CITATION: Deslauriers v. Russell, 2017 ONSC 7814
COURT FILE NO.: FC-12-1734-2
DATE: 2017/01/05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Jason Garry Deslauriers
Applicant
– and –
Ashley Rose Russell
Respondent
Ozlem Eskicioglu, for the Applicant
Gary Blaney, for the Respondent
HEARD: By written submissions
DECISION REGARDING COSTS
L. SHEARD, J.
Overview
[1] This cost decision follows my decision on August 15, 2016 on the Motion to Change brought by the Applicant Father (“Father”) to which the Respondent Mother (“Mother”) responded with her own request to vary the Order of Justice Kershman, dated December 23, 2014 (“the Kershman Order”).
[2] The Kershman Order contains the parties’ detailed agreement for the custody, access, and support of their son, Jaxon Russell Deslauriers, born February 9, 2012 (“Jaxon”). Unfortunately, the Kershman Order did not address where Jaxon would go to school. The Kershman Order allows the parties to move within 50km of the corner of Laurier and Bank Streets in Ottawa. It does not address where Jaxon would go to school in the event that one parent moved far from the other, which is what happened.
[3] In September 2015, the Mother moved to a new area of Ottawa to live with her current partner. They have since had a baby and the Mother has stopped her home-based beauty business. The Mother wanted Jaxon to attend a school close to where she was living. The parties could not agree and the Father brought his motion.
[4] In response to the Father’s motion for an order determining what school Jaxon would attend, the Mother brought her own request to vary the Kershman Order. In essence, she sought to unravel the phased-in custody plan to which she had agreed in December 2014. Had her motion been successful, the net effect would have been to have significantly reduced the Father’s involvement in Jaxon’s life.
[5] In my decision of August 15, 2016 I determined that the Mother had failed to show a material change such as would allow the Court to revisit and vary the custody and access provisions contained in the Kershman Order.
[6] I further determined that the Kershman Order contemplated that the parties could move at least 50km away from downtown Ottawa and that, on balance, it was in Jaxon’s best interests that he be enrolled in the school that is closest to the Mother’s new home.
[7] In the last paragraph of my endorsement of August 19, 2016 I noted that there was mixed success and that it would appear appropriate that there be no order as to costs. However, if the parties could not agree, they were permitted to make written submissions. The parties did not agree and written submissions were received.
Positions of Parties
[8] Each party has asked for costs. The Father seeks costs from the Mother on a substantial indemnity basis in the total amount of $20,880.41.
[9] The Mother seeks costs on a partial indemnity basis fixed to the amount of $20,000 plus HST and disbursements which I calculate to be $23,501.18 ($20,000 + $2,600 (13% HST) + $901.18 disbursements).
[10] In his written submissions, the Father states that he was successful in opposing all of the Mother’s claims to vary the Kershman Order and is therefore entitled to substantial indemnity costs. He also points out that he served an offer to settle on July 28, 2016 which, had it been accepted, would have led to virtually the same result as determined by this Court.
[11] For the purposes of this cost endorsement, I set out below the relevant terms in the Father’s offer to settle and the order made or not made in bold:
(i) Jaxon would attend St. Thomas More School; Ordered.
(ii) Each party would be responsible to drive Jaxon to and from school when he was with them; Implicitly ordered.
(iii) The Mother could baptize Jaxon; Conceded on the Motion – no order required.
(iv) Without consent, neither party could move Jaxon out of Ontario nor move the child’s permanent residents further than 20km away from the other party’s permanent residence; Not Ordered – Kershman Order unchanged
(v) The parties would continue to share joint custody; As per Kershman Order
(vi) Retain a new parenting coordinator or mediator; Agreed to on Motion – no Order required
(vii) Phase four of the phased-in increase in the time Jaxon lives with the Father would begin on September 4, 2016 rather than February 10, 2017; Not Ordered – Kershman Order unchanged
(viii) The Father agreed to pay child support although the Kershman Order does not require him to during Phases One, Two and Three. Consent by Father prior to Motion – No Order made
It may be worth noting, that the reason given for the Mother’s waiver of support was “in recognition of the parties’ modest financial means and that their limited resources would be best directed” toward Jaxon’s child care and health care; retaining a parenting coordinator; and Jaxon’s other care and upbringing costs.
[12] In her costs submissions, the Mother points to her success on previous motions: the Father sought an early motion date, which was not granted; the Father wanted questioning limited to one hour and the Mother was successful in obtaining an order for three-hour questioning (she offered to settle that issue on the basis of three-hour questioning). She also argues that, although the Father had agreed to pay support, the Father was slow in providing complete financial information.
[13] Notwithstanding that three-hour questioning was ordered, the Father argues that many of the questions asked of him on the questioning were irrelevant and were not relied on by the Mother on the motion. He points to the irrelevant undertakings he was asked to give on his questioning which included: production of the Last Will and Testament of his deceased father; a copy of the Probate Application; evidence of the tax liabilities relating to the RRSP inheritance from his deceased father; a full accounting of all amounts that the Father would receive from his father’s estate together with taxes on those amounts; a photo of the Father’s dog; and a copy of the Code of Conduct with the Father’s employer.
[14] The Father argues that this information was irrelevant to the issues before the Court and was not relied upon by the Mother in her Factum. I agree.
[15] I have now had the benefit of reading the offers to settle exchanged between the parties. I conclude that the Mother took an overly aggressive stance in response to the Father’s motion regarding Jaxon’s schooling. It would not be overstating it to say that the Mother’s offer to settle of August 2, 2016 was essentially to disenfranchise the Father’s decision-making rights with respect to Jaxon and to significantly reduce his access to Jaxon from what had been agreed to in the Kershman Order.
[16] That aggressive stance can also be seen in the correspondence from the Mother’s counsel of August 4, 2016 stating that his client will bring a motion in 12 days to seek to strike out the Father’s motion to change for failure to comply with every undertaking. In response to that letter, the Father’s counsel refers to her letters of July 6, 13, 28 and August 4, 2016 and confirms that the Father had, “to the best of his ability”, satisfied the undertakings he gave on June 24, 2016.
Factors
[17] The factors to be considered when fixing costs are set out in Rule 24 of the Family Law Rules, O. Reg. 114/99 and include that the successful party is presumed to be entitled to costs, the reasonableness of the behaviour of each party and any offer to settle, any acts of bad faith by any party, the importance, complexity or difficulty of the matter, the scale of costs, hourly rates and time spent, and the reasonable expectations of the losing party.
Success
[18] In this case, notwithstanding that the relief sought by the Father respecting where Jaxon would go to school was not granted, when considering the relief sought by the Mother in response, the Father was more successful than the Mother.
Complexity and Importance
[19] The issues on this motion were not particularly complex.
Unreasonable Behaviour or Bad Faith
[20] As stated above, the Mother’s response to the Father’s motion was overly aggressive and not in the best interests of Jaxon. Her request to vary the joint custody and shared residence provisions of the Kershman Order was an unreasonable and unfair response to the Father’s motion. As a result, the Father and the Court had to address a much broader range of issues than would otherwise have been necessary had the motion been limited to where Jaxon would go to school.
Scale of Costs
[21] The Father’s offer to settle of July 28, 2016 was close to the order made by this Court. The Mother argues that it was not open to her to accept part of the Father’s Offer and to reject other parts. She argues that the Father should have accepted her Offer to settle dated August 5,
2016, which was limited to the issue of where Jaxon would go to school and was consistent with the order made by the Court.
[22] On the issue of where Jaxon goes to school, the Mother was successful and her offer was consistent with my Order.
[23] The other issues dealt with on the motion were not resolved by the Mother’s offer of August 5, 2016 nor by the Mother’s offer to settle of August 9 in which she invited the Father to agree to some of the paragraphs set out in her proposed offer to settle dated August 2, 2016. That latter offer was not accepted nor is it in keeping with the Kershman Order, which I declined to vary. On that issue, the Mother was not successful.
[24] In my view, the relief sought by the Mother was of much greater significance than where Jackson went to school. That is particularly the case given that the Kershman Order allowed the parties to live 50km from Laurier and O’Connor and that at no time did the parties live in the same school district. I therefore conclude that, on balance, the Mother was less successful than the Father.
[25] For the above reasons, I conclude that the Father is entitled to a portion of his costs.
Hourly rates, Time Spent, Proportionality and Reasonableness
[26] The parties seek a similar amount in costs. I do note that, the Father seeks costs on a substantial indemnity basis whereas the Mother is seeks partial indemnity costs. I also note that the Mother takes issue with the time spent by the Father’s counsel. Father’s counsel was more junior to the Mother’s counsel and charged a much lower hourly rate. It is generally understood that the lower hourly rate reflects, in part, that a less experienced counsel will need to spend more time than a more senior counsel, whose hourly rate is much higher. That is precisely the case here: the Father’s counsel charged $140 an hour and spent more time on the motion and the Mother’s counsel charged $400 per hour, but spent less time. For that reason, I do not accept the Mother’s submissions that the time spent by the Father’s counsel was excessive.
[27] That the Mother’s costs are higher than the Father’s satisfies me that his costs are both proportionate and within the amount that the Mother would reasonably have expected to pay, or to recover.
[28] The limited means of the Mother to pay costs is not a factor recognized by Rule 24 of the Family Law Rules.
Disposition
[29] For the reasons set out above, I fix the Father’s costs at $10,000.00 plus disbursements of $884.24 and applicable HST on the fees and disbursements, which I calculate at $1,414.95 for a total of $12,299.19.
L. Sheard J.
Released: January 5, 2017
CITATION: Deslauriers v. Russell, 2017 ONSC 7814
COURT FILE NO.: FC-12-1734-2
DATE: 2017/01/05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JASON GARRY DESLAURIERS
Applicant
– and –
ASHLEY ROSE RUSSELL
Respondent
decision regarding costs
Sheard J.
Released: January 5, 2017