ONTARIO
SUPERIOR COURT OF JUSTICE
SIMCOE COURT FILE NO.: 178-06-01
DATE: 2013-02-28
B E T W E E N:
Ken Coombs
Paul D. Amey, for the Applicant
Applicant
- and –
Rihannon Kirkwood
J. Fraser Bushell, for the Respondent
Respondent
The Honourable Mr. Justice B.H. Matheson
E N D O R S E M E N T
This is a cost endorsement.
After a five day trial dealing mainly with the change of custody of Olivia, the child of the applicant and the respondent, I made an order that the custody of Olivia should be with the father, the applicant. A sixth day was arranged to deal with the access by the mother. To the credit of both parties they were able to settle all of the issues of access, except one issue and that was dealing with mid-week access. I dealt with that issue.
It was an emotionally charged motion.
POSITION OF THE APPLICANT
The applicant is asking for costs to be on a partial indemnity basis.
The main issue was the change of custody of Olivia from the mother to the father. This was to change the order of Justice J.R. Turnbull dated February 7, 2007.
On a partial indemnity basis, including fees, disbursements and HST, this would amount to some $25,464.55. The applicant rounded that amount off to $25,000.
The main issue, as I have stated, was that of custody of Olivia from the mother to the father. He was mostly successful in his application. It was unfortunate that the parties could not resolve the issues between themselves.
He did make an offer to settle, which was made six days before the start of trial but only his lawyer signed it. This did not comply with Rule 18(14) of the Family Law Rules, which states that both the party and his lawyer must sign.
In the Jakubowski v Kopacz-Jakubowski [2008] O.J. 1443, Justice Kane stated at paragraph 15:
It is to be noted that technical non-compliance with the requirements under Rule 18(14) are protected under Rule 18 (16) to the extent of permitting the court to consider such non-compliant offer in an award of costs….
- In considering the principles of determining costs, the court will take into account the following:
a) The importance to both parties. The care and custody of a young child is very important to both parties. It is to be expected that neither party would willingly give up the custody unless there was very good reason before the trial to do so.
b) This application was not complex, although very difficult for both parties. Cindy Martin-Hrycak, who was a private Office of the Children’s Lawyer representative, was hired by both parties. She gave it as her opinion that Olivia wanted to be in the father’s custody.
c) The financial position of the parties varies widely. Mr. Combs and his wife are both fully employed. The respondent has an income of roughly $20,000. She also receives child support for her two older daughters of some $500 a month.
d) She lives in a home jointly owned by her mother and herself. In the abstract of title found at tab two of the applicant’s submissions, she and her mother bought the present home on July 29, 2011, for some $217,000. There are two charges on the land: $173,600 and $25,000.
e) There is a disparity of income between the two parties. One may surmise that the respondent’s mother would be paying some of the costs of running the household.
f) In Powers v Powers 2004 ONCJ 245, [2004] O.J. No 4378, Justice Zuker stated at paragraph 30 the following:
In MacDonald v. Magel, supra, the Court of Appeal addressed a number of important points. Although subrule 24(11) does not list the financial circumstances of the parties as one of the enumerated factors to consider in determining the quantum of costs, the court confirmed that it is indeed a factor, particularly in custody cases.
g) It would also appear that the respondent may be paying $100 for child support for Olivia to the applicant. In the offer to settle made by the applicant, he stated that if accepted there would be no child support payments asked for.
- The Applicant fought a five to six day trial. The Applicant is entitled to his recovery of costs. He has stated that he is seeking partial indemnity costs of some $25,000. I appreciate that this is going to be a difficult time for the respondent, the applicant is entitled to his costs fixed at $25,000 all in.
Matheson, J.
Released: February 28, 2013
SIMCOE COURT FILE NO.: 178-06-01
DATE: 2013-02-28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Ken Coombs
Applicant
- and –
Rihannon Kirkwood
Respondent
Endorsement
Matheson, J.
Released: February 28, 2013