Court File and Parties

Citation: Dagg v. Chenier, 2015 ONSC 3980 Court File No.: A11,072/06 Date: 2015-06-29 Superior Court of Justice - Ontario

Re: Constance Dagg, Plaintiff And: Gilles Chenier, Respondent

Before: The Honourable Madam Justice Louise L. Gauthier

Counsel: Josée J. Paquette, counsel for the plaintiff Respondent, self-represented

Heard: Written Submissions

Costs Endorsement

[1] On May 20, 2015, I released reasons for an order made in response to a number of motions to change final orders brought by Chenier. Certain provisions of the order were final. The only issue which was not dealt with on a final basis is the quantum of ongoing child support. That matter will be addressed on August 25, 2015.

[2] I invited submissions on costs from both sides. I have received and reviewed same.

[3] Dagg seeks a costs award of $17,106.52. Chenier seeks costs in the amount of $1,975. Both parties recite the complicated and unfortunate history of this litigation back to 2006.

[4] A number of costs orders have been made against Chenier since March of 2014, when leave was granted to Chenier to bring a motion to deal with the parenting arrangements regarding Hannah, and since August-September 2014, when Chenier brought a number of motions to change a final order.

[5] I will not consider costs for those steps in the proceedings in which costs have already been ordered. Nor will I consider costs pre-dating the motions to change that I ultimately dealt with on May 20, 2015.

[6] Rule 24 of the Family Law Rules provides that a successful party is presumptively entitled to costs. The reasonableness or unreasonableness of the parties’ behaviour is to be considered, together with the time properly spent on the case.

[7] Costs are to be decided in a summary manner. The objective of fixing costs is to determine an amount that is fair and reasonable for an unsuccessful party to pay in the particular circumstances. See Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).

[8] In this case, although technically success might be characterized as being divided (and I will have more to say about that), Chenier was unsuccessful by January 2015 on a number of issues which his August-September 2015 motions to change had raised. One motion to change was dismissed outright as lacking any evidentiary foundation, and only four specific issues were identified as requiring adjudication:

a. the parenting plan for Hannah;

b. variation of the child support;

c. final custody of Benjamin; and

d. Section 7 expenses.

[9] Likewise, Dagg’s contempt motion was dismissed in January 2015.

[10] Those matters identified as requiring adjudication were argued fully on April 30, 2015. The hearing extended over more than half a day. At that hearing, I also addressed the matter of the passports and travel that Dagg had properly raised. I also considered Chenier’s motion to amend the summer schedule.

[11] I will address each of the issues dealt with in the May 20, 2015, order in terms of which party was successful, how important the issue was, and any conduct that might have made the proceeding lengthier and/or more complicated.

Passports and Travel

[12] This issue was before the court because of Chenier’s refusal to comply with the terms of an earlier order that he had in fact consented to. Responsibility for this issue being before the court lies at Chenier’s feet. A costs order should reflect this.

Custody of Benjamin

[13] Chenier was requesting that the temporary order for joint custody of Benjamin be made final. That was a reasonable request and it was agreed to by Dagg. No significant time was spent on that issue.

Amendment of the Summer Schedule

[14] Chenier was unsuccessful on this request. Although much argument was made by Chenier about the summer access, again there was no evidentiary foundation to grant the request.

Parenting Arrangement for Hannah

[15] Once again, Chenier was unsuccessful on this issue, save and except with regard to the “right of first opportunity”, which was determined on consent.

Section 7 expenses

[16] Chenier was successful with regard to both the characterization of the expenses and the shared payment of proper Section 7 expenses.

Effective Date of the Reduction in Child Support

[17] Chenier put forward February 1, 2014, as the appropriate date, and Dagg proposed August 2014. Chenier was seeking an effective date which would have pre-dated the date of the order sought to be varied. I preferred the August date proposed by Dagg. Chenier cannot claim success on this issue.

[18] Overall, Dagg was more successful than Chenier on the more important issues of parenting of Hannah and any change to the access schedule. Accordingly, she is presumptively and actually entitled to costs in connection with these proceedings.

[19] In addition to the above it is noteworthy that, by his own conduct, Chenier caused delay and increased the cost of this litigation on more than one occasion.

[20] The motion date of December 18, 2014, had to be adjourned because Chenier had not paid the outstanding costs of more than $4,000.

[21] On January 14, 2015, I ordered that neither party was to file any additional material. Despite this order, Chenier served and filed voluminous materials in advance of the April 30 date set for hearing the motions to change. Dagg’s counsel chose, not unreasonably, to review that material and spent time in doing so.

[22] At the conclusion of the April 30, 2015, hearing, Chenier undertook to the court to pay the February 2015 outstanding costs order ($750) by the end of the day, and to provide documentary proof of payment of same by noon on May 1, 2015; failure to comply with that undertaking was to result in, and did result in, the dismissal of Chenier’s motion without finding on the merits. An order was made accordingly.

[23] Predictably, Chenier brought a motion to set aside the May 1, 2015, dismissal order. I convened a meeting with the parties by telephone to address that latest motion. It was my suggestion that both sides would be better served if, in fact, Chenier’s motions were adjudicated on the merits. Dagg reluctantly agreed.

[24] The time spent in preparing for that call, participating in that call, and for having reviewed Chenier’s most recent motion material should not have been required. The responsibility for same lies directly with Chenier.

[25] I subsequently released my reasons on May 20, 2015, having set aside the earlier dismissal order of May 1, 2015.

[26] I have considered all of the above factors and have concluded that a fair and reasonable amount that Chenier should pay, notwithstanding his current financial position, is $8,000 inclusive of disbursements, plus H.S.T.

The Honourable Madam Justice Louise L. Gauthier

Date: June 29, 2015