Court File and Parties
DIVISIONAL COURT FILE NO.: FD 1566/13
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Michaela Arthur, Applicant
AND:
Bradley John Arthur, Respondent
BEFORE: Aston J.
COUNSEL: T.W. Hainsworth, for the Applicant
Brenda D. Barr, for the Respondent
HEARD: November 29, 2013 in London
ENDORSEMENT RE COSTS
1The mother’s offer to settle dated November 5, 2013 precisely mirrors the order ultimately made on this motion with two exceptions:
(i) it did not anticipate the restriction imposed by the Court, of its own initiative, that she not allow the children to be in the presence of Shawn Jason; and
(ii) it provided that there be no order as to costs.
2The provision respecting Shawn Jason was not sought by the father, though it was one of the reasons he maintained his position on the need for supervised access. I am not prepared to assume that the mother would have opposed this restriction had it been specifically requested by the father, and it was not a restriction she necessarily ought to have foreseen before the motion was heard.
3The fact that the mother’s offer to settle provided for no order as to costs seems to be a generous concession. Family Law Rule 18(14) provides that if the party making an offer obtains an order that is “as favourable or more favourable” on the substantive issues, that party is “entitled to costs to the date the offer was served” unless the Court orders otherwise.
4In assessing costs, there is a tendency to use the perfect vision of hindsight. It is better to try to put oneself the shoes of the litigant at the relevant time. It is difficult to imagine what more the mother could have said in her offer of November 5, 2013 to better protect herself on the issue of costs. Her position was eminently reasonable. The father’s unwavering insistence on supervision of her access was unreasonable, or became so. Supervision of the mother’s access was the only significant issue that the Court had to decide. It was the issue that necessitated a contested motion. By any measure of success the mother is entitled to something for costs.
5Under rule 24 there is a presumptive entitlement to costs. Under rule 18(14) the presumption is arguably more forceful. However, even under Rule 18(14) the Court retains a discretion to “order otherwise” or to exercise a discretion when it comes to the quantification of costs.
6In this case, the mother originally sought various relief which was abandoned or adjourned, including a claim that the children ought to ordinarily reside with her on a day-to-day basis. The father incurred costs to defend claims that were abandoned. Moreover, the father’s motion for interim custody was a reasonably necessary motion. For the reasons outlined in the father’s cost submissions (and consistent with the mother’s own offer to settle) the father should not have to pay any costs for the period pre-dating the mother’s offer to settle. Assuming, without necessarily deciding, that FLR 18(14) applies, I would make that contrary order to the mother’s presumptive entitlement to costs pre-dating November 5, 2013.
7As for the subsequent costs, it is my view that the presumption of “full recovery” is too generous in the circumstances of this case. More specifically the court should take into account:
(i) the finding that the mother’s evidence and credibility was proven to be unreliable on materially relevant points;
(ii) the extensive time and effort required of counsel for the father to prove the mother’s evidence unreliable; and
(iii) the divided success on the mother’s motion to strike part of the father’s material.
8That said, the overriding consideration is that this motion only proceeded on a contested basis in the end because of the father’s insistence on the need to supervise the mother’s time with the children. Even if his position can fairly be characterized as understandable in the early days and weeks of the separation, it was clearly an unreasonable position by November 5, 2013.
9The time spent by counsel for the mother from November 8, 2013 to November 28, 2013 amounts to 7.2 hours, with an additional 0.6 hours to attend to the formal order. I find that the total of 7.8 hours is reasonable and at a partial indemnity rate of $400 per hour, award $3,120 for fees. In addition, the court attendance on November 29th, including review and preparation of argument that day, is compensable as a half-day counsel fee which I assess at $2,000 on a full indemnity scale. The total for fees therefore is $5,120 plus HST. The disbursements are accepted at $244.93 inclusive of HST.
10The father is therefore ordered to pay costs of the motion fixed at $6,030.53 inclusive of HST and disbursements.
“Justice David Aston”
Aston J.
Date: March 12, 2014