COURT FILE NO.: FC-17-2051-1

DATE: 2018/12/31

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Mary Hawes, Applicant

AND

Jason Hawes, Respondent

BEFORE: Justice Engelking

COUNSEL: Wade L. Smith, Counsel for the Applicant

Timothy N. Sullivan, Counsel for the Respondent

Stephen Pender, Counsel for the Children

HEARD: In writing

ENDORSEMENT On Costs

[1] The Applicant mother brought a motion that was heard on July 31, 2018. The decision was released on August 2, 2018. The parties were invited to make submissions in writing on the issue of the costs of the motion, in the event that they could not resolve it. This is my endorsement on costs of the motion.

[2] On September 7, 2018, the Applicant delivered her Submissions on Costs. On September 10, 2018, the Respondent delivered his response to the Submissions on Costs and on September 12, 2018, the Applicant provided the Court with her reply to the Respondent’s submissions. On September 20, 2018, the Respondent sent further submissions to the court, which he referred to as “Responding Submissions of the Respondent, Jason Hawes”. Ms. Hawes counsel took issue with these latter submissions, indicating that the Respondent did not have a further “right of reply” to Ms. Hawes’ reply to his submissions. I agree with Ms. Hawes in this regard, and have not read and will not rely in my endorsement on the September 20, 2018 submissions of Mr. Hawes.

[3] Additionally, on December 4, 2018, the court received a copy of a Notice of Change of Representation dated October 19, 2918 which confirms that Mr. Aaron MacKenzie became counsel of record for Mr. Hawes as of that date. While Mr. Sullivan is referred to above for the purposes of this endorsement, given the timing of the motion, the court acknowledges that Mr. Hawes is now represented by Mr. MackKenzie.

[4] Ms. Hawes motion was for an order permitting a change in the primary residence of the children to Brockville, Ontario, specified access or parenting time for Mr. Hawes and table child support. She was successful on all aspects of the motion, and is presumptively entitled to costs.

[5] The Ontario Court of Appeal has held that the family law rules on costs are “designed to foster three fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement, and ; (3) to discourage and sanction inappropriate behaviour by litigants.”[^1] As of July 1, 2018, new Rule 24(12) of the Family Law Rules sets out a list of factors the court shall consider in determining an appropriate amount of costs, including that there be reasonableness and proportionality in any costs award.[^2] Factors to be considered include each parties’ behaviour, their time spent, any offers to settle, legal fees, expert witness fees and any other properly paid expenses.[^3] Rule 18(14) provides that there are cost consequences to not accepting an offer if the criteria in that rule are met.[^4]

[6] The issue of where the children would primarily reside was one of great importance to both parties. In this case, both parties made Offers to Settle prior to Ms. Hawes commencing her application. Mr. Hawes delivered an Offer to Settle dated October 20, 2017. Mr. Hawes’ offer was premised on him moving to within 60 kilometres of Brockville, and proposed shared parenting time of either week on/week off or on a 2/2/5/5 schedule, as well as proposals for shared and/or alternating holiday time. Mr. Hawes also proposed a FCSG set-off for child support.

[7] Ms. Hawes’ offer was dated November 29, 2017. In it, she sought an immediate move of the children to Brockville, regular parenting time with Mr. Hawes every second week from Friday after school to Monday morning (extended if Friday was off) and one additional night during the week he did not have them on the weekend. She also offered every other week in the summer and other shared or alternating holidays. Additionally, she offered for child support to be set at $835.00 per month.

[8] Both offers purported to resolve more that the court was dealing with on the motion. Having said that, in so far as they did dealt with issues on the motion, the outcome was much less favourable to Mr. Hawes than was the contents of Ms. Hawes’ Offer to Settle. It is difficult to determine the appropriate treatment of Mr. Hawes’ offer, as it was in essentially theoretical. As I have indicated above, it was premised on a proposal that Mr. Hawes would move within 60 kilometres of Brockville, however, at the time of the motion, Mr. Hawes had not moved, and was opposing the move of the children to Brockville. At the motion, I found that the children’s primary residence was to change to Brockville, that Mr. Dawes parenting time would be essentially what Ms. Hawes had proposed in her offer to settle, and that table child support be paid for both children. Given this is the case, and given that Ms. Hawes’ Offer to Settle met all of the requirements of Rule 18(14) of the Family Law Rules, Ms. Hawes is entitled to full recovery on the motion.

[9] Ms. Dawes counsel has submitted a bill of costs which purports to be for the motion and covers the period of March 26, 2018 through to August 29, 2018, and includes one hour for the costs submission. Her counsel’s rate is appropriate, given his level of experience. Ms. Dawes seeks $14,921.37, inclusive of HST and disbursements.

[10] Some of the hours listed (out of a total of 29.10) relating, for example, to meetings with the client, preparing or reviewing pleadings and correspondence between counsel may pertain to the overall application, as opposed to the motion with which I was dealing, which was for temporary relief only. As this is the case, I would reduce Ms. Hawes’ counsel’s hours spent on the motion by 8.1, for a total of 21 hours spent on the motion. This would result in legal fees equalling $7875.00, which, along with the attendance at the motion of 4.3 hours and one hour for costs submissions equals $9,865.50. Including disbursements and HST would result in a total of $11,492.38.

Order

[11] There shall be an order that Mr. Hawes pay to Ms. Hawes costs of $11,492.38 for the motion of July 31, 2018.

JUDGE

Date: December 31, 2018

COURT FILE NO.: FC-17-2051-1

DATE: 2018/12/31

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Mary Hawes, Applicant

AND

Jason Hawes, Respondent

BEFORE: Justice Engelking

COUNSEL: Wade L. Smith, Counsel for the Applicant

Timothy N. Sullivan, Counsel for the Respondent

Stephen Pender, Counsel for the Children

ENDORSEMENT

Engelking J.

Released: December 31, 2018

[^1]: Mattina v. Mattina, 2018 ONCA 867, paragraph 10 [^2]: Rule 24(12), Family Law Rules, O.Reg. 114/99, as am. [^3]: Ibid. [^4]: A party is entitled to costs on a full recovery basis if the offer was made at least one day before the motion, did not expire or was not withdrawn, is not accepted and the order made is as or more favorable than the offer.