Court File and Parties

COURT FILE NO.: 28/19 DATE: 20210119

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Tiffany Leigh D’Amico Applicant

– and –

Anthony D’Amico Respondent

Counsel: M. VanderSpek, for the Applicant H. Geertsma, for the Respondent

THE HONOURABLE JUSTICE J. R. HENDERSON

Costs endorsement

[1] On November 23, 2020, I heard submissions on long motions brought by both parties in this proceeding. Later that day I gave oral reasons for my decision on both motions. I then prepared and signed a written endorsement that set out the terms of my decision. Subsequently, I received a written request for directions that related to my earlier oral decision. I decided this request for directions by way of my written endorsement dated December 22, 2020.

[2] This costs decision will deal with the cost consequences of both the long motions and the request for directions.

[3] Regarding the long motions, I find that the motions were necessitated by the inappropriate conduct of the respondent. In addition, although the applicant was not completely successful on all aspects of these motions, I find that the applicant was the more successful party. For these two reasons, I find that the applicant is entitled to her costs of the long motions. In that respect, I rely on rule 24(1) (5), and (6) of the Family Law Rules.

[4] Regarding the respondent’s conduct, the starting point is the order of Justice Walters dated October 3, 2019, which states that the two children shall be with the respondent every week from Wednesday at 4:30 p.m. until they are returned to school on Thursday morning, and that the children shall also be with the respondent on alternate weekends from Friday at 6:00 p.m. to Sunday at 6:30 p.m.

[5] It is clear that the respondent acted in contravention of Justice Walters’ order as he failed to return the children at the times set out in the order on multiple occasions. Moreover, there is correspondence from the respondent in which the respondent incorrectly denies that there was any court order in place that governed his time with the children. Therefore, I accept that it was necessary for the applicant to deliver a motion to bring this matter back to the court.

[6] The applicant’s motion was in essence a request for confirmation of the terms of Justice Walters’ order. In her notice of motion, the applicant requested that the applicant be granted interim sole custody of the children, that the children be returned on Thursday mornings at 9:00 a.m. if there was no school on Thursday, and for police enforcement of the order.

[7] In response, the respondent brought a cross-motion in which he requested that the respondent’s parenting time be extended to Thursdays at 6:30 p.m. if there was no school on Thursday, that the respondent’s weekend parenting time be extended to Friday and/or Monday if either Friday or Monday was a holiday or a non-school day, that the respondent have the first opportunity to care for the children if there was no school and the applicant was working, that the parties equally share time with the children on statutory holidays and on professional development days, and that the matrimonial home be forthwith listed for sale and sold. The respondent also requested police enforcement of the court order.

[8] In my view, the applicant was much more successful on the motions. In my oral decision I confirmed the parenting times set out in Justice Walters’ order, and I granted the applicant’s request for interim sole custody of the children on a temporary without prejudice basis.

[9] The respondent achieved some success as I granted his request to amend Justice Walters’ order so that the children would be returned on Thursdays at 6:30 p.m. if there was no school on Thursday. However, I dismissed the respondent’s request for extended weekend access on Fridays and Mondays, and I dismissed the respondent’s request for equal sharing of time with the children on statutory holidays and professional development days, although I provided for some additional parenting time during the Christmas holidays. I also dismissed the respondent’s request to have the first opportunity to care for the children if the applicant was working. Moreover, I dismissed the respondent’s request for the interlocutory sale of the matrimonial home. As both parties agreed to police enforcement of the court order, I made that order.

[10] In their costs submissions both parties referred me to their written offers to settle, which I have reviewed in detail. In my view, neither party can rely on rule 18(14) as neither party can state that my order was as favourable or more favourable than any of their offers to settle.

[11] Regarding the quantum of costs, I acknowledge that there were lengthy affidavits from both parties with many exhibits attached to those affidavits. Counsel for both parties prepared comprehensive factums and books of authorities for use on the motions. I found the factums to be excellent summaries of the complex history in this case, as well as the law. They were necessary and helpful to the court.

[12] Oral submissions consisted of approximately one-half day of court time, followed by a return to court for my decision. I found submissions from both counsel to be thoughtful, helpful, and organized.

[13] Considering all of these factors, I order costs of the long motions to the applicant on a partial indemnity basis. I fix the fees at $6,000, plus HST of $780, plus disbursements of $516.69, for a total of $7,296.69.

[14] Regarding the request for directions, I again find that this aspect of this proceeding was necessitated by the position taken by the respondent. After I gave my decision on November 23, 2020, the respondent informed the applicant that he was confused about the provisions of my decision with respect to the respondent’s parenting time during the Christmas holidays. Counsel for the respondent did not approve the draft order that was prepared by applicant’s counsel, and the respondent requested additional parenting time that was not set out in the draft order. Although the formal written request for directions was delivered by applicant’s counsel, I find that this request was a direct result of the concerns raised by the respondent.

[15] For reasons set out in my written endorsement, I found that no clarification of my November 23, 2020 decision was necessary. I reiterated my earlier order. Moreover, I found that the respondent’s position was in fact a request for further parenting time that I had not ordered on November 23, 2020. For those reasons I agreed with the applicant’s position and signed the draft order that was submitted by the applicant.

[16] Under these circumstances the applicant is entitled to her substantial indemnity costs for the request for directions, which I fix at $800 all-inclusive.

[17] In summary, I order that the respondent pay to the applicant her costs of the long motions and her costs of the request for directions in the total amount of $8,096.69, payable within 60 days.

J. R. Henderson J.

Date: January 19, 2021