Court File and Parties

CITATION: Shawyer v. Shawyer, 2016 ONSC 2276 COURT FILE NO.: FD1258/14 DATE: April 4, 2016

SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Gillian Kathleen Shawyer, applicant AND: Scott Geoffrey Shawyer, respondent

BEFORE: MITROW J.

COUNSEL: William Clayton for the applicant Malcolm Bennett for the respondent

HEARD: written submissions filed

ENDORSEMENT ON COSTS

[1] I have reviewed the parties’ written costs submissions received pursuant to my order dated February 10, 2016, that dismissed almost all of the interim relief sought by both parties.

[2] The applicant submits that based on divided success, each party should bear his or her own costs, or in the alternative, that the applicant is entitled to costs in the amount of $2,500.

[3] The respondent submits that he is entitled to costs in the amount of $4,300 plus HST.

[4] The respondent was successful regarding his request for a parenting coordinator, however, that proceeded on consent; the order did provide to either party the right to bring a form 14B motion if there was a dispute as to who should be the parenting coordinator, and the terms and conditions relating to the involvement of the parenting coordinator. The respondent’s requests for a restraining order, an update of Dr. Sudermann’s assessment and an order severing the granting of a divorce from other claims were dismissed, although in relation to that portion of the claim for a restraining order seeking to prohibit the applicant from discussing the proposed move with the children, an interim order was made to that effect but as an incident of custody and access pursuant to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) c.3 [as am. by S.C. 1997, c.1].

[5] The applicant’s claims for a restraining order and an order permitting her to relocate with the children to the Blue Mountain area were dismissed.

[6] I have considered all the factors in r. 24(11), including the lawyers’ rates which are reasonable, and the high importance of the issues. No offers were served. I do find that both parties behaved unreasonably in subjecting their children to a high-conflict atmosphere.

[7] While there was divided success that would reduce any costs award well below what each party paid his or her lawyer, I do find that the respondent is entitled to some costs.

[8] I agree with the respondent’s submission that the applicant’s claims for a restraining order and to move with the children occupied a significant portion of the affidavit material and argument, in contrast to the respondent’s claims that were dismissed.

[9] In arriving at a proper costs award, the overriding principle is reasonableness. I find that $3,500 all-inclusive is a reasonable amount for the applicant to pay.

[10] The applicant shall pay to the respondent his costs of the motions, forthwith, fixed at $3,500 inclusive of assessable disbursements and HST.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: April 4, 2016