[1] In my Reasons for Decision after a four-day trial I invited submissions from the parties regarding the issue of costs. I received submissions from counsel for the Applicant. The Respondent did not provide submissions.

[2] I have considered the Applicant’s submissions in which she seeks costs on a partial indemnity scale in the amount of $17,000.00 inclusive of HST and disbursements. The Applicant has submitted a Bill of Costs that indicates her total costs including disbursements on a full-indemnity basis for the entire proceeding amounted to $46,119.01.

[3] Counsel for the Applicant, in her written submissions, discounted her total account in part on the basis of a partial indemnity scale and also on the basis that some issues had been resolved prior to the trial, while noting that at trial the Applicant was substantially successful.

[4] Counsel acknowledged that a portion of the costs sought by the Applicant included some costs resulting from the negotiations that occurred between the parties prior to trial that were resolved in favour of the Applicant based upon the Offers to Settle that had been exchanged, in particular the issue of child support and the equalization of the parties’ net family properties.

[5] The apportionment or awarding of costs regarding these last-minute settlement negotiations was left to the court to consider as an issue at trial. Thus, at trial, the only issues before the court were of custody, an appropriate parenting regime and a minor issue regarding the ownership of a generator.

General Principles of Costs

[6] An award of costs is a matter in the discretion of the Court by virtue of s. 131(1) of the Courts of Justice Act, which provides:

Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in the proceeding are in the discretion of the court, and the court may determine by whom and to what extent costs shall be paid.

[7] Rule 18 (14) of the Family Court Rules is as follows:

18 (14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:

If the offer relates to a motion, it is made at least one day before the motion date.
If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
The offer does not expire and is not withdrawn before the hearing starts.
The offer is not accepted.
The party who made the offer obtains an order that is as favourable as or more favourable than the offer.

[8] Rule 24 of the Family Law Rules provides that there is a presumption that a successful party is entitled to their costs. If success is divided, the Court may apportion costs as appropriate.

[9] The factors which must be considered under Rule 24(11) are:

(a) the importance, complexity or difficulty of the issues;

(b) the reasonableness or unreasonableness of each party’s behaviour in the case;

(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signatures of the order;

(e) expenses properly paid or payable; and

(f) any other relevant matter.

Analysis of Success and Conduct

[10] The Applicant, mother was largely successful at trial with respect to the most contentious issue, being the custody and parenting plan for the parties’ son, E. With some minor amendments, I made a parenting order that essentially followed the Applicant’s proposed parenting plan.

[11] The Respondent, father was successful with respect to a few minor amendments to the Applicant’s proposed parenting plan but was unsuccessful in his claim for joint custody with equal and parallel parenting. He was successful on the ownership of the generator; however, this was a minor issue in terms of the time expended at trial or in trial preparation.

[12] I note from reviewing the Continuing Record that for the first year or so after the Application was filed that the Respondent was represented by counsel. During this period, the parties proceeded with the usual court process and exchanged offers as it pertained to custody and access. The parties entered into a variety of orders for access, in particular during vacation and holiday periods. The majority of these orders appear to have been negotiated and made based upon Minutes of Settlement.

[13] The parties also consented to the involvement of the Office of the Children’s Lawyer for the purposes of providing a clinical assessment that was completed on March 14, 2018, approximately one year prior to the trial.

[14] The Respondent refused to accept the findings of the clinical investigator and insisted on a trial regarding the issue of custody and parenting of E.

[15] In my review of the record, it is the costs associated with this part of the proceeding to which the Applicant is entitled. The clinical report was very well prepared and set out the areas in which the Respondent’s conduct was of concern and it outlined steps the Respondent should take that would facilitate increased access to E. Except for attending a couple of therapy sessions shortly prior to trial, the Respondent did not take steps to address the concerns expressed by the clinical investigator and continued to deny his conduct was at issue.

[16] The payment of child support by the Respondent was directly connected to the position he was advancing at trial. Just prior to trial the Respondent agreed to pay child support based upon either a set-off if he was successful in his claim for joint custody and parallel parenting or to pay a set amount of child support based upon his income and all retroactive child support claims were eliminated.

Conclusion

[17] I find that the Applicant is entitled to partial indemnity costs as it pertains to the issue of the custody and parenting arrangements for E. from after the March 14, 2018 report from the clinical investigator. I have reviewed the Bill of Costs as well as associated legal accounts and have determined that the appropriate award of costs including HST and disbursements is $10,000.00. This amount does not include the former award of costs in the amount of $1,000.00 that was made against the Respondent that remains outstanding and remains payable.

[18] Because of my findings that part of the costs awarded are with respect to the claim for child support advanced by the Applicant, I assess that $5,000.00 of the total costs award shall be designated as a support order as defined in section 1 of the Family Responsibility and Support Arrears Enforcement Act and collected by the Family Responsibility Office. The costs portion of the child support shall be collected by the Family Responsibility Office in monthly payments not exceeding $150.00 per month.

original signed by__

Madam Justice B. R. Warkentin, R.S.J.

Released: November 14, 2019

COURT FILE NO.: FS-17-0151-00

DATE: 2019-11-14

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

D.B.

Applicant

- and -

M.M.

Respondent

REASONS ON COSTS

B. Warkentin R.S.J.

Released: November 14, 2019

D.B. v. M.M., 2019 ONSC 6538

Case Summary

[1] In my Reasons for Decision after a four-day trial I invited submissions from the parties regarding the issue of costs. I received submissions from counsel for the Applicant. The Respondent did not provide submissions.

[3] Counsel for the Applicant, in her written submissions, discounted her total account in part on the basis of a partial indemnity scale and also on the basis that some issues had been resolved prior to the trial, while noting that at trial the Applicant was substantially successful.

[6] An award of costs is a matter in the discretion of the Court by virtue of s. 131(1) of the Courts of Justice Act, which provides:

[7] Rule 18 (14) of the Family Court Rules is as follows:

[8] Rule 24 of the Family Law Rules provides that there is a presumption that a successful party is entitled to their costs. If success is divided, the Court may apportion costs as appropriate.

[9] The factors which must be considered under Rule 24(11) are:

[10] The Applicant, mother was largely successful at trial with respect to the most contentious issue, being the custody and parenting plan for the parties’ son, E. With some minor amendments, I made a parenting order that essentially followed the Applicant’s proposed parenting plan.

[13] The parties also consented to the involvement of the Office of the Children’s Lawyer for the purposes of providing a clinical assessment that was completed on March 14, 2018, approximately one year prior to the trial.

[14] The Respondent refused to accept the findings of the clinical investigator and insisted on a trial regarding the issue of custody and parenting of E.

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues