Nagle v Demers, 2016 ONSC 6323

Court File and Parties

Court File No.: FC-15-2657 Date: 2016/10/11 Superior Court of Justice - Ontario

Re: Amber Nagle, Applicant And David Demers, Respondent

Before: Justice A. Doyle

Counsel: Tanya Parker Wallace, for the Applicant Karen Pelletier as agent for Yanik S. Guilbault, for the Respondent

Heard: In writing

Costs Endorsement

Overview

1On September 6, 2016, the Court rendered an interim order which provided that the child’s access schedule with the respondent father would not change and that the father would pay spousal support in the amount of $2,000 per month to the applicant mother.

2If the parties were unable to agree on the issue of costs, they were to provide written submissions.

3For reasons set out below, after considering the parties’ submissions, offers to settle, bill of costs and Family Law Rules, O. Reg. 114/99 (the “FLR”), the Court orders that the father pay to the mother the costs of $2,500.

Mother’s Position

4The mother submits that she is entitled to costs in the amount of $5,000 as she has been substantially successful. The amount of legal costs incurred was $7,647.93. The father was not successful in increasing his access time to an equal sharing arrangement and the court awarded the amount of spousal support that she requested.

5Since the father’s original motion was seeking a final order, the mother’s offer to settle provided for terms to be resolved on a final basis. Even though the court ordered more access to the father than had been offered by the mother, she was substantially successful on the issues that were argued.

6Despite the applicant being on a legal aid certificate, it is clear that pursuant to s. 46(1) of the Legal Aid Services Act, 1998, S.O.1998, C.26 which states that “the costs awarded in any order made in favour of an individual who has received legal aid services are recoverable in the same manner and to the same extent as though awarded to an individual who has not received legal aid services”. As stated in Ramcharitar v. Ramcharitar, that a legally aided client “stands before the court in exactly the same position as any other litigant”.

Father’s Position

7The father submits that there should be no costs as neither party was successful in obtaining the change in the parenting schedule as they had requested. In addition, the mother was unreasonable in her actions of leaving the family residence with the child in 2015 and she was intransigent by refusing to resolve the parenting issues.

8He concedes that she was successful in obtaining an order for spousal support.

9In the alternative, if the Court orders costs it should be reduced to $1,000 as she was not successful in her claim to reduce the time that the father had with his child.

Legal Principles

10FLR 24 sets the legal principles a court must consider when dealing with costs. There is a presumption that a successful party is entitled to costs but this is subject to the party not behaving unreasonably. The rules require that costs be decided in a summary manner at each step in the case. FLR 24(11) sets out the factors in the determination of costs.

11The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395 stated that 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.

Analysis

12The Court finds that the mother was successful on the issue of spousal support. With respect to the issue of the parenting arrangements, the Court’s decision to maintain the status quo and not make any changes to the child’s schedule with the father was of mixed success. The Court notes that the mother’s proposal was less a dramatic change than the father’s proposal of equal time.

13In determining the amount of costs, the Court considers the factors set out in FLR 24 (11) as set out below:

(a) the importance complexity and difficulty of the issues: − The issue of parenting of the 2 year old child is important. The court had to consider the child’s current adjustment challenges when determining what was in his best interests in the visits to the father. − The issue of spousal support entitlement required a determination of whether the applicant was a “spouse” as defined in the Family Law Act.

(b) the reasonableness or unreasonableness of each party’s behaviour in the case: − The mother states that the father should not have set down the motion when the parties had agreed to a s. 112 assessment report to be prepared by the Office of the Children’s Lawyer (OCL). The father was requesting a final order and the mother sought reduced access in light of the challenges the child faced with transitions. When the OCL accepted, the father did agree to adjourn the motion to allow the assessment to proceed. − The father states the mother was unreasonable for her refusal to negotiate the issue of parenting. − In light of the hotly contested issue, both parties showed a lack of flexibility in their thinking regarding the child’s best interests. Each of them had their own firm belief of what parenting arrangement was in the child’s best interests. Nevertheless, the Court does not find either party was unreasonable to the degree that it affects the issue of costs.

(c) the lawyer’s rates: − Counsel for the mother was called to the bar in 2004 and her hourly rate of $250 per hour is reasonable.

(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order: − The Court finds the account reasonable in light of the issues before the Court.

(e) expenses properly paid or payable: − The disbursements of $118.08 for copies, printing, etc. are appropriate.

14As stated above, a legally aided client is in the same position as a paying client.

15In light of the mother’s success on the spousal support and the Court ordering the parenting arrangement more in line with the mother’s proposal, the father will pay costs in the amount of $2,500.