Court File and Parties

Court File No.: 3581/16 Date: 2017-04-11 Ontario Superior Court of Justice

Between:

Jamie Elizabeth Torok, Applicant – and – Jason Andrew Ball, Respondent

Counsel: C. Fitzgerald, Counsel for the Applicant H. Mendes, Counsel for the Respondent

Heard: February 13, 2017

RASAIAH J.

Decision on Costs

[1] On February 13, 2017, I made a detailed temporary order providing:

1. Paragraphs 1 and 3 of the order pertaining to the respondent’s parenting time of Rasaiah J. dated June 9, 2016, and paragraph 1 of the order of McMillan J. dated August 9, 2016 terminated effective February 16, 2017.
2. The respondent shall have regular parenting time with Brookston Torok Ball, born August 12, 2014 (“the child”) effective February 17, 2017, until further court order: (a) commencing the weekend commencing February 17, 2017, every second weekend, commencing the Friday at 7:00 p.m. and ending the Sunday at 7:00 p.m. (b) commencing the week of February 20th, 2017, on 24 hours’ notice to the applicant, one overnight visit each week, to occur on the days he is off from work, namely: either Tuesday overnight to Wednesday or Wednesday overnight to Thursday, (whichever days are his days off by work schedule that week), from 2:30 p.m. overnight to the following day at 7:00 p.m.
3. For the commencement of the respondent’s parenting time, the respondent or his mother shall pick-up the child at daycare (when he is at daycare), and if he is not at daycare, at the applicant’s residence or such other location as may be agreed to in writing, at the specific times specified above unless otherwise agreed to in writing.
4. At the conclusion of the respondent’s parenting time, the respondent or his mother shall return the child to the applicant’s residence, or such other location as may be agreed to in writing, at the specific times specified above unless otherwise agreed to in writing.
5. On a without prejudice basis, on consent, neither party shall consume any alcohol and/or any drugs not prescribed for his or her use, twelve hours prior to and during the time the child is in his or her respective care.
6. The parties shall within 10 days from today’s date exchange in writing proposals for temporary holiday parenting time to June of 2017. If the parties cannot agree, brief written submissions shall be exchanged between counsel by February 27, 2017 and shall be directed to my attention no later than March 3, 2017.
7. Both the applicant and respondent shall have full access to caregivers, counsellors and all professional persons providing services to the child. The applicant shall keep the respondent informed of appointments and scheduled services for the child.
8. The parties forthwith shall notify the Office of the Children’s lawyer via their counsel that they accept the Children’s Lawyer’s offer for a new Section 112 report as set out in Exhibit 1 on this motion.
9. The application, answer and claim, and balance of the motions at Tab 4 and 12 of the volume 1 of the continuing record are adjourned to the settlement conference to be set, subject to leave being granted to bring them back on earlier before the court as the court may direct.
10. The parties via their counsel shall contact the trial co-ordinator within 7 days and set a settlement conference to occur within approximately three to four months from this date on account of the time that may be required to complete the new Section 112 report to be prepared.
11. If the parties are not able to resolve the issue of costs of the access motion, brief submissions as to costs may be made, to my attention, via the trial co-ordinator, in writing, no later than March 3, 2017.

[2] The respondent seeks costs.

[3] Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131 (1).

[4] Rule 24(1) of the Family Law Rules, O. Reg. 114/99, as. am. (“Family Law Rules”) provides:

There is a presumptions that a successful party is entitled to the costs of a motion, enforcement, case or appeal.

[5] Rule 18(14) of the Family Law Rules provides as follows:

A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:

1. If the offer relates to a motion, it is made at least one day before the motion date;
2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
3. The offer does not expire and is not withdrawn before the hearing starts.
4. The offer is not accepted.
5. The party who made the offer obtains an order that is as favourable as or more favourable than the office.

[6] I am of the view that I ought to exercise my discretion to order costs.

[7] The respondent was the successful party on this motion on the issue of access.

[8] The issue of access was not complex or difficult in my respectful view. The issue on this hearing was limited to and clarified to be strictly the issue of access for the respondent, namely if it should be changed from supervised to unsupervised access and further whether it should be expanded, including overnight parenting time. It was important, in that it was in the best interests of the children to have this issue decided given the parties inability to resolve same.

[9] The respondent’s behaviour was reasonable.

[10] The respondent made efforts to come to an agreement with the applicant for expanded access time. This is stated in his affidavit of July 29, 2016 at paragraphs 50, 51, and 52 found at Volume 1, Tab 10 of the continuing record.

[11] Further, through counsel, the respondent sent correspondence to the applicant seeking expanded time with the child on March 22, 2016 and May 25, 2016 – copies of which were attached to his submissions.

[12] At the Office of the Children’s Lawyer disclosure meeting on October 11, 2016 after receiving recommendations to expand the visits to unsupervised access, the respondent attempted to negotiate parenting time with the child that day but the applicant refused to agree to any unsupervised visits.

[13] The respondent submits that the above efforts had no effect on the applicant’s position. As such, the respondent was left with no option but to bring a motion.

[14] On February 6, 2017, made shortly before argument of the motion, the respondent served an offer to settle on the applicant via counsel, a copy of same was attached to his submissions.

[15] The respondent’s offer to settle proposed the following settlement:

a. The respondent father, Jason Andrew Ball, shall have interim unsupervised access to the child, Brookston Torok Ball, born August 12, 2014 as follows: i. On alternative weekends from Friday at 2:30 p.m. through to Sunday at 5:00 p.m.; and ii. Two days during the week on either Tuesday/Wednesday or Wednesday/Thursday in accordance with the respondent’s days off from work on 24 hours’ notice to the applicant from 2:30 p.m. at daycare overnight to the following day at 5:00 p.m. b. The respondent father shall be responsible for the exchange of the child for the above detailed access. c. The application and the Answer shall be adjourned to the Trial Coordinator to set a date for a settlement conference in this matter.

[16] The applicant did not accept the respondent’s offer to settle.

[17] The respondent’s offer to settle was reasonable and similar to my February 13, 2017 order.

[18] The respondent’s offer to settle satisfies all of the requirements of Rule 18(14) and he is therefore presumptively entitled to costs.

[19] The respondent submitted a bill of costs. The respondent seeks recovery of $11,813.92 on a full recovery basis. Alternatively, the respondent seeks recovery on a partial recovery basis at a rate of 2/3 the substantial recovery rate, namely the amount of $7,879.88.

[20] The applicant submits that she acted reasonably as a parent concerned for the child’s best interests based on a substantial history of mistreatment of her other child Adrian and that her fears are substantiated by the respondent’s affidavit contents concerning Adrian. She also submits that she has born her own legal costs of equal measure to that claimed by the respondent. She submits that each party should bear their own costs. She submits this is not a case for full recovery costs. Further in the alternative she submits that if the court is inclined to grant partial indemnity costs the issue should be left to the trial judge who will be able to assess the fullness of the parties’ conduct related to the child as it affects and will affect the custody and access provision to be made for the child.

[21] The applicant’s behaviour I accept was genuinely guided by a fear premised on admitted behaviour towards her son Adrian when the parties were together. However, there was third party information beyond the Children’s Lawyer’s report indicating no concerns as outlined in my decision.

[22] Ms. Mendes’ rates are reasonable.

[23] The time set out in the bill of costs, while more than what I would have expected given the narrow issue that was ultimately argued before me, appears to be properly spent on and relating to a long motion (initially) for access, involving the preparation of additional materials including factums. Many affidavits were prepared.

[24] The applicant did not take issue with the bill of costs in her submissions, in respect of whether the work properly reflects time spent on and relating to the motion for access and/or the rates applied. Again, she has born costs of equal measure.

[25] The disbursements claimed given the materials filed are not unreasonable, and are properly payable in my view.

[26] I am not satisfied based on the applicant’s submissions that the issue of costs should be adjourned to the trial judge. There was additional information and evidence over and above that of the parties themselves including sources such as the daycare and others. I did not give the Children’s Lawyer’s report weight in my decision.

[27] Based on all of the above, balancing all of the above, I am of the view that I ought to exercise my discretion to order costs but not on a full or substantial recovery basis.

[28] Based on all of the above, balancing all of the above, the applicant shall pay costs to the respondent in the amount of $7,000.00 inclusive of fees, disbursements and H.S.T.

Rasaiah J. Released: April 11, 2017