COURT FILE NO.: FS-20-42910

DATE: 2021-10-07

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: N.B., Applicant

AND:

A.B., Respondent

BEFORE: Conlan J.

COUNSEL: Alla Koren, Counsel for the Applicant

A.B., Self-represented

ENDORSEMENT on costs

Introduction

[1] On October 7, 2021, a Zoom attendance was held to discuss the costs of the father’s motion for permission to move with the child from Oakville to Ancaster, Ontario. That motion, heard by this Court on July 8, 2021, was allowed – N.B. v. A.B., 2021 ONSC 4869.

[2] As this Court stated at paragraph 1 of its decision, however, “one insular piece” of the father’s updated motion was determined. The remainder of the relief sought was not dealt with by this Court. That fact was repeated at paragraph 15 of this Court’s decision, where it was observed that “[i]f the father wishes to pursue costs…[it should be remembered that] only one aspect of the updated Notice of Motion has been decided”.

[3] Despite that, the father, in his written submissions on costs and through his counsel’s oral argument at Court on October 7th, seeks full recovery of costs in the amount of $17,345.50. The mother suggests that no costs should be awarded to either side.

Decision

[4] This is not a case for no costs. The father is presumptively entitled to some costs because he was successful on what was undoubtedly the main part of his motion. There is nothing in existence here to displace that presumption.

[5] This is equally, however, not a case for anything more than partial indemnity costs in favour of the father. There is no bad faith or unreasonable conduct on the part of the mother that would justify full indemnity costs. She put forward legitimate arguments against the move. This Court did not accept those arguments. She lost the motion. There is always a loser in every step of litigation, sometimes two or more losers. We do not generally penalize the unsuccessful litigant with a full indemnity costs award in favour of the other side. That is contrary to the Family Law Rules, and perhaps more important contrary to the common law as it has developed with regard to costs in family law proceedings. Courts are to partially indemnify successful litigants, encourage settlement, and discourage bad or inappropriate conduct. We are to strive to be just, fair, reasonable, and proportionate in our costs decisions. There would be nothing just about hammering the mother with a full recovery costs order, or even substantial indemnity, on a motion like this.

[6] I agree with Ms. Koren that the father beat his offer to settle. But the costs consequences outlined in subrule 18(14) of the Family Law Rules do not lend themselves to a slavish adherence thereto when the subject matter being disputed is parenting time, decision-making responsibility, and/or contact between a parent and a child. An example will illustrate the point. Imagine a father with primary decision-making responsibility and most of the parenting time proposes to move away with the child. The mother opposes the move, genuinely out of concern that it will unreasonably disrupt her relationship with the child and will remove the child from his important support services. The father offers to settle the dispute by giving the mother an extra fifteen minutes of supervised contact per week. The judge, upon hearing the father’s motion, allows the move and maintains the status quo in terms of contact between the mother and the child. The father, evidently, in the example given, beat his offer to settle. But perhaps that, like our case, is not one where it would be appropriate to apply subrule 18(14).

[7] Sometimes, the offer to settle in a dispute about a child is, though laudable, not one that can reasonably be expected to have been accepted by the other side, or at a minimum not one that the other side, if she does not accept it, should be exposed to a full recovery of costs award, or even substantial indemnity for that matter. This is such a case.

[8] I will permit the father to recover $9,000.00 in costs. That figure is arrived at as follows. I have reduced the $17,345.50 claimed by the father to $15,000.00 even, the difference being the approximate amount devoted to the Case Conference that preceded the motion that was decided by this Court. I do not foreclose the possibility that such costs may be recoverable in another case, but I see no reason to award them here. Sixty per cent (60%) of $15,000.00, which I view to be appropriate on a partial indemnity scale, is $9,000.00.

[9] I will not reduce the figure further on account of other relief sought in the father’s motion that was not decided by the Court. The move itself was the paramount item that was the subject of the hearing.

[10] This Court, therefore, orders that the mother, A.B., shall pay to the father, N.B., costs of the motion in the total amount of $9,000.00.

(“Original signed by”)

Conlan J.

Date: October 7, 2021