COURT FILE NO.: FC-13-625-00

DATE: 20131017

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Brianna Larmand, Applicant

AND:

Edmundo DaSilva, Respondent

BEFORE: The Hon. Mr. Justice J.P.L. McDermot

COUNSEL:
John Winter, for the Applicant

Marek Balinski, for the Respondent

HEARD: By written submissions

ENDORSEMENT

[1] Counsel argued a motion for temporary care and control before me on August 29, 2013. To the date of argument, temporary care of the child had been shared, but the child was now entering junior kindergarten and each party lived in separate school districts. Due to transportation issues, it was apparent that the child had to live primarily with one parent or the other for school purposes. After argument, and based on the materials filed, I determined that the child be placed in the care of the Applicant Mother subject to access to the Respondent Father. Ms. Larmand, being the successful party on the motion, now requests costs.

[2] There were no offers to settle on the motion. Accordingly costs must be determined pursuant to Rule 24 of the Family Law Rules.[1]

[3] In considering costs, under Rule 24(1) of the Family Law Rules, costs follow the event, and a successful party is presumed to be entitled to costs. I may take into account unreasonable conduct of either party (Rule 24(4)) and if success is divided, I may apportion costs as appropriate (Rule 24(6)). Under Rule 24(11), in fixing the amount of costs, I may take into account the “importance, complexity or difficulty of the issues” as well as “the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order.”

[4] I can also take into account the conduct of the parties to this proceeding: see Rule 24(8) of the Family Law Rules. Under that rule, I am obliged to order full indemnity costs payable forthwith if a party has acted in “bad faith.” Moreover, I may generally take into account under Rule 24(11) “the reasonableness or unreasonableness of a client’s behaviour” in assessing the amount of costs. Finally, under Rule 24(11)(f) of the Family Law Rules, I am entitled to take into account “any other relevant matter” in determining costs. This may include the economic circumstances of the parties: see see C.A.M. v. D.M., 2003 18880 (ON CA), [2003] O.J. No. 3707 (C.A.) at paragraph 45 and Harrington v. Harrington, [2009] O.J. No. 827 (C.A.) at paragraph 8.

[5] As noted, no offers to settle were submitted by either party. The issues were not overly complex. Accordingly entitlement to costs must be determined on the basis of the relative success of the parties at the motion and any conduct issues disclosed by the motion materials. As well, I wish to address Mr. DaSilva’s ability to pay a costs award.

[6] Ms. Larmand was wholly successful in the result of the motion: she received primary residence of the child. As well, there was an element of unreasonable conduct on the part of Mr. DaSilva who purported to register the child for school in his district without the benefit of a court order or permission from Ms. Larmand. For both those reasons, Ms. Larmand is entitled to her costs of this motion.

[7] Mr. Winter requests costs in the amount of $2,000. That is, on its own and based on the bill of costs provided, a reasonable request. However, there is a real issue as to Mr. DaSilva’s economic circumstances, and I do not intend to issue a costs award that cannot be paid or which could be used to put him out of the litigation by way of a motion to strike pleadings under Rule 14(23) or Rule 1(8) of the Family Law Rules. Mr. DaSilva is receiving Ontario Disability Support Payments and has a limited ability to pay a costs award in the requested amount.

[8] I finally agree that the costs of the case conference should be excluded from the costs amount ordered, as that is not part of the costs of a motion, and should not be chargeable unless specifically reserved: see Islam v. Rahman, 2007 ONCA 622, [2007] O.J. No. 3416 (C.A.).

[9] Accordingly, the Applicant shall have her costs of the motion in the amount of $1,000, payable at the rate of $100 per month commencing January 1, 2014.

McDERMOT J.

Date: October 17, 2013

[1] O. Reg. 114/99