Superior Court of Justice - Ontario
RE: Candice Henry, Applicant
AND
Erik Nielsen, Respondent
BEFORE: The Honourable Mr. Justice Marc Smith
COUNSEL: Halia Michalko, Counsel for the Applicant Sarah Giamberardino, Counsel for the Respondent
HEARD: In writing
COSTS ENDORSEMENT
M. Smith J
1The parties were partially successful at their respective motions (Henry v. Nielsen, 2021 ONSC 3892). I was inclined to award no costs based on the divided success but, if either party requested costs, written submissions were to be filed and exchanged. Surprisingly, both parties are seeking costs.
2The Mother appears to be seeking full indemnity costs in the amount of $20,112.08 while the Father seeks substantial indemnity costs in the amount of $14,613.70. I am not satisfied that either party is entitled to costs.
3For reasons that follow, each party shall bear their own costs.
ANALYSIS
The Law
4Costs orders are at the discretion of the Court (section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43). The framework in awarding costs is set out at Rule 24 of the Family Law Rules, O. Reg. 114/99 (the “FLR”).
5Rules 24(6) of the FLR provides that the Court may apportion costs as appropriate when success is divided.
6Divided success does not necessarily mean equal success. When there are multiple issues before the Court, a comparative analysis may be required to determine success. The dominant issue(s) argued may also be a consideration for the Court (W.H.C. v W.C.M.C., 2021 ONCJ 363).
7The Court shall consider the factors outlined in Rule 24(12) of the FLR, which includes the importance and complexity of the issues, the parties’ behaviour, the time spent, written offers, legal fees, expert witness fees and any other property payable expenses.
8Rule 18(14) of the FLR sets out the conditions to be met in order to trigger the cost consequences (full recovery of costs from the date of offer) if a party fails to accept the offer to settle.
9Modern costs rules are designed to foster four fundamental purposes (1) to partially indemnify successful litigants; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants and; (4) to ensure that cases are dealt with justly under subrule 2 (2) of the Family Law Rules (Mattina v. Mattina, 2018 ONCA 867).
Discussion
10The Mother says that on December 2, 2020, she made an offer to settle. She claims that she was successful on most terms of her offer to settle and that this offer to settle must be considered by the Court.
11The Father did not make an offer to settle. However, he argues that the parenting time issue was of great importance to both parties and their child (“Astrid”). He was successful in obtaining a return to the status quo parenting arrangement as well as removing several restrictive parameters being sought by the Mother.
12Interestingly, both parties argue that the other party was unreasonable. The Mother argues that the Father acted unreasonably in failing to comply with basic financial disclosure. Conversely, the Father says that Mother was unreasonable because she rejected the Father’s reasonable proposals and maintained a unilateral and inflexible attitude.
13I believe that the appropriate discretion to be exercised in this case is that each party bear their own costs. I say so for the reasons described in the text that follows.
14First, let me remind the parties that, previously, I expressed my concerns regarding the parties’ respective conduct (see para. 23 of the decision on the Motion). Both parties have acted inappropriately in these proceedings. In my view, each party contributed to the dispute, leading to increasing the costs unnecessarily.
15Second, I disagree with the Mother that she was successful with the majority of the terms in the offer to settle. The Mother did not succeed with the following requests: (1) the Office of the Children’s Lawyer was preferred over the request for the Voice of the Child Report; (2) the original parenting schedule (every other weekend and weekday parenting time) was restored immediately without any restrictions, as opposed to being limited to every second weekend; (3) the outstanding section 7 expenses are to be paid overtime and not within 30 days; (4) the joint decision-making authority with respect to education and religious upbringing was made on consent; and (5) the Father was not required complete a hair follicle or produce his medical records. Therefore, I do not find that the Mother obtained an order that was substantially more favourable than her offer to settle.
16Third, the dominant issues at these Motions pertained to decision-making authority for Astrid regarding medical issues and the parenting schedule. The Mother was successful in being awarded final decision-making authority for Astrid with respect to her medical condition. The Father was successful in restoring the parenting arrangement that had been followed by the parties for several years until sometime in July or August 2019. Both parties succeeded in the areas that were most important. Regarding the other issues that were before the Court, the Father provides a helpful chart setting out the Motion results. Although these issues were not of equal significance, this chart confirms my initial belief that success was divided and neither party was more successful that the other.
17Having regard to the divided success, the conduct of the parties and considering the principles of reasonableness and proportionality, I conclude that no costs should be awarded to either party.
Justice Marc Smith
Released: August 06, 2021
COURT FILE NO.: FC-19-1233
DATE: 2021/08/06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
RE: Candice Henry, Applicant
AND
Erik Nielsen, Respondent
BEFORE: The Honourable Mr. Justice Marc Smith
COUNSEL: Halia Michalko, Counsel for the Applicant Sarah Giamberardino, Counsel for the Respondent
COSTS ENDORSEMENT
Justice Marc Smith
Released: August 06, 2021