Court File and Parties

Orillia Court File No.: FC-18-220-00 Date: 2018-10-16 Ontario Superior Court of Justice

Between: Sarah Martin, Applicant – and – John Joseph Lacy Taverner, Respondent

Counsel: Victoria Nagessar, for the Applicant Paul Portman, for the Respondent

Heard: In writing

McCarthy J.

Ruling on Costs

[1] The Respondent Father (RF) was successful on his opposed emergency/urgent motion heard before me on September 19, 2018. The court ordered that the children of the relationship be re-enrolled in their respective schools in or near Mt. Albert. The Applicant Mother (AM) had attempted to enroll them in school in the Orillia/Rama area following the parties’ separation in May/June 2018 and the summer time residence and access regime that they had adhered to following separation. The RF was also successful in satisfying the court that Newmarket was the appropriate forum for the application.

[2] Pursuant to Rule 24(1) of the Family Law Rules, the successful party on an opposed motion is presumptively entitled to his costs of the motion.

[3] In exercising its decision to award costs, the court must consider a number of factors as enumerated in Rule 24(12) of the Family Law Rules.

[4] Here, it was the AM’s unilateral decision to retain the children in her new community and to enroll them in school in that new community rather than returning them back to their habitual community and respective schools. The issues were not complex but they were important – the RF was obliged to be proactive in challenging the AM, whose clear intention it was to permanently change the children’s residence and school; this threatened to create a status quo. I find that the RF was entirely justified and reasonable in bringing a motion on an emergency basis to challenge this unilateral and unwarranted decision on the part of the AM.

[5] The RF seeks costs of just over $14,000 for the three court attendances required to obtain the relief he eventually was granted. The AM argues that costs should be proportional in relation to the issues and amounts dealt with; as well, only two of the six issues before the court were actually determined; finally, she states that she is not in a position to pay costs.

[6] Although the motion required a number of attendances, it was originally determined that the motion was one that would have to be made on notice. It would not be appropriate to burden the AM with costs in respect of a court attendance which resulted in nothing more than an order that the motion should be served. The motion itself was straightforward and uncomplicated; argument was made and a decision rendered in less than half a day. Proportionality and a litigant’s reasonable expectation of what the costs of such a motion might be should be important factors for the court to consider. I find that $14,000 would be a grossly disproportionate amount to award in light of the circumstances of the case. The AM made a poor and ill-advised decision. She did so in the very earliest stages of the case; there is no evidence that she is wise to the ways of litigation or that through experience in matters of this kind, she should have known better. A reasonable person in her position could not have expected to be exposed to the kind of costs award that the RF is seeking.

[7] In all of the circumstances, I find it reasonable, proportional and appropriate that the AM pay to the RF his costs of the motion in the amount of $3,500 inclusive of HST and disbursements. Those costs are fixed and payable forthwith.

McCarthy J. Released: October 16, 2018