Superior Court of Justice - Ontario
COURT FILE NO.: 20-0220
DATE: 2021-06-08
RE: TAYLOR MACLEAN, Applicant
AND:
ANDREW KOWALSKI, Respondent
BEFORE: Mr. Justice Graeme Mew
COUNSEL: John E. Summers, for the Applicant
Jennifer A. O’Reilly, for the Respondent
HEARD: In Writing
COSTS ENDORSEMENT
[1] This costs decision relates to a proceeding which culminated in a two-day virtual trial. The applicant sought sole custody of the parties’ six-year-old child, and leave to move with the child from Brockville, Ontario to Jasper, Alberta.
[2] For reasons for decision reported at 2021 ONSC 2258, I dismissed the application and ordered that:
The applicant and the respondent shall share joint custody of the child;
The child shall remain in Brockville;
Should the applicant remain in Brockville, the child shall transition between the parties’ homes on a shared and equal basis;
Should the applicant relocate to Jasper, she shall have generous and liberal access with the child as arranged between the parties;
[3] My decision at trial essentially corresponds with an offer to settle made by the respondent and served on the applicant on 28 January 2021.
[4] The successful respondent seeks costs of the proceeding in the amount of $15,000, which is the approximate mid-point between the respondent’s costs on a partial indemnity scale and his costs if awarded on a substantial indemnity scale.
[5] The applicant submits that this is an appropriate case for the court to exercise its discretion to award no costs.
[6] Rule 24(1) of the Family Law Rules, O. Reg. 114/99 contains a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. It is well established that this principle applies to custody and access cases: Mattina v. Mattina, 2018 ONCA 867, at para. 12.
[7] The costs submissions filed by the applicant do not take issue with the reasonableness and proportionality of the respondent’s bill of costs. However, issue is taken with the reasonableness of awarding costs to either party in the circumstances of this case.
[8] In her costs submissions, the applicant emphasised the importance of this matter. As she puts it, “there can be no issue that is more critically important than the living arrangements of your child and the parenting time you have with your child”. I pause to observe that her admonition surely has equal application to the respondent. The applicant continues “… there is also no question that the Applicant very much wanted to live closer with her family, which is also of critical importance”.
[9] The respondent counters that the primary focus of the application was not the child’s best interests but, rather, the applicant’s personal desire to move to the place where her mother resided and where she had some childhood connections.
[10] I see no reason to depart from the usual practice regarding the award of costs to the successful party. While it was not unreasonable for the applicant to commence this proceeding, she would have known when she did so that she ran the risk of having to pay the respondent’s costs if she was not successful.
[11] While, given the distance of the proposed move, there was not really any middle ground, the fact remains that the respondent had to incur considerable legal expense to protect what he saw as being in the best interests of the parties’ daughter. It is, perhaps, also telling that the applicant sought sole, rather than joint, custody, and did not plead terms of access for the respondent.
[12] Ultimately, my decision was favourable to the respondent and coincided with what the respondent had proposed in his offer to settle.
[13] In the circumstances, and having considered all of the factors enumerated in Rule 24(12)(a), I have concluded that the applicant should pay the respondent’s costs of the application, fixed in the all-inclusive amount of $15,000.
Graeme Mew J.
Released: 08 June 2021