Campbell v. Campbell, 2020 ONSC 312

Court File and Parties

Court File No.: FD1787/13-1 Date: January 17, 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 filed

Endorsement on costs

[1]

Background

This costs endorsement relates to my order dated September 30, 2019, dismissing the respondent’s motion for interim relief.

2I have considered the written costs submissions of both parties. The respondent filed fresh written costs submissions, as required by my order dated November 15, 2019 (see Campbell v. Campbell, 2019 ONSC 6600), which struck the respondent’s initial costs submissions due to non-compliance with the September 30, 2019 order as to the length and content of the costs submissions.

[3]

Entitlement to Costs

The applicant was successful. He is presumptively entitled to his costs of the motion: r. 24(1) of the Family Law Rules, O. Reg. 114/99.

4The applicant was forced to defend a motion where the interim relief claimed was to revoke all the applicant’s parental rights, award sole custody to the respondent and limit the applicant to supervised access. The status quo currently and at the time of the motion was that the parties share equal time with their child pursuant to a detailed final parallel parenting order made after trial.

5The breadth of the relief sought in the motion was not in the least supported by any credible evidence. Given the factual matrix of this case, the claims advanced by the respondent in her motion were irresponsible.

6The respondent brought her motion initially ex parte, making allegations as to a number of alleged child abductions by the applicant. There was no basis for these allegations, one of which was found to be inflammatory and misleading: reasons, para. 29. Further, a finding was made that the respondent, in proceeding ex parte, “… failed in her duty to make full and fair disclosure of all material facts, and egregiously so”: reasons, para. 55.

7However, the discussion in the reasons found that the applicant also behaved unreasonably and that his conduct was “inimical to [the child’s] best interests”: reasons, para. 35. This finding was in relation to the applicant’s conduct in attempting to enter the United States with the child without a passport for the child and with the child’s cancelled Nexus card.

[8]

Analysis and Quantum

The applicant seeks $10,000 in costs all inclusive to be enforced as “child support.”

9I have considered reasonableness and proportionality in relation to the factors listed in r. 24(12)(a).

10The applicant has provided time dockets and a bill of costs. The time spent and the hourly rates are reasonable. The applicant’s written offer to settle, although it does not engage the costs consequences of r. 18(14), was reasonable and I consider this offer pursuant to r. 18(16).

11The nature and extent of the respondent’s unreasonable conduct could merit a costs award approaching the range of $10,000 as suggested by the applicant, that amount being close to a full recovery of costs.

12However, as discussed above, the applicant has behaved unreasonably. Taking into account r. 24(4), which applies where a successful party has behaved unreasonably, I find that a reasonable costs award to the applicant is $3,500 all inclusive. This is not a proper case to deprive the applicant of all of his costs.

13I do agree with the respondent’s submission and I decline to characterize any portion of the costs award as child support enforceable by the Director. This motion dealt only with parenting issues. There were no child support issues. In arriving at this conclusion, I have considered Sordi v. Sordi, 2011 ONCA 665 , 2011 O.J. No. 4681 (Ont. C.A.), and in particular para. 25, relied on by the respondent.

14Taking into account the applicant’s unreasonable conduct in deciding when the costs should be paid, it is appropriate that the costs be paid following the conclusion of the motion to change proceeding on a final basis.

[15]

Order

I order that the respondent shall pay to the applicant his costs of the respondent’s motion fixed in the amount of $3,500 inclusive of HST and assessable disbursements, payable by the respondent within 30 days after the conclusion of the current motion to change proceeding on a final basis.