Court File and Parties

COURT FILE NO.: D15452/18 DATE: 20190213 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Ashley Hutchings-Valentim Applicant – and – Ryan Medeiros Valentim Respondent

Counsel: R. Richards, for the Applicant M. Vamos, for the Respondent

HEARD: October 22, 2018 COSTS SUBMISSIONS RECEIVED: December 27, 2018

THE HONOURABLE JUSTICE R. B. REID

Reasons for decision on costs

[1] The parties argued competing motions relating to the place of residence of their children and parenting time.

[2] In his motion returnable August 10, 2018, the respondent requested unsupervised overnight access as well as visitation at other specified times with access to include contact by electronic media. That motion was eventually adjourned to the hearing before me on October 22.

[3] The respondent brought a second motion dated September 7, 2018, reiterating his request for the removal of any access supervision and also requesting an order that the children’s residence remain in either Brantford or Hamilton. A further notice of motion requesting the identical relief was made by the respondent dated September 14, 2018. Those motions were also heard on October 22.

[4] The applicant brought a cross-motion, dated September 22, 2018, which was heard October 22, requesting an order that the children’s primary place of residence be with the applicant in Sunderland, Ontario and that the children be permitted to attend St. Joseph’s Catholic School in Uxbridge, Ontario. The applicant had moved with the children to Sunderland in late August 2018.

The Motion Decisions

[5] I concluded, by decision dated November 22, 2018, that it was in the children’s best interest that the applicant not be permitted to relocate with the children to Sunderland from the Hamilton/Brantford area pending the outcome of this application. Acknowledging that in the circumstances there would be some disruption to the children in moving back from Sunderland, the applicant was not required to do so until the December school break. The applicant’s motion was dismissed.

[6] The respondent requested overnight access with the children without supervision and frequent access by electronic means. The applicant proposed to maintain the status quo which included supervision. The previous temporary order was for seven hours of daytime access on one weekend day per week. I concluded that it was in the children’s best interest that they be able to maintain a strong relationship with both parents, and that expanded parenting time on the part of the respondent was necessary to enhance that relationship.

[7] I found it to be in the interests of the children, given their views as expressed through Brant FACS, the applicable law, and the fact that the applicant contemplated an overnight regime, for there to be a temporary order that the respondent have weekend parenting time with the children on alternate Fridays from 6:00 p.m. to Sundays at 7:00 p.m. with the weekend being extended to Monday when Monday is not a school day. The first weekend access was to occur Friday, December 7, 2018. To ensure a smooth transition for the children to that expanded parenting time, and in part to allay safety concerns on the applicant’s part, the children were required to sleep at the home of the respondent’s parents for the first three occasions of overnight weekend access.

[8] Supervised access was not ordered since there was no convincing evidence that was needed.

Costs

[9] The court’s discretion to award costs arises from section 131 of the Courts of Justice Act. The factors governing the exercise of that discretion are found in rule 24 of the Family Law Rules. Rule 24(1) establishes a presumption that a successful party is entitled to the costs of a motion. Factors to be considered in assessing costs amounts are listed in subrule 24(12).

[10] In this case, the respondent was successful and is presumptively entitled to costs.

[11] The respondent seeks substantial indemnity costs, analogizing to the scale of costs used in the Rules of Civil Procedure. He relies on the conduct of the applicant which I found to be misleading as to the relocation of the children. In my view, that factor as to costs is subsumed in the respondent’s success on the merits since the fact of the temporary move by the applicant did not protract the proceedings. I am not prepared to impose a quasi-punitive scale of costs in the circumstances.

[12] The offers to settle filed by the parties are not directly relevant to costs when their terms are compared with the terms of my decision. However, they do indicate some efforts by both parties to achieve a resolution.

[13] The respondent seeks costs, on a substantial indemnity scale in the amount of $14,762.50 consisting of 35.65 hours of lawyer time and 6.7 hours of law clerk time. Disbursements add a further $754.59. With the addition of HST, the total claim for fees and disbursements is $17,534.31.

[14] If I was to reduce the claim by 40% to arrive at a partial indemnity award, the legal fee total would be $8,857.50 plus disbursements as claimed and HST for a total of $10,861.66.

[15] The applicant submits that approximate 35 hours of lawyer time is excessive as compared to 16 hours spent by counsel for the applicant. As such, she argues that the time claimed by the respondent was not reasonable or proportional. I have difficulty concluding that the time was excessive based on the information filed.

[16] In addition, the applicant submits that no costs should be awarded for time incurred before September 14, 2018 since on that date, a consent order was made by Justice Ramsay which resolved equalization and property issues as well as spousal support. It contained a term that no costs be payable by either party and adjourned the balance of the motion which was ultimately dealt with by me on October 22, 2018. Subsequent to September 14, the respondent’s docketed time including counsel and law clerks totaled 22.7 hours.

[17] Although it is not clear from the September 14 order, I am prepared to accept the implicit position of the respondent that the “no costs” provision of that order related to the issues that were settled, rather than those that were ongoing.

[18] The respondent submits that property and spousal support issues were only a minor part of the legal work required on the file and proposes that one hour of time could be deducted on that account. I note that the respondent does not submit that the bill of costs related only to the issues of access and place of residence. In my view, it is not reasonable to conclude that issues of equalization including pension, interest in the applicant’s business, division of proceeds of the sale of the matrimonial home and spousal support from July 3, 2018 (which is the first date shown in the bill of costs) to September 14, 2018 required only one hour of time. However, faced with the position of the respondent, I cannot make an accurate assessment. A review of the file, and in particular the emphasis on child-related issues, leads me to conclude that a substantial majority of the legal time required was in that regard. Therefore, I will reduce the respondent’s claim by five hours of lawyer time so that the partial indemnity fee total is reduced to $7,657 plus disbursements as claimed and HST for a total of $9,505.

[19] Parenthetically, I note that the respondent provided “Supplementary Responding Submissions re: Costs” dated December 20, 2018. They relate to issues around travel and Christmas access and have no relevance to this costs decision, nor were they properly filed as part of the costs timetable set out in my decision on the motions.

[20] Therefore, and for the reasons set out above, there will be an order that the applicant pay to the respondent costs for the motions fixed in the amount of $9,505 inclusive of HST and disbursements. That sum is payable within 90 days.

Reid J. Released: February 13, 2019