Court File and Parties

COURT FILE NO.: FD1787/13-1 DATE: April 15, 2020 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Adam Edward Campbell, applicant AND: Katie Campbell, respondent

BEFORE: MITROW J.

COUNSEL: Peter D. Eberlie for the applicant Katie Campbell in person

HEARD: written submissions received February 14, 2020

Endorsement on Costs

[1] This costs endorsement follows my decision Campbell v. Campbell, 2020 ONSC 281 dated January 17, 2020 on the applicant’s motion heard in November 2019 for an interim order permitting him to take the child on six different trips during the current school year.

[2] At the time of the hearing of the motion, and also at the time of the release of the decision, the COVID-19 pandemic, which has since affected all aspects of daily life, was not an issue impacting on the applicant’s proposal to travel with the child.

[3] The applicant was permitted to take the child on only one of his six proposed trips, being the trip to Disney World in Orlando, Florida in early March 2020.

[4] I have reviewed the costs submissions of both parties filed February 14, 2020.

[5] The applicant seeks an order of costs in the amount of $1,000 all inclusive, although he submits that his “full indemnity” costs are $7,550.10. The applicant includes his time dockets and a bill of costs.

[6] The respondent, who is self-represented, claims costs of the motion in the amount of $4,500. The respondent provides no information as to how she arrived at that amount.

[7] The first issue is to determine who is the successful party on the applicant’s motion. Although success has been divided, I find that the respondent was more successful than the applicant considering that only one of the six proposed trips was permitted and considering also that the applicant at the hearing of the motion indicated that the June 2020 trip was not proceeding.

[8] I have considered the factors in r. 24(12) of the Family Law Rules, O. Reg. 114/99 in the context of reasonableness and proportionality. The applicant’s written submissions include four offers served by the applicant, being three offers dated September 6, 2019 and one offer dated December 13, 2019. The respondent refers to her offers dated November 6, 2019 and November 29, 2019 in her submissions. Although these two offers have different dates and formats, they otherwise appear to be the same in terms of content. It is not entirely clear when, or if, the respondent’s November 6, 2019 offer was served. The respondent’s written submissions refer to this offer being forwarded to the applicant’s counsel on November 6, 2019 but the email included in the respondent’s material, purportedly attaching this offer, was sent on November 8, 2019.

[9] None of the offers forwarded by the parties engages the presumptive costs consequences in r. 18(14) of the Family Law Rules.

[10] In relation to trips with the child during the school year, the applicant’s offers on September 6, 2019 provide for each parent being able to take the child on three separate one-week trips. The applicant’s offer dated December 13, 2019 provides for the applicant to take the child on five of the six specific trips included in his motion. For her part, the respondent’s offer proposes, during the school year, “maximum” travel time of one week for each parent and with all future travel requests to include involvement by a professional or a Voice of the Child report. There is nothing in the respondent’s offer dealing with the specifics for travel destinations proposed by the applicant in his motion for the current school year.

[11] Considering that the respondent was more successful in the context of a motion where there has been divided success, I find that a reasonable amount of costs in favour of the respondent would be in the range of $1,000 to $1,250 all inclusive.

[12] However, as pointed out by the applicant, the respondent has a habit of non-compliance with orders as to the length, form and content of material to be filed on motions in this high-conflict case. Although I declined the applicant’s request to strike the respondent’s affidavit on this motion due to its non-compliance with my order, I did indicate that the respondent’s non-compliance is an issue that may be addressed when dealing with costs Campbell v. Campbell, 2020 ONSC 281, at paras. 10-19.

[13] Rule 24(4) of the Family Law Rules provides:

SUCCESSFUL PARTY WHO HAS BEHAVED UNREASONABLY

(4) Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs.

[14] I find that the respondent’s failure to obey the order as to the length, form and content of her material is unreasonable conduct, as a result of which I reduce her costs entitlement to $250.

[15] I order the applicant to pay to the respondent her costs of the motion fixed in the amount of $250 inclusive of HST and assessable disbursements, payable by the applicant within 30 days after the conclusion of the current motion to change proceeding on a final basis.

“Justice Victor Mitrow” Justice Victor Mitrow Date: April 15, 2020

[1] Campbell v. Campbell, 2020 ONSC 281 [2] Campbell v. Campbell, 2020 ONSC 281, at paras. 10-19