COURT FILE NO.: FC-16-1024-1
DATE: 2021/08/27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
COREY MICHAEL DAVID DEMERSE
Applicant
– and –
JENNIFER COLLEEN AUBRY
Respondent
Stéphane A. MonPremier, for the Applicant
Mary Cybulski, for the Respondent
HEARD: in writing
Costs decision
Audet J.
[1] On June 22, 2021, I heard a motion to change brought by each of the parties in relation to the parenting and support of their nine-year-old daughter, Bré. The motion lasted for most of the day (including my decision which was given orally). In the end, the mother was clearly the successful party. If the parties were unable to agree on costs, they were permitted to file written submissions and I would decide.
[2] Having received those submissions, this is my decision on costs.
[3] The mother is seeking costs in the amount of $32,455.36. This represents partial indemnity costs in relation to the early stages of the litigation, substantive indemnity costs for all work up to March 10, 2021, and full indemnity costs thereafter, based on the Offer to Settle that she made on that day which she states was more favourable to the father than the order he obtained at the motion.
[4] The father seeks his costs in the amount of $25,000, despite acknowledging that he is the unsuccessful party in this case. In his view, the mother’s bad faith throughout the litigation justifies such an award. Alternatively, he takes the position that each party should bear their own costs.
[5] I find that the mother is entitled to her costs in the amount of $15,000, for the following main reasons:
As stated above, the mother was the successful party. In the context of her motion to change, the mother sought minor relief, clarifying her ability to make important decisions for the child, and updating child support. She obtained most of the relief claimed. The father was seeking a major change in the parenting arrangements in place, and none of the relief he sought was granted. On that basis, the mother is presumably entitled to her costs on a partial indemnity basis.
The mother made two formal Offers to Settle on March 10, 2021. The first was simply that there would be no changes to the existing order and all claims (including child support adjustments) would be dismissed without costs. This was clearly an offer to settle that met all the requirements of Rule 18(14). As such, the mother is entitled to her full recovery costs from that date.
The father made no formal offer to settle, although I acknowledge that he offered to participate in mediation on a number of occasions.
The nature of the father’s claims were such that he had very little to gain by continuing with this litigation, once the mother’s March 2021 offer to settle was made. The Family Law Rules and the caselaw that interprets them make it unequivocally clear that costs are designed to encourage settlement. The father’s failure to accept the mother’s reasonable, more advantageous and child-focussed offers to settle (despite the initial stance she took which prompted this litigation) has resulted in both parties, including the mother, depleting most of their life-savings on this litigation. These financial resources could have been put to much better use given Bré’s very special needs and the costs associated with them.
All of the above being said, it is readily apparent to me that this litigation was prompted by the mother’s own failure to abide by the terms of the final order in place at the time she began this litigation. In particular, in the summer of 2019 she denied the father’s summer parenting time with the child, made allegations of abuse against him to the Children’s Aid Society and ultimately lost her battle to force the father to exercise only supervised parenting time with the child in Ottawa, as opposed to the four weeks he was afforded to spend with Bré in British-Columbia each summer pursuant to the final order in place. In my view, these actions set the tone to what followed.
The cost of the motion for summer access that the mother lost before Doyle J. were reserved to the judge hearing the motion to change. As the successful party in that motion the father is entitled to his costs, presumably on a partial indemnity basis. I find that he is also entitled to recover the transportation costs that he lost as a result of his parenting time not taking place when it should have in the summer of 2019. This results in a reduction of the costs to which the mother would otherwise be entitled in the context of this motion to change.
In relation to the legal fees charged, I find the mother’s fees to be reasonable, in light of the following:
• the hourly rate charged by the mother’s counsel, $275, was reasonable given her level or experience and the level of complexity (low) presented by this case;
• the number of hours charged were also reasonable, as demonstrated by the relatively equal amount of legal fees incurred by the father for the same steps.
- Ultimately, I find that an award of $15,000 is reasonable in the circumstances of this case.
Madam Justice Julie Audet
Released: August 27, 2021
COURT FILE NO.: FC-16-1024-1
DATE: 2021/08/27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
COREY MICHAEL DAVID DEMERSE
Applicant
– and –
JENNIFER COLLEEN AUBRY
Respondent
Costs decision
Audet J.
Released: August 27, 2021