SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-6-12
DATE: 2012-04-10

RE: Brenda Kearley, Applicant

AND:
Leon Jude Renfro, Respondent

BEFORE: The Honourable Robert B. Reid

COUNSEL:
Randy S. Brant, Counsel, for the Applicant
Glenda McLeod, Counsel, for the Respondent

HEARD: March 2, 2012

COSTS ENDORSEMENT

[ 1 ] The relief requested in the four motions before me related to the custody and primary residence of the children, access arrangements, and the appointment of legal representation for the children or alternatively the request for an assessment pursuant to s. 30 of the Children's Law Reform Act , together with costs.

[ 2 ] I was satisfied that the matters at issue remained urgent and that it was appropriate for me to hear the motions in advance of a case conference. No application had been commenced. As of the date of the costs submissions on March 30, an application has not yet been served and filed. The progress of the case is not a matter to be considered in this costs award, although I urge the parties to expedite the litigation so that the issue of the children’s residence in either Ontario or British Columbia will be determined prior to the commencement of the 2012-2013 school year.

[ 3 ] Applicant brought an ex parte motion on January 12, 2012 before Mr. Justice Sloan. She successfully secured an order requiring that the children be returned from British Columbia to her care in Ontario after the Respondent failed to return them following the Christmas/New Years vacation with him. I made a costs order concerning that motion in my March 2 endorsement.

[ 4 ] As to the parties’ respective success in the motions, I indicated in my endorsement that I considered success was divided.

[ 5 ] The applicant requested costs of the ex parte motion. The respondent opposed costs. Costs were awarded to the applicant, but in a reduced amount from that claimed.

[ 6 ] The applicant requested sole custody of the children with no (or significantly restricted) access by the respondent. She was unsuccessful. Joint custody with access according to the pre-existing separation agreement and the practice of the parties was ordered.

[ 7 ] The respondent requested a return of the children to his care in British Columbia. He was not successful in that argument, although it was an alternative position to the joint custody with access order that was ultimately granted.

[ 8 ] The applicant sought an order for a s. 30 assessment. The respondent opposed it and requested the appointment of a private lawyer with a social work assist for the children, with both parties to share the costs. The respondent was successful as to the appointment of counsel, but I ordered that he fund the retainer of the children’s counsel and social worker pending further order.

[ 9 ] In the divided success of the parties, it is fair to say that the respondent was the more successful of the two.

[ 10 ] The applicant seeks no order as to costs, based on her financial inability to pay, and the division of success.

[ 11 ] The respondent seeks an order of substantial indemnity costs, payable by the applicant forthwith, based on his level of success in the motions and based on what he characterizes as a lack of reasonableness bordering on a lack of good faith by the applicant in bringing the initial ex parte motion without complete disclosure of all relevant facts. In the alternative, he seeks partial indemnity costs.

[ 12 ] There were no offers to settle exchanged between the parties.

[ 13 ] My discretion as to costs under s. 131(1) of the Courts of Justice Act [^1] is subject to the rules of court. The four motions were argued together on the same set of facts. I do not consider it is appropriate to look discretely at the success of a party in any one motion and on that basis to apply the presumption as to costs set out in rule 24(1) of the Family Law Rules [^2] . Rule 24(6) allows me to apportion costs as appropriate when there is divided success at any step in a case.

[ 14 ] I must also consider the factors set out in rule 24(11), especially the importance, complexity or difficulty of the issues, and the reasonableness or unreasonableness of each party’s behaviour. [^3] As well, I am able to consider the financial position of the parties as a “relevant matter” in rule 24(11)(f). [^4]

[ 15 ] It is trite to say that matters of custody of and access to children are of particular importance to the parents, and in this case, the inter-provincial geographical issue and the unresolved negotiations as to changing residence for the children made the matter more complex.

[ 16 ] The applicant’s conduct in bringing the initial ex parte motion without full disclosure of the material facts has already been accounted for in my costs order arising from that motion. As to the other motions on March 2, I do not consider the applicant’s behaviour to have been unreasonable. The parties agreed on the need for a third party to be engaged to assist in providing an outside view of the children’s needs, but each argued for a different means to that end. Whether or not the applicant’s concerns about parental alienation are borne out by the evidence as the matter progresses remains to be seen.

[ 17 ] As to the financial situation of the parties, an adverse costs award may have a significant impact especially to a custodial (or, in this case, residential) parent, thus affecting the best interests of the children. On the other hand, our system of litigation as reflected in the Family Law Rules contains “cost-shifting” as a significant factor which to some extent should affect choices that parties make in the course of their matters. It seems to me that allowing one party to avoid costs consequences that might otherwise flow only because of inability to pay encourages unnecessary litigation and discourages the use of offers to settle and other resolution options.

[ 18 ] In this matter, it is appropriate for the applicant to bear some costs of the motions argued before me. Although over-all success was divided, her comparative lack of success was a significant factor in coming to that conclusion. However, her conduct was not so egregious as to attract what amounts to the punitive provisions of a substantial indemnity costs award. Therefore costs will be awarded on a partial indemnity basis.

[ 19 ] The respondent submitted a claim for costs based on bills rendered supporting a partial indemnity claim (after correction by deducting the “previous balance” from the second account) in the amount of $13,604.

[ 20 ] Costs are awarded to the respondent in the amount of $8,000, inclusive of H.S.T. and disbursements.

[ 21 ] The applicant deposed that there has been no final division of assets between the parties post-separation, and that she maintains an interest in the respondent’s business. The funds represented by those assets are not accessible to her. If they were, she would be in a position to pay a costs order without delay. In consideration of the present financial circumstances of the applicant, payment of the costs award herein will be deferred until the division of property between the parties, or further court order.

Reid J.

Date: April 10, 2012

[^1]: R.S.O. 1990, c.C.43 as amended
[^2]: O.Reg. 114/99 , as amended
[^3]: Ibid ., clauses 11(a) and (b)
[^4]: C.A.M. v. D.M . (2003) 67 O.R. (3d) 181, at par. 42