Superior Court of Justice - Ontario
RE: Jennifer-Lee Patricia Edwards, Applicant
AND:
Charles Lloyd Elsworth Dougay, Respondent
BEFORE: G. E. Taylor
COUNSEL: Tania Harper, Counsel, for the Applicant
Glenda D. McLeod, Counsel, for the Respondent
HEARD: March 4, 2015
Cost ENDORSEMENT
1This was a long motion to deal with custody of and access to a 7 year old girl, Cyan, on a temporary basis, pending trial. At the conclusion of the argument on the motion I gave oral reasons granting joint custody and specifying the times that Cyan is to be with each parent. Counsel requested the opportunity to make written submissions with respect to costs. Those submissions have now been received.
2The position of the respondent/father was that he was largely successful on the motion although the result was not as favourable as his Offer to Settle. The position of the applicant/mother is that neither party was more successful than the other. I disagree with the position of the applicant/mother. The applicant/mother sought to maintain the status quo with an order of sole custody in her favour. In the result, I made an order for joint custody and significantly increased the amount of time that the respondent/father spends with Cyan. In my view, the respondent/father achieved substantial success on the motion.
3Both parties made Offers to Settle. Neither party achieved a result more favourable than their Offer to Settle. In my view, the respondent/father is entitled to his costs on a partial indemnity basis. Rule 24 (10) of the Family Law Rules provides that that costs are be to decided promptly after each step and the amount of such costs are to be fixed.
4Custody and access is always an important issue to a parent. This was a motion for an order for temporary relief. The factual and legal issues were not particularly complex. The time spent preparing for and arguing the motion by counsel for the respondent/father appears to me to be reasonable. Counsel spent just in excess of 16 hours preparing for and attending at the motion. A clerk spent another 8 hours in relation to the motion. Counsel for the applicant/mother provided a Bill of Costs indicating in excess of 50 hours being spent on the file although some of that time would appear to be unrelated to the motion. Costs must also be reasonable from the perspective of the unsuccessful party.
5In my view, a reasonable amount at which to fix the partial indemnity costs of this motion is $5000. I note from reviewing the Offer to Settle of the respondent/father and a summary of the Offer to Settle of the applicant/mother that there will be an equalization payment owing to the applicant/mother. I therefore order that the costs of this motion be payable to the respondent/father from the equalization payment to the applicant/mother and in the event of there being no equalization payment owing to the applicant/mother, the costs are to be paid at the time of final settlement or judgment.
G. E. Taylor, J.
Date: April 7, 2015