Court File and Parties

COURT FILE NO.: FC-20-1123-1 DATE: 2022/04/19 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Leah Christine Van Der Heide, Applicant AND Joel Alexander Konrad, Respondent

BEFORE: Mackinnon J.

COUNSEL: Alexandra Kirschbaum, for the Applicant Giulianna Ferri, for the Respondent

HEARD: In Writing

Costs Endorsement

[1] The respondent seeks full indemnity costs for the motions heard on February 3, 2022, in the amount of $5,700 inclusive. The applicant does not seek costs. She submits that no costs should be awarded to either party. The reasons that follow will explain my decision to award the respondent costs fixed in the amount $3,000 inclusive, an amount somewhat below his partial indemnity recovery.

[2] The claim for full indemnity is based on the submission that the respondent was successful on his motion and that the applicant was unsuccessful on hers. I agree that the respondent was the more successful party overall, but he was not successful in obtaining the relief he sought in his notice of motion. At the oral hearing he abandoned the primary relief he had claimed. Nor did he pursue the alternative relief set out in his notice of motion. Instead, he requested that a case management judge be assigned to the file to monitor the gradual increase of his parenting time with the goal of reaching his alternative position over an unspecified period of time.

[3] The respondent made two offers to settle the motions, not three as claimed. The draft proposed interim minutes of settlement were unsigned and were not capable of acceptance so as to finalize the issues between the parties. The respondent did not match or better his first offer to settle. His second offer made on January 25, 2022, was conceptually similar to the order in that it gradually increased his parenting time over a period of months. But again, the respondent cannot be said to have matched or bettered his second offer.

[4] Taken together the proposed interim minutes and his two offers do show that the respondent was actively pursuing a negotiated settlement and that he was realistically evaluating his position as new information came in, in particular from the OCL with respect to the children’s views and preferences. In contrast, the applicant did not make an offer to settle either motion, nor did she respond back to the respondent’s offers. She submitted that she did not have time to make an offer following the disclosure of the children’s views and preferences by the OCL. I do not accept that submission.

[5] The applicant claims divided success. In her notice of motion, she sought an eight point no contact order against the respondent, the breadth of which I found to be unwarranted, and supported by little evidence. Four aspects of parental conduct were included in the order, mutually applicable to both parties, with the respondent’s consent and based on the high conflict nature of the parental relationship. Only one, which had not been requested by the applicant, related to contact between the parties, namely an order for communication by Our Family Wizard or other similar product.

[6] I reject the applicant’s description of this outcome as her having achieved divided success in relation to the motions that were before the court.

[7] The applicant also submitted her financial circumstances as a factor in reduction of the amount of any award of costs. I know that she is represented through LAO and that she is self employed. I know that the respondent earns considerably more than she does, based on the proportionate sharing of section 7 expenses between them. The applicant sought a change to this proportion but did not deliver a financial statement. On consent, I ordered the parties to exchange their 2021 Income Tax Returns when filed, Notices of Assessment on receipt, and to make any indicated adjustment to the proportionate sharing of their section 7 expenses for the children.

[8] I am prepared to take the information I do have into account by allowing time to pay but lack sufficient information to exercise my discretion to reduce the amount of the award.

[9] I have also factored in a reduction to consequence the respondent for not following the court’s direction which set out the order in which cost submissions were to be delivered. The respondent chose to deliver his submissions first, based on his view that he had been the successful party, whereas the court had the applicant delivering her submissions first. The reduction is intended to reflect the small amount of additional work this may have caused the applicant’s lawyer, and to underscore the requirement to follow the court order, despite one’s personal view of it.

[10] The applicant shall pay the respondent costs fixed in the amount of $3,000, payable in ten equal monthly instalments, commencing on May 1, 2022.

Mackinnon J. Date: April 19, 2022