Court File and Parties

Court File No.: FS-15-764 Date: 2022 03 03 Superior Court of Justice - Ontario

Re: J.M., Applicant And: D.W., Respondent

Before: Conlan J.

Counsel: Mr. B. Ludmer, for the Applicant, J.M. Ms. S. Kalra, for the Respondent, D.W.

Endorsement on Costs

[1] The Applicant father, J.M., moved for 37 substantive heads of relief including (i) an order that the Respondent mother, D.W., was in breach of the consent Final Order of Justice Gibson made on February 28, 2017, and (ii) an order that D.W. shall comply strictly with the said Final Order, and (iii) an order for make-up time between the father and the child (8 years old), and (iv) an order appointing a family reunification therapist.

[2] In its decision dated January 26, 2022, J.M. v. D.W., 2022 ONSC 605, this Court, at paragraph 25, stated as follows.

For the foregoing reasons, the father’s motion is granted in part. Items 1 and 2 in the prayer for relief as contained in the Notice of Motion dated January 3, 2022 are granted. Item 3, an amended version of that requested relief, is also granted. Items 4 through 37 are dismissed, without prejudice to the father’s right to revisit his request for family reconciliation therapy in the context of the upcoming Motion to Change. Item 38, costs, is dealt with below. Item 39 is not applicable.

[3] Unable to resolve the issue of costs, written submissions have been filed by each side. No further submissions are required by this Court; the issue may be determined justly on the basis of the thorough arguments already made. Those arguments may be summarized as follows: the father seeks his costs on a full recovery basis in the total amount of $31,433.78, and the mother seeks her costs on a substantial indemnity basis in the total amount of $13,669.38.

[4] The modern law on costs is well known:

(i) a successful party is presumed to be entitled to some costs, though the Family Law Rules outline one instance where that presumption may not apply – where the successful party has behaved unreasonably;

(ii) divided success may lead to an apportionment of costs, and fairly evenly divided success may lead to an order for no costs awarded to either side;

(iii) more frequently than not, the scale of costs will be partial indemnity, though a higher scale of costs may be appropriate depending on an offer to settle or bad faith, as the two most common examples;

(iv) the deferral of costs is to be discouraged – they should generally be decided after each step in the proceeding;

(v) neither the Rules Committee nor the appellate courts envision a treatise, or even an essay, when it comes to a decision on costs, in fact the matter should be dealt with summarily;

(vi) there is no exhaustive list of what the judge may consider in her assessment, but there are several mandatory factors including but not limited to the importance of the issue(s) and the reasonableness of each party’s behaviour; and

(vii) at the end of the analysis, the judge should ask himself – is this a fair, just, reasonable, and proportionate result?

[5] There shall be no costs awarded to either side.

[6] Success has been fairly evenly divided. The father succeeded on what I think was probably his chief objective – to have a judge say that the mother has breached the Order of Justice Gibson. And he was successful in getting some extra time with his child. On the other hand, the mother was successful on the father’s proposal for family reunification therapy and in having the Court decline to order the “parental covenants” sought by the father.

[7] I commend both sides for making offers to settle. I have reviewed them. They do not change my opinion. Neither one falls within 18(14) of the Family Law Rules, and neither one [though relevant under 18(16) of the Family Law Rules] causes this Court to re-think its decision.

[8] Each side shall bear its own freight.

C.J. Conlan Electronic signature of Conlan J. Date: March 3, 2022