CITATION: Bielser v. Bielser, 2017 ONSC 4703
COURT FILE NO.: FC-17-366
DATE: 2017/08/02
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Mirjam Aeppli Bielser, Applicant
AND
Michael Thomas Bielser, Respondent
BEFORE: Madam Justice Tracy Engelking
COUNSEL: Yvette Virok, Counsel for the Applicant
Paul Fitzgerald, Counsel for the Respondent
HEARD: In writing
ENDORSEMENT
[1] This was a motion brought by the Respondent father seeking an order to enforce paragraph 7 of a previous order of Roger, J. dated March 9, 2017, and a temporary order permitting the two children of the marriage to reside with him in Switzerland. On June 30, 2017, I released my decision on the motion and ordered that the primary residence of the children was to remain with the Applicant mother in Ottawa pending further agreement or order of the court. I indicated that the Applicant was entitled to costs on the motion and invited submissions with respect to same if costs could not be agreed upon. I have now considered those submissions.
Position of the Parties
[2] Ms. Bielser request that her costs be recovered on a full indemnity basis. She points to the alleged unreasonableness of Mr. Bielser based on what she characterizes as his unilateral decision to move the children to Switzerland, and his actions in seeking to execute that decision. She secondly characterizes Mr. Bielser moving his new partner into the matrimonial home while the Applicant was in hospital or shelter, causing Ms. Bielser great distress, as unreasonable behaviour.
[3] Ms. Bielser also suggest that Mr. Bielser acted in bad faith in his efforts to influence the children, including by causing them to pack their bags and assist in packing the contents of the home for the move.
[4] Mr. Bielser submits that Ms. Bielser acted unreasonably by failing to follow the process outlined in the Order of Roger, J., and by leading the children first to believe that she would be going to Switzerland as well, and then later stating to them that she would not.
[5] Mr. Bielser also submits that some of the times claimed in the Bill of Costs for Ms. Bielser’s counsel were excessive.
[6] Both indicate that while the matter for the court was not particularly complex, it was important.
Applicable Law on Costs
[7] 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.
[8] 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.
[9] Rule 18(14) dictates that a party is entitled to cost from the date of an offer on a full recovery basis if the criteria contained therein are met.
[10] 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
[11] Ms. Bielser was the successful party on this motion. The status quo of primary residence of the children with her in Canada was confirmed on a temporary basis. Mr. Bielser’s motion was in essence dismissed in its’ entirety.
[12] Having said that, I cannot find that either acted “unreasonably” or in bad faith in terms of the conduct of the legal case. Mr. Bielser, even in his submissions on the issue of costs, thought that the issue was a simple matter of enforcing paragraph 7 of Justice Roger’s order. Ms. Bielser genuinely thought that a move to Switzerland by the children in the manner in which it came about was not in the best interests of the children.
[13] Neither party alerted me to the exchange of any offers to settle which met the criteria of Rule 18(14).
[14] On this basis, I find that Ms. Bielser, as the successful party is entitled to costs on a partial indemnity basis.
[15] I agree with Mr. Bielser that some of the time claimed by Ms. Bielser’s counsel for preparation for the motion was excessive, and I would reduce it by 14 hours, specifically by 10 hours for the “Draft, review and revise…” item, and by four hours for the “Preparation for Motion” item. Thus, the total time of 50.71 hours should be reduced to 36.71, which would bring the bill to approximately $8,425 inclusive of HST and disbursements.
Order
[16] The Respondent father, Mr. Bielser shall pay to the Applicant mother, Ms. Bielser $5,100 costs for the motion.
Madam Justice Tracy Engelking
Date: August 2, 2017
CITATION: Bielser v. Bielser, 2017 ONSC 4703
COURT FILE NO.: FC-17-366
DATE: 2017/08/02
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Mirjam Aeppli Bielser, Applicant
AND
Michael Thomas Bielser, Respondent
BEFORE: Madam Justice Tracy Engelking
COUNSEL: Yvette Virok, Counsel for the Applicant
Paul Fitzgerald, Counsel for the Respondent
ENDORSEMENT
ENGELKING, J.
Released: August 2, 2017