SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 632-2011
DATE: 2014/01/24
RE: SONIA BARGIEL, Applicant
AND
RAYMOND MAINVILLE, Respondent
BEFORE: Kane J.
COUNSEL:
Sonia Bargiel, Self-Represented
Jocelyne Paquette-Landry, counsel for the Respondent
HEARD: By Written Submissions
COSTS ENDORSEMENT
THE PROCEEDING
[1] In this motion, the respondent sought an interim order that the children, aged 10 and 8, are to reside with each parent equally, on a week about basis.
[2] The parties separated in February, 2011 and executed a separation agreement on March 1, 2011 providing for joint custody of the children with alternate weeks with each parent.
[3] The respondent was charged with several criminal offences involving the applicant in January, 2012. Those charges were ultimately withdrawn. The applicant, represented by counsel, commenced this application in March, 2012 in which she claimed sole custody.
[4] The mother complained to the OPP about a telephone call from the father in May, 2012 and to Valoris in May, 2012. Valoris closed its file in June, 2012.
[5] The applicant mother, with counsel, proceeded to an uncontested trial on June 22, 2012, wherein she obtained, (a) an order setting aside the separation agreement, and (b) a final order of sole custody of the children and limiting access to the father to every second weekend and Wednesday night.
[6] The children spent alternate weeks with each parent for one year, from separation until the mother’s uncontested trial in June, 2012.
[7] The father served a motion in September, 2012, to set aside the above final order obtained in the uncontested trial.
[8] Pelletier J. in reasons dated December 18, 2012, by interim order, set aside the final order of Métivier J., dated June 22, 2012, except for the provisions as to the living arrangements of the children and access by the respondent which issues were to proceed to hearing. Pelletier J. expressed concern with the applicant’s decision to proceed to default hearing knowing that the respondent had hired counsel and had requested consent to file a defence. The applicant failed to advise Métivier J. of such facts.
[9] Pelletier J. refused to alter the status quo in the interim, but stated that there did not appear to be any reason for the children spending less time with one parent. The father’s access was limited to every second weekend plus Wednesday night between September, 2012, and June, 2013.
[10] The mother since the May, 2012 uncontested hearing, granted the father three extended periods with his children during their 2012 summer vacation, namely, two 10-day periods and one 14-day period.
[11] The mother by email dated May 3, 2013, divided the children’s 2013 summer holidays such that they spent 37 days with the father and 24 days with her.
DECISION
[12] By interim order, this court ordered that the children are to spend alternate weeks with each parent. The respondent accordingly was successful in the result.
POSITION OF THE PARTIES AS TO COSTS
[13] The applicant submits that there should be no order of costs. She submits that:
(a) she cannot afford to pay costs,
(b) any non-disclosure at the undefended trial granting her sole custody of the respondent’s notice that he had retained counsel, was an error by her counsel which she should not be held responsible for, and
(c) the respondent had been delaying constantly prior to the uncontested trial to participate in mediation and then failed for a month to file a defence. To award costs now she submits, is to reward him for his delay.
[14] The respondent seeks full indemnity cost recovery of this motion in the amount of $4,796, including HST and all disbursements. Hours docketed are 14.8 hours by the lawyer and 1.2 by the paralegal.
OFFERS
[15] There are no offers disclosed.
LEGISLATIVE PROVISIONS
[16] 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))
[17] 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
[18] The applicant states she is satisfied that the respondent has sought out the support and counselling he needs to care for the children. That should have led to her consent to set aside the order obtained in the uncontested action and this motion. Instead she provided him with the time he sought during holidays but argued that the court limit him to a weekend and one mid-week access period because he was not communicating with her in the manner she preferred.
[19] This court determined that these parents are each responsible for their current issues regarding custody and care of the children. I do not accept the mother’s argument that it is the father who is solely to blame and he is not therefore entitled to costs given the outcome.
[20] Limited financial means is not a full answer to a cost entitlement.
[21] Given the outcome of this motion, costs should follow the event.
[22] The hourly rate and time docketed are acceptable.
[23] There is no basis to award costs above partial indemnity.
DECISION
[24] Costs are fixed in the amount of $ $1,800, all-in. Those costs are payable in three equal instalments to the respondent on the first day of March, June and October, 2014.
Kane J.
Released: January 24, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: SONIA BARGIEL, Applicant
AND
RAYMOND MAINVILLE, Respondent,
BEFORE: Kane J.
COUNSEL: Sonia Bargiel, Self-Represented
Jocelyne Paquette-Landry, counsel for the Respondent
COSTS ENDORSEMENT
Kane J.
Released: January 24, 2014