SUPERIOR COURT OF JUSTICE – ONTARIO

OSHAWA COURT FILE NO.: 1576/05
DATE: 20120120

RE: Michele Ann Snow, Applicant

AND:

David Robert Nichol, Respondent

BEFORE: The Honourable Mr. Justice D.S. Gunsolus

COUNSEL: Mark Borden, counsel for the applicant;
Faye McFarlane, counsel for the respondent

C O S T S E N D O R S E M E N T

Background

[ 1 ] The applicant is seeking her costs in relation to her motion to change which was issued by this court on November 8 th , 2010. The applicant and respondent enjoy joint custody of their son, Troy Jordan Nichol, born October 30 th , 1998. The applicant sought permission to change Troy’s school from Good Shepherd in Courtice to a school in her residential catchment area of Port Perry. The respondent filed a motion to change asking that the court not grant the applicant’s relief.

[ 2 ] The applicant seeks an order for her costs on a full recovery basis in the amount of $13,578.75, or alternatively, on a partial recovery basis, in the amount of $8,147.25.

[ 3 ] The respondent requests that no costs be awarded to either party, or in the alternative, his costs for having to respond to the applicant’s cost submissions.

[ 4 ] The respondent states that the applicant sought to change Troy’s school for the beginning of his grade 7 year in September, 2010. He says the applicant did not change her claim for an order that Troy’s school be changed for his Grade 8 year until her offer to settle, dated September 29, 2011, after a disclosure meeting with the court-ordered parenting facilitator (Pat Convery) on September 8 th , 2011.

[ 5 ] The respondent takes the position that he has put forth what he believed to be Troy’s best interests and wishes. He takes the position that, with the assistance with Ms. Convery, the parties were able to settle the matter by way of a consent order. He argues that each parent was successful in that while the applicant obtained an order that Troy would start high school in Port Perry, he (the father) succeeded in that such school change would not occur until the fall of 2012, allowing Troy to complete his elementary school and graduate with his class in Courtice.

The Law

[ 6 ] Rule 24(1) of the Family Law Rules establishes a presumption in favour of a successful party as to entitlement to costs. In this case, I would agree that each party enjoyed some success in relation to their respective positions.

[ 7 ] In the end, the applicant was able to obtain the relief that she offered in her Offer to Settle, which was based upon the recommendations of Ms. Convery.

[ 8 ] By Rule 24(11), the court must consider the importance, complexity and difficulty of each issue, the reasonableness or unreasonableness of each party’s behaviour in the case, the lawyer’s rates, the time properly spent on the case, expenses properly paid or payable and any other relevant matter .

[ 9 ] This was not a complex matter. It was extremely important to the parties in that they both wished to ensure that their son’s best interests be served.

[ 10 ] I do not think that either party behaved in an unreasonable fashion. When the court suggested the involvement of a parenting facilitator, both parents agreed, cooperated and in the result, achieved a resolution of this matter.

[ 11 ] It would appear, however, that but for the commencement of this motion to change, these parties would not have achieved this result. This matter required the court’s intervention in order to direct the parties to undertake the parenting coordination process which, in the end, resulted in a decision made by the parents, in their son’s best interests, and which the court could approve by way of a consent order.

Disposition

[ 12 ] It is to be noted that in this matter, the parties attended for a case conference on February 11, 2011. On that date, Justice Hatton reserved costs. On April 21, 2011, the parties appeared before me in family motions court, at which time the order was made that the parents retain and share equally the costs of a parenting facilitator on the issue of Troy’s school location.

[ 13 ] On October 26, 2011, the parties appeared before me, again in family motions court, and filed their consent, which I was able to endorse.

[ 14 ] In all of the above circumstances, it is clear that the applicant’s motion to change was necessary as a catalyst to move forward on this issue, which is very important, and had to be determined in the best interests of the couple’s son. Both parents could have, and should have, pursued the involvement of a parenting facilitator, mediator or some other professional in order to assist them in relation to this impasse.

[ 15 ] It is to be noted that in Madam Justice Scott’s order of July 26, 2007, which was based upon the applicant and respondent’s own minutes of settlement, dated May 25, 2007, neither party could change Troy’s school without the consent of the other, or, obviously, the order of this court. The applicant in this case took the appropriate steps to obtain this court’s approval, given that no agreement had been reached. While the respondent argues that this matter was brought prematurely, given the length of time available before a change of school will be implemented for Troy, this court all too often sees emergency motions for the very relief sought by the applicant. In this case, it was appropriate for the applicant to take the steps, at an early stage, in order to ensure that this decision could be fully canvassed for the benefit of Troy.

[ 16 ] To that end, the respondent shall pay the applicant’s costs of $4,500 plus $521.60 for disbursements, all inclusive of HST. I note that the applicant sought recovery of her share of the parenting facilitator’s fees. I ordered on April 21, 2011 that the parents would share equally such fees. I am not prepared to change that order. These costs may be filed and collected in the same manner as child support.

[ 17 ] The applicant and respondent would be well served to consider again retaining the services of a parenting facilitator, should they again face an impasse on issues affecting their son’s best interests.

“Mr. Justice D.S. Gunsolus”

DATE RELEASED: January 20, 2012