Court File and Parties

Court File No.: A 2/16 Date: 2016/08/22 Superior Court of Justice - Ontario

Re: S.D.K., Applicant And: M.G.C., Respondent

In the matter of an application for an order to dispense with the consent of the biological father to the adoption of the child, pursuant to the Child and Family Services Act, R.S.O. 1990, c. C11

Before: Justice A. Doyle

Counsel: Jillian Burford-Grinnell, for the Applicant Jessica Brant, for the Respondent

Heard: Written submissions

Costs Endorsement

[1] On July 14, 2016, the Court dismissed the motion of the applicant (step-father) to dispense with the respondent’s (biological father) consent to the adoption of this child.

[2] Counsel provided their written submissions on the issue of costs as they were unable to resolve the issue.

[3] After having considered the parties’ submissions, the Family Law Rules, the jurisprudence, the time spent on the two previous court appearances, there will be no order as to costs. My reasons are set out below.

Applicant’s Position

[4] The applicant is requesting costs on a full indemnity basis in the amount of $5,090. He argues that the respondent did not act reasonably during the case by causing delay in the process as he requested an adjournment, changed lawyers due to a conflict and he delayed in filing documents.

[5] At the motion on May 9, 2016, the matter was adjourned as the applicant had filed his responding materials. Justice Minnema reserved the issue of the costs of the appearance to the Judge hearing the motion.

[6] The respondent did not file his materials within the time frame ordered by the Court, i.e. May 24, 2016. The respondent’s materials were signed on May 27, 2016. His Affidavit in support of custody and access was not signed until May 31, 2016.

[7] Another court appearance was required before Justice MacLeod-Beliveau on June 6, 2016 to extend the time to file the respondent’s documents to July 4, 2016. Her Honour reserved the issue of costs to the Judge hearing the motion.

Respondent’s Position

[8] The respondent is requesting costs on a full indemnity basis in the amount of $3,883.23 as he was successful in obtaining a dismissal of the applicant’s motion to dispense with his consent to the adoption of his biological son. There is a presumption that a successful party is entitled to costs.

[9] He indicated that the delay was not his fault as his first counsel had a conflict and new counsel did her utmost to prepare the documents but was not able to do so within the time period ordered by the court.

Legal Principles

[10] The cost rules are designed for the fundamental purposes:

(1) to indemnify successful litigants for the cost of litigation (2) to promote the encourage promote and encourage settlement, and (3) to control behaviour by discouraging frivolous suits if the defences that lack merit.

Fong v. Chan, [1999] O.J. No. 4600 and confirmed in Serra v. Serra [2009] ONCA 395.

[11] The Family Law Rules 24 creates a presumption of cost in favour of the successful party. Rule 18 deals with the cost consequences of failure to accept offer and allows the court the discretion to take into account any written offer to settle.

[12] As stated by Justice Pazaratz in Scipione v. Sel Sordo 2015 ONSC 5982 at para. 25:

Rules 18 and 24 and most of the case law focus on two words:

(a) “success” (b) “reasonableness”

(1) reasonableness of behavior by each party; and (2) reasonableness of the amount of costs to be awarded.

Analysis

[13] In considering the factors set out in 24(11), I have considered the following:

(i) the importance, complexity or difficulty of the issues:

• The adoption of a child whereby a biological parent’s rights are severed is a serious matter. The parties must adduce evidence to allow the court to conduct a thorough and analysis of the child’s best interests under s. 136 of the Child and Family Services Act. Given the age of child, his wishes, the father’s lack of involvement with him and the disputed facts, the court had to make findings. Numerous affidavits and evidence was filed to establish the relationship between the child and his stepfather. On the other hand, the father put forth what he was able to offer the child. He had a new family, 6 daughters and a large extended family.

(ii) the reasonableness or unreasonableness of each party’s behaviour in the case.

• The Court finds that the respondent did cause delay in the case. Although he may plead that it was not his fault, court appearances before Justices Minnema and MacLeod-Beliveau resulted in extra costs to the applicant. Therefore, even though the respondent was successful in the motion, the court must consider the extra costs incurred by the applicant in bringing this application forward. The respondent is responsible for his own case and if there are delays and unnecessary fees incurred, the applicant should not bear those costs.

(iii) The lawyers’ rates, the time spent on the motion and expenses paid in light of the various issues and case law were reasonable.

[14] No offers to settle were exchanged pursuant to Rule 18.

[15] The Court finds that the respondent was successful. However, his delay in responding to the application and the holding of two unnecessary appearances in court caused costs to be needlessly incurred by the applicant. This behavior must be considered in determining costs.

[16] Therefore, in light of the above, there will be no costs awarded.

Justice A. Doyle Date: August 22, 2016