Court File and Parties
COURT FILE NO.: FC-16-1599 DATE: 2017/03/03 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Christopher Kornienko Applicant – and – Natasha Walsh-Kornienko Respondent
Counsel: Meagan LePage, for the Applicant Self-Represented, for the Respondent
HEARD: In writing
Costs Decision on Motion
SHEARD J.
[1] This costs award is in respect of the motion brought by the Applicant (“Father”) seeking, in part, an order that the Respondent (“Mother”) return to Ottawa with the parties’ infant child, Peter Christopher Kornienko (“Peter”) born March 31, 2015. I have now received and considered the parties’ written submissions on costs, filed in late December 2016.
[2] As per my decision released November 29, 2016, I concluded that the Mother had relocated to Toronto with the child with the prior knowledge of the Father and with his tacit acquiescence. Therefore, I did not order the Mother to return to Ottawa. However, of greater concern were the terms of the Father’s access to his infant son.
[3] I concluded that interim access proposed by the Mother was inadequate and also expressed concerns regarding her negative attitude towards the Father and toward contact between the Father and his infant son.
[4] For the reasons set out in my decision of November 29, 2016, I ordered interim access to the Father as well as Christmas and other access, which was significantly more generous than that being proposed by the Mother.
[5] The Father seeks his costs on a full indemnity basis in the amount of $3,996.58. That represents attendance on the return of the motion as well as disbursement of $64.18 and preparation for the motion at the rate of $200.00 per hour.
[6] In her costs submissions, the Mother takes issues with some of the factual findings upon which my decision was based: she disputes that the Father has no one to stay with in Toronto and also disputes that her Father’s apartment in Ottawa would be a suitable place for her to stay. In addition, the Mother accuses the Father of “spitefully” wasting the Court’s time and money in this motion.
[7] In his costs submissions, the Father attaches his Offer to Settle dated October 28, 2016 in which he proposed access which was much less generous than was awarded to him. On that issue, the Father has achieved a result that is much better than his Offer to Settle. On that basis alone, I would give strong consideration to his request for costs.
[8] In her submissions, the Mother states that the Father has not paid her anything for the support of the child. The issue of child support was not addressed in my decision and for that reason it does not factor into this costs decision. However, I do note that in para. 10 of the Father’s Offer to Settle he agrees to pay child support in accordance with the Federal Child Support Guidelines. It is his, and every parent’s, obligation to support his child. The amount of support is determined in accordance with the Federal Child Support Guidelines. Should the Father fail to pay child support as required, no court would have any hesitation in making an order that he do so.
[9] In her costs submissions, the Mother attached copies of receipts in the amount of $2,260.00 representing monies she paid to lawyer Tanya Davies for “motion materials review of November 14, 2016 and in preparation for the motion of November 22, 2016.”
[10] Beginning at para. 2 of my reasons for decision on the motion, I note that Ms. Davies did not appear in Court to argue the motion. Instead, she asked lawyer Jacques Bahimanga, to appear as her agent and to advise the Court that Ms. Davies would not be appearing as she had a matter in another court outside of Ottawa and that the Mother had told her that she was not willing or able to pay Ms. Davies to appear on the return of the motion. As a result, the Mother was not represented by counsel at the motion but, rather, appeared on her own behalf via telephone.
[11] The Mother’s affidavit suggests that her expected costs just to prepare for the motion, without appearing on the motion, were $2,260.00. That fee does not include attending to argue the motion. The fees incurred the Father, which do include attendance on the motion, are $3,141.40.
Factors
[12] The factors to be considered when fixing costs are set out in Rule 24 of the Family Law Rules, O. Reg. 114/99 (the “Family Law Rules”) and include that the successful party is presumed to be entitled to costs; the reasonableness of the behaviour of each party; any offer to settle; any acts of bad faith by any party; the importance, complexity or difficulty of the matter; the scale of costs, hourly rates and time spent; and the reasonable expectations of the losing party.
Success
[13] As set out above, in this case, the Father has been successful on this application with respect to the issue of interim access. However, he was unsuccessful on the issue of requiring the Mother to return with the child to live in Ottawa. For the reasons set out in my decision of November 29, 2016, I concluded that the Father had acquiesced in that move. In his Offer to settle, the Father also agreed that the child remain in Toronto, subject only to his having reasonable access. I conclude, therefore, that that issue ought not to have been argued by the Father who should have conceded, as he did in his Offer to Settle, that the parties’ infant child, Peter, would remain with the Mother in Toronto.
[14] I find, therefore, that on the issue of relocation, the Mother was successful.
Complexity and Importance of the Issues
[15] In the circumstances, the Father’s access to his infant son was of significant importance to him. However, he did not proceed with particular speed to bring this motion and he made no attempt to see his young son, Peter, in Toronto from and after the time Peter moved with the Mother in early September, 2016. Despite that, I do accept that the issue of access was important to the Father but not particularly complex.
Unreasonable Behaviour or Bad Faith
[16] Despite my findings of the Mother’s negative attitude toward the Father and towards facilitating the Father’s access to and relationship with their son, Peter, I cannot conclude that her behaviour could be considered unreasonable in all of the circumstances. In particular, I take into consideration the circumstances and events that took place in the months prior to and following the Mother’s relocation with Peter to Toronto.
Hourly Rates, Time Spent, Proportionality and Offers to Settle
[17] As set out above, the amounts incurred by the Mother in preparation for the motion are somewhat lower than those incurred by the Father. In fairness, however, we do not know what additional fees the Mother would have incurred had she been willing to retain counsel to attend on the motion. There is little doubt that Ms. Davies requested additional fees (above the initial retainer paid by the Mother) as it was the Mother’s reluctance to incur those fees that led to the termination of Ms. Davies’ retainer.
[18] I conclude that the legal fees incurred by the Father are within the range of what the Mother would have expected to pay had she been entirely unsuccessful on the motion and within the range of what the Mother would have expected to recover had she been successful on the motion.
Disposition
[19] Again as set out above, the Father had mixed success on the motion. However, in view of the above factors, including his Offer to Settle, which was less favourable to him than the Order granted to him on the motion, I find that the Father is entitled to costs of the motion in the amount of $2,000.00.