Smilde v Smilde, 2016 ONSC 4918

COURT FILE NO.: FC-14-2182-1 DATE: 20160802 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Roland Selbert Smilde, Applicant AND Kelly Ann Smilde, Respondent

BEFORE: Mr. Justice Robert N. Beaudoin

COUNSEL: Allison Lendor, for the Applicant Fan MacKenzie, for the Respondent

HEARD: By written submissions

Costs Endorsement

1On June 14, 2016, I released my endorsement with regard to the Applicant Father’s motion for summer access. He was not successful in obtaining the relief he sought. In reaching my decision, I concluded that the father’s evidence focused solely on his sense of entitlement and what he considered to be fair for himself and ignored the best interests of his daughters.

2While I am reluctant to consider post-order conduct in assessing costs of the motion, it appears that the father has now refused to have access with his daughters, as was ordered by me, since he did not get the order he was seeking.

3The Respondent mother enjoyed complete success on the motion. She had served an offer to settle on May 4, 2016 which was identical to the order I made. That offer was served before the Applicant brought his motion. The mother now invokes the provisions of rule 18(14.5) of the Family Law Rules, O. Reg. 114/99, and seeks full recovery of her costs from the date of her offer. She seeks costs in the amount of $12,305.81.

4She submits that the order was important to both parties since it set the tone for the rest of the proceedings and she maintains that the father’s behaviour was unreasonable as demonstrated by his decision to now forego any summer access.

5The mother submits that the father made no attempt to negotiate the summer parenting time schedule and that she offered a roughly week-on/week-off schedule if the father would transport the girls to any potential activities and appointments. Instead, he refused and demanded half of the summer with uninterrupted time.

6With respect to the father’s ability to pay, the mother notes that his latest financial statement shows a net worth of $110,741.24. Although there has been a recent change in his income, his 2015 income was $223,720.60.

7The father submits that the court still has the discretion not to order costs on a full recovery basis even where the conditions in 18(14) are met. He claims that the mother has inflamed the issues by raising mental health concerns on his part. He regrets any anxiety or stress he has caused the children throughout the process and he says that he is taking time to disengage from the constant conflict regarding his access to the children.

8He notes that his 2015 income included severance pay and that he is now self-employed billing at a gross rate of $125,000. As such, his estimated annual income will not be certain until the end of 2016 and perhaps not until 2017.

9He notes that the mother claims costs from the date of case conference. He submits that any award of costs should not include the appearance at the case conference of April 6, 2016. At that time, the mother opposed the appointment of the Office of the Children’s Lawyer (OCL). The OCL declined to become involved and the father relies on my own order renewing the request for the OCL’s involvement. For that reason, he argues that the case conference was not a waste of time.

10Finally, he argues that the costs sought by the mother are grossly excessive, and notes that 57 hours of preparation are claimed which he argues is unreasonable having regard to the fact that this was a simple summer access motion. He refers to his own Bill of Costs in the amount of $6,922.99 for his time spent on the motion. He claims that he did attempt to negotiate the summer parenting time schedule and that his offers were in line with the schedule he enjoyed with the children in 2015.

Conclusion

11In my view, the provisions of rule 18(14) are applicable. The mother enjoyed complete success on the motion and her offer was identical to the order I made. She provided a detailed response to the father’s motion, and I relied on that evidence in making my decision. While the courts have been sometimes reluctant to impose the full cost consequences of failing to accept an offer to settle, it has generally done so when there is evidence that there will be a financial impact on the opposite party ¹. In this case, there is no issue with respect to the father’s ability to pay the cost award.

12The amount of time spent on the motion does seem high having regard to the matters in issue and I decline to make an order for costs for the attendance at the case conference. While the father did attempt to negotiate, I concluded his offer to settle was not reasonable and was premised on his sense of entitlement to an equal number of days. Having regard to the father’s own Bill of Costs, I conclude that the amount of $9500 inclusive of HST and Disbursements is a reasonable award of costs to the mother.

Footnotes

1. 1Murray v. Murray; C.A.M. v. D.M.