Court File and Parties

Barrie Court File No.: FC-13-404-01 Date: 2017-01-09 Superior Court of Justice - Ontario

Re: Sharon Hughes, Applicant And: Kerwin Forbes Antler, Respondent

Before: The Hon. Madam Justice E.A. Quinlan

Counsel: B. Kibur, Counsel for the Applicant C. Scharff, Counsel for the Respondent

Heard: By written submissions

Costs Endorsement

[1] In 2013, the parties consented to a final order with respect to joint custody of their child, then one and a half years old, with the child’s primary residence with the mother. From the outset, the mother attempted to limit the father’s parenting time with the child and his ability to meaningfully be involved in any major decision-making.

[2] The father brought a motion to change in which he sought a week-about schedule. The mother responded by seeking sole custody and a reduction in the father’s parenting time. At the commencement of the trial, the father sought and was granted an amendment to plead alternative relief of sole custody.

[3] In the course of the proceedings, the mother served two offers: in both she would have sole custody of the child with alternate weekend and either one or two mid-week two hour periods of access to the father. In her second offer, she would consult with the father prior to any decision-making but was to have the final say.

[4] The father served two offers: in the first, he provided that the parties would consult about important decisions about the child's welfare and in the event of any disagreement, the mother's decision would prevail with respect to certain health, education, religious and recreational activities while the father’s decisions would prevail with respect to certain specialists’ appointments and other education and recreational activities. The father further proposed that the child be in each parent’s care two days per week and alternate weekends, on a 2–2–5–5 schedule.

[5] In his second offer to settle, the father provided that the mother have sole custody and that there be a graduated residential schedule starting with the 2–2–5–5 schedule and graduating to week-about in the summer of 2017.

[6] After a ten day trial, I ordered that the parties continue to have joint custody of their child and set out a parallel parenting regime, giving the father final decision-making with respect to health and the mother final decision-making with respect to education. Parenting time was granted to each party equally on a 2–2–5–5 day schedule so that each parent had the child the same two nights each week and alternate weekends. I did not grant the week-about schedule proposed by the father: I was concerned that it would be too difficult for a four-year old child to be away from either parent for a full week and the mother might not facilitate the child’s attendance at week-night activities arranged by the father. My order also attempted to limit exchanges as these had caused issues between the parties.

[7] The father argues that he was successful at trial. He seeks his costs in the amount of $53,037.63 including disbursements of $306.49 on a full recovery basis from the time of his first offer, which he argues he matched, and partial indemnity for the period prior. The mother argues that each party should bear his or her own costs as neither party’s proposed draft orders were granted and therefore success was divided. The mother’s costs total $104,455.90 plus disbursements.

[8] I find that the father was successful at trial: he achieved equal parenting time with his child and final decision-making with respect to certain matters. He is therefore presumptively entitled to his costs.

[9] Having regard to the factors in rule 24(11) of the Family Law Rules, the issues were important, dealing as they did with custody, parenting time and decision-making with respect to a young child. However, the issues were not complex. Child support and arrears were not a significant issue in dispute and were resolved prior to trial.

[10] I find that the father's behaviour was reasonable. Although the mother faults the father for failing to meaningfully engage in settlement discussions until shortly before the first scheduled trial sittings, this had no bearing on the outcome: the two reasonable offers the father served after retaining counsel were not accepted in any event. Although the mother requested a mid-trial settlement conference after several days of trial, the father cannot be faulted for not acceding to her request in view of her unwillingness to alter her position on sole custody and reduced access. In any event, when a mid-trial was proffered by the court, the mother was not ultimately prepared to engage in settlement discussions. The father's actions with respect to retention of counsel were not unreasonable: with limited funds, it made sense to retain counsel to assist in the preparation of his originating documentation and then to retain counsel once the matter proceeded and the mother retained counsel. Although the father’s delay in agreeing to request the involvement of the OCL resulted in the mother having to file a 14B motion with the court, the increase in the mother’s costs was trifling. On the other hand, I find that the mother's position in seeking sole custody and a significant reduction in the father's parenting time and decision-making was not reasonable.

[11] The father's lawyer’s rates are reasonable given her years of experience, as is the amount of time she spent on the case. The mother does not take issue with the quantum sought by the father, an amount that is approximately half that expended by her. I find that the amount sought by the father is fair and reasonable and an amount that a losing party could expect to pay.

[12] It is necessary to consider the offers made and the award in a holistic manner. The mother sought to significantly reduce the father's time with the child and his participation in decision-making. The father sought in both his motion to change and his offers to have equal time with his son. Although in the motion to change he sought week-about, in his first offer he sought a 2–2–5–5 joint parenting regime and final decision-making on certain matters. He achieved that in the award, albeit the final decision-making was on all matters relating to health and dental and none in relation to education.

[13] I agree with the father's position that he matched his first offer and exceeded his second. In relation to both offers, all of the requirements of rule 18(14) of the Family Law Rules have been met. I find that the father is entitled to full recovery of his costs from the date of his first offer and partial recovery of his costs for the period prior.

[14] Accordingly, this court orders that the applicant mother shall pay the respondent father his costs of this case fixed in the amount of $53,037.63.

Quinlan J. Date: January 9, 2017