CITATION: M.D. v. N.J., 2016 ONSC 7433
COURT FILE NO.: 451/15
DATE: 2016/11/29
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
M.D.
Applicant
- and -
N.J.
Respondent
Counsel:
Harold Niman and Stephanie Yuen, for the Applicant
Judith Nicoll, for the Respondent
Before: The Honourable Justice J. R. Henderson
COSTS ENDORSEMENT
[1] On September 27, 2016, I released my written reasons with respect to motions brought by both the Applicant ("father") and the Respondent ("mother") that were heard over the course of approximately one-and-a-half days on September 20 and 21, 2016. Both parties now make written submissions for costs and for clarification of my decision.
[2] Regarding costs, the mother submits that she was the more successful party and therefore she requests costs on a partial indemnity basis. The father submits that he should be awarded partial indemnity costs, or in the alternative that there should be no costs payable by either party.
[3] Rule 24(1) of the Family Law Rules creates a presumption that a successful party is entitled to its costs. Where success is divided, the court may apportion costs pursuant to Rule 24(6). Rules 24(4), 24(5), 24(11), and 18(14) direct the court to consider, among other things, the parties’ behaviour, the reasonableness of each party, and any offers to settle.
[4] I find that neither the father nor the mother can be characterized as the successful party in these motions. Both parties had mixed successes and failures.
[5] The primary motions were the two motions by the father for an adjournment of the trial and for an interlocutory change to the parenting regime. Both of these requests were strongly contested by the mother. The father was successful with respect to his request to adjourn the trial, and the mother was successful in opposing the father's request for an interlocutory change to the parenting regime.
[6] Complicating the two primary motions were requests for relief that were dependent upon the adjournment of the trial. Both parties requested disclosure orders; the mother requested an update of Dr. Jaffe's report; the father requested changes to access exchanges; and the mother requested that the court consider a sole custody order as an alternative to continuing the existing temporary parenting order. In my view, neither party was completely successful in the request for a disclosure order; the mother was unsuccessful in her request for an update from Dr. Jaffe; the father was unsuccessful in his request to change the access exchanges; and I declined to make a sole custody order.
[7] Further, it should be noted that the mother made an unsuccessful preliminary motion at the start of oral argument for an order that would have prohibited the father from bringing his motions. That preliminary motion was dismissed with oral reasons.
[8] Clearly, there has been divided success on these motions. I accept that in some cases the court may consider success on an issue by issue basis for the purpose of apportioning costs. However, in my view, it would not be appropriate to do so in this case.
[9] This was a one-and-a-half day long argument on two primary issues and several interdependent sub-issues. To apportion costs as between the issues would involve parsing thousands of pages of affidavit material for the purpose of determining which parts of which affidavits related to which issues, and then determining whether each fact in each affidavit was contested or acknowledged by the opposing party. That exercise simply could not be performed accurately or efficiently. Moreover, painstaking scrutiny of the court material on an issue by issue basis should not be routine; rather, it should be the exception.
[10] With respect to the offers to settle and the conduct of the parties, I find that both parties properly made offers to settle, but that neither the father nor the mother achieved an order that is more favourable to them than their respective offers. I also find that there was no bad faith on the part of either party.
[11] Accordingly, I order no costs payable by either party.
[12] Regarding the clarifications that are requested, I accept that the written decision that was released used the initials Z.J. to identify the mother, but that the parties had agreed that the mother would be identified by the initials N.J. Accordingly, my written reasons will be amended to correct this error.
[13] Regarding the other requested clarification orders, the mother requested "clarification" in the form of an additional term of my disclosure order, and the father requested "clarification" in the form of leave to bring a motion regarding Christmas access. In my view, no clarification of these matters is necessary. These are matters that will need to be argued, if they are not resolved. Moreover, my reasons clearly state that the existing orders of Braid J. and Katarynych J. remain in effect.
[14] In summary, it is ordered that there will be no costs payable by either party. In addition, my written reasons will be corrected to show the initials of the Respondent as N.J.
Henderson J.
Released: November 29, 2016
CITATION: M.D. v. N.J., 2016 ONSC 7433
COURT FILE NO.: 451/15
DATE: 2016/11/29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
M.D.
Applicant
- and –
N.J.
Respondent
COSTS ENDORSEMENT
Henderson J.
Released: November 29, 2016