Court File and Parties

Court File No.: FC-15-425 Date: 2017/03/02 Superior Court of Justice - Ontario

Re: Melissa Suzanne McCafferty, Applicant And Joseph Mario Sébastien St-Jean, Respondent

Before: M. Linhares de Sousa J.

Counsel: Loreen Irvine, counsel for the Applicant Alexandre Martel, counsel for the Respondent

Heard: By Written Submissions

Decision on Costs

[1] This matter involved a long standing legal dispute between the parties relating to the issues of custody and access and child support. The record also shows that there were multiple lawyers’ correspondence relating to the lack of speedy and complete financial disclosure from the respondent. The issues of child support were still outstanding when the Respondent commenced these legal proceedings, and for which I have been tasked with determining the question of costs, which was a Motion to Change brought by the Respondent in respect of custody and access.

[2] That motion was resolved along with the outstanding support issues. On consent, the Application/Motion to Change brought by the Respondent was dismissed. Child support and S. 7 expenses were also agreed to, once financial disclosure by the Respondent was complete. Finally, also on consent, the Applicant’s motion for payment of the arrears owing for the period prior to 2013 was also dismissed, presumably as an integral part of the agreement relating to the support issues.

[3] In considering the nature of the issues in this litigation, clearly the Applicant, mother was substantially successful on the question of custody and access.

[4] With respect to the support issues, these appear to have been quickly resolved once the Respondent’s financial disclosure was completed. I am persuaded from the record that the Respondent did not act reasonably throughout this litigation by causing the delay that he did in providing full and speedy disclosure of his financial circumstances, as he is required to do pursuant to the Rules of family law. I am not prepared on the evidence to find that any one party to this litigation was acting in bad faith.

[5] The Applicant made a number of offers to settle in the course of the litigation (18 July, 2016, 20 October 2016, and 9 November, 2016). The last two of these Applicant offers to settle which were made became, in substance, the basis of the final agreement between the parties, with the costs issue remaining outstanding. This offer too, before being accepted on the same day, 9 November, 2016, spawned a counter offer from the Respondent and further correspondence between counsel. In my view, needlessly so. I was not made aware of any other Respondent offers to settle.

[6] Pursuant to Rule 24(11) of the Family Law Rules, the Court in deciding the issue of costs must also consider the factors enumerated under that Rule. While important for the parties, this case did not present complex nor difficult issues. And, yet there were multiple interim proceedings in the history of this litigation. I have already commented on the reasonableness of the parties actions throughout the litigation.

[7] I have examined the lawyers’ bill of costs, their rates and have considered the time both counsel have expended on this case. Given the nature of the litigation and dispute between the parties, I do not find the time expended by counsel surprising nor unreasonable. Given the experience of both counsel, the total bills of costs for both counsel are unsurprisingly close. Clearly, both parties can be taken to have been fully aware of the magnitude of any costs award that may be imposed on them, if the court deemed it appropriate.

[8] For all of these reasons, I am persuaded that the Applicant should receive a substantial contribution to her costs, particularly in view of the delays in financial disclosure and other delays caused by the Respondent. I fix the costs, including GST/HST and disbursements in the amount of $10,000, payable by the Respondent, Mr. St. Jean to the Applicant, Ms. McCafferty.

M. Linhares de Sousa J. Released: March 2, 2017