SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 44944 -11
DATE: 2012-01-26

RE: Madelain Navaleza, Applicant

AND:

Michael Kohlmaier, Respondent

BEFORE: The Honourable Mr. Justice James W. Sloan

COUNSEL:
Margaret Anne Voll, for the Applicant
Richard N. Noll, for the Respondent

COSTS ENDORSEMENt

[ 1 ] This case appears to be a study in how, what should have been a relatively simple matrimonial matter goes off the rails.

[ 2 ] Rather than negotiate in any meaningful way or attempt mediation both parties take entrenched positions on 2 important issues.

[ 3 ] With respect to whether or not the Applicant was prohibited by an Undertaking to a Peace Officer from communicating with the Respondent and therefore could not mediate is something that likely could have been changed very simply, however there is no evidence of any attempt to do so.

[ 4 ] Although they were some attempts to negotiate by means of lawyer’s letters and some four way meetings very little progress was made.

[ 5 ] There were 2 main issues before me on which neither party was willing to bend.

[ 6 ] The Respondent father refused to vacate the former matrimonial home so the Applicant and their daughter could live in it.

[ 7 ] The home was the applicant’s before marriage. Although the Applicant initially requested that the home be sold it was clear by late 2010 that the Applicant wanted exclusive possession of the home.

[ 8 ] The father did not need the home for any reason other than a residence since he can carry on his business from anywhere there is a high speed internet connection.

[ 9 ] The Applicant on the other hand firmly believed she should be in full control of when the Respondent should see their daughter, notwithstanding that the parent child relationship for both these people is likely their most important relationship at this time.

[ 10 ] There is plenty of blame to go around for both parties which makes the issue of awarding costs difficult.

[ 11 ] After I requested brief submissions on the issue of costs I received almost ¾ of an inch of paper which continues to reflect the parties entrenched positions.

[ 12 ] I am not prepared to deal with the issue of productions in these reasons on costs.

[ 13 ] Unfortunately, if the parties continue not to work towards resolving their issues, there may very well be more motions and /or a trial with the resultant legal fees of which the parties are by now well acquainted.

[ 14 ] I find both parties equally to blame and since success was divided on the two main issues I award no costs.

James W. Sloan J.

Date: January 26, 2012