Court File and Parties

Date: November 19, 2018 Court File: 456/10 Ontario Court of Justice at Milton

Between: Ashley Margaret Koenigsberger Applicant

and

Andrew Allan Parsons Respondent

Before: Justice B.E. Pugsley

Released: November 19th, 2018

Appearances: None – written submissions

Costs Endorsement

Background

[1] An interim motion by the Applicant (mother) was argued before me at Milton on September 10th, 2018. My reserved decision was released to the parties on September 28th, 2018. Paragraph 71 of that decision invited costs submissions by the parties in the event that they were unable to agree on costs. A schedule for the receipt of submissions was established, together with limits on the length of submissions exclusive of Bills of Cost and Offers to Settle.

[2] Submissions were required to be filed through my secretary at my home court in Orangeville.

[3] The Applicant's submissions were received by fax on October 9th, 2018. They were served upon opposing counsel on that date as well. The clock started to run on the requirement that the Respondent serve and file his submissions within ten days thereafter.

[4] The Applicant included a Bill of Costs and an offer to settle the entire proceeding.

[5] The Respondent complied with none of the parameters set out in Paragraph 71 of the decision: costs submissions were filed, in Milton, not Orangeville, on October 31st, 2018, well after the time frame ordered. Costs submissions exceeded the two pages stipulated. Nonetheless I did review those submissions on the basis of fairness when considering the Applicant's request for costs.

Positions of the Parties

[6] The Applicant seeks full indemnity costs on the basis of success and also given that parts of the offer to settle were successfully achieved on the interim motion.

[7] The Respondent resists any costs, on the basis that he at all times acted solely in what was his view of the steps needed to protect his child. Further, the issue of retroactivity, argued at the hearing of the Motion, it is submitted, was never really properly before the court in any event. Finally, if costs are appropriate they ought to be reserved to the trial justice.

Analysis

Entitlement to Costs

[8] The Applicant was the successful party and is entitled to her costs of the motion pursuant to Rule 24(1) of the Rules. Her success here is both obvious and complete.

[9] The Applicant's Offer to Settle was an offer to settle the entire Motion to Change, not to settle the temporary Motion which was before me. As such I can give it little weight on the issue of costs here.

[10] No Offer to Settle of any nature is referenced by the Respondent.

Respondent's Arguments Rejected

[11] The Respondent's position that his actions were compelled by the need to protect his child is not supported by the facts as found by me on the hearing of the Motion. His submission that the issue of his failure to pay proper child support was not before the court is belied by the argument of that very issue, and by the finding that he had essentially deliberately underpaid the support properly payable for the child, failed to comply with the consent Order made for yearly disclosure of his income, and while working in the USA, didn't voluntarily pay support at all. The arrears of support include times when the child was being supported by the public purse. The failure to pay proper child support was obvious and was bound to be payable by the Respondent regardless of any outcome on the other issues engaged between the parties. To state that it was not properly before the court is both improper and inaccurate.

Unreasonable Litigation Conduct

[12] The issues before the court were uncomplicated and were capable of resolution by the parties aided by Counsel.

[13] In particular it should have been obvious to the Respondent that there was no reasonable basis to conclude that the Applicant represented any real risk of harm to the child. Instead the Respondent chose to argue the motion on that basis in the face of the independent findings of the CAS that there was no such apparent risk, and the position of the child's counsel on how best to serve his views and preferences.

[14] Further, the Respondent patently failed to properly support his child as required by court order and the law. That issue was bound to be determined in favour of the Applicant, and yet the Respondent characteristically chose to litigate that issue aggressively.

[15] The Respondent states that the passport issue was a minor issue – and yet on even that minor issue chose to litigate the matter before the court.

[16] There was no need for the hearing of this motion. It was heard because of the Respondent's apparent continued decision to refuse to yield at any stage.

Basis for Substantial Indemnity Costs

[17] In my view the Applicant is entitled to her costs on a substantial indemnity basis – had there been an offer to settle the Motion I would have ordered full indemnity costs.

[18] Costs are to be dealt with at each step of the litigation. This is an important and temporal reminder to the parties that unsuccessful litigation comes at a price, and that the price is payable at a time close to the event, not at some hypothetical time safely far in the future when a trial is heard. Only in this way are the parties reminded that fighting may come at a cost.

Quantum of Costs

[19] The nature of the Applicant's retainer of counsel is not a factor to be considered on the issue of the quantum of costs. Considerations engaged in the amount of costs to be awarded include the experience level of counsel and the reasonable time expended to prepare for and attend upon the hearing of the Motion. Applicant's counsel has twenty years of experience and his hourly rate is a not unreasonable $360 per hour. Notably the Respondent does not challenge the facts set out in the Applicant's Bill of Costs.

[20] Based upon all of the facts herein, a reasonable amount of Costs payable by the Respondent to the Applicant herein is $2,500.00 inclusive of HST and disbursements.

Other Parties

[21] Neither the Office of the Children's Lawyer nor the Region sought costs herein.

Order

[22] I make the following further order herein:

1. The Respondent (father) shall pay to the Applicant (mother) her costs of the Motion returnable on September 10th, 2018, fixed in the amount of $2,500.00 inclusive of HST and disbursements, and payable within 30 days.

Justice B.E. Pugsley