Court File and Parties

Court File No.: FC-17-2572 Date: 2019/05/30 Superior Court of Justice – Ontario

Re: Jason Samuel Ronald Pace, Applicant And: Jennifer Christina Barry, Respondent

Before: J. Mackinnon J.

Counsel: Loreen Irvine, for the Applicant Tanya Davies, for the Respondent

Heard: In Writing

Costs Endorsement

[1] Each party brought a motion on March 5, 2019. The Respondent mother sought child support in accordance with the table amount for the Applicant father’s income retroactive to their date of birth in 2014, and on a prospective basis. The father sought a finding of undue hardship and to pay child support in a lesser amount. He also sought other relief including a declaration of parentage, to be added as their father to the children’s birth certificates, and for a non-relocation order until the litigation is complete. The motion decision is available at 2019 ONSC 1739.

[2] Both parties seek costs. For reasons set out below I have concluded that the father is entitled to an award of costs.

[3] The issue of complexity in the mother’s motion related to her claim for retroactive child support. There were extensive factual disputes between the parties in the record that would not permit this issue to be properly dealt with by motion. It should have been apparent in advance that the claim for retroactive support in the context of the factual disputes between the parties would require a trial for determination. Eventually, during oral argument, the mother agreed to defer the issue to trial. The father is entitled to costs of this part of the motion given that he was required to respond to the claim and given the amount of time expended in court as mother’s counsel attempted to advance the issue.

[4] The father established that he would suffer undue hardship arising from the high level of access costs necessary to visit his children in Ottawa. He easily “passed” the standard of living test. At the very least there should have been an admission on this point. The real issue was the appropriate amount of the reduction below the table amount. I reduced the child support to $865 per month commencing when access costs commenced. This compares to the father’s offer at $400 per month and the mother’s at $1,000 per month.

[5] The mother submits that she was the successful party on this issue because the amount of her offer was closer to the actual award. I disagree. The mother unsuccessfully contested the issue. The father did not match his offer in the outcome, but he did succeed in obtaining a larger reduction than the one offered by the mother. I find the father is the successful party on the undue hardship issue.

[6] His success is tempered by the fact that I required him to pay child support in accordance with his income from the commencement of the action in January 2018 to including October 2018 after which the access costs commenced. This is a standard commencement date for child support. The father should have anticipated and addressed this as a separate period of child support rather than considering it as part of the retroactive claim which it is not.

[7] The father did succeed in obtaining a declaration of parentage. He sought this as a preliminary step to his request to change the children’s surname to include his own. I did not make that order. I stated at paras 35 and 36:

35 The children have resided with the mother continuously since birth and carried her surname throughout. Since their mother's marriage in August 2017, they have also resided with her husband who stands in a parental position to them. Other than the contact the father had with them at birth there has been no contact or relationship between him and the children until November 2018. 36 At this point it cannot be said that the father has a close or continuing relationship with the children. Many disputed facts exist which cannot be determined on the motion record. I conclude that the application for a name change is premature. It should be deferred to the trial judge for determination.

[8] I find the mother was the successful party on this issue.

[9] At the opening of the hearing the mother consented to add the father’s name to the children’s birth certificates. The father is entitled to have the lateness of this consent taken into account in relation to his costs.

[10] The father sought but did not obtain an order prohibiting the mother from relocating the children away from Ottawa prior to the completion of this litigation. His interest was to avoid having to commence new litigation in another jurisdiction were she to move. During oral argument mother’s counsel agreed to a suggestion I made which was to confirm this court’s ongoing jurisdiction pursuant to section 22 (1) (a) of the Children’s Law Reform Act, R.S.O. 1990, c.C.12, as am., to the completion of the litigation, to require notice of any proposed move and to consent to a continuation of whatever the father’s access was at the time of a move. I regard this outcome as neutral on the issue of costs.

[11] The father’s full costs were $13,504.32. No issue was taken with the time spent or counsel’s hourly rate. His costs were considerably lower than were the mother’s.

[12] Beaver v. Hill, [2018] No. 5412 (C.A.) makes it clear that the father is not entitled to the full amount of his costs. This is not a case where either party made an offer entitling them to invoke Family Law Rules, O. Reg. 114/99 as am, r 18(14) (match/beat offer) or r 24(8) (bad faith). On a partial basis I fix his costs at 70 percent indemnity as a reasonable and proportionate reflection of the FLRs r24 factors, his level of success and the mother’s ill-advised pursuit of retroactive child support in the circumstances of this case.

[13] Costs claimed by the father of a contested adjournment heard on January 22, 2019 are also before me, and are declined. When the January date was set, mother’s counsel had a trial scheduled to be heard in November. Unfortunately, the case was not reached and was put over to January. On January 17th when she knew the trial would not be completed in time for the motion date, and learning that her junior associate had been called away on a family emergency, the adjournment was requested. The father’s counsel ought reasonably to have agreed to adjourn then, without costs. The Bill of Costs shows there was no thrown away preparation by that date. In calculating the father’s costs I have removed from consideration all amounts expended to dispute the adjournment.

[14] The Applicant’s costs are fixed on an all-inclusive basis at $8,690.

Released: May 30, 2019 J. Mackinnon J.