ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: FS-14-5723-00
Date: 2015-09-10
B E T W E E N:
CAMERON GUILLEMAUD
Erin Lepine, for the Applicant
Applicant
- and -
JENNIFER ANNE GEURTS
Alison Pengelley and Joseph Powers, for the Respondent
Respondent
HEARD: February 9, 10, 11, 12, April 21, 22, 24 and May 14, 2015
D E C I S I O N O N C O S T S
WILCOX, J.
[1] The applicant brought proceedings in Ontario seeking the recognition for the purposes of enforcement in this province of an order that he had obtained in Alberta. The parties had been living in Alberta. The respondent had left the relationship without notice and moved to Ontario with the parties’ child. The Alberta order required that the child be returned to Alberta and that the parties share parenting time equally. The respondent had not followed the Alberta order. After declining to recognize the Alberta order in Ontario, my decision of June 30, 2015 invited costs submissions, which have been received.
[2] On the subject of costs, s. 131(1) of the Courts of Justice Act provides as follows:
- Subject to the provisions of an Act or rules of the court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.
[3] Modern costs rules are intended to serve three purposes:
to indemnify successful litigants for the cost of litigation
to encourage settlements, and
to discourage and sanction inappropriate behavior by litigants
(Fong and Chang (1999) 1999 2052 (ON CA), 46 O.R. (3d) 330 (Ont. C.A.). See also Somers v. Fournier, [2002] O.J. No.254 (Ont. C.A.))
[4] It has been held that a fourth fundamental purpose has been added by primary objective of the Family Law Rules, that cases be dealt with justly (Mooney v. Fast [2013] O.J. No.5226). Justly is defined in the Rules to include:
(a) ensuring that the procedure is fair to all parties;
(b) saving time and expense;
(c) dealing with the case in ways that are appropriate to its importance and complexity; and
(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.
[5] Family Law Rule 24 deals with costs in family cases. It commences with presumption that a successful party is entitled to its costs. However, a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs, or ordered to pay all or part of the unsuccessful party’s costs. In deciding whether a party has behaved reasonably or unreasonably, the court shall examine:
(a) the party’s behavior in relation to the issues from the time they arose, including whether the party made an offer to settle;
(b) the reasonableness of any offer the party made; and
(c) any offer the party withdrew or failed to accept.
[6] The factors that shall be considered in setting the amount of costs are:
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness or unreasonableness of each party’s behavior in the case;
(c) the lawyer’s rates;
(d) the time properly spent on the case, including conversations between the lawyer and the party or witness, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;
(e) expenses properly paid or payable; and
(f) any other relevant matter.
[7] The respondent was substantially successful in this matter. Therefore, we start with the presumption that she is entitled to costs. The respondent also made an offer to settle in practically the same terms as the courts’ decision, which offer was not accepted. This offer was made only four days before the trial. So, although it does not entitle the respondent to costs under Family Law Rule 18 (4), it is a factor that may be taken into account in the exercise of the court’s discretion over costs.
[8] I think that there is much that the applicant could be criticized for in his prosecution of this case, both in Alberta and in Ontario, particularly his efforts to have the matter dealt with on an ex-parte or summary basis, in the wrong venue, despite judicial direction, as outlined in this court’s decision.
[9] Nevertheless, none of this would have been necessary if the respondent had dealt with the issues arising out of the parties’ separation in Alberta, where the child had lived prior to separation. Instead, she absconded with the child to Ontario. This was commented on in the court’s decision. In particular, section 19 of the Children’s Law Reform Act states that one of the law’s purposes is, “to discourage the abduction of children as an alternative to the determination of custody rights by due process”.
[10] In view of the above, I find that the presumption in favor of awarding costs to the respondent has been overcome. Instead, each party shall bear its own costs.
Justice James A. S. Wilcox
Released: September 10, 2015