Court File and Parties

Court File No.: FO-09-000057-01 Date: 2014-03-10 Ontario Court of Justice

Between: Chelsea Marcelle Weare, Applicant

— And —

Nathan Eugene Naumann, Respondent

Oral Decision Released: February 24, 2014 Supplemental Written Reasons Released: March 10, 2014

Before: Justice P.T. Bishop

Counsel: Beth White, for the applicant Mark Van Walleghem, for the respondent

Decision

BISHOP J.:

[1] The Court released a custody/access decision on February 24, 2014 and the parties have now had an opportunity to review.

[2] I have had an opportunity to review all the documentation in the break and received submissions after releasing that decision and I would like to make the following statements including addressing the submissions with respect to costs.

Costs

[3] First of all there is a presumption on costs. The successful party is entitled to costs, that is in Rule 24 of the Family Law Rules.

[4] The first argument by the Applicant was that it was not reasonable to conclude that Ms. Weare would not be successful. I disagree with that argument because the whole history of, and in this case has been litigation for the last four years or thereabouts. At the very last minute, Ms. Weare would agree to a lengthy order that had numerous terms and then not follow the terms based on her interpretation. This is the first time that there has been a full litigation so the court has really analyzed or assessed the credibility and the truthfulness and the rightness of what witnesses were saying.

[5] A perfect example of that was after Ms. Weare took the children to Kenora without the consent of the father, the court heard the motion and gave the parties time to reflect because at that time it was made very clear to the parties that the court was considering changing custody at that particular time; and when that became clear, Ms. Weare as she usually does, says "all right, I will take the children back" and then when speaking with the children's lawyer investigator, she regrets making that decision but it is then too late. It was impulsive and it was not in the children's best interests. I have reviewed that in the custody/access decision.

[6] With respect to Ms. Matheson, the investigator from the Office of the Children's Lawyer, the court did not accept much of what she had to say on her principle conclusion because she was not present in court and didn't hear the evidence. She did not see how Ms. Weare presented in front of Mr. Naumann. She did not really reflect or see how Ms. Weare presented with Mr. Naumann's partner, Ms. Parker. There was a great deal of animosity, there was swearing, there was vulgarity, there was threatening behaviour and I accepted the evidence of Mr. Naumann and Ms. Parker in that regard.

[7] Ms. Matheson did not see the incident at the Walmart as the court heard the evidence here and Ms. Weare set herself up as being the victim and thought she was being badgered when really the court found just the opposite. Ms. Weare was the one who was late, she was the one who was not being reasonable; she was the one who cocked her fist at but did not hit Ms. Parker.

[8] Ms. Matheson did not address any of the contempt allegations that was clear in the breaches of the orders. She completely ignored that and did not make any comment whatsoever.

[9] I think Ms. White saw some of this coming because she described her client as having a "prickly personality". Well it went beyond being a "prickly personality". It affected the children – the incident at the Walmart was done in the presence of the children. There was emotional harm, emotional stress to this type litigious person's actions.

[10] It is an exceptional case when the court changes custody after there has been four years of a custodial parent or defacto-custody, but it was a joint custody order and the court found that this was an exceptional case; that the circumstances were so out of line with what was in the best interests of the children being in their mother's care. That is why the court changed custody and I found that this is one of those exceptional cases.

[11] As stated at the beginning, costs are presumed in favour of the successful party. Ms. Weare has exhausted her private retainer and is now on legal aid and it is not really a legitimate argument to say she does not have any money to pay costs and queries how she will ever make those payments. That is not what costs are about. Costs are about rewarding, and I do not like using the word "rewarding" but compensating the "successful party" for having to go to the cost of litigation, the emotions of a lengthy trial and this was lengthy over the years with all the motions and all the settlement conferences, all the pre-trials and all of the court appearances. Mr. Naumann has experienced emotional and financial loss and costs are a result of this litigation with Ms. Weare. The fact that she is now on a legal aid retainer is accepted but the courts have consistently ruled that the awarding of costs is discretionary and has to be considered and the principle that the successful party should be entitled to costs if appropriate is applied.

[12] This should have been settled when Mr. Van Walleghem delivered his offer to settle and I will receive that offer to settle as well as his client's bill of costs. The offer, again was another one of these lengthy orders with multiple terms and conditions that Ms. Weare rejected. She chose to go forward and have a full trial and she was not successful at the trial.

[13] The court found that it was in the best interests of the children that they had to be taken out of that controlling situation and put into the father and his partner's custody because they were much more reasonable.

[14] There was no offer to settle by Ms. Weare so I am going to order up until September 26, 2013, when the offer to settle was made, to order party-and-party costs at two-thirds and that will amount to $2,147.90 and after that solicitor/clients because it continued on and should not have and there was no offer to settle by Ms. Weare therefore I will order full costs of $4,322.25 plus disbursements of $471.99. The total costs are $6,942.14.

[15] That is what the court will order and it will be payable forthwith and if Ms. Weare has to get a loan or has to get a new job, she has to do something else or she has to do something to deal with these costs. She is going to have to be responsible for these costs.

Child Support and Financial Statement

[16] The other issue that I wish to address is that Ms. Weare filed a Financial Statement late in the game. Under the Rules, when claiming custody, a party has to file a Financial Statement; she did not do that. She did not put a Financial Statement in the Continuing Record nor the Trial Record but it was done at trial. Again, this was her way of basically saying "I do not have to do this or I am going to do it later" and she did it at trial.

[17] The court takes some responsibility for missing that because it was filed as an exhibit in a book of documents, but it was not following the Rules. She was not being fair to the other party and I am not going to dwell on that point but I have now looked at that and I am going to change the order to reflect her income. I am going to impute and fix her income at $20,000.00 per annum. I am going to change paragraph 15 and if I am using the right guidelines it should be $308.00 per month. There are various iterations of the Child Support Guidelines but for two children it should be $308.00.

[18] Ms. White has been using a 2012 Guideline amount and suggests it should be $306.00 but I am going to leave it at $308.00 per month. I am going to leave it at that because working in the restaurant there are undeclared tips and I have taken that into account.

Retroactive Support and Access Times

[19] I decline to order any retroactive child support payable by the father to the mother as I consider that as part of the costs awarded here. I have delayed putting this order into force with respect to the extraordinary expenses and I will amend the drop-off time because it makes sense. The decision with respect to custody and access was made after submissions; nobody addressed those submissions specifically, so the court is open and free to change that to 5:00 p.m. So whenever a paragraph states pick-up is at 3:00 p.m. or 3:30 p.m. at Firefly it should read "5:00 p.m." and this will allow travel time from Ignace.

Birth Certificates and Health Care Cards

[20] With respect to birth certificates and Health Care cards, I order that the mother has already provided Health Cards and I will not order that she supply the birth certificates. The father can apply again; he is to be give consideration with respect to the costs and he is to be given consideration with respect to the extra ordinary expenses so if they cost $85.00 each he can order his own birth certificates for these children.

Released: March 10, 2014

Signed: "Justice P. T. Bishop"