Court File and Parties

COURT FILE NO.: 6680/12 (Sarnia)
DATE: 20131001
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Karen Elizabeth Powell, Applicant

AND:

Jason Powell, Respondent

BEFORE: Nolan, J.

COUNSEL:
Counsel, Ian Bruce for the Applicant

Counsel, George F. McFadyen for the Respondent

HEARD: Written Submissions

ENDORSEMENT ON COSTS

[1] Mr. and Mrs. Powell separated on January 1, 2010 after a marriage of approximately 9 ½ years. They have two children Lauren, born February 27, 2005 and Nathan born January 23, 2007. The parties attempted to negotiate a resolution of all of the issues between them by way of the separation agreement. In 2011, Mr. Powell commenced an application for a divorce only to which Mrs. Powell did not respond.

[2] Mrs. Powell commenced an application on March 23, 2012 seeking an order for custody of the children, child support, section 7 expenses as well as extended health benefits and life insurance designation along with equalization of net family property. As the litigation commenced, the conflict between the parties increased. The Office of the Children’s Lawyer became involved and provided a report to the court in February 2013 which recommended joint custody of the children on a shared but not equal parenting basis, based on the work schedule of Mr. Powell who is a police officer. Mrs. Powell is a registered nurse who works from home.

[3] On April 11, 2013 the matter came before me by way of a motion for summary judgment commenced by Mrs. Powell in March 2013 following the release of the Report of the Office of the Children’s Lawyer. The motion had been adjourned several times on consent. By April 11, 2013, Mrs. Powell and Mr. Powell had reached a final agreement on almost all issues outstanding between them by way of a Consent Endorsement Request. I granted a final order in accordance with that Request dealing with all property issues, health benefits, life insurance, section 7 expenses exchange of annual income and any issues related to arrears of child support. Most significantly, they agreed to implement almost all of the recommendations contained in the report of the Office of the Children’s Lawyer on a final basis with the exception of recommendations 3 and 7 which Mr. Powell was seeking to have included in the order on an interim basis and Mrs. Powell was opposed to including in the order. The parties had also not agreed on the issue of child support.

[4] The recommendations in the Report, with the exception of recommendations 3 and 7 provided a schedule setting out the time that the children would be with each parent in a manner in which the children would be able to know in advance when they would be with each parent. Recommendations 3 and 7, however, provided for variations in the proposed schedule.

[5] Recommendation 3 provided that Mr. Powell would be entitled to an additional day per month on one of the weekend days which would be one of Mrs. Powell’s days according to the schedule and for which Mr. Powell would have to advise Mrs. Powell two weeks in advance.

[6] Recommendation 7 provided that each parent would give the other the first right of refusal for additional childcare required outside of his or her regular work schedule.

[7] After argument, I declined to make an order in accordance with either of those recommendations on an interim basis. After a detailed review of the Report, I found that there was no support for either of those recommendations in the report itself. I found that to implement recommendation 3 would be to add an element of uncertainty to the schedule of the children and would provide ongoing opportunities for the parties to engage in conflict involving the children. As for recommendation 7, I declined to include that recommendation, finding that the children are not left in the care of a “babysitter” as that phrase is commonly known. The mother works from home and is always present even when there are other persons in the home to assist her. Since the mother only works on weekends, such a provision in the order would add for additional uncertainty in the routine of the children. I found that such uncertainty was not in their best interests, at least on an interim basis.

[8] Having determined the schedule of the children, the issue of interim child support also had to be determined. Mr. Powell was ordered to pay child support to Mrs. Powell in the monthly amount of $1247 for two children in accordance with his annual income of $85,037, commencing April 15, 2013.

[9] Mr. and Mrs. Powel could not agree on the issue of costs and I received written submissions from both counsel on behalf of their respective clients.

[10] Counsel for Mrs. Powell sought costs in the total amount $6138.44 inclusive of fees, disbursements and HST on a “substantial indemnity basis”. In support of that position, counsel argued that as the successful party on the motion, Mrs. Powell was entitled to her costs. He further argued that once the Report from the Office of the Children’s Lawyer was received, Mrs. Powell served an Offer to Settle dated February 20, 2013 which Mrs. Powell’s counsel argued was almost identical to the order granted on April 11, 2013. The Offer would have given Mr. Powell 12 days of access per month rather than the 11 days of access provided for in the recommendations of the Office of the Children’s Lawyer. The number of days provided for in the Offer exceeded the number of access days Mr. Powell had exercised since the separation. The Offer also provided that Mr. Powell would pay child support in the amount of $1362 per month in accordance with his 2011 annual income of $95,567. My order was based on his most recent annual income of just over $85,000. Mr. Powell had been paying child support since the separation.

[11] Mrs. Powell’s counsel argued that, had Mr. Powell accepted the Offer to Settle, it would not have been necessary for Mrs. Powell to prepare and serve her motion for summary judgment.

[12] Counsel for Mr. Powell argued that the amount of costs being sought was excessive, “exorbitant” and “punitive”, considering that the parties, with the assistance of their counsel, had successfully negotiated almost all the outstanding issues between them. He asserted that Mr. Powell had acted reasonably at all times and that his goal from the beginning had been to equally share the time with his children. Mr. Powell’s counsel denied that Mr. Powell’s goal had been to obtain an order for by he would not be required to pay child support. In support of that position, counsel argued that Mr. Powell had paid child support since the separation.

[13] Rule 24 of the Family Law Rules sets out the considerations for the court in fixing costs. The court must take into account the importance, complexity or difficulty of the issues in the matter, the reasonableness or unreasonableness of each party’s behavior, the lawyers rates, the time spent on the case, the disbursements properly paid or payable and any other relevant matter, including offers to settle.

[14] There can be no more important issue than the custody of and access to one’s children. In that regard the issues before me were of importance to both parties. At the same time, the issues were not complex or difficult. Neither of the parties acted unreasonably and vigorously pursued what they each thought was in the best interests of their children. Mrs. Powell suggested that Mr. Powell’s goal in the litigation is to avoid paying child support and that he attempted to structure his time with the children to meet that goal. It might equally be suggested that Mrs. Powell’s goal in the litigation is to structure Mr. Powell’s time with his children so that he is required by law to pay child support. There was no evidence put forth by either Mrs. Powell or Mr. Powell with respect to the other being a less than the very good parent. Without an evidentiary foundation to prove otherwise, it is not surprising that after a separation, each party wants to spend a maximum amount of time with their children.

[15] The orders that I made with respect to recommendations 3 and 7 of the Report of the Office of the Children’s Lawyer and the consequent order for child support are only interim orders. The matter is scheduled for trial. At that time, the trial judge will have the benefit of hearing viva voce evidence from both of the parties, tested by cross-examination, along with evidence from the investigator from the Office of the Children’s Lawyer. The trial judge will be in the best position to make the decision about the time that the children will spend with each party on a permanent basis. The issue of child support on a final basis will be informed by the first decision.

[16] Counsel for Mr. Powell suggested that the costs awarded to Mrs. Powell as the successful party should be no more than $750 plus HST. Since I was not provided with his bill of costs, I am unable to determine that $750 plus HST was what Mr. Powell was charged by his counsel. Having said that, I agree that $6,138.44 is an excessive amount to require Mr. Powell to pay for costs on a motion to which most issues were ultimately consented. At the same time, I must take into account the Offer to Settle which was close but not the same as the order and that the motion had to be brought. I find that an appropriate amount for Mr. Powell to pay for costs to Mrs. Powell is $3,000 inclusive of fees, disbursements and HST.

The Honourable Madam Justice M.J. Nolan

Date: October 2, 2013