COURT FILE NO.: FC-12-547
DATE: 20141002
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: GEOFFREY STONE, Applicant
AND
LAURI WILLIAMS, Respondent
BEFORE: Mr. Justice Robert N. Beaudoin
COUNSEL: Jane Thomson, for the Applicant
Rod Vanier, for the Respondent
HEARD: By written submissions
costs ENDORSEMENT
[1] I heard the Applicant’s motion on August 27, 2014 and at the conclusion of the hearing, I gave oral Reasons with respect to some of the relief sought by the Applicant and reserved on one issue only. The parties had managed to agree to some issues prior to the hearing of the motion. I subsequently released an Endorsement the following day. The purpose of that Endorsement was to clarify my Reasons for ordering the updated assessment and to decide the one outstanding issue; namely a slight variation in the Applicant’s current weekend access schedule. At the conclusion of the hearing on August 27, 2014, I invited the parties to make their cost submissions to be received within 20 days after the release of my Endorsement.
[2] While the Respondent’s counsel has delivered cost submissions, he nevertheless takes the position that the Court has no jurisdiction to order costs since my Endorsement was silent on that point. The fact that I invited cost submissions and that the parties now made them is sufficient to deal with that issue. An endorsement on that issue was not necessary. In any event, the Court has jurisdiction to vary or amend any order prior to its issuance and entry; and there is no doubt that I have jurisdiction to consider the issue of costs.
[3] The major issue in this motion was the Applicant’s request for an update of the custody and access assessment initially conducted by Ron Stewart concerning the parties’ child, Athan Williams Stone, born January 28, 2010 (“Athan”). The Applicant also sought relief on a number of secondary issues including a variation of his current weekend access with Athan particularly concerning counselling for Athan, joint custody, and additional relief related to decision-making and obtaining information concerning Athan’s health and education.
[4] In the end, I ordered an updated assessment. I modified the Applicant’s current weekend access schedule so that it would commence every second Friday after school until Sunday evening, and I directed that Athan attend counselling and therapy with a specialist mutually agreed upon by the parties and if the parties could not agree, that the specialist would be one recommended by Ron Stewart. The Respondent consented to the remainder of the relief sought by the Applicant with the exception of its request for an order for joint custody.
[5] The Applicant maintains that virtually all of the items consented to amount to nearly the same result as a formal order of joint custody without giving it that title.
[6] The Applicant claims success on the motion and relies on the presumption set out in Rule 24 of the Family Law Rules. The Applicant first claims success with respect to the updated custody and access assessment. I also ordered that the cost of the update was to be shared on a without prejudice basis as requested by the Applicant.
[7] The Applicant was entirely successful on the change in the weekend access schedule as well as on his position with respect to counselling for Athan. While I declined to make an order for interim joint custody, the Applicant maintains that he was successful in obtaining relief that grants him the equivalent of joint custody in all but name. In any event, the Applicant maintains that the issue was secondary and that very little time was spent on it during oral arguments by either side.
[8] Given his overwhelming success on this motion, the Applicant seeks costs on a substantial indemnity basis which total $10,836.93 including GST.
[9] Counsel sites and relies on the factors set out in section 24(11) of the Rules. The Applicant notes that the main issue on the motion; namely an update to an assessment, was important and complex. It is rare for a court to order an update to an assessment, particularly within the time period of a year or less since the release of the initial report. The Applicant says he was put to great lengths to explain why he had no choice but to seek the update to the initial assessment. The importance of these issues is self-evident as they relate to the well-being of the parties four-year-old son.
[10] There were no Offers to Settle, although, there was ample correspondence between counsel for the Applicant and the Respondent wherein the Applicant’s counsel repeatedly sought consent for the updated assessment. The Applicant also sought a change in the weekend access schedule as ordered, and also requested that the Respondent cease from making unilateral decisions regarding the child’s health and extracurricular activities. The Applicant claims this correspondence was unanswered.
[11] The Applicant maintains that the only sign that the Respondent might be willing to consent to some of the relief sought by the Applicant appeared in the Respondent’s Factum served on the day before the motion.
[12] Counsel for the Applicant’s rate is $220 per hour. She was called to the bar in 2009. Her area of expertise his family law. She was assisted by a senior fellow counsel whose rate is $300 per hour and he was called to the bar in 2003. The Applicant’s counsel maintains that most of the time and resources spent on the motion were incurred in drafting the motion materials, affecting the affidavits from the Applicant and his mother and preparation of supplemental affidavits in response to the Respondent’s affidavit that raised numerous issues of credibility.
[13] Apart from a his surprising comment that the Court had no jurisdiction with respect to costs, the Respondent’s counsel takes the position that there was an agreement with respect to counselling and therapy for Athan and with respect to the change in weekend access. According to the Respondent, the only issue that required argument was the question of the updated assessment and that there are very limited circumstances where such relief is granted. The Respondent takes the position that success on the motion was divided at best.
[14] The Respondent’s counsel argues that both parties argued in good faith and were solely concerned with Athan’s best interests. He cites and relies on case law that holds that there should be no costs where both parties have acted reasonably and in good faith in custody and access issues. He adds that the Respondent’s ability to pay any costs is quite limited and that she has few financial resources. He adds that the Respondent will be hard-pressed to pay the one half of Mr. Stuart’s fee of $2087.50 at this time. He concludes that a costs order would undermine the Respondent’s ability to care for Athan because of her already limited financial resources. In the alternative, the Respondent’s counsel argues that costs should be reserved to the trial judge.
Conclusion
[15] I disagree that the Respondent consented to the weekend variation and on the issue with respect to counselling. At the outset of the motion, I asked the Respondent’s counsel if his client consented to the proposed change in weekend access, and while there was some mention that this might be a viable plan, when pressed, the Respondent would not consent to the change and as a result, I reserved on this issue and ultimately decided it in favour of the Applicant.
[16] With respect to the issue of counselling, the Applicant sought the designation of a therapist who was mutually agreed upon by the parties. The Respondent had already unilaterally chosen a therapist for Athan. It was the Respondent’s position that if the parties could not agree, then Athan’s family doctor should choose the therapist. I ultimately decided that, in the event of impasse, the therapist should be selected by Mr. Stewart. Accordingly, these issues were not resolved on consent as suggested by the Respondent.
[17] I agree that a party should not be faced with the costs sanction where there is a motion dealing with custody and access issues and that party as acted reasonably and in good faith. In this case, I am not satisfied that the Respondent acted in such a fashion. The Applicant offered detailed evidence with regard to the Respondent mother’s behaviour as being in the source of Athan’s transitional anxiety issues. The Respondent chose not to respond to those allegations and left these unchallenged. She acknowledged that Athan had experienced these difficulties but claimed to be at a loss to explain their root cause.
[18] In a similar way, the Respondent’s resistance to the updated assessment was hard to understand since she failed to take a clear position on this issue at the motion. So in the end, the motion had to be argued; the Applicant was successful and he obtained the results that he sought on the motion save and except for joint custody. I agree that very little time was spent on that issue.
[19] While the Respondent claims limited financial resources, the Applicant is paying $1114.00 per month in child support and his share of section 7 expenses. Justice Kershman’s order sets out that the Respondent earns $65,666 per annum. A party cannot rely on “best interests of the child” or claim that a costs order would undermine their ability to provide for a child unless there is clear evidence that that is the case. Otherwise, a party could take an unreasonable position and force an opposing side to incur the heavy costs of initiating a motion. In this case, the Respondent failed to address serious issues raised in the Applicant’s motion materials and I can’t accept her arguments that she was acting in good faith. While a costs order may cause some financial difficulty, I am not satisfied that any order for costs would undermine her ability to provide for Athan. In my view, the financial circumstances may affect the quantum of costs to be ordered and if necessary, she can be given time to pay.
[20] Given the novelty of the issue of the updated assessment, a fact that is conceded by the Applicant, this is not a case for substantial indemnity costs. Accordingly, I order the Respondent to pay the successful Applicant’s costs of the motion which I fix in the amount of $4000 inclusive of HST and disbursements. She has six months to pay that amount.
[21] The order is to be signed in the form proposed by the Applicant.
Mr. Justice Robert N. Beaudoin
Date: October 2, 2014
COURT FILE NO.: FC-12-547
DATE: 20141002
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: GEOFFREY STONE, Applicant
AND
LAURI WILLIAMS, Respondent
BEFORE: Mr. Justice Robert N. Beaudoin
COUNSEL: Jane Thomson, for the Applicant
Rod Vanier, for the Respondent
HEARD: By written submissions
costs ENDORSEMENT
Beaudoin J.
Released: October 2, 2014