Court File and Parties
CITATION: K.E.L.(L) v. S.L., 2017 ONSC 4656
COURT FILE NO.: FC-16-2431
DATE: 2017/08/01
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: K.E.L. (L.), Applicant
AND
S.L., Respondent
COUNSEL: Karla Policelli, Counsel for the Applicant
Michael Chambers, Counsel for the Respondent
HEARD: In writing
Costs ENDORSEMENT
ENGELKING. J.
[1] The Respondent father brought a motion to rescind previous temporary custody orders and replace them with a temporary order of sole custody to him of his two children, seven year old E.L. and three year old S.L. The Respondent had had no contact with his children since prior to the November 14, 2016 order of Justice Shelston. The Applicant opposed the Respondent’s request for custody, and opposed any access being granted to him prior to an assessment being conducted.
[2] The factual circumstances of the motion were unusual. I will not repeat them here, however, in my Endorsement of June 13, 2017 I declined to change the existing custody situation, but granted gradually increasing access to the Respondent in the presence of his mother. I indicated that the Respondent was entitled to some costs “for his limited success on the motion”, and I invited submissions from the parties if no agreement could be reached. I have now considered those submissions.
Position of the Parties
[3] The Respondent submits that as the party that met with success, in that he obtained an order for access, he should be entitled to costs at a slightly lower than full indemnity rate. He is seeking $17,500 inclusive of disbursements and HST.
[4] The Respondent states that although he was seeking an order altering the existing custody regime, the bulk of his materials were as relevant to the issue of access as they were to that of custody. Specifically, he indicated that much time and effort was necessary to address the materials filed by the Applicant, which included an affidavit of 26 pages with 247 pages of exhibits. The Respondent states that it not only necessitated affidavits being prepared by him, but by his mother and another friend as well.
[5] The Respondent submits that the argument of the motion required a half day, with the first 45 minutes taken up by the motion of the maternal grandparents to be added as a party to the proceedings, a motion to which the Respondent also had to respond.
[6] The Respondent argues that he was successful in obtaining an order for access to his children, something he had been without since November.
[7] The Applicant submits that while the Respondent’s original Notice of Motion contained 14 heads of relief, access to the children was not one of them, and in fact, the Respondent was not successful in obtaining what he sought.
[8] The Applicant submits that given the very unusual facts of the motion, the materials were voluminous on both sides and the matter was complex. The Applicant submits that her behaviour was reasonable in that she was motivated by the best interests of the parties’ young children.
[9] The Applicant submits that she should not be held accountable for the motion brought by her parents via their own counsel.
[10] The Applicant submits further that leave was granted by Master Champagne for an urgent custody and access motion, but that she was required to respond in her materials to the multitude of issues in the Respondent’s Notice of Motion, even though the motion itself was limited to custody and access. She also submits that a number of items contained in the Respondent’s bill of costs were not applicable to the motion or were otherwise inappropriate.
[11] Neither party alerted me to any Offers to Settle prior to the motion.
Applicable Law on Costs
[12] Rule 24(11) of the Family Law Rules outlines that the Court shall take into consideration the following factors in setting an amount for costs: the importance, complexity or difficulty of the issues; the reasonableness or not of each party’s behaviour; the lawyer’s rates; the time properly spent on the case; and, any other relevant matter.
[13] In determining the reasonableness or unreasonableness of a party, pursuant to Rule 24(5) the Court is to examine the party’s behaviour in relation to the issues from the time they arose; the reasonableness of any offer to settle; and, any offer the party withdrew or failed to accept.
[14] The Court still has discretion to ensure that costs are fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the circumstances of any case as per Boucher et al v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA) at para 26.
Analysis
[15] On June 13, 2017 I found that the circumstances leading to the motion were “to say the least, highly unusual”. I agree with both parties that the materials were voluminous and the matter was factually very complex. It was exacerbated by the maternal grandparents’ motion to be added as a party at the commencement of the motion, which was not granted.
[16] Although the Respondent was not successful in having custody of the children changed over to him, I indicated that he had met with some limited success, in that I made an order for immediate and gradually increasing access to the children by him in the presence of his mother.
[17] Having regard to all of facts of the case, and noting that most of the same information was required both in support of and in opposition to an order of access (as opposed to custody), neither party can be faulted for the volume of material filed nor the preparation required in relation thereto. I do not find that the Applicant behaved unreasonably in the circumstances.
[18] Additionally, the Applicant cannot be penalized for the fact that her parents, separately represented, brought a motion to be added as a party to the proceedings.
[19] I conclude that in the language of Rule 24(6) of the Family Law Rules, success on the case was divided, and costs should be apportioned as appropriate. The Applicant was successful in maintaining custody of the children (pursuant to the arrangement agreed upon with the Children’s Aid Society of Ottawa); however, the Respondent was successful in obtaining access to them, something which the Applicant vehemently opposed.
Order
[20] In all of the circumstances of the case, I order that the Applicant pay to the Respondent $3,000 in costs for the motion
Madam Justice Tracy Engelking
Date: August 1, 2017
CITATION: K.E.L.(L) v. S.L., 2017 ONSC 4656
COURT FILE NO.: FC-16-2431
DATE: 2017/08/01
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: K.E.L. (L.), Applicant,
AND
S.L., Respondent
BEFORE: Madam Justice Tracy Engelking
COUNSEL: Karla Policelli, Counsel for the Applicant
Michael Chambers, Counsel for the Respondent
costs ENDORSEMENT
ENGELKING, J.
Released: August 1, 2017