Court File and Parties

COURT FILE NO.: FC-12-2103-1 DATE: 2019/12/02 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Stephanie Melanie Caresse McAuley, Applicant -and- Joseph Patrick McAuley, Respondent

BEFORE: Justice P. MacEachern

COUNSEL: Ross Stewart, Counsel for the Applicant Michael Wonham, Counsel for the Respondent

HEARD: In Writing

Costs ENDORSEMENT

[1] This endorsement determines costs following the motion heard on April 23, 2019, and decided on July 12, 2019.

[2] Modern costs rules are designed to foster four fundamental purposes (1) to partially indemnify successful litigants; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants; and (4) to ensure that cases are dealt with justly (Rule 2(2) of the Family Law Rules, R.R.O. 1990, Reg. 114); see also Mattina v. Mattina, 2018 ONCA 867.

[3] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. An award of costs is subject to: the factors listed in Rule 24(12), Rule 24(4) pertaining to unreasonable conduct of a successful party, Rule 24(8) pertaining to bad faith, Rule 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party (Berta v. Berta, 2015 ONCA 918 at para. 94).

[4] Subrule 24(1) creates a presumption of costs in favour of the successful party. Mr. McAuley was the successful party on the motion. He seeks his costs fixed at $9,221.95, representing 90% of his total costs of $10,246.61. These costs are comprised of $8,725 in fees, $342.50 in disbursements, and $1,178.81 in HST. Mr. McAuley’s position is that he achieved a result that was as favourable or more favourable than the offer he served on April 8, 2019, and that Ms. Kieffer-Wolf (formerly known as Ms. McAuley) acted unreasonably.

[5] Ms. Kieffer-Wolf made several submissions related to the merit of her position on the motion. More directly related to the issue of costs, Ms. Kieffer-Wolf argues that Mr. McAuley’s fees are excessive, that he acted unreasonably, that she acted reasonably, and if this Court awards costs, they should be limited to $2,500. Ms. Kieffer-Wolf also refers to conduct after the argument of the motion, but before the release of the decision, as being relevant to the determination of costs.

[6] Mr. McAuley provided a bill of costs in support of his legal fees. Although Ms. Kieffer-Wolf takes the position that his fees are excessive, or not detailed enough, she has not provided her bill of costs for comparison. If it is her view that Mr. McAuley’s bill of costs is not sufficiently detailed, she should have requested further particulars. She has not filed any supporting documents that she made such a request. This motion involved three court appearances on April 4, 2019, to determine urgency, April 9, 2019 (to adjourn the date of return set out in the April 4, 2019 endorsement) and April 23, 2019, when the parties argued the substantive motion. Mr. McAuley’s legal fees reflect his counsel spending 34.9 hours during the period from March 10, 2019, to July 19, 2019, and include time to prepare his submissions on costs. His counsel was called in 2012 and charged a rate of $250 per hour. This matter dealt with an important issue of the children’s caregiving in the face of there being reasonable concerns about the mother’s ability to care for the children, and included issues of urgency and high conflict. I find Mr. McAuley’s legal fees are reasonable and proportional.

[7] Mr. McAuley served an offer on April 8, 2019, that offered to settle the matter based on an interim interim equal timesharing arrangement and the appointment of the OCL. The result of the motion was as favourable, or more favourable, to Mr. McAuley than his offer. I find that he is presumptively entitled to his costs on a full recovery basis from the date he served his offer. Mr. McAuley incurred costs totalling approximately $4,325 before serving his offer on April 8, 2019, and incurred costs of approximately $4,400 after April 8, 2019.

[8] I do not find that Mr. McAuley’s conduct was unreasonable. I do find that Ms. Kieffer-Wolf’s conduct on the motion was unreasonable. Ms. Kieffer-Wolf did not provide any offers to settle the motion that she may have made. She did provide correspondence that confirms her position was, as of April 5, 2019, that the children return to her care with access to Mr. McAuley every second weekend and one overnight on the week when there was no weekend access. Her position did not reflect that the children had been residing with Mr. McAuley since March 14, 2019, due to her hospitalization, and that before her hospitalization, the parenting status quo reflected a shared parenting schedule. Ms. Kieffer-Wolf’s insistence on returning to the terms of the January 13, 2016 Order, even though those terms did not reflect the timesharing status quo for quite some time, was unreasonable. Ms. Kieffer-Wolf’s failure to be forthcoming regarding her medical issues compounds these concerns.

[9] I do not find that any concerns raised regarding post-motion access or conduct warrants a reduction in costs.

[10] Ms. Kieffer-Wolf did not make submissions regarding her financial ability to pay costs, nor provide financial information. She did not seek payment terms.

[11] Sixty percent of Mr. McAuley’s costs incurred before his offer is $2,595 ($4,325 X 60%). This amount, plus 100% of his costs from the date of his offer ($4,440), plus disbursements of $342.80, equals $7,377.80 ($2,595 + $4,440 + $342.80). With tax, this total increases to $8,336.91. Taking all of the above factors into consideration, including, in particular, the factors under Rule 24(12), I find that Ms. Kieffer-Wolf should be required to pay Mr. McAuley costs fixed at $8,300. I find this amount is reasonable and proportional, and in keeping with the four fundamental purposes of a cost award.

[12] This order shall bear post-judgment interest in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”).

[13] Ms. Kieffer-Wolf's submissions on costs replace the Applicant’s name in the style of cause (“Stephanie Melanie Caress McAuley”) with the name that presumably she prefers (“Stephanie Kieffer-Wolf”). Stephanie Kieffer-Wolf, however, is not the name in the style of cause. The style of cause has not been amended. If Ms. Kieffer-Wolf wishes to use this name in the style of cause, she should seek an order amending the style of cause by a Form 14B motion.

Justice P. MacEachern Date: December 2, 2019

Released Information

COURT FILE NO.: FC-12-2103-1 DATE: 2019/12/02 ONTARIO SUPERIOR COURT OF JUSTICE RE: Stephanie Melanie Caresse McAuley, Applicant -and- Joseph Patrick McAuley, Respondent BEFORE: Justice P. MacEachern COUNSEL: Ross Stewart, Counsel for the Applicant Michael Wonham, Counsel for the Respondent costs ENDORSEMENT Justice P. MacEachern Released: December 2 , 2019

[1] Family Law Rules , rule 2(2); Mattina v. Mattina , 2018 ONCA 867 [2] Berta v. Berta , 2015 ONCA 918 at para. 94