Court File and Parties

COURT FILE NO.: 222/19 DATE: 2021/01/11

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Edyta Nolet, Applicant

• and -

Robert Nolet, Respondent

The Honourable Justice D.L. Edwards

COUNSEL: Ashley Gibson, for the Applicant Lauren M. Angle, for the Respondent

Costs Endorsement

[1] On September 3, 2020 I released my decision with respect to the portion of the motion that dealt with in-person school attendance of the parties’ child. I adjourned the issue of residency (parenting schedule) of the child to a case conference and noted that the judge who ultimately heard the balance of the motion would deal with costs.

[2] I am advised that the parties have entered into Minutes of Settlement resolving all issues, except for the question of costs.

[3] As a result, I directed the parties to provide me with cost submissions, which they have done. This is my cost decision.

Background

[4] The parties previously had entered into a Separation Agreement September 16, 2019 which settled all outstanding issues between them, including the residential arrangements for their son. They agreed to joint custody, with the child’s primary residence being with the mother, and the father to have him in his care between 30 to 42% of the time.

[5] In March 2020, the respondent father relocated to Mississauga from Welland.

[6] The parties disagree as to whether the mother agreed in March of 2020 that the move would not affect the parenting arrangements.

[7] In anticipation of in-person schooling recommencing in September, the mother advised the father that she wanted their son to attend in person. The father did not agree.

[8] In addition, as the mother did not want the child commuting between Welland and Mississauga, she had brought a motion on an urgent basis seeking an order that their child attend in-person schooling in September 2020 in Welland and that the residential arrangements for the child be altered so that he would reside with the mother Sunday through Friday morning of each week and a minimum of one weekend per month.

[9] As I have noted, I granted the mother’s motion regarding in-person schooling for the child and adjourned the issue of residency to a case conference.

The Positions of the Parties

[10] The applicant seeks costs on full recovery basis in the amount of $6,904.61.

[11] She submits that the issue of in-person schooling was of crucial importance to both parties. She asserts that it should have been clear to the father that a regular commute between Welland and Mississauga would not be in the child’s best interests, and that by his actions he was acting unreasonably.

[12] She asserts that the father objected to in-person schooling only after he was unable to get agreement on the issue of the parenting schedule, utilizing it as a bargaining chip.

[13] The respondent father submits that success was mixed, and no costs should be awarded. In the alternative, if costs are to be awarded to the applicant, it should not be on a full recovery basis.

[14] He asserts that the mother initially agreed to his relocation and only raised the objection after he had moved. He submits that his position regarding schooling was reasonable and he was justified in his concerns.

[15] No Offers to Settle were served by either party.

Law

[16] The applicable provisions for the exercise of my discretion include s. 131 of the Courts of Justice Act and Rules 18 and 24 of the Family Law Rules.

[17] The Court of Appeal has confirmed that cost rules are designed for three important principles:

a) To partially indemnity successful litigants for the cost of litigation; b) To encourage settlement; and c) To discourage and sanction inappropriate behaviour by litigants.

Analysis

[18] I am satisfied that the applicant was the successful party in this litigation with respect to the portion of the motion regarding in-person schooling and is entitled to some costs as a result.

[19] To their credit the parties have resolved the second issue, and this is a factor in my cost decision.

[20] I find that the issues were very important to the parties and being somewhat novel, it was complex and difficult for all concerned.

[21] I also find that the respondent’s conduct was not unreasonable and did not rise to the level that would warrant full recovery costs.

[22] I am satisfied that the applicant’s counsel’s hourly rate and the time spent is appropriate.

[23] In making my decision I am cognizant that full argument was made by both parties regarding residency, notwithstanding my ultimate decision to refer the issue to a case conference.

[24] In all of the circumstances, the applicant is not entitled to a cost order on a full recovery basis nor is she entitled to all of her costs on a partial indemnity basis. Rather, she is entitled to a portion thereof.

[25] Accordingly, I order that the respondent pay to the applicant costs in an amount of $3,200.00 fixed inclusive of HST.

D.L. Edwards J.

Released: January 11, 2021