SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-13-78778
DATE: 2014-02-25
RE: SHOTTON v. SWITZER
BEFORE: JUSTICE VAN MELLE
COUNSEL:
K.L. Smithen, for the Applicant
A. Finlayson, for the Respondent
COSTS ENDORSEMENT
[1] On February 4, 2014 I dismissed Amanda’s motion for sole custody of Alexander and Owen and granted the parties joint custody. I instituted a parenting schedule as proposed by Ryan. I also dealt with several other, more minor issues. In my view, Ryan was the successful party on a motion that was ill-advised and should never have been brought by Amanda. I found that Amanda had failed to provide any evidence that it was in the best interests of the children that the parenting schedule arranged by the parties themselves be changed. Ryan is entitled to his costs. He seeks costs of $30,332.34 which has been reduced by $5,000.00 to reflect his lack of success on the more minor issues.
[2] Amanda submits that the parties should be responsible for their respective costs but particularizes her own legal fees as being $26,633.54.
[3] This motion was ill-advised from the outset and as I stated in my endorsement with respect to the motion itself, the time and money could better have been spent on an assessment, parenting co-ordination or other avenues. In any event, I accept that Ryan’s legal fees are in excess of $30,000.00. There was a great deal of material that had to be reviewed and prepared to counter Amanda’s motion. However, I see no basis upon which to award full recovery costs even discounted by $5,000.00
[4] I find that an award of two-thirds of the costs claimed is reasonable in the circumstances and I award Ryan costs in the amount of $20,000.00.
[5] I wish to comment on the costs submissions themselves. Amanda’s submission restated the position that she had taken on the motion. I did not accept her position and thus it is inappropriate to restate it as a justification for bringing the motion in the first place. Amanda and her counsel should not lose sight of the fact that I found Amanda had no grounds upon which to claim sole custody.
[6] In her cost submissions Amanda states as well that during her attendance at the Mandatory Information Program she was told that cases with high conflict needed to be resolved through litigation and not mediation. Again, this is not relevant in a cost submission. She and her counsel (who knew the specifics of her case unlike the MIP leader) decided to pursue litigation before exploring other avenues for resolution and without the evidence required to support her motion.
[7] I encourage the parties to work out a costs payment schedule. I do not know the respective financial positions of the parties and do not know if one will owe the other an equalization payment. Those are matters that should be taken into consideration in working out the schedule.
Van Melle J.
DATE: February 25, 2014
COURT FILE NO.: FS-13-78778
DATE: 2014-02-25
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SHOTTON v. SWITZER
BEFORE: JUSTICE VAN MELLE
COUNSEL: K.L. Smithen, for the Applicant
A. Finlayson, for the
Respondent
COSTS ENDORSEMENT
JUSTICE VAN MELLE
DATE: February 25, 2014