COURT FILE NO.: 16-034
DATE: 20200908
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: D.E.M., Applicant
v.
C.L.W., Respondent
BEFORE: The Honourable Madam Justice R. Mandhane
COUNSEL: Mr. A. Wilford, for the Applicant
Ms. C. Allen, for the Respondent
ENDORSEMENT ON COSTS
Mandhane J.
INTRODUCTION
[1] In August 2020, this Court heard a three-day trial in Owen Sound to determine custody and access of the child, B.J.M., (“the child”) and child support.
[2] In my Reasons for Judgment dated August 21, 2020, I granted the Respondent/Mother (“Mother”) sole custody of the child, while the Applicant/Father (“Father”) was granted generous access and ordered to pay child support according to the Child Support Guidelines.
[3] The parties have not been able to resolve the issue of costs, and therefore, written submissions were filed and reviewed by this Court.
[4] The Mother obtained sole custody of the child. As the successful party, she seeks costs on a substantial indemnity basis. In support of her position, the Mother argues that the Father’s position on custody was unreasonable in light of the status quo. She also relies on her offer to settle submitted on July 27, 2020.
[5] The Father’s position is that it was a “split decision” since he obtained more generous access at trial than the status quo or the Mother’s offer to settle, and that this should be taken into account in determining the quantum of costs payable to the Mother.
ANALYSIS
[6] Rule 24 of the Family Law Rules governs costs awards. Rule 24(1) creates a presumption that the successful party is entitled to costs. According to Rule 24(6), in cases whether success if divided, the court may apportion costs as appropriate. Finally, Rule 24(12) sets out the factors that the court should consider in determining the amount of costs.
[7] The Mother was successful on the issue of custody, obtaining sole custody of the child. However, I agree with the Father that there was divided success on the issue of access. This is best illustrated through the following chart:
Status quo
July 27, 2020 Offer
August 21, 2020 Trial Decision
Weekend access
2 weekends per month
2 weekends per month, extending to Monday for holidays
3 weekends per month, extending to Monday for holidays
Weekday access
Wednesdays, 5:00-7:00 p.m.
March break
March break
Alternating March breaks
Christmas
Alternating Christmas vacations
Summer
2 weeks summer access
2 weeks summer access
3 weeks per summer
Video-Telephone contact
At least three times per week
[8] This chart shows that the Father obtained 1 weekend per month in lieu of Wednesday access, alternating March breaks, 1 additional week per summer, and alternating Christmases (above and beyond the status quo and the Mother’s settlement offer). On this basis, I find that there was divided success on the issue of access.
[9] Having found that the Mother was successful on the issue of custody and that success was divided on the access issue, I must determine how to apportion costs.
[10] Determining quantum of costs is discretionary, with the overriding objective being to arrive at a figure that is fair, just and reasonable in all of the circumstances. Modern costs awards are designed to partially indemnify successful parties, encourage settlement, and discourage and sanction unreasonable or bad conduct.
[11] In setting the amount of costs, I must consider the factors in Rule 24(12). The issues of custody and access were extremely important to both parties. Indeed, this was a high conflict case that resulted in two trials.
[12] From a legal perspective, however, the issues were not very complex and not particularly difficult to decide.
[13] On the issue of custody, I find nothing unreasonable about the conduct of the Mother as she sought to preserve the status quo. In my trial decision, I noted that the Father pursued sole custody mainly because of his own difficulties communicating with the Mother rather than because of the best interests of the child. This factor weighs in favour of the Mother.
[14] On the issue of access, I find that both parties took reasonable positions, though I ultimately ordered more generous access than the status quo or the Mother’s offer to settle. This factor weighs in favour of the Father.
[15] Finally, at trial, I found that the Father acted unreasonably in relation to some aspects of the litigation. For example, I found that the Father was overly focussed upon controlling the Mother’s actions under the guise of litigation. He admitted to threatening the Mother by telling her that she would never see her family in the United States again, and sought court orders to limit her ability to travel to the United States or move outside of his remote community. He situated himself outside her home to monitor her actions, followed her and so on. This factor weighs in favour of the Mother.
[16] An hourly rate of $365.00 for counsel for the Mother is more than fair. She has been in practice for 26 years. I see nothing unreasonable about the time spent by the Mother’s legal representatives or the disbursements charged.
[17] In light of the Mother’s success on the issue of custody, the divided success on the issue of access, and the Father’s unreasonable conduct, I award costs to the Mother on a partial indemnity basis in the amount of $18,126.84.
CONCLUSION
[18] The Father shall pay costs to Mother in the total amount of $18,126.84, including all disbursements and HST.
Mandhane, J.
DATE: September 8, 2020
COURT FILE NO.: 16-034
DATE: 20200908
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: D.E.M., Applicant
v.
C.L.W., Respondent
BEFORE: The Honourable Madame Justice Mandhane
COUNSEL: Mr. A. Wilford, for the Applicant
Ms. C. Allen, for the Respondent
ENDORSEMENT ON COSTS
MANDHANE, J.
DATE: September 8, 2020