Court File and Parties
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ASHLEY SMITH Applicant
– and –
MICHAEL BATTOCCHIO Respondent
Counsel: Christopher P. Fitzgerald, for the Applicant Anthony Orazietti/Donald Orazietti, Q.C., for the Respondent
HEARD: May 14, 2021
Decision on Costs
VARPIO J.
[1]
Background
The respondent father brought a contempt motion in matter. In effect, the applicant mother had overheld their twelve-year-old child and the father did not have the parenting time that he was entitled to as a result of my final order, dated October 19, 2016.
2Prior to the hearing of the motion, the mother returned the child to the father and the week about parenting time contemplated by my order has resumed.
3Despite same, the father argued the motion seeking a finding of contempt and no other remedy.
4I exercised my discretion and found that a contempt finding was not in the child’s best interests. The motion was dismissed.
5The parties seek costs of the motion.
[6]
Legal Framework
Rule 24 of the Family Law Rules states:
RULE 24: COSTS
SUCCESSFUL PARTY PRESUMED ENTITLED TO COSTS
- (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. O. Reg. 114/99, r. 24 (1).
SUCCESSFUL PARTY WHO HAS BEHAVED UNREASONABLY
(4) Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs. O. Reg. 114/99, r. 24 (4).
DECISION ON REASONABLENESS
(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,
(a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
(b) the reasonableness of any offer the party made; and
(c) any offer the party withdrew or failed to accept. O. Reg. 114/99, r. 24 (5).
DIVIDED SUCCESS
(6) If success in a step in a case is divided, the court may apportion costs as appropriate. O. Reg. 114/99, r. 24 (6).
BAD FAITH
(8) If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately. O. Reg. 114/99, r. 24 (8).
SETTING COSTS AMOUNTS
(12) In setting the amount of costs, the court shall consider,
(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:
(i) each party’s behaviour,
(ii) the time spent by each party,
(iii) any written offers to settle, including offers that do not meet the requirements of rule 18,
(iv) any legal fees, including the number of lawyers and their rates,
(v) any expert witness fees, including the number of experts and their rates,
(vi) any other expenses properly paid or payable; and
(b) any other relevant matter. O. Reg. 298/18, s. 14.
[7]
Analysis
In this case, I am satisfied that the father was required to bring the contempt motion because the mother had been overholding. There is correspondence in the file that suggests that the child would not attend the father’s house due to the father’s behavior. I need not opine as to whether the mother had any basis to overhold the child save and except to state that the mother was clearly capable of ensuring that the child went to the father’s house given the fact that week about parenting time again became the norm prior to the motion date.
8While the father was required to prepare materials, he ought not to have argued the motion given that a finding of contempt served no concrete purpose in the litigation.
9Accordingly, the father is entitled to costs for the preparation of materials but is not entitled to any costs for the lead up to the hearing of the motion.
10The father provided me with a bill of costs in the amount of $4,162.11 including HST for the motion.
11The mother had to incur costs of $593.25 inclusive of HST to argue the motion.
[12]
Conclusion
Accordingly, when I examine Rule 24 and I consider the foregoing facts, I find that the father ought to be entitled to costs in the amount of $1500 payable within 60 days of today’s date.
Varpio J.
Released: June 8, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ASHLEY SMITH
- and –
MICHAEL BATTOCCHIO
decision on costs
Varpio J.
Released: June 8, 2021