Court File and Parties

Court File No.: FS-17-40294 Date: 2021-07-21 Superior Court of Justice - Ontario

Re: Brittany MacDonald, Applicant And: Bradley MacDonald, Respondent

Before: Coats J.

Counsel: R. Petgrave, Counsel for the Applicant Kas J. Marynick, Counsel for the Respondent

Costs Endorsement

Background:

[1] In my endorsement of June 8, 2021, I provided for written submissions on costs. I have since received and reviewed the following:

i. Respondent and Moving Party’s Costs Submissions; ii. Respondent and Moving Party’s Bill of Costs iii. Respondent’s Offer to Settle dated May 10, 2021; and iv. Applicant’s Submissions on Costs

[2] The Respondent brought an urgent motion. I made an Order on May 12, 2021, dealing with the urgent issue, which was the Applicant’s non-compliance with COVID-19 protocols and the Province’s emergency orders. I determined that the Applicant had wilfully disregarded the Emergency Management and Civil Protection Act and that her actions were impacting on the best interests of the parties’ child. As a result, I ordered that the child primarily reside with the Respondent. The Applicant volunteered to have a COVID test. The Order provided for her to have virtual contact with the child until she produced a negative test result, and for in-person contact thereafter. I set a return date of June 8, 2021.

[3] On June 8, 2021, I was advised that neither party would be commencing a Motion to Change, and my Order of June 8, 2021 provided for a transition back to the parenting schedule in the previous final orders from 2018 and 2019.

Positions of the Parties:

[4] The Respondent is seeking costs on a full indemnity basis in the amount of $8,927. His position is that he was successful on the urgent motion. He also claims that the results he obtained were as favourable or more favourable than the Offer to Settle (Rule 18(14) of the Family Law Rules).

[5] The Applicant’s position is that there should be no costs payable by either party due to divided success or that the Applicant should have her costs on a partial indemnity basis. The Applicant claims that the Respondent did not match his offer or do better than his offer. The Applicant’s Bill of Costs is for $14,319.36. It is unclear if this amount is based on full or partial indemnity.

Analysis:

[6] In my view the Respondent is entitled to costs. He was the successful party. Rule 24(1) applies. I ordered the child to primarily reside with him due to the Applicant’s non-compliance regarding COVID.

[7] I do not find that success was divided or that the Applicant was the successful party. The Applicant was not granted the police enforcement provision she requested. The Respondent consented to two mutual provisions I included in my May 12, 2021 Order regarding not discussing the case with the child and for neither party making derogatory comments about the other in the presence of the child.

[8] In my view Rule 18(14) does not apply. The Respondent’s offer provided that he would have interim decision making regarding the child which I did not order. His offer provided for the child to have only virtual contact with the Applicant. I ordered in-person contact to commence after the provision of a negative test.

[9] In my view, the Respondent is entitled to costs on a partial indemnity basis.

[10] In setting the amount I have considered the factors set out in Rule 24(12). This was an important urgent motion. It involved the health and safety and best interests of a child. The Respondent’s counsel’s hourly rate is reasonable. The time expended is reasonable. There were two virtual court attendances. The fees of the Applicant’s counsel were greater than the Respondent’s counsel. This is indicative of the reasonableness of the Respondent’s counsel’s fees.

Conclusion:

[11] The Applicant shall pay to the Respondent costs fixed in the total amount of $5,356.20 inclusive of fees, disbursements and appropriate taxes.

Coats J.

Date: July 21, 2021