Court File and Parties

Court File No.: FC-13-1763
Date: 2014-11-24
Superior Court of Justice - Ontario

Re: Joel Milne, Applicant

And

Laura Milne, Respondent

Before: J. Mackinnon J.

Counsel:
Marta Siemiarczuk, Counsel for the Applicant
Laura Milne, Self-represented

Heard: by written submissions

Costs Endorsement

[1] The motion I heard on February 28, 2014 was brought by the applicant to amend his application and for interim access. The respondent brought a cross motion also seeking an amendment, for child support and section 7 expenses, to change the applicant’s interim access to preclude access in Toronto, and for a voice of the children report.

[2] I allowed the amendments. I adjourned the motion for child support and section 7 expenses on the term that the applicant would continue to pay $2,111 per month to the respondent. I did make an order for access allowing five summer weeks, Christmas and March Break access in Los Angeles out of Montreal, up to two of four weekend access visits per year in Toronto. I adjourned the request for a voice of the children report until after a settlement conference had been held.

[3] Both parties now seek costs of that motion. The applicant had made two offers to settle the interim motion. The respondent did not make an offer. She should have.

[4] The order made was not as favourable to the applicant as were the terms of his offers. He did not get as much access as he wished, nor as many weekends in Toronto as he wanted. He was not allowed to fly the children on other than direct flights. However, the respondent was required to take them to Montreal for the purpose of taking direct flights from that airport. He did succeed in keeping the child support at the current level, as a term of adjournment. The applicant’s second offer made the day before the motion was more reasonable in terms of the number of weekend access visits he requested and the number asked for in Toronto was also reduced. He also put forward the idea of continuing with direct flights out of Montreal or Toronto in his second offer. He says he was the successful party on the motion. His partial indemnity costs are submitted at $4,248.34.

[5] The respondent noted that the voice of the children report was not denied, it was deferred. She noted that the applicant really only obtained one extra week in the summer, not the four he was asking for, and the weekend visits were far reduced from what he had asked for, including the number allowed to be in Toronto. Her claim for child support and section 7 expenses did not proceed at the motion because she had not claimed this relief in her answer and cross claim and had to deliver the amendments first. The respondent submitted that it was the applicant who should have advanced these claims in his application, but this is incorrect. She also submits the applicant did not provide her with the information she needed to properly put forward these claims, but he is not required to if she has not pleaded the claim.

[6] The applicant claims she was the successful party on the motion. She is claiming costs of $2,425.25.

[7] The respondent was not successful on her cross motion other than in the permission to amend her pleadings, on which the applicant was equally successful. The balance of her motion was either adjourned or was improperly brought in advance of the required amendments being made. The applicant was the more successful party, but he was not fully successful. He was partially successful. The issue of direct flights for the children was extremely contentious between the parties. Even the applicant’s second offer which bowed to the mother’s wish to maintain direct flights required her to contribute to the costs of those flights.

[8] Despite the deficiencies in the applicant’s offers he is entitled to some costs for the motion and for the cross motion. These are awarded and fixed at $1500 all inclusive.

J. Mackinnon J.

Date: November 24, 2014

COURT FILE NO.: FC-13-1763

DATE: 20141124

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Joel Milne, Applicant

AND

Laura Milne, Respondent

BEFORE: J. Mackinnon J.

COUNSEL: Marta Siemiarczuk, Counsel for the Applicant
Laura Milne, Self-represented

COSTS ENDORSEMENT

J. Mackinnon J.

Released: November 24, 2014