ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: FC-10-188
Date: 2014/02/28
BETWEEN:
EDITH ROBERTS
Applicant
– and –
SYLVAIN BURELLE
Respondent
Sonya Notturno, for the Applicant
Self-represented
Heard: By Written Submissions
DECISION ON COSTS
BEAUDOIN J.
1In this application the Applicant mother was completely successful in obtaining custody of Madeleine Burelle, born January 19, 2009 and the court ordered furthermore that Madeleine’s primary residence would be with her mother. The Applicant now seeks her costs in the amount of $10,000.
2In accordance with Rule 18 of the Family Law Rules, O. Reg. 114/99, the Applicant says she made three offers to settle none of which were ever accepted or even responded to. She says that communication with the Respondent father to resolve this matter has always been difficult including during those periods while the Respondent had counsel.
3The Applicant states that there were two main issues to be decided at trial; namely custody and access. The Applicant notes that she was granted sole custody of the child. While her offer of settlement avoided the term “sole custody” she relied on the term of “primary residence” in an effort to avoid argument over the term custody.
4The Applicant mother also notes that she was successful with respect to access in that the court ordered that there would be no more overnight access on Thursday nights in Week Two. She claims that she was substantially successful on the issues of summer/holiday/PD days and other access. Given that I ordered that the Applicant mother have final decision-making in the event of a disagreement, she claims success on this issue.
5The court further ordered that the Applicant mother would be responsible for the child’s haircut; that she may obtain a passport for the child without the father’s consent and that, with the exception of trips to Buffalo, neither parent was to travel with the child without the other’s consent. Again the mother claims she was successful on these issues.
6The mother’s total bill of costs is $11,596.18 not including charges for the preparation of the costs submissions. The mother is prepared to reduce her account by roughly $988.75 reflecting the costs of attending at the settlement/trial management conferences. However, the Applicant notes that if the Respondent had been cooperative and had followed the order of Justice Minnema dated April 26, 2012 this step could have been eliminated. The Applicant notes that the Respondent refused to let his own counsel agree to any parenting coordinators and that it was only seven months later, by order of Master Roger, that the parenting coordinator was appointed by the Court.
7The Applicant’s counsel has practiced since 2012. Her hourly rate was $250. The Applicant mother concludes that the Respondent did not assist in expediting this matter while she made genuine efforts to settle in accordance with the best interests of the child. For these reasons, she submits that her fees should be assessed in the amount requested.
8In his response, the Respondent father claims that the Applicant mother is responsible for all the legal costs of both parties. He refers to the Applicant’s insistence that all communications be through her lawyer. He claims that the Applicant forced him to incur over $38,000 in legal fees. The Respondent claims that if he had not made any efforts, his access would not exist or would be greatly diminished. He accuses the mother was using the child to manipulate, interfere with access and dictate terms that gave her complete control.
9The Respondent claims that he behaved reasonably and that he acted in good faith at all times. He relies on excerpts from the Continuing Record and from correspondence with his own counsel as proof of the mother’s unreasonable behaviour. He notes that while he did not sign the parenting plan, the parties were following it. He asks that each party should pay their own costs of the trial and that Ms. Roberts should be required to pay his legal costs in the amount of $38,000. The father disputes the mother’s claims for success on the issues to be decided.
10Finally, the Respondent claims that the Applicant mother’s actions created all the legal costs incurred to date and that these would not have been necessary if the Applicant had not insisted that all communications proceed through her lawyer.
Conclusion
11I note that the Applicant commenced these proceedings without the benefit of counsel. It was Mr. Burelle who hired counsel and in his Answer and Cross Application he sought joint custody and child support and accused the mother of not wanting the child. The Respondent’s claims and allegations required Ms. Roberts to retain counsel. The Applicant mother’s allegations with respect to the Respondent’s inflexibility were borne out by the evidence adduced at trial. It was evident that the father was placing his own interests ahead of those of the child. He put forward a parenting plan that gave him complete control, that did not resemble in any way the plan presented by the parenting coordinator who had worked with the parties. He failed to acknowledge any impact of removing Madeleine from the only home she has ever known. The father continues to complain about the annual cost of child support in his submissions which strongly suggests that he is putting his financial interests before the best interests of his daughter.
12In the end, a trial was necessary; not because Ms. Roberts retained a lawyer, but because of the Respondent’s intransigence. Ultimately, Ms. Roberts was successful. There is no reason why she should be deprived of her costs. The amount of costs claimed by the Applicant mother is eminently reasonable having regard to the exaggerated amount of the father claims solely for his costs for the events leading up to trial. For these reasons, I order the Respondent father to pay the Applicant’s costs in the amount of $10,000 which amount is payable forthwith and which amount is inclusive of fees, disbursements and HST.
Mr. Justice Robert N. Beaudoin
Released: February 28, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
EDITH ROBERTS
Applicant
– and –
SYLVAIN BURELLE
Respondent
DECISION ON COSTS
Beaudoin J.
Released: February 28, 2014