COURT FILE AND PARTIES

COURT FILE NO.: FC-11-2685

DATE: 2011/07/12

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: K.A.V., Applicant

AND

B.F.T., Respondent

BEFORE: Mr. Justice Robert J. Smith

COUNSEL: Antoine Merizzi, for the Applicant

Beverley Johnston, for the Respondent

HEARD: By written submissions

COSTS ENDORSEMENT

[ 1 ] The respondent father brought a motion for contempt based on the mother’s denial of access during the period that the Family and Children’s Services of Lanark, Leeds and Grenville (the “Children’s Services” or “Services”) had directed the mother not to provide access while they were conducting their investigation, for her failure to follow Abrams J.’s order for access from late December 2011 to late January 2012, and for failing to provide telephone access on the exact times in the evenings while the child was playing baseball.

Factors

[ 2 ] The factors to be considered when fixing costs are set out in Rule 24 of the Family Law Rules and include that the successful party is presumed to be entitled to costs, the reasonableness of the behaviour of each party and any offer to settle, any acts of bad faith by any party, the importance complexity or difficulty of the matter, the scale of costs, hourly rates and time spent, and the reasonable expectations of the losing party.

Success

[ 3 ] The respondent was successful in obtaining a finding of contempt against the mother for failing to allow access in accordance with Abrams J.’s order for the period between late December 2011 and late January 2012 after the Services had completed their investigation.

[ 4 ] The applicant mother successfully defended the allegation of contempt for refusing access to the father as directed by the Children’s Services and for failing to provide telephone access on evenings when the child was playing baseball. As a result, I conclude that success was divided.

[ 5 ] The applicant’s claims for child support, extraordinary expenses, life insurance and attending parenting claims were not argued at the hearing before me.

Complexity and Importance

[ 6 ] The matter was of average complexity and the issues were important to the parties. Neither parties’ behaviour was unreasonable or in bad faith except for the mother’s failure to abide by the access order of Abrams J. for a period of approximately one month. A finding of contempt was made against the applicant but I also found that her contempt had been purged by her compliance with access as ordered commencing in late January 2012 to present.

Scale of Costs and Offers to Settle

[ 7 ] The parties are in agreement that costs should be on a partial indemnity scale and no formal offer to settle was made by either party.

Hourly rates, Time Spent and Proportionality

[ 8 ] The respondent submits that the time spent by the applicant’s counsel was unreasonable when compared to the time spent by the respondent. The applicant did spend more time but the amount was not beyond reasonable expectations for a motion of this type.

Amount the Unsuccessful Party Would Reasonably Expect to Pay

[ 9 ] The respondent also submits that the amount claimed by him is much less than the applicant’s counsel even though the respondent’s counsel’s hourly rate was significantly higher. While the respondent’s counsel was more efficient in the use of her time and I would reduce the time claimed by counsel for the mother somewhat if I was awarding costs to her.

Disposition

[ 10 ] Success on the motion was divided, and the matter was not unduly complicated, however, there was a finding of contempt against the applicant mother who should have moved to vary the order rather than simply deciding not to comply with the order, especially after the Society had found that there was no concern that the father was sexually abusing their son. For those reasons, the applicant mother is ordered to pay costs of $1,000, inclusive of HST and disbursements, to the respondent.

R. Smith J.

Date: July 12, 2012

COURT FILE NO.: FC-11-2685

DATE: 2011/07/12

ONTARIO SUPERIOR COURT OF JUSTICE RE: K.A.V., Applicant AND B.F.T., Respondent BEFORE: Mr. Justice Robert J. Smith COUNSEL: Antoine Merizzi, for the Applicant Beverley Johnston, for the Respondent costs ENDORSEMENT R. Smith J.

Released: July 12, 2012