Court File and Parties

KINGSTON COURT FILE NO.: 575/13

DATE: 2021-02-05

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Michael Paul Dragert, Applicant

AND:

Michelle Mary Catherine Fournier, Respondent

BEFORE: Justice A.C. Trousdale

COUNSEL: Elizabeth French, Counsel for the Applicant Elizabeth Ollson, Counsel for the Respondent

HEARD: In chambers

COSTS ENDORSEMENT

[1] On December 16, 2020 I heard a motion by the Applicant requesting that he have parenting time with the children for certain periods during December 2020 including time during the Christmas school vacation. This motion was opposed by the Respondent. Having read the material filed by both parties and on hearing submissions from each party’s counsel, I delivered oral reasons for my decision to dismiss the Applicant’s motion, subject to two days of make-up parenting time for the Applicant during the Christmas holidays. I gave each party an opportunity to file written submissions as to costs of no more than two typewritten pages each by January 29, 2021. Both parties filed written submissions regarding costs.

[2] The Applicant was seeking that he have the children with him from December 15, 2020 after school to school on December 16, 2020, on December 17, 2020 from after school to December 23, 2020 at 9:00 a.m., and from December 26, 2020 at 9:00 a.m. to December 30, 2020 at 9:00 a.m. The Respondent had advised the Applicant prior to him bringing this motion that she was not contesting him having the children from December 26, 2020 at 9:00 a.m. to December 30, 2020 at 9:00 a.m. as previously agreed by them, and this period of time was not argued on the motion.

[3] The overnight on Tuesday, December 15, 2020 was the Applicant’s regular parenting time pursuant to the existing Final Order between the parties. The period from December 17, 2020 from after school to December 23, 2020 at 9:00 a.m. was a period that the parties had negotiated and agreed to in November 2020 prior to the Respondent becoming aware of circumstances that gave her concern about the children in this case (twin 10 year old boys) attending at the Applicant’s home during these two periods.

[4] The circumstances were that the Applicant’s two step-children (children of his current spouse) who are ages 10 and 12 and reside with their father in Arkansas, U.S.A., would be arriving for a Christmas visit with the Applicant and his spouse on December 12, 2020 and would be required to quarantine for 14 days upon entering Canada. The two contested periods would fall within the 14 day quarantine period.

[5] As I found that parenting time with the Applicant during the quarantine period was too risky to the health of the children, their other family members, their school, and the community, I dismissed the Applicant’s motion, but made an order for two additional days for the Applicant to have the children with him while the step-children were visiting, with the order being that the Applicant have the children from December 26, 2020 at 9:00 a.m. to January 2, 2021 at 9:00 a.m., provided that the Arkansas step-children had no symptoms of Covid-19. I also encouraged the parties to arrange further makeup for the missed time.

[6] The Applicant is seeking partial indemnity costs of $2,000.00 on a total Bill of Costs of $3,869.69 including fees, disbursements and HST. Alternatively, the Applicant is seeking an order that there be no costs for either party.

[7] The Respondent is seeking full indemnity costs of $4,145.97 for fees, disbursements and HST as per her counsel’s Bill of Costs.

POSITIONS OF THE PARTIES

[8] The Applicant argues that he should be entitled to partial indemnity costs because he submits he acted reasonably in bringing the motion as the parties were unable to resolve the issues between themselves without the court determining the matter. The Applicant also takes the position that it is the Respondent who should have brought the motion as she unilaterally did not wish to follow the existing order for the Applicant’s parenting time. The Applicant also argues that the situation of Covid-19 is novel.

[9] The Respondent argues that she should receive full indemnity costs as the Applicant should not have unreasonably attempted to enforce parenting time when the Arkansas step-children were required to quarantine for 14 days upon arriving in Canada. She also argues that the Applicant never attempted to negotiate make-up time prior to the motion being brought.

Rule 24 of the Family Law Rules

[10] Rule 24 of the Family Law Rules deals with the issue of costs. Subrule 24(1) provides that there is a presumption that a successful party is entitled to costs.

[11] The Respondent was successful in having the Applicant’s motion dismissed. There was an order made extending the Applicant’s parenting time for two further days during the Christmas holidays.

[12] Subrule 24(12) provides that in setting the amount of costs, the court shall consider the reasonableness and proportionality of a number of factors as they relate to the importance and complexity of the issues which I will now consider on the facts of this matter.

The importance, complexity or difficulty of the issues in this proceeding

[13] The issues in this proceeding were very important to both the parties.

[14] It was important to the Applicant as his step-children are only able to come to Canada during school holidays and the geographic distance is far.

[15] It was important to the Respondent as she was concerned that the two children in this matter, and their family members and their school and community could become infected with Covid-19 by reason of the two children in this matter coming into contact with the step-children from Arkansas during a period those step-children had not completed their mandatory 14 day quarantine.

Each party’s behaviour

[16] I do not find bad faith on the part of either party. They each believed that their position was correct in the circumstances.

[17] However, as the Arkansas step-children were flying in from another country in the middle of the second wave of a pandemic, it would have been hoped that the Applicant would realize that it was not appropriate for the two children in this case to be in contact with the Arkansas step-children during their mandatory 14 day quarantine. The Applicant argues that he and his spouse were taking all steps to follow mandated Covid-19 protocols, and taking additional precautions such as for example, the Arkansas step-children using different bathrooms from the children in this case, and the two sets of children eating their meals at two different locations in the home. However, it would have been very difficult to keep the two sets of children apart from each other during the Applicant’s parenting time that fell within the Arkansas step-children’s period of quarantine.

[18] There was no evidence before me that the Applicant attempted to negotiate some make-up time with the Respondent through counsel prior to bringing the motion.

[19] I find that the Respondent’s position was reasonable that the children in this case should not be in contact with the Arkansas step-children until they had completed their mandatory 14 day quarantine. If the children in this case had gone for their court-ordered Tuesday overnight on December 15 where the Arkansas step-children would have been in the Applicant’s household, and then returned to school the next day, there would be a Covid-19 risk to the students and staff at the children’s school and to the Respondent’s family members and others. I do not find that the Respondent was trying to deny the Applicant time with the children in this case, but rather was trying to safeguard the health of the children in this case and others in her family and in the community.

Time spent by each party

[20] Each party spent a similar amount of time on this matter, being just over 10 hours by each party’s counsel plus one hour for a clerk as set out on the Bill of Costs for the Respondent.

Written offers to settle

[21] Neither party made any written offer to settle prior to the motion being heard.

Legal fees

[22] Both counsel have been called to the Bar for similar amounts of time (20 plus years) and their hourly rates are similar. I find the rates to be reasonable for counsel with 20 or more years of experience.

Any expert witness fees

[23] There were no expert witnesses called by either party.

Any other expenses properly paid or payable

[24] The only expense claimed by both parties were minimal photocopy expenses which were very reasonable.

Any other relevant matter

[25] The Applicant argues that due to the fact that Covid-19 and a global pandemic are new to all of us, the novelty of the issues before the court should be taken into account, and that each case must be determined on its own particular circumstances in looking at the issue of costs.

Conclusion

[26] The Respondent was much more successful than the Applicant on the motion as the Applicant’s motion was dismissed. The Respondent was successful in receiving two additional days of parenting time during the Christmas period while the Arkansas step-children were still with him.

[27] Rule 18 regarding offers to settle which may result in full indemnity costs has no applicability in this case as there were no offers to settle to consider in fixing costs of this motion.

[28] In the case of Mattina v. Mattina, 2018 ONCA 867, the Ontario Court of Appeal summarized the general legal principles regarding costs orders in family law proceedings. At paragraph 10 of Mattina, the Ontario Court of Appeal set out the four fundamental purposes that modern family cost rules are designed to foster as follows:

(1) to partially indemnify successful litigants;

(2) to encourage settlement;

(3) to discourage and sanction inappropriate behaviour by litigants; and

(4) pursuant to Rule 2(2) of the Family Law Rules, to ensure that cases are dealt with justly.

[29] To those four fundamental purposes, the Court of Appeal added a reference to Rule 24(12) which specifically emphasizes “reasonableness and proportionality” in any costs award.

[30] At paragraph 15 of Mattina, the Court of Appeal stated:

The Family Law Rules only expressly contemplate full recovery costs in specific circumstances, e.g. where a party has behaved unreasonably, in bad faith or has beat an offer to settle under r. 18(14).

[31] Based on my not finding bad faith on the part of either party, and there being no offer to settle, I find that the Respondent is entitled to partial indemnity costs on this motion.

[32] Taking into account all of the aforesaid factors, the particular circumstances of this case, and in the exercise of my discretion, I find that it is fair and reasonable in all of the circumstances of this particular case that there be an order that the Applicant pay costs to the Respondent fixed in the sum of $2,500.00 inclusive of fees, disbursements and HST.

Order

[33] Order to go accordingly.

Justice A.C. Trousdale

Released: February 5, 2021