Court File and Parties
Court File No.: FC-15-1833 Date: 2020/07/02 Superior Court of Justice – Ontario
Re: Maxime Gaetan Levesque, Applicant And: Lindsay Windsor, Respondent
Before: Mackinnon J.
Counsel: Alyssa Bach, for the Applicant Manraj Grewal/ Deanna Paolucci, for the Respondent
Heard: In Writing
Costs Endorsement
[1] The applicant seeks costs of $13,763.26 for an urgency determination, a motion on jurisdiction and his motion to stay a trial judgment pending appeal. He submits he was the successful party in relation to all three matters. Alternatively, he submits the court should make no order for costs.
[2] The respondent submits she was more successful on the stay motion. No stay was granted with respect to the trial award of joint decision making. The stay that was granted was partial and time limited. She seeks costs of the stay motion fixed at $5,181.75.
[3] In their written submissions counsel set out the rules and case law governing costs in family law matters. I will not replicate those here.
[4] The applicant was the successful party on the urgency and jurisdictional matters. He is entitled to partial costs with respect to those matters.
[5] The applicant claims success on the stay motion given that summer access was stayed and a temporary stay made as to increased parenting time. I take a different view. The result of the motion was the dismissal of the stay requested as to the joint decision making award. The respondent was successful on this issue.
[6] Neither party was successful as to parenting time. Summer access was stayed for both parties. A stay was granted from June 22 to until July 13 to the additional Monday overnight access awarded at trial to the respondent, and to her additional Thursday access, from June 22 until August 12. These partial and short delays to the implementation of the trial award do not constitute success to the applicant in comparison to his primary or alternative relief.
[7] The respondent’s position was that the stay motion should be dismissed. The fact that the applicant only obtained some relief does not equate to success on her part. She did not succeed in achieving her position that the stay motion should be dismissed in its entirety.
[8] The respondent did not make an offer to settle. She offered no compromise on her position that the stay motion should be dismissed.
[9] The applicant did make an offer to settle. It had two options. Option one was that the stay would be granted. Option two was to restore the temporary order in effect before trial. While described as two options, the fact is that if the stay were granted, the order in effect before trial would be revived. The part of option two that provided that instead of the pre-existing order, that the parenting arrangements would be “as agreed upon or court ordered” is too vague to be fairly capable of acceptance.
[10] In my view both parties were equally intransigent. This was not an “all or nothing” motion.
[11] The applicant is entitled to costs of the urgency determination and the motion on jurisdiction. The respondent is entitled to costs of the dismissal of the stay motion on the issue of joint decision making.
[12] The applicant’s bill of costs is an eight page print out of individual entries in chronological order describing work done, by whom and the length of time expended. A summary showing the allocation of time and services in relation to each of the three events for which the applicant seeks costs was not provided. This omission leaves the court not knowing the amount of costs he is claiming in relation to the two events where he was successful. It does appear that most of the services rendered were in relation to the stay motion itself.
[13] Both the urgency determination and motion on jurisdiction were conducted in writing. Research was required in relation to the jurisdiction issue. This was not a complex issue. On a partial indemnity basis, I would award $750 for the urgency determination and $2,000 for the jurisdiction motion.
[14] The stay was more complex than the jurisdiction motion. It consisted of legal arguments that applied to both the decision making and the parenting time issues, plus specific arguments related to each of the two issues. I have taken these arguments as equally applicable to both issues, and I have allowed less of the balance of the time to the decision making issue having regard to the time devoted to it in argument. On this basis I award the respondent $1,250 in costs for her success on the issue of decision making.
[15] The respondent also submitted a docket print out for her bill of costs without a summary of services allocated to each of the three events. I would award the respondent $1,250 in costs for her success on the issue of decision making.
[16] In the result by set off, the respondent is ordered to pay costs to the applicant of $1,500. Payment is deferred until the disposition of the appeal. If at that time the applicant continues to owe costs to the respondent for the trial, this award may be set off against his obligation to her.
[17] Both parties addressed costs for preparing costs submissions. Costs for the costs submissions are not awarded to either party. With respect to both parties this consequences the deficiency in their bills of costs. For the applicant it responds to the inclusion of his offer to settle the costs issue which ought not to have been disclosed until after costs were determined. The proper approach would have been to ask to speak to those costs based on an offer in undisclosed terms after the costs award had been released. For the respondent the result achieved is also a factor.