course of that step merits an award of costs.
[84] That presumed finding should be entitled to deference by subsequent judges. It should be accorded even greater deference when, as here, the previous step was conducted before R. 24(11) was formally amended on April 23, 2018.
[85] If the judge of a step prior to trial does not wish the presumption to apply, I suggest that he or she should say so. The judge can then expressly reserve the costs of the step to a later date, such as the trial. If that occurs, brief reasons would be helpful. I know that many judges are reluctant to award costs of a conference or even reserve them for fear that such a decision may adversely affect the potential for settlement. However, with the increasingly onerous costs of family litigation, it is always salutary for the parties to be reminded at every stage of the proceeding of the potential costs consequences of their litigation.
[86] In light of the presumption, a judge hearing a trial should only grant the costs of a previous step in one of the following circumstances:
a. when they have been reserved to the trial judge; or b. when, in light of subsequent events, the trial judge is better situated to determine the costs of the prior step than the judge presiding over that step. In that case, the process of determining costs will involve a broad consideration of the prior step within the context of the case as a whole; or c. in exceptional circumstances.
[87] If a party seeks the previously undetermined and unreserved costs of a previous step, the onus rests on him or her to set out why those costs should now be awarded in their favour. To meet that onus, the party should offer a detailed summary of each prior step for which he or she is seeking costs. The party should add an explanation of why he or she should now be granted the costs of that step. That summary should include:
a. the positions that each party took at that step; b. the manner in which the party’s participation in that step advanced the case or contributed towards the ultimate result; c. an explanation of why the later judge is in a better position than the judge who actually dealt with the particular step to assess the significance or reasonableness of the conduct of the parties during that step; d. a comparison of any relevant offers to settle, particularly as they may impact on the prior step; and e. any other consideration that the party relies upon to claim the costs of that step.
[88] The principles set out above also apply, with any necessary adjustments (considering their more summary nature), to motions and any other proceedings in which a judge is asked to award the undetermined costs of prior steps. Those principles can apply, for example when a motions judge is asked to determine the costs of a previous case conference or when the balance of a partially completed conference is adjourned to another date, without costs being reserved.
80In Laidman v. Pasalic and Laidman, 2020 ONSC 7068, the court set out that the presumption remains that costs should be determined at each stage, and there are good reasons for this. Parties should have an ongoing awareness of the cost consequences of litigation decisions they make. Reserving costs may impede final resolution by needlessly inflating and complicating the list of future issues still to be dealt with. A judge who has just completed a step in a case will usually be in the best position to evaluate all of the relevant Rule 18 and 24 considerations. Reserving costs to a future event – often to a different judge – can result in later confusion and controversy about what really happened at the earlier step.
81In Berge v. Soerensen, 2020 ONCJ 265 Justice Roselyn Zisman set out the following circumstances where costs of a prior step should be awarded by a trial judge:
a) Costs have been reserved to the trial judge. b) When, considering subsequent events, the trial judge is better situated to determine the costs of the prior step than the judge presiding over the step or, c) In exceptional circumstances.
4.3 Analysis
82In her submissions, the mother does not address her entitlement to the costs claimed. She simply asks this court to make an order for costs in her favour. The prior event associated with her costs claim occurred before the delivery of her offer to settle.
83In his submissions, the father does not specifically request costs for the urgent motion. He does not address his entitlement to the costs associated with his motion. He simply attaches a bill of costs.
84Prior to the father’s Form 14B motion being filed, the father was having parenting time pursuant to the temporary order of March 8th, 2022. The order granted him parenting time with the child once per week, on Saturdays, from 12:00 p.m. until 2:00 p.m.
85Even though Justice Sheilagh O’Connell endorsed that the 14B had not met the request for an urgent motion, she went on to make a new parenting order on November 10th, 2022. The court found that it was in the child’s best interests to have a new parenting order. The father’s parenting time was increased from 2 hours every Saturday to 7 hours on alternate Saturdays. He was also granted video calls with the child on Tuesdays and Thursdays every week.
86As stated in this court’s decision above, Mohamoud v. Farah, 2023 ONCJ 103, subparagraphs 101 (x) to (xiii), the same month that the mother relocated the child from Toronto to Ottawa without the father’s consent, the father missed four consecutive parenting visits, with the mother alleging that the child was ill. On November 10th, 2022, Justice S. O’Connell made an order compelling the mother to deliver a medical note to the father if the child was to miss a visit due to illness.
87Therefore, despite the court finding that the requirements for an urgent motion had not been met, the court proceeded to make parenting orders. The new parenting terms were found to be in the child’s best interests and were favourable to the father.
88The November 10th, 2022, endorsement did not specifically reserve costs to the trial judge. The parties appeared before Justice S. O’Connell for a trial management conference on December 16th, 2022. There is no information provided by the parties confirming that directions were sought at the trial management conference regarding the issue of reserved costs.
89The record does not confirm that costs at this stage were reserved to the trial judge.
90The court finds that there are no exceptional circumstances that would support a costs award.
91Further, the court would have been reluctant to make an award of costs in favour of the mother. In his 14B request, the father had raised genuine concerns about the mother canceling his visits. The mother had relocated the child to Ottawa without his consent or a court order. She had canceled his visits following the relocation. It was therefore necessary for the parenting arrangements to be reviewed.
92The court will not make an award of costs on the urgent motion in favour of either party.
Part Five – Order
93Balancing all the above considerations, an order shall go on the following terms:
a. The father shall pay the mother costs fixed at $18,000.00, inclusive of fees, disbursements, and HST. b. The father shall pay the costs at the rate of $300.00 each month, starting on June 1st, 2023. However, if he is more than 30 days late in making any costs payment, the full amount of costs then owing shall immediately become due and payable. c. The father’s request for costs is dismissed. d. The mother’s request for costs pertaining to the father’s urgent motion is dismissed.
Released: April 21, 2023 Signed: Justice Wiriranai (Wiri) Kapurura
1Justice S. Sullivan in Deguire v. Alleranos, 2022 (unreported), OCJ, File #66/19, para. 18