Court File and Parties

NEWMARKET COURT FILE NO.: FC-15-49595-00 DATE: 20160901 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Ryan David Kerr Applicant – and – Stephanie Ann Duthie Respondent

E. MacLeod, for the Applicant C. Brown, for the Respondent

HEARD: In Chambers

Ruling on Costs

JARVIS J.:

[1] This ruling deals with costs relating to two motions by the applicant father (“the father”) for, respectively, varying a temporary access order made by Bennett J. on February 4, 2016 and striking the pleadings of the respondent mother (“the mother”). Other relief was requested but it is not relevant to this ruling. The child is less than one year old.

[2] The father’s first motion came before Sutherland J. on May 11, 2016. It is clear that a long motion should have been scheduled. Sutherland J. expressed his concern that the mother was “taking steps to delay this matter”. He was only prepared to deal with the issue of the father’s increased access pending a long motion being held. He declined to order unsupervised access but was persuaded that the father’s access be increased, and supervised. Costs were reserved to July 27, 2016, the long motion date to which the father’s motion was adjourned.

[3] Issues arose with respect to implementing Sutherland J.’s order. On July 20, 2016, the father brought a motion to, among other things, strike the mother’s pleadings. This was returnable on the long motions date.

[4] On July 27, 2016, the parties consented to an order that continued the supervised access order of Sutherland J., and also provided for greater cooperation and communication between the parties dealing with their son. The parties were unable to resolve the issue of costs, and so agreed that this court determine them.

[5] The father seeks partial indemnity costs of $6,115.08 comprising fees ($5,905.38) and disbursements ($290.70) both inclusive of HST.

[6] The mother seeks all-inclusive costs of $10,000.

[7] Each party served two Offers to Settle, one for the motion heard by Sutherland J. and the other for the motion returnable on July 27, 2016. The contents of each party’s Offers overlap, not surprisingly given the bifurcated nature of the motions heard, or scheduled to be heard. Each party claimed success. In fact, success was divided. The father succeeded in obtaining increased access but it remained supervised. The mother was successful in that her pleadings were not struck, although no agreement was needed on that issue in light of the parties’ consent made at court on July 27th.

[8] It is noteworthy that in terms of her Offers, the mother agreed to provide to the father supervised access and additional information about the child that he wanted. I agree with her that the father’s motion to strike her pleadings was unnecessary. However, the information sought by the father ought to have been shared beforehand and the fact that it was not fueled the motions.

[9] Both parties, in my view, have not acted with the requisite degree of maturity expected and, consequently, each has incurred legal costs neither can afford.

[10] Taking into account the provisions of Rule 24 of the Family Law Rules, O. Reg. 144/99, I am not prepared to award costs to either party as any such award is not only unwarranted but could well lead the party awarded costs to adopt an inflexible, uncooperative approach in future to their child’s parenting. Far better that the parties engage in mediation or even consider the use of a parenting coordinator.

[11] In V.S.J. v. L.J.G. (2004), 5 R.F.L. (6th) 319 (Ont. SCJ), the issue was whether a father’s access to a child should be supervised. Blishen J. observed that supervised access “is seldom viewed as an indefinite order or long term solution”. I commend this observation to the parties. How the parties ultimately choose to parent their child is, of course, their prerogative but in light of the fact that they have chosen, willingly or not, to engage the court process each should be aware that how they communicate and cooperate with respect to their son’s parenting may in future be subject to the court’s scrutiny and sanction.

[12] No costs shall be awarded to either party.

Justice D.A. Jarvis Date: September 1, 2016