COSTS ENDORSEMENT

COURT FILE NO.: FC-11-37371-00
DATE: 20121011

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Susan Anne Carr, Applicant

AND:

Jeffrey James Carey, Respondent

BEFORE: THE HON. MR. JUSTICE G.M. MULLIGAN

COUNSEL:
K. McCalmont, Counsel for the Applicant

W.H. Abbott, Counsel for the Respondent

HEARD: By written submissions

[ 1 ] The applicant and respondent both brought motions to determine which school their daughter would attend at the beginning of the school year in September of 2012. For reasons issued August 29, 2012, it was determined that their daughter Madison would attend school in Milton and reside in the father’s home during the week. I invited written submissions as to costs if the parties could not agree. Both parties have now made costs submissions.

[ 2 ] The respondent Jeffrey James Carey, the successful party, seeks costs on a full indemnity basis. The costs as sought are $11,920.81 all inclusive. Included within that figure are costs of approximately $2,000 for a case conference held approximately one month before the motion.

[ 3 ] The applicant responds that each part should bear their own costs or alternatively, if costs are ordered against the applicant, the amount sought is excessive.

OFFERS TO SETTLE

[ 4 ] As part of the motion both parties made offers to settle. By way of background prior to the motion, their child Madison spent three days at a time with each parent in their respective communities, the mother in Unionville, the father in Milton. The child changed pre-schools depending on which parent she was residing with. The essence of each party’s offer to settle is that the child would attend school near their residence on a regular basis. I am satisfied that both parents acted reasonably and had their daughter’s best interest in mind when they sought that the child should attend school near their own residence. As Mossip J. noted in Van Rassel v. Van Rassel, 2008 56939 (ON SC) , [2008] O.J. No. 4410, issues involving mobility generally do not lend themselves to matters that are easily settled. As Mossip J. said at para. 9:

[1] There is no other area of family law litigation in which the idea of winner and loser is less applicable than that of mobility cases. It is also true, that even with the very best parents, it is the area where “win-win” solutions can rarely, if ever, be fashioned. Parents involved in a mobility dispute often have to resort to the courts, as even with the best of intentions, and with both parties doing their best to put their child’s interest before their own, they cannot find a solution to the desire of one parent to move with the child, and the other parent vehemently resisting that move.

As Mossip J. continued:

[2] Offers to Settle – I find that analyzing attempts to settle this matter prior to trial is not that helpful in determining who was more or less reasonable. The fact is a mobility issue is not very conductive to settlement. As set out above, a trial was the only way this matter was going to be finally resolved.

INVOLVEMENT OF THE OCL

[ 5 ] Although there was a report by the Office of the Children’s Lawyer, it did not contain a recommendation as to which parent the child should reside with for school purposes. It simply recommended the child live with one parent or the other so that the child would have a consistent and stable school environment. Given those factors, I would put less weight on offers to settle in this case than might otherwise be the case.

[ 6 ] Rule 24 of the Family Law Rules provides guidance to the court with respect to family law costs matters. In addition, the Ontario Court of Appeal has provided overarching comments with respect to costs in Serra v. Serra, 2009 ONCA 395 () , [2009] O.J. No. 1905 at para. 8 :

Modern costs rules are designed to foster three fundamental purposes:

(i) to partially indemnify successful litigants for the costs of litigation;

(ii) to encourage settlement; and

(iii) to discourage and sanction inappropriate behaviour by litigants.

[ 7 ] Although the applicant claims that the respondent’s costs are excessive, she did not provide her own Bill of Costs for comparison purposes. In determining the expectation of the parties, it is helpful to the court if the losing party shows what her costs were with respect to the same matter: Work Price v. Mariner’s Haven Inc., [2004] O.J. No 5528 at para. 13 .

[ 8 ] The respondent has incorporated its costs for the case conference in costs sought for this motion. There is no material before me to indicate that the costs of the case conference were reserved to the motions judge. It is important that in family law matters, costs be dealt with at each state of the proceedings. I am satisfied that this amount should be deducted from the costs sought.

[ 9 ] Having considered the costs submissions of the respondent and submissions of the applicant, I am satisfied that the respondent is entitled to an award of costs of $8,000 all inclusive.

FUNDS IN TRUST

[ 10 ] As the respondent submits in his costs submissions at para. 15:

There is approximately $178,000 in trust from the sale of the matrimonial home. The respondent is content that any cost award comes from the applicant’s share of the proceeds being held in trust.

[ 11 ] The applicant in submissions makes a similar proposal at para. 12, “Furthermore, if any costs are awarded against the applicant mother, she respectfully submits that these should be due and payable from the equity in the matrimonial home.”

CONCLUSION

[ 12 ] The respondent is awarded costs of $8,000 all inclusive, payable from the available funds held in trust from the sale of the matrimonial home, within thirty days of the release of this endorsement.

MULLIGAN J.

Date: October 11, 2012