COURT FILE NO.: FC-20-086

DATE: 2020-08-26

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Hayden Mitchell Deveaux, Applicant

Evelyn Eliana Najnudel, Respondent

BEFORE: Madam Justice Catrina Braid

COUNSEL: Terrah Smith, for Applicant

Gloria Ichim, for Respondent

HEARD: In writing

THIS MOTION HAVING BEEN HEARD IN WRITING PURSUANT TO THE PROTOCOL IN PLACE DURING SUSPENSION OF NORMAL COURT OPERATIONS DUE TO THE COVID-19 OUTBREAK

COSTS ENDORSEMENT

I. OVERVIEW

[1] Hayden Deveaux and Evelyn Najnudel are the parents of 18-month old Aria Bernie Emmersyn Deveaux, born November 30, 2018. In this endorsement, I shall refer to the parties as the mother and the father.

[2] The father brought a motion to have the court determine an interim parenting schedule, and the parties consented to this motion being argued in writing. For the reasons set out in Deveaux v. Najnudel, 2020 ONSC 3480, I ordered a parenting schedule that permits the father to visit with Aria for 48 hours every weekend. The facts are set out in detail in that decision and will not be repeated here.

[3] For the reasons that follow, the mother shall pay costs of this motion in the amount of $4,000.

II. COSTS

[4] The father has been entirely successful on this motion and is entitled to costs. The father’s Bill of Costs exceeds $14,000. Because some of the work referenced in the Bill of Costs was for matters unrelated to this motion, the father reduced his costs by 25 percent. Even though he has achieved a more favourable result than his offer to settle, he recognizes that the mother is of limited means and seeks only partial indemnity in the amount of $7,771.87. The mother argues that the costs award should be significantly less than the amount sought by the father, or that there be no costs award.

[5] Rule 24 of the Family Law Rules, O. Reg. 114/99 sets out principles to guide the court regarding costs. Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C-43 grants broad discretion to the court regarding costs. The court may determine by whom and to what extent costs shall be paid: see M.(C.A.) v. M.(D.) (2003), 2003 18880 (ON CA), 67 O.R. (3d) 181 (C.A.).

[6] In determining the appropriate quantum of costs, the court must consider the reasonable expectations of the parties; the complexity and importance of the proceeding; and the conduct of the parties in litigation: see Serra v. Serra, 2009 ONCA 395, [2009] O.J. No. 1905.

[7] This was a motion in the midst of the COVID-19 pandemic. The parties filed voluminous materials on these motions. The factual and legal issues in this motion were of moderate complexity. The proceeding was of high importance to the parties.

[8] Unless the court orders otherwise, a party who makes an offer is entitled to costs to the date the offer was served and full recovery of costs from that date, if certain conditions are met. In this case, the father sent a written offer to settle approximately three months before the motion was argued. The offer did not expire, was not withdrawn, and was not accepted by the mother. On the motion, the father obtained an order that was more favourable than the offer: Rule 18 (14) of the Family Law Rules.

[9] The financial means of the parties, their ability to pay a costs order, and the effect of any costs ruling on the parties and the children are relevant considerations in reaching a determination on the issue of costs: M. (A.C.) v. M. (D.) 2003 18880 (ON CA), [2003] O.J. No. 3707 (C.A.); Fyfe v. Jouppien, 2012 ONSC 97.

[10] The mother is unemployed. She is receiving social assistance, the child tax benefit, and $254/month in child support. She is living with family members, which reduces her shelter costs. I have taken into account the mother’s ability to pay and the fact that she will bear most of the child-related costs, in determining an amount of costs that is fair and just in this case.

[11] I have also considered the principles in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.). The fixing of costs should reflect what the court views as a fair and reasonable amount to be paid, rather than any exact measure of the actual costs to the successful litigant. I find that a fair and reasonable award of costs is $4,000.

[12] For all of these reasons, this court orders that the Respondent, Evelyn Najnudel, shall pay costs of this motion to the Applicant, Hayden Deveaux, in the amount of $4,000, inclusive of taxes and disbursements. Both parties suggested a payment schedule to permit the costs order to be paid in increments. Commencing September 1, 2020, and on the first of each month thereafter, the Respondent shall pay $40 per month to the Applicant, until this costs order is paid in full.

__________________ Braid J.

DATE: August 26, 2020