Court File and Parties

Court File No.: 16-143 Date: January 16, 2019

Superior Court of Justice – Ontario

Re: Blaskavitch v Smith

Between: Christina Faith Blaskavitch, Applicant And: Christopher Donald Smith, Respondent

Before: Honourable Mr Justice Martin James

Counsel: David Howard for the Applicant Michael Conroy for the Respondent

Date Heard: Written Submissions

Costs Endorsement

James J.

[1] This is a costs endorsement following a temporary motion heard on August 29, 2018.

[2] The main issues were:

a) respondent’s request to adjust mid-week access on a temporary basis to accommodate changes to his work schedule; and,

b) the respondent’s request for an assessment pursuant to section 30 of the Children’s Law Reform Act.

[3] The applicant raised an additional issue relating to child care expenses at the case conference that preceded the motion and it was agreed at the case conference that this issue would be included in the mix of issues to be dealt with at the hearing of the motion that was scheduled to proceed in the near future. This issue related to whether the respondent ought to pay more for child care expenses for allegedly not having applied for a subsidy that would have resulted in costs savings for both parents.

[4] By way of background, the parties made a final settlement on May 8, 2017.

[5] Due to changes in the respondent’s work schedule in early 2018, the respondent was unable to exercise his mid-week daytime access because he was at work. He unsuccessfully requested an accommodation from the applicant.

[6] The respondent continued to miss his weekday access visits until the motion was argued. A few days before the motion, the applicant offered to permit a mid-week overnight visit.

[7] In my view, the applicant ought to have accommodated the request to adjust the mid-week access arrangement. The fact that she did not do so for months until just before the motion, is deserving of a costs sanction because her position was unreasonable and forced the respondent to incur legal expenses that should not have been necessary.

[8] The respondent also requested an order for a section 30 assessment to re-visit the custody and assess arrangements. It is well known that these assessments are costly and time-consuming. The parties agreed to the current parenting arrangements in May, 2017. It did not appear to me that the current situation was so materially different from the circumstances at the time the parties made their agreement in 2017 that a “needs assessment” for Nathan was warranted or in his best interests.

[9] In my view a request made for an assessment so close on the heels of the final settlement was unreasonable and this ought to be reflected in how costs are dealt with as well.

[10] The child care costs issue was resolved in the respondent’s favour.

[11] The respondent presented a bill of costs totaling $3,742.85 and requested substantial indemnity costs (at 66%) of $2,470.28 or alternatively, partial indemnity costs (at 33%) of $1,234.95.

[12] The respondent says that the applicant acted in bad faith by refusing to address the mid-week access issue for several months until just before the motion was heard and this refusal should figure into the assessment of costs as well.

[13] The applicant claims a portion of her total legal costs of $5,271.45 from the respondent and says recovery on a partial indemnity basis (at 40%) or $2,108.58 would be appropriate.

[14] The applicant points to the offer she made on August 23, 6 days before the motion, agreeing to a mid-week overnight visit pending trial. She says this offer compares favourably with the results of the motion and therefore the costs consequences associated with favourable offers to settle ought to apply.

[15] Generally speaking, the cost of legal services incurred by an offeror before an offer is served, even when the offer triggers the costs consequences of the rules of court, is not normally recoverable at an enhanced rate in the same way that the costs incurred after the offer is served are calculated.

[16] The applicant also said that the respondent initially brought the motion forward on an urgent basis and the court held that the matter was not urgent. Summer access was dealt with at that motion but not on the terms requested by the respondent. Costs were reserved.

[17] Having considered the various factors outlined in the Family Law Rules regarding the assessment of costs, the specific sequence of events here, the positions of the parties and the outcome of the motion, I have determined that there should be no order respecting costs.

James, J. Date: January 16, 2019