Court File and Parties
COURT FILE NO.: FC-19-1382 DATE: 20210421
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: WREN MORAN, Applicant AND SARAH TOUGH, Respondent
BEFORE: Madam Justice Julie Audet
COUNSEL: Melody MacDonell, for the Applicant Sarah Tough, Self-represented
HEARD: In writing
costs ENDORSEMENT
[1] Following my Decision released on February 23, 2021, I advised the parties that I would allow for written costs submissions if the parties were unable to agree. I have received the father’s submissions, but the mother did not provide any.
[2] This motion dealt primarily with the temporary parenting arrangements for the parties’ two children. The father was entirely successful on that aspect of the motion, in that I imposed an equal time-sharing schedule for the two girls. In addition, and even if it had not been requested by either party, I made an order that both parties have joint decision-making responsibility for the children on a temporary basis and pending trial.
[3] If successful on his motion, the father sought an adjustment of child support based on the set-off formula and an imputed income to the mother. I declined making a new child support order based on the set-off formula and – other than a small adjustment to reflect the father’s current income – I maintained the father’s obligation to pay the full Table amount pending trial.
[4] The father seeks an award of costs on a full indemnity basis, in the amount of $15,395.20. I have decided to award him an amount of $12,000, which represents his costs on a scale approaching substantial indemnity, for the following main reasons:
While child support was an issue in this motion, it was a very minor issue. The main and most important issue was the temporary parenting arrangements for the parties’ two children, and this is what consumed almost all the time and resources involved in this motion.
The father was the successful party on that issue.
The mother’s conduct through the course of this motion was unreasonable and led to delays and significantly increased costs for the father. The mother’s conduct is summarized in the following excerpts from my February 23, 2021 endorsement:
Upon receipt of the OCL’s report at the end of September 2020, the father brought the within motion seeking an equal time-sharing parenting arrangement pending trial. His motion materials were served on the mother on October 9, 2020. When the motion was set to be heard on December 1, 2020, the mother had not yet filed any responding materials. She sought an adjournment of the motion because she had recently terminated her lawyer’s retainer and wished to be given some additional time to find another lawyer, and file her responding motion materials.
Since [the December 1, 2020] order was made, the mother tried, on two occasions, to bring urgent motions to vary and/or suspend the father’s parenting time with the children as per my December 1, 2020 order. She was denied the right to do so on both occasions.
For the purpose of today’s motion, the mother did not file any responding materials, although she was present. […] She has not yet retained new counsel.
I am highly concerned about the mother’s ongoing and unilateral denials of access between the children and their father, for no legitimate reason whatsoever, and in breach of clear court orders. The mother has shown a complete disregard to the benefits, for the children, to have a meaningful and close relationship with both their parents and has shown no interest in promoting and supporting their relationship with their father. In fact, she has actively attempted to undermine it by unilaterally denying access for lengthy periods of time.
The father made a formal Offer to Settle on September 18, 2020 on the issues of parenting and child support. His Offer to Settle was an attempt to settle those matters on a final basis and, therefore, it offered a more comprehensive parenting plan than what was ultimately ordered at the motion. In addition, he did not achieve more success at the motion since he was offering to pay child support based on the set-off formula. His offer was also not severable. This said, he achieved more success on the parenting issues than what he was willing to settle for (notably, he was granted more make-up parenting time with the children than what was sought in his offer). Essentially, he incorporated in his Offer to Settle all the recommendations made by the Office of the Children’s Lawyer. His offer was a reasonable and thoughtful attempt to resolve the issues in the case.
The mother did not make an offer to settle.
At both court appearances, the mother came unprepared. She did not cooperate in getting my temporary order finalized and she made no attempt to resolve the issue of costs.
[5] I have reviewed the father’s Bill of Costs, and I find that the fees charged by his counsel were reasonable. I have awarded the father substantial indemnity costs for the legal fees incurred by him in relation to the preparation of his cost submissions, given the mother’s failure to try and resolve this issue, and in light of the fact that the outcome would have been much more favourable to her had she done so (the father was prepared to accept partial indemnity costs).
For all those reasons, the mother shall pay costs to the father in the amount of $12,000, all inclusive. Given the mother’s very modest financial means, I order that these costs shall be deducted from any equalization payment owing to the mother by the father. To the extent that no equalization payment is owing by the father to the mother, or that it is less than $12,000, any balance owing shall be set-off against any arrears of child support, arrears of spousal support or ongoing spousal support that may ultimately be imposed on the father at trial. In the further alternative, costs shall be paid by the mother to the father by way of monthly payments in the amount of $200, until fully repaid.
Madam Justice Julie Audet
Date: April 21, 2021
COURT FILE NO.: FC-19-1382 DATE: 20210421
ONTARIO SUPERIOR COURT OF JUSTICE
RE: WREN MORAN, Applicant AND SARAH TOUGH, Respondent
BEFORE: Madam Justice Julie Audet
costs ENDORSEMENT
Audet J.
Released: April 21, 2021