Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE:
Margot Catizzone, Applicant
– and –
Evan Cowell, Respondent
BEFORE: F.L. Myers
COUNSEL: Gordon A. Meiklejohn, for the applicant
Julie Layne, for the respondent
HEARD: September 20, 2016
COSTS ENDORSEMENT
1By reasons dated August 22, 2016, reported at 2016 ONSC 5297, the court resolved two competing motions.
2The applicant sought to have the respondent pay her child support and retroactive support calculated on the income reported by the respondent in the year prior to the year for which the payments were due. The respondent sought to pay child support calculated on the income that he earned in the year for which the support was payable. Binding authority provided for the respondent’s view to prevail. Moreover, if there was an independent discretion to be exercised based on notions of fairness and equity, the substance of the applicant’s only real argument was that using the prior year’s figures would maximize the quantum of support payable to her. That argument barely registered an audible ping on the bells of equity.
3The respondent sought to exercise unsupervised access, including requiring the applicant to bring their child to Ottawa for access visits building to overnight access by the respondent and his family in Ottawa. The applicant demanded that the applicant always come to Toronto and be entitled to exercise only supervised access with the child. She sought to smear the respondent with allusions to his alcohol and mental health problems that amounted to little more than invoking the stigma of mental health in hushed tones. The respondent obtained all of the relief that he sought on the access issue.
4Both sides delivered offers to settle but neither beat all of the terms in an offer. Close but no cigar does enough invoke the cost consequences of the rule.
5The applicant delivered an excessive amount of evidence in my view. Much of it was inadmissible hearsay, oath helping, or evidence of past misconduct that was not relevant to the issues. The respondent was required to respond to a myriad of issues that resulted in inordinate costs all round. I am very hesitant to allow costs to show a “winner” or “loser” in an issue involving custody and access. The only winner on custody and access is the child and that only occurs when the parents are able to surmount their hostilities and cooperate on a custody and access regime that allows the child to maximize contact and minimize distress in his or her relationships with both parents and their extended families. In my view, it is appropriate to award costs to dissuade excessive and inappropriate proceedings so as to encourage a parent to prioritize ahead of her own wants the child’s need for peaceful, healthy, supportive relationships with both parents.
6In my view it is fair and reasonable that the respondent be entitled to his costs in light of his complete success on both motions and in light of the excessive claims made against him. The respondent’s counsel incurred $54,000 in fees at her full rates including HST. I have reviewed counsel’s bill of costs. The rates charged and time incurred are both reasonable given the case amassed by the applicant. In my view, the respondent is entitled to be paid costs by the applicant forthwith on a partial indemnity basis in the amount of $34,000 plus disbursements of $765 for a total of $34,765 all-inclusive.
F.L. Myers J.
Date: September 20, 2016
