Court File and Parties

COURT FILE NO.: 734/18 DATE: 20200806 SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: JENNY MUCHIYA HIEBERT, Applicant AND: ISAAC WILLIAM HIEBERT, Respondent

BEFORE: Justice Robert B. Reid

COUNSEL: M. VanderSpek, Counsel, for the Applicant C. McCollum, Counsel, for the Respondent

HEARD: June 29, 2020

Decision on Costs

[1] The respondent brought a motion, primarily seeking an order allowing him specific parenting time with the three children. The applicant responded with a motion for an order that access by the respondent be according to the wishes of the children.

[2] As a preliminary matter, the applicant submitted that the motions were not urgent and that both should be adjourned until a case conference was held. In my decision of June 30, I agreed with the applicant and adjourned the motion without a date, pending a case conference. The parties were encouraged to settle the issue of costs. They were unable to do so. Bills of Costs and submissions (in addition to those made at the motion hearing) were received as required by July 24.

[3] As I observed in my reasons for decision, bringing a motion in advance of a case conference is an exceptional step. It is well-established that the policy against those proceedings is based on a preference to find a consensual resolution without the need for what has been described as a “war of affidavits”. Even though parenting time with children is important, so is the policy that conferences are to precede adversarial litigation steps which can increase the conflict in already difficult family break-ups.

[4] The applicant seeks costs based primarily on success, which is a presumptive factor under rule 24 of the Family Law Rules. She requests an order on a substantial indemnity basis in the amount of $4,656.94, inclusive of disbursements and HST. The respondent seeks costs based on the behaviour of the applicant in unreasonably denying him parenting time with the children, thus making the motion necessary. His Bill of Costs shows substantial indemnity costs in the amount of $5,800.15, inclusive of HST and disbursements.

[5] Even though the parties are at an early stage of the proceedings, it is clear that litigation is an expensive proposition – a factor that both the parties should bear in mind as the case progresses.

[6] I have considered all the factors set out in rule 24 which can impact the exercise of my discretion as to costs. I note in particular that on June 20, the applicant proposed to make arrangements for an early case conference as an alternative to the motion. That offer was rejected by the respondent.

[7] The applicant’s conduct in changing existing access arrangements is not relevant to the matter of costs. A party’s justification for litigating does not trump the policy considerations underlying the rules.

[8] Based primarily on a combination of success on the part of the applicant and the respondent’s rejection of an offer to seek an early case conference date, the applicant is entitled to costs.

[9] There is no dispute that three important principles are fostered by the “costs shifting” component of rule 24. They are to indemnify the successful litigant, to encourage settlement, and to discourage and sanction inappropriate behaviour.

[10] In this case, and given that the motions came at a very early stage of the proceedings, I will reduce the financial burden on the respondent by fixing costs at a lower amount than might otherwise be justified, so as to have a corrective impact on future decisions.

[11] There will be an order that the respondent pay costs to the applicant fixed in the amount of $2,000 inclusive of HST and disbursements, payable within 30 days.

Reid J. Date: August 6, 2020