Court File and Parties

COURT FILE NO.: FS-13075-16 DATE: 20181217 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Leah Tessier, Applicant AND: Joseph Toner, Respondent

BEFORE: The Honourable Madam Justice Louise L. Gauthier

COUNSEL: Christopher McInnis, Counsel for the Applicant Liisa Parisé, Counsel for the Respondent

HEARD: September 18, 2018

ENDORSEMENT on costs

[1] Unfortunately, the parties have been unable to reach an agreement on the costs of the motion which was argued on September 18, 2018, despite their efforts to do so.

[2] The respondent, who was successful on the motion, seeks costs in the amount of $8,954, being substantial indemnity costs from the beginning of the litigation process, up to August 21, 2018, and full recovery costs, from the date of the Offer to Settle, which meets the requirements of Rule 18. The respondent relies on his consistent willingness to resolve the matter including agreeing to provide assistance with the child’s transportation.

[3] The applicant submits that costs fixed at $2,500 plus HST would be fair and reasonable in the circumstances, and proportional to the parties’ respective incomes, and with the outcome of the motion.

[4] I am mindful of the provisions of Rules 18 and 24 of the Family Law Rules, including the presumption that a successful party is entitled to the costs of the motion.

[5] The rules governing costs are designed to foster three fundamental purposes:

i. To partially indemnify successful litigants for the cost of litigation; ii. To encourage settlement; and iii. To discourage and sanction inappropriate conduct by the litigants.

[6] An award of costs should reflect what is determined to be a fair and reasonable amount which the unsuccessful party should pay. The court has a great deal of discretion in dealing with costs, and each award of costs will be dependent on the facts of that particular case. The court’s discretion extends to situations in which a Rule 18 offer has been made.

[7] I found both parties to be reasonable and motivated by their genuine desire to further the best interest of their child. I urge the parties to re-read paragraph 40 and 41 of my Ruling on the Motion. The purpose of a costs order, outlined in (iii) above, is not engaged in this case.

[8] Most disputes between parents concerning issues of upbringing and parenting are resolvable. However, issues of language of education may be less amenable to out of court resolution.

[9] The situation which confronted not only the court, but these young parents was complicated. It cannot realistically be said that this motion was entirely avoidable. This conclusion informs my assessment of the issue of the costs to be awarded to the successful party.

[10] I also take into account the disparity in the parties’ respective incomes. However, ability to pay costs, or the limited ability to do so goes to quantum of costs and not entitlement, or liability for same.

[11] After taking into account all of the circumstances in this case, I am of the view that an award of $3,500 plus HST to the Respondent is a fair and reasonable outcome.

The Honourable Madam Justice Louise L. Gauthier Date: December 17, 2018