Court File and Parties

COURT FILE NO.: 158/20

DATE: 20210505

SUPERIOR COURT OF JUSTICE (FAMILY COURT) - ONTARIO

RE: Justin Andrew John Algy Ramanauskas, Applicant

AND:

Kerri Ann Rochelle Podwinski, Respondent

BEFORE: The Honourable Justice Robert B. Reid

COUNSEL: P. Ferré, Counsel, for the Applicant

Respondent self-represented

COSTS SUBMISSIONS RECEIVED: April 20, 2021

decision on costs of motion

Introduction

[1] The parties cohabited as common-law spouses until December 31, 2019 when they separated. They are the parents of a young child who is currently four years of age.

[2] The respondent brought an urgent motion seeking a temporary order for joint custody (as it was then known) and parenting time which was heard March 27, 2020 on an emergency basis. Both parties were represented by counsel.

[3] In the decision dated March 30, 2020, I dismissed the respondent’s motion for joint custody. On a temporary basis, primary residence of the child was ordered to be with the applicant. Neither party’s proposal for parenting time by the respondent was accepted. They were directed to continue discussions and if necessary, file supplementary material and return the matter to court for further argument. A date for costs submissions was to be arranged through the trial coordinator if required.

[4] Subsequently, the applicant changed counsel and the respondent became self-represented.

[5] At the request of the applicant, a timetable for the written costs submissions was established on January 29, 2021. An extension was requested by the respondent which was granted on March 29, 2021. In due course, written submissions were received from both parties.

Costs

[6] The applicant seeks substantial indemnity costs for the motion including the preparation of costs submissions in the amount of $7,858.16 inclusive of HST and disbursements.

[7] The respondent proposes that each party bear their own costs of the motion.

Discussion:

[8] Costs awards are designed to partially indemnify a successful party, to encourage settlement and to sanction inappropriate behaviour.

[9] The court’s discretion to award costs is found in s. 131 of the Courts of Justice Act, and the factors to be considered in exercising that discretion are set out in rule 24 of the Family Law Rules. There is a presumption that the successful party is entitled to costs and if success is divided, the court may apportion costs as appropriate. The court must also consider the reasonableness and proportionality of factors set out in rule 24(12) which include the behavior of each party, the time spent by each party, any written offers to settle, and any legal fees.

[10] Rule 18(14) provides that: “A party who makes an offer to settle is, unless the court orders otherwise, entitled to costs to the date the offer was served and a full recovery of costs from that date,” provided that certain conditions are met including that the party who made the offer obtains an order that is as favorable as or more favorable than the offer.

[11] In this case, the respondent was not successful in securing a temporary order for joint custody or setting a schedule for shared parenting time. The applicant was successful in resisting the order requested by the respondent but not successful in limiting the respondent’s parenting time to the minimal level he requested in court.

[12] To their credit, following the motion hearing, it appears that the parties were able to come to a temporary agreement as to parenting time without the need to return the matter to court for further decision.

[13] The respondent submits that she had no alternative to bringing the motion because her time with her child had been completely cut off by the applicant and since there was a non-contact order arising from criminal proceedings between herself and the applicant. I note that the circumstances arose within a few weeks of the onset of the global pandemic which exacerbated the difficulty in establishing consistent parenting arrangements.

[14] She submitted further that she does not have the financial resources to make a payment as to costs. There are no facts supportive of that position. She is presumably still employed on a full-time basis as a registered nurse in a hospital setting. Further, if a party could avoid responsibility for costs that would otherwise be appropriate simply because of the lack of financial means, there would be unfairness to the other party. The purpose of costs awards to which I have referred above would be undermined.

[15] The respondent did not provide information about the legal fees expended by her on the motion.

[16] The bill of costs provided by the applicant indicated amounts of time spent and hourly rates charged that are not unreasonable.

[17] The applicant submits that by virtue of his offer to settle, he should be entitled to receive an enhanced costs award indicated in rule 18(14). His offer of March 22, 2020 proposed parenting time by the respondent with the child weekly from 10:00 a.m. Friday to 6:00 p.m. Saturday and every Wednesday from 4:00 p.m. to 7:00 p.m., with the situation to be reviewed on June 1, 2020. The offer presumed either parental responsibility for the applicant or at least primary residence with him although those terms were not specified.

[18] At the motion hearing, the applicant proposed parenting time to be exercised by the respondent one day per week from 10:00 a.m. to 6:00 p.m. In my decision of March 30, 2020, I observed that proposal to have been inadequate. I directed the parties to discuss more suitable parenting time arrangements. In the circumstances, it is not possible to conclude that the terms of my order were “as favorable as or more favorable than the offer”. Therefore, although the applicant is to be commended for having made an offer to settle, there will not be an enhanced cost order in his favour as permitted by rule 18(14).

[19] In all the circumstances, particularly considering the lack of success on the part of the respondent, it is appropriate for there to be a costs order in favour of the applicant. Litigation is undoubtedly expensive for the parties engaged in it and every effort must be made to resolve matters consensually. This is not only in the parties’ financial interest but indirectly in the interests of the child for whom ongoing conflict by the parents can only be harmful.

[20] For the foregoing reasons, there will be an order of costs payable by the respondent to the applicant on a partial indemnity basis fixed in the amount of $5,923.71 inclusive of HST and disbursements. The costs are payable within 90 days of this date.

Reid J.

Date: May 5, 2021