Superior Court of Justice – Ontario (Family Court)

Citation: Cronin v. Wilson, 2017 ONSC 735 Court File No.: F165/15 Date: January 30, 2017

Re: Michelle Lee Cronin, applicant And: Blair Wilson, respondent

Before: Mitrow J.

Counsel: Beth Leaper for the applicant Blair Wilson in person

Heard: written submissions filed

ENDORSEMENT on costs

[1] After a two-day trial in early December 2016, the reasons for judgment were released on December 12, 2016. Written costs submissions were permitted, with the applicant to forward her submissions within 14 days and the respondent within 14 days thereafter. The applicant’s costs submissions were filed December 23, 2016, and were served on the respondent via courier on December 21, 2016, as appears from the affidavit of service filed.

[2] The respondent has not filed any costs submissions.

[3] The applicant seeks $8,000 in costs.

[4] The applicant was successful on her claims for custody, child support and child support arrears. The applicant made three reasonable offers.

[5] The child, age 5 at trial, had always been in the applicant’s primary care. The respondent, however, only conceded custody at trial.

[6] The applicant submits that the respondent served an offer. That offer is attached at tab 4 of the applicant’s written submissions. The applicant describes that offer to include a provision that the respondent have custody and that the applicant have alternating weekend access.

[7] The applicant’s position is that this offer was “nowhere close” to the trial result.

[8] That offer was part of a settlement conference brief, and the applicant attaches the last two pages of the settlement conference brief that contained the “offer” portion of the brief.

[9] That offer, however, states that the applicant shall have custody, that the respondent pay child support in accordance with the Guidelines, including his share of s. 7 expenses, that the respondent have access that includes alternate weekends from Friday to Sunday and that the applicant be responsible for “all access transfers.” That offer is signed June 8, 2016. It is unclear why the applicant characterized that offer in the manner that she did in relation to custody and access.

[10] As submitted by the applicant, there was divided success because of the access issue. The applicant sought supervised access through Merrymount Children’s Centre. The respondent denied the need for supervised access; he approached the trial from the perspective that access, not custody, was the issue.

[11] The respondent was more successful with the access issue. No supervision at Merrymount was ordered; however, the respondent’s access was subject to stages, with increasing access, with the initial stages of access to be supervised by the respondent’s parents.

[12] I have considered all the factors in r. 24(11). This case was important, but reasonably straight forward.

[13] In relation to child support issues, the respondent’s conduct was unreasonable given his failure to make timely financial disclosure, or no disclosure at all. He came to the trial ill-prepared.

[14] In relation to custody/access issues, the respondent’s conduct, in withholding the child and his abusive conduct towards the applicant, as described in the reasons, was a further example of his unreasonable conduct.

[15] However, the applicant was found to have abdicated her responsibility, as the defacto custodial parent, to promote access after the January 2015 incident; further, the respondent was found to have “effectively abandoned the child” in doing nothing to see the child after January 2015.

[16] Although the applicant’s conduct in failing to promote access is unreasonable, it is not unfair to say, and I so find, that the nature and extent of the respondent’s unreasonable conducted exceeded that of the applicant.

[17] The applicant’s legal fees from her counsel, based on the material filed, exceeded $13,000 inclusive of HST and disbursements.

[18] The overriding principle in awarding costs is reasonableness: what amount is reasonable for an unsuccessful party to pay to the successful party.

[19] The applicant is presumptively entitled to costs given her success on issues of custody, child support and arrears of child support. The amount of costs must take into account any findings as to unreasonable conduct and divided success.

[20] The respondent shall pay to the applicant, forthwith, her costs fixed in the amount of $7,000 inclusive of assessable disbursements and HST. The sum of $5,500 of this costs order is found to be a “support order” and is enforceable by the Director, within the meaning of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 [as amended].

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: January 30, 2017