SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-08-063598-0001
DATE: 20120827
RE: Ann Savitrie Cossetti v. Antonio Cossetti
BEFORE: Fragomeni J.
COUNSEL:
Noel N. da Silva, for the Applicant
Natalie Taccone, for the Respondent
COSTS ENDORSEMENT
[ 1 ] The issue before me at the motion related to the mother’s move from Brampton, Ontario to Barrie, Ontario. The father’s motion to prohibit the move was dismissed. The mother is now seeking costs primarily on the grounds that she was successful in defending against the father’s motion.
[ 2 ] The mother also submits that the father’s motion was unnecessary and it was brought in bad faith as the father brought the motion without notification to the mother and while discussions between the parties were ongoing.
[ 3 ] The mother seeks full recovery costs in the all inclusive sum of $9,985.80.
[ 4 ] The father argues that there should be no costs provided to the mother despite her success in the motion on the following basis:
• the father was successful on the issue of urgency and the court heard the motion on that basis
• the financial means of the father
• the father’s proposal to resolve the issues prior to initiating litigation
• the unreasonable position, behaviour and conduct on the part of the mother
[ 5 ] Rule 24(1) of the Family Law Rule states:
There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. O. Reg. 114/99, r. 24 (1) .
Rule 24(11) of the Family Law Rule sets out the following factors the Court must consider in determining the issue of costs:
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness or unreasonableness of each party’s behaviour in the case;
(c) the lawyer’s rates;
(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;
(e) expenses properly paid or payable; and
(f) any other relevant matter. O. Reg. 114/99, r. 24 (11) .
[ 6 ] I am satisfied in the circumstances of this motion that the mother is entitled to costs. The mother was successful in the motion. Although the issue argued at the motion related to mobility, the circumstances relating to the issue were not complex nor was an extensive analysis required.
[ 7 ] In that regard, I wish to reproduce what I said at paragraph 21 of my July 3, 2012 endorsement:
Firstly, the move to Barrie by the mother and the children will not significantly or materially change the timesharing arrangements now in place. The parties may be required to discuss and implement additional time, to take into account the additional driving that will be required by both parties. It may take a few times to see exactly how much more time is needed at which time the appropriate adjustments can be made. If the parties cannot agree on the appropriate time sharing adjustments the matter can be returned to court for a judicial determination of the issue.
[ 8 ] The father’s position that the mother acted unreasonably is not borne out on this issue in light of the position the father took in his May 16, 2012 letter setting out his comprehensive settlement proposal. In that letter he stated, in part:
Transportation of the children
In response to your email to Mr. Cossetti on April 24, 2012 at 12:25 p.m., Mr. Cossetti denies any verbal abuse or that he is not complying with the Order.
You have provided notice of your intended move to Barrie, Ontario as required by the attached Order. The Order also requires at paragraph 11 that you will be responsible for driving the children to Maple on Fridays and Mr. Cossetti is to return the children to your residence in Brampton at the end of each weekend on Sundays.
At this time, Mr. Cossetti is not objecting to your move to Barrie with the children.
However, this move will increase the distance between your home and Mr. Cossetti’s home from approximately 30 km, which is the current distance between your homes, to approximately 60 km, which is the distance between Mr. Cossetti’s home and the address you provided in Barrie.
Given that you wish to move the children to Barrie which will result in increased transportation time and costs, Mr. Cosetti is requesting that paragraph 11 of the Order be amended, on consent, as follows:
- Ann Cossetti will be responsible for driving the children to Maple on Friday and Antonio Cossetti will transport the children to Bond Head/Highway 400 and Highway 88 on Sunday at 7:00pm. Ann Cossetti will transport the children from Bond Head/Highway 88 to Barrie on Sunday.
If you and Mr. Cossetti are not able to reach an agreement regarding the transportant of the children, he may be forced to bring this matter before the courts for adjudication and request an injunction preventing you from moving with the children until the issue is resolved. I trust this will not be necessary.
(page 2, 3)
[ 9 ] In his costs submissions, the father states that he brought this issue before the Court in good faith as a result of genuine love for the children, Marco and Carina and with the best of intentions.
[ 10 ] I am satisfied that both parties proceeded as they did in the best interests of the children and I cannot find that parties acted in bad faith.
[ 11 ] Although unsuccessful in the motion, the father’s conduct in bringing the motion does not rise to a level where costs ought to be awarded on a full recovery basis or even a substantial indemnity basis. I am satisfied that costs be awarded on a partial indemnity basis.
[ 12 ] With respect to the quantum of costs and the father’s ability to pay, in my July 3, 2012 endorsement I reduced the child support payment from $689 per month to $589 to reflect the additional transportation cost associated with the mother’s move to Barrie.
[ 13 ] In Davies v. Clarington (Municipality) 2009 ONCA 722 Epstein J.A. sets out the following in para. 51 and 52:
In Andersen v. St. Jude Medical Inc. (2006), 2006 85158 (ON SCDC) , 264 D.L.R. (4th) 557, the Divisional Court set out several principles that must be considered when awarding costs:
The discretion of the court must be exercised in light of the specific facts and circumstances of the case in relation to the factors set out in rule 57.01(1): Boucher , Moon, and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC (2005), 2005 1042 (ON CA) , 75 O.R. (3d) 638 (C.A.).
A consideration of experience, rates charged and hours spent is appropriate, but is subject to the overriding principle of reasonableness as applied to the factual matrix of the particular case: Boucher . The quantum should reflect an amount the court considers to be fair and reasonable rather than any exact measure of the actual costs to the successful litigant: Zesta Engineering Ltd. v. Cloutier (2002), 119 A.C.W.S. (3d) 341 (Ont. C.A.), at para. 4 .
The reasonable expectation of the unsuccessful party is one of the factors to be considered in determining an amount that is fair and reasonable: rule 57.01(1)(0.b).
The court should seek to avoid inconsistency with comparable awards in other cases. "Like cases, [if they can be found], should conclude with like substantive results": Murano v. Bank of Montreal (1998), 1998 5633 (ON CA) , 41 O.R. (3d) 222 (C.A.), at p. 249.
The court should seek to balance the indemnity principle with the fundamental objective of access to justice: Boucher .
As can be seen, the overriding principle is reasonableness. If the judge fails to consider the reasonableness of the costs award, then the result can be contrary to the fundamental objective of access to justice. Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant. In Boucher, this court emphasized the importance of fixing costs in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding at para. 37, where Armstrong J.A. said "[t]he failure to refer, in assessing costs, to the overriding principle of reasonableness, can produce a result that is contrary to the fundamental objective of access to justice."
[ 14 ] I am satisfied in all of the circumstances that costs in the all-inclusive sum of $5,000 is reasonable.
[ 15 ] Order to issue:
- That the defendant father pay to the applicant mother her costs fixed in the all-inclusive sum of $5,000.00
Fragomeni J.
DATE: August 27, 2012
COURT FILE NO.: FS-08-063598-0001
DATE: 20120827
SUPERIOR COURT OF JUSTICE - ONTARIO RE: Ann Savitrie Cossetti v. Antonio Cossetti BEFORE: Fragomeni J. COUNSEL: Noel N. da Silva, for the Applicant Natalie Taccone, for the Respondent COSTS ENDORSEMENT Fragomeni J.
DATE: August 27, 2012