Court File and Parties
CITATION: Lapier v. Roebuck, 2017 ONSC 5340
COURT FILE NO.: D56/16
DATE: September 8, 2017
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Jonathan Bruce Lapier, appellant
AND: Michelle Roebuck, respondent
BEFORE: MITROW J.
COUNSEL: Sharon Hassan for the appellant David Winninger for the respondent
HEARD: written submissions filed
ENDORSEMENT ON COSTS
[1] I have reviewed the parties’ cost submissions filed pursuant to my order dated March 17, 2017 that resolved the appellant’s motion for a stay pending appeal of the trial order. The most significant issue in the appellant’s motion was his request for a stay of the week-about schedule for the three children ordered by the trial judge.
[2] The parties, after being urged strongly by the court to do so, have resolved the appeal by entering into minutes of settlement to have this matter proceed instead by way of a motion to change with the appeal to be abandoned after all pleadings were filed in the motion to change.
[3] An order implementing the minutes of settlement was made on April 6, 2017. That order included a revised schedule to file all costs submissions for both the motion and the appeal by May 12, 2017.
[4] The appellant seeks total costs of the motion and appeal fixed at $22,493.18 inclusive of disbursements and HST. This amount approximates costs on a partial indemnity basis, according to the appellant’s submission.
[5] The respondent submits that the appellant achieved only partial success on the motion to stay. The respondent argues that there was no merit to the appeal, except for the fresh evidence regarding the respondent’s changed circumstances following the trial. The respondent submits further that she raised, near the outset of the appeal, that this matter should proceed as a motion to change rather than an appeal. It is the respondent’s position that the appellant is not entitled to any costs. The respondent then advances her own claim for $12,975 for fees plus disbursements and HST.
[6] I have considered the relevant factors listed in r. 57.01(1). Given the change in circumstances in the respondent’s situation subsequent to the conclusion of the trial, it was not unreasonable for the appellant to file a notice of appeal and to seek an order staying the week-about schedule for the three children. After some adjournments, with orders being made on a without prejudice basis pending the appeal, the motion to stay was heard. On the main issue regarding the parenting schedule, the week-about order was stayed pending appeal. The respondent was granted interim care and control of all three children every Saturday and Wednesday during the day, with no overnight access. The order was without prejudice to the respondent’s right to bring a further motion in the appeal to increase her parenting time, including overnights, upon obtaining suitable accommodation.
[7] The order also dealt with a stay of the final support order but that was a very minor aspect of the motion to stay.
[8] While the appellant was successful in obtaining a stay, it is noteworthy that the appellant’s motion sought to have the respondent’s access suspended or, alternatively, supervised. The appellant was unsuccessful in seeking that relief.
[9] I find that the significant issue on the motion to change was the extent of the respondent’s parenting time, including whether it should be suspended or, alternatively, supervised. Except for a brief suspension of the respondent’s access pending one of the adjournments of the motion, the appellant failed to have the respondent’s access either suspended or supervised.
[10] I find that there was a significant aspect of divided success on the appellant’s motion to stay.
[11] I take into account that the respondent delayed in preparing her motion material which served to increase costs unnecessarily. Also, I made a finding in my endorsement dated January 16, 2017 that the appellant “… took matters into his own hands and denied court-ordered access without seeking the court’s approval” (para. 11).
[12] The appellant did serve an offer to settle the motion, but the offer provided for supervised access and the offer also stipulated that the respondent’s access to the eldest child would be subject to that child’s wishes. The order did not contain any restrictions regarding the respondent’s access to the eldest child.
[13] In my reasons disposing of the appellant’s motion, I stated at paras. 49-50:
[49] During argument, the court encouraged the parties to consider whether it may be more practical, just and expeditious, to deal with this case as a motion to change, given the fresh evidence. This would require counsel to explore abandoning the appeal, commencing a motion to change, and agreeing to an order containing appropriate directions and terms to implement same.
[50] Without the fresh evidence, the appeal, in my view, is unlikely to succeed. If the appellate court is confronted, as it undoubtedly will be, with motions for leave to file fresh evidence, then the appeal itself will resemble, substantially, a motion to change. The parties are urged, strongly, to give urgent consideration to this issue.
[14] It was the fresh evidence as to the change in the respondent’s circumstances subsequent to the conclusion of the trial that was the foundation of the order made on the motion to stay.
[15] I find that the appellant is entitled to some costs.
[16] In fixing costs, the overriding principle is reasonableness: Davies v. Clarington (Municipality), 2009 ONCA 722 (Ont. C.A.), at para. 52.
[17] In relation to the motion to stay, I find that the appellant is entitled to a modest award of costs, which I fix at $3,500 all inclusive. This costs award takes into account the divided success and the appellant’s unreasonable conduct in denying court-ordered access.
[18] In relation to the appeal, it was necessary for the respondent to serve a notice of appeal in the circumstances. However, taking into account the settlement, I find that $1,500 all inclusive is reasonable.
[19] Given the respondent’s somewhat dire financial circumstances, this is an appropriate case to order that costs should be paid over time.
ORDER
[20] For the foregoing reasons, I make the following order:
The respondent shall pay to the appellant costs fixed in the amount of $5,000, inclusive of HST and assessable disbursements, allocated $3,500 to the motion to stay and $1,500 to the appeal.
The $5,000 costs ordered above shall be paid by the respondent to the appellant at the rate of $150 per month on the first day of each month commencing November 1, 2017 until paid in full.
“Justice Victor Mitrow”
Justice Victor Mitrow
Date: September 8, 2017