Court File and Parties

COURT FILE NO.: FC-20-159 DATE: January 27, 2021

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Jamie Kauffeldt-Deavy, Applicant AND: Shawn Deavy, Respondent

COUNSEL: Diana Tomazin, for the Applicant Bryan Delaney, for the Respondent

BEFORE: Mr. Justice M. James HEARD: Submissions in writing

COSTS ENDORSEMENT

JAMES, J

[1] This is a costs order following a motion for contempt of court brought by the Applicant. A brief review of the proceedings leading up to the contempt of court motion is instructive.

[2] This proceeding started with an urgent motion request for the return of the children to their mother’s care following an extended summer access visit with the Respondent at the home of his new partner and her family.

[3] The Respondent refused to comply with an order for the children’s return. Police enforcement was not successful, and the police enforcement clause had to be extended.

[4] When the Applicant brought the contempt of court motion, the Respondent retained Mr. Delaney and matters proceeded in a much more orderly and appropriate manner after Mr. Delaney became involved.

[5] Counsel for both parties had productive discussions prior to the hearing of the contempt motion and during a break during the proceedings the day the motion was argued, the contempt motion was resolved mainly on terms that both parties consented to.

[6] That said, it was clear that the Respondent was uncooperative with the Applicant, made scurrilous allegations and disregarded the order to return the children.

[7] I should add that I advised the parties at the outset of the contempt motion that I intended to treat the motion as a motion to enforce a court order to avoid the procedural complexities associated with contempt of court proceedings. Contempt of court proceedings are to be avoided except as a last resort, and this includes the use of the less drastic “motion to enforce” type of motion first.

[8] The Applicant had little choice but to bring the matter back to court in some fashion when faced with the Respondent’s improper behaviour.

[9] The Respondent says he shouldn’t be held responsible because the children didn’t want to return to their mother’s home. I disagree. This position is simply an attempt to deflect his responsibility for creating the problem in the first place. A parent has a duty to facilitate, manage and encourage the children’s return to the other parent after an access visit. In this case, the evidentiary record available to me indicates that the Respondent and Ms. Warren did exactly the opposite, thereby increasing the children’s stress and anxiety and forcing the Applicant to bring the matter back to court.

[10] It was only Mr. Delany’s constructive intervention that saved the Respondent from a much more difficult situation.

[11] The Applicant has presented a bill of costs totalling $2,883.12 on a full indemnity basis. The time spent and the hourly rate is reasonable, although as previously indicated, a contempt of motion is the remedy of last resort, not a starting point.

[12] A “no costs” order would not be appropriate because it would not adequately recognize the Respondent’s direct role in creating the problems the Court had to deal with. Impecuniosity on the part of the person liable for costs is not a justification for not awarding costs; nor is the fact that the person has a child support order that must be paid. However, costs ought to be reasonable and proportionate. In my view, this case is not an appropriate situation for substantial indemnity costs, primarily because the motion was resolved substantially on a consent basis.

[13] Having considered all the circumstances and bearing in mind the factors listed in the Family Law Rules to guide the determination of an appropriate costs order, I find that the Applicant should recover her costs of the motion from the Respondent fixed in the sum of $1,700, all inclusive, payable forthwith.

Mr. Justice Martin James Released: January 27, 2021