COURT FILE AND PARTIES
COURT FILE NO.: FC-12-2322
DATE: 2014/01/24
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: CAROLE RHEA THOM, Applicant
AND
BLAIR WALLACE THOM, Respondent
BEFORE: Kane J.
COUNSEL:
Marc J. Coderre, counsel for the Applicant
Michael D. Wonham, counsel for the Respondent
HEARD: By Written Submissions
COSTs ENDORSEMENT
MOTION AND CROSS-MOTION
[1] Each party brought an interim motion.
[2] The Applicant mother requested an order that:
(a) the two children have their primary residence with her,
(b) Camile attend L’École Franco-Ouest,
(c) Mathieu attend L’École Jean Paul II, and
(d) Mathieu be enrolled in the Richmond minor hockey association league as of August 27, 2013.
[3] As to such issues, the Applicant was successful as to (b) and unsuccessful as to (a), (c) and (d). The court refused (a) as to the daughter and was prevented from dealing with it as to the son for the reasons stated.
[4] The Respondent father requested an order that:
(a) the issue of primary residence of the children be adjourned,
(b) the parties exercise equal access to their daughter Camile on a week-on week-off basis with additional access in accordance with the custody evaluation report of Chantal Bourgeois,
(c) on an interim, interim basis, the Respondent to exercise access to Mathieu in accordance with the custody evaluation report of Chantal Bourgeois,
(d) Camile to attend L’École Secondaire Pierre Savard, or in the alternative, that the Respondent’s additional expenses incurred for Camile’s attendance at L’École Franco-Ouest are deemed to be extraordinary expenses as defined in s.7(d) of the Federal Child Support Guidelines in the amount of $475.21 per month,
(e) Mathieu to attend Pierre Elliot Trudeau elementary school,
(f) Mathieu try out for competitive hockey in Nepean and if unsuccessful, he will play Nepean recreational house hockey, and
(g) the parties facilitate the children’s attendance at counselling with Dr. Munt, including the coordination of benefits to mitigate the cost thereof.
[5] As to his above issues, the Respondent was successful as to (a), (b), (c), (e), (f) and (g). Issues (a), (b) and (c) were not strongly opposed by the mother. The mother agreed with (g). He was unsuccessful as to (d) on the basis that travel expenses were not awarded to him.
[6] The principal issues argued were the school to be attended by each child, compensation if the daughter changed to L’École Franco-Ouest and where the son was to try out for competitive hockey and play. On those issues, success was almost equally divided.
OFFERS OF SETTLEMENT
[7] No offer of settlement from the Applicant is disclosed.
[8] The Respondent’s offer agrees to Camile going to L’École Franco-Ouest but ties that to his wife paying him transportation costs of several hundred dollars per month which the court did not award and instead adjourned.
POSITION OF THE PARTIES ON COSTS
[9] The Applicant submits that there should be no order as to costs as the parties shared success. She states that her own costs for the motions on a full indemnity scale were some $5,200.
[10] The Respondent seeks an award of costs in the amount of $11,368 inclusive of tax and disbursements. He seeks such costs as he was substantially successful in these motions. He argues he is entitled to this higher scale of costs because of the unreasonable position taken by the Applicant on the issues determined.
LEGISLATIVE PROVISIONS
[11] Subject to legislation and rules of the court, cost entitlement and quantum are at the discretion of the court. (Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131(1))
[12] These rules provide that:
(1) A successful party is presumptively entitled to costs of a motion – Rule 24(1).
(2) Unless ordered otherwise, an offer of settlement will entitle the issuer to costs to the date of serving the offer and full recovery thereafter if the offeror proves that; (a) it is served one day before the motion or seven days before the trial, (b) the offer remained open for acceptance and was not accepted and (c) the offer equals or exceeds the order – Rule 18 (14) and (15).
(3) In exercising its discretion as to costs, the court may take a written offer to settle into account, the date thereof and its terms - even if entitlement is not established under Rule 18 (14) – Rule 18 (16).
(4) A successful party may however be deprived of costs or ordered to pay the unsuccessful party’s costs in the event of unreasonable behaviour – Rule 24 (4).
(5) As to whether conduct is reasonable or unreasonable, the court is directed to consider behaviour in relation to the issues, whether an offer was made, the reasonableness thereof and any offer withdrawn or not accepted – Rule 24 (5).
(6) Where success on the motion is divided, the court may apportion costs – Rule 24 (6);
(7) In setting costs, the court is to consider:
(a) the importance and complexity of the issues, reasonable and unreasonable conduct by a party,
(b) the lawyers hourly rates,
(c) the time property expended in the matter as well as appropriate expenses paid, and
(d) any other relevant matter – Rule 24 (11).
ANALYSIS
[13] Each party has been unreasonable in their conduct which resulted in these motions. That is particularly so in the case of the Applicant who initiated the numerous changes post separation regarding schooling and hockey. She fuelled any existing estrangement between the father and son. She elected to serve no offer of settlement.
[14] The Respondent has been more successful in the outcome.
[15] This is not a case for a scale of costs in excess of partial indemnity. I am hopeful the parties have each through these motions, gained some personal insight as to what reversed their previous ability to co-parent and brought them to this escalation of events.
[16] The hours expended by counsel for the Respondent materially exceed those of the Applicant and appear to cover services beyond these two motions.
DECISION
[17] On balance, the Respondent was more successful and is entitled to costs on the two motions which I fix at $2,500, inclusive of H.S.T. and disbursement, which are payable by the Applicant within 30 days of the release of this endorsement.
Kane J.
Released: January 24, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: CAROLE RHEA THOM, Applicant
AND
BLAIR WALLACE THOM, Respondent
BEFORE: Kane J.
COUNSEL: Marc J. Coderre, counsel for the Applicant
Michael Wonham, counsel for the Respondent
COSTS ENDORSEMENT
Kane J.
Released: January 24, 2014