Court File and Parties

Court File No.: FS-13-38
Date: 2014/04/02
Superior Court of Justice - Ontario

Re: ANA MIKLAVCIC, Applicant

And:

WILLIAM MONTURE, Respondent

Before: Turnbull, J.

Counsel:
Lloyd St. Amand, Counsel, for the Applicant
Alison R. Macdonald, Counsel, for the Respondent

Costs Endorsement

[1] The parties presented arguments on a motion heard by me on December 17, 2013 and the reserved decision was released on December 23, 2013. I requested written submissions from counsel on the issue of costs and they were received in their entirety on January 21, 2014. I thank counsel for the thoroughness of their submissions which have been very helpful to me.

[2] There were a number of issues argued on the return of the motion. The primary issues which took most of the time and which were of greatest import to the parties were custody, access and child support. The applicant was substantially successful on two of those issues (custody and child support) and should receive some of her costs of this motion.

[3] However, the respondent was successful on other issues. He succeeded in obtaining an order expanding his access to include Friday evenings to Monday mornings before school. Holiday access was also expanded over the Christmas period. Prior to the motion, it is clear that the applicant repeatedly refused expansion of the access and failed to provide the respondent with ongoing information about the children. She further had him charged with criminal offences which ultimately were dismissed. During that period, his access was further impaired due to restrictive conditions of his judicial interim release order.

[4] He further was successful in resisting the applicant’s motion that she be re-instated as a beneficiary of the respondent’s life insurance policy and that she be included on the respondent’s insurance benefits available through his employment.

[5] I have taken into account the fact that the respondent made a written offer to try to settle issues prior to the motion being prepared and argued. There was no counter-offer from the applicant.

[6] However, counsel for the applicant sent correspondence to the respondent’s counsel on July 22, 2013 indicating the respondent should pay child support in accordance with the Child Support Guidelines and advising that if he was not willing to do so a motion would be brought for such an order and costs at a full indemnity basis would be sought. Counsel for the respondent replied on July 29, 2013, explaining that the respondent’s recent bankruptcy would possibly impact upon his obligation to provide child support. On August 13, 2013, counsel for the applicant again wrote and advised that costs on a full indemnity basis in the amount of $5,000 would be sought by the applicant if the respondent did not agree to pay child support in accordance with the Child Support Guidelines. On September 19, 2013, the respondent was advised through his counsel that a Notice of Motion would be commenced with a request for child support including retroactive child support and the quantum of support in accordance with the Child Support Guidelines. Ultimately, the motion had to be brought and the decision of this Court awarded the applicant retroactive child support to June 2013. Considering the entirety of the matter, it appears to me that both parties have acted somewhat unreasonably. The bill of costs submitted by counsel for the applicant claims a very reasonable sum of $3,791.15 inclusive of HST and disbursements for the services of Mr. St. Amand.

[7] Mr. St. Amand was called to the bar in 1979 and is a very experienced and senior counsel. He has charged his fees at a very reasonable rate of $275 per hour.

[8] In light of the fact that there was a split result in this matter, with two of the three significant issues determined in favour of the applicant, I find the applicant should be entitled to her costs in this motion which are fixed in the sum of $2,500 inclusive of HST.

[9] The issues while numerous were not terribly complex on this motion.

Regional Senior Justice James R. Turnbull

Date: April 2, 2014