Court File and Parties

COURT FILE NO.: FS 11378/18 DATE: 20200115 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Adam MacLean, Applicant AND: Melissa MacLean, Respondent

BEFORE: Templeton J.

COUNSEL: T. Zimmerman, for the Applicant G. McQuaid, for the Respondent

HEARD: In writing

Costs Endorsement

[1] On October 19, 2018, the Applicant commenced an action for a divorce and corollary relief.

[2] Thereafter, the Applicant served and filed a Motion concerning parenting time with their son who is six years of age. The Respondent served and filed a cross-Motion. My decision with respect to the merits of these motions was rendered on August 20, 2019.

[3] Unfortunately, I was unaware until recently (through no one’s fault but my own) that both parties had completed and filed written submissions with respect to costs. I sincerely apologize to the parties and to counsel for the delay of a decision in this regard.

[4] I have reviewed my decision and the Offers to Settle by the parties. Counsel for the Applicant filed a very helpful Comparative Analysis with respect to the issues raised and positions advanced by counsel in the context of the outcome as determined in my decision.

[5] Rule 18 of the Family Law Rules (the FLR) concerns Offers to Settle and Rule 24 of the FLR concerns the issue of costs. As both counsel have pointed out, I am required to consider a number of factors both with respect to whether costs ought to be awarded in favour of one party and, if so, the quantum payable. I have applied those principles as they pertain to this case.

[6] In my decision, for the reasons provided, I declined to grant a custody order to either parent. The Applicant did not seek a custody order and in his offer, referred only to shared parenting time. The Respondent had offered to agree to a joint custody order. She was unsuccessful. Instead, I ordered a shared parenting regime.

[7] The Respondent had sought and offered an order limiting access by the Applicant to the child to every second weekend from Friday until Sunday, one evening per week and at such other times as they may agree to. She was unsuccessful. The Applicant had sought a shared parenting regime and offered to settle on a 60/40 time share with the child spending 60 percent of his time with his mother, the Respondent. I agree with the submissions of the Applicant that my order more closely reflects to the time sharing offered by the Applicant to the Respondent.

[8] The Applicant sought an order requesting the intervention of the Office of the Children’s Lawyer (the OCL). For the reasons set out in my decision, he was not successful.

[9] The Respondent sought and offered to agree to an order that the Applicant alone be restrained from consuming alcohol for twelve hours prior to and during access. The Applicant offered to agree to such an order restraining both parties in this regard. The Applicant was successful.

[10] With respect to the issue of child support, I am not disposed to consider the issue of costs from the perspective of “success” due to the impact of the parenting regime on this issue and the requirement in my order that both parties calculate the appropriate quantum payable in accordance with the Child Support Guidelines after the release of my decision and based on my order.

[11] Further, given my order that the issue of spousal support be adjourned for trial, the outcome of this issue is also neutral for the parties.

[12] The major issues in this case as determined in my order concerned the impact of the hostility and conflict between the parents on this child. As I indicated in my Ruling, The Affidavits of the parties were replete with allegations of drinking, abusive conduct and lack of acceptance of responsibility. There was independent evidence by way of email exchanges, however, that the child Kellen is challenged by acute emotional or behavioural needs and requires professional intervention including therapy. My order had to reflect my deep concern for the future mental and emotional health of this child caught in a war between the two people he equally depends on for support, guidance and stability.

[13] It is also a factor that neither the Applicant nor the Respondent took advantage of the opportunity to examine the other as permitted under the FLR. As I noted, such a procedural step and the resulting transcript would have allowed me to make a more reasonable and informed assessment of the credibility and reliability of the evidence of each of these parties.

[14] In consideration of all of these factors and the rule as well as the overall circumstances on this motion, I find that the Applicant was more successful than the Respondent on this motion and is entitled to reasonable costs payable by the Respondent which I fix at $1500 plus GST.

[15] I am not, however, going to order payment of those costs until all issues in this litigation have been concluded on a final basis. The requirement to pay costs must not be used as a weapon between hostile parents. In high conflict cases such as this, the issue of the payment of interim costs by one party to the other is best left to the end of the litigation as an adjunct to and in consideration with the other financial or property/equalization payment issues they must address and as and when those issues are resolved.

[16] An order shall issue in accordance with these reasons.

“Justice L. C. Templeton” Templeton, J. Date: January 15, 2020