COURT FILE NO.: FC-16-FO499-001

DATE: 2022-05-24

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Lindsay Alyson McCarthy, Applicant AND: Devin Murray, Respondent

BEFORE: Madam Justice Catrina Braid

COUNSEL: Joy Nneji, for Applicant Simon Marmur, for Respondent

HEARD: By written submissions

COSTS ENDORSEMENT

I. Overview

[1] Lindsay McCarthy and Devin Murray were married and subsequently divorced. They have an 11-year-old daughter together. In these reasons, I shall refer to the parties as the mother and the father.

[2] The father brought a contempt motion to address the mother’s non-compliance with two prior orders. In addition to the contempt motion, both parties brought competing motions seeking primary residence, sole decision-making for the child, and other relief.

[3] In reasons cited at McCarthy v. Murray, 2022 ONSC 855, I found that the mother breached the prior orders but declined to find the mother in contempt of court. In addition, I reaffirmed the previous orders and provided direction requiring the mother to comply with those orders, failing which she would be noted in contempt. I also made consent orders requiring the mother to provide further financial disclosure. Finally, I declined to make any of the other interim orders sought by the parties.

[4] I must now determine costs of the motions. For the reasons set out below, I order that the mother pay costs to the father in the amount of $15,000.

II. The Father is Entitled to Costs

[5] Rule 24 of the Family Law Rules, O. Reg. 114/99 sets out principles to guide the court regarding costs. Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C-43, grants broad discretion to the court regarding costs. The court may determine by whom and to what extent costs shall be paid: M.(A.C.) v. M.(D.) (2003), 2003 18880 (ON CA), 67 O.R. (3d) 181 (C.A.).

[6] I find that the father is entitled to costs, for the following reasons:

a) The Father Was More Successful on the Motions

[7] In her submissions, counsel for the mother submits that the father was the “loser” and “not the WINNER OF THE CONTEMPT MOTION” [Emphasis in the original submissions] because his contempt motion was dismissed. Counsel for the mother repeatedly states that the mother is the “winner”, and even goes so far as to suggest that counsel for the father should be personally liable for some of the costs of the contempt motion. These submissions are unprofessional and inappropriate. There is no winner in family law litigation. In addition, there is absolutely no basis to make a costs order personally against the father’s counsel.

[8] In her submissions, the mother’s counsel attempts to re-argue the contempt motion, saying that the mother “did not act unreasonable [sic]” and that she was trying to protect the best interests of the child. I reject these submissions outright, for the reasons set out in my earlier ruling.

[9] I declined to make a contempt finding, even though I found that the mother was in breach of multiple terms of prior court orders. I made the following findings about the mother’s concerning behaviour:

1. She acted in deliberate and wilful disobedience of the court orders;
2. She put the child squarely in the middle of the family law dispute;
3. She demonstrated a concerning pattern of behaviour that excluded the father from important decisions in the child’s life; and
4. Her behaviour was harmful to the child and fractured the father’s relationship with the child, which was not in the child’s best interests.

[10] On the other hand, the court was impressed by the father’s behaviour, since he attempted to avoid confrontation, especially in front of the child. The father acted in a responsible way that was in the best interests of the child. As tempting as it may have been, he did not overhold the child.

[11] Although the court did not find the mother in contempt, the status quo of week-about parenting time was reinstituted. The court sternly directed the mother to follow the court orders in the future, failing which she would be noted in contempt. I find that the father was more successful on the motions.

b) The Mother Failed to Comply With Court Orders

[12] Pursuant to Rule 1(8)(a) of the Family Law Rules, the court may deal with a failure to obey an order by making any order that it considers necessary for a just determination of the matter, on any conditions that the court considers appropriate, including an order for costs. I find that the mother’s failure to comply with court orders should attract a costs order.

c) The Father Made an Offer to Settle That Was Similar to the Result

[13] Unless the court orders otherwise, a party who makes an offer to settle is entitled to costs to the date the offer was served and full recovery of costs from that date, if certain conditions are met. In this case, the father made an offer that required acceptance before the contempt motion was brought. It was not an offer that remained open for acceptance until the hearing started, as required by Rule 18(14).

[14] However, pursuant to Rule 18(16), I have taken the written offer to settle into account, even though it does not fully comply with the rule. The father made an offer to settle the contempt motion before it was brought. The intention of the offer was clear: the mother should have resumed the week-about parenting schedule and the contempt motion would not have been necessary. This factor further supports the finding that the father is entitled to costs.

III. Quantum of Costs

[15] The father claims full recovery costs in the amount of $24,496.72. The mother states that she is entitled to costs and claims $19,323.00 on a full indemnity basis.

[16] I have already determined that the father is entitled to costs. In determining the appropriate quantum of costs, the court must consider the reasonable expectations of the parties; the complexity and importance of the proceeding; and the conduct of the parties in litigation: Family Law Rules, Rule 24(12) and Serra v. Serra, 2009 ONCA 395.

[17] The parties filed more than 1,800 pages of material in support of these motions. The factual and legal issues in the motions were of moderate complexity. The proceeding was of high importance to the parties.

[18] The financial means of the parties, their ability to pay a costs order, and the effect of any costs ruling on the parties and the children are relevant considerations in reaching a determination on the issue of costs: M. (A.C.) v. M. (D.), at paras. 42-43; Fyfe v. Jouppien, 2012 ONSC 9, at para. 11. The mother’s counsel states that the mother is of limited means; however, I have no way of gauging that position as the mother refused to provide full financial disclosure until the father brought the current motion. In addition, she did not file any financial information in support of her costs submissions. I am therefore unable to assess the financial means of the mother or her ability to pay a costs order.

[19] I have considered the principles in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.). The fixing of costs should reflect what the court views as a fair and reasonable amount to be paid, rather than any exact measure of the actual costs to the successful litigant. In this case, the costs claimed by the parties both exceeded $19,000, which reflects the complexity of the motions and the volume of work completed by counsel. I find that a fair and reasonable amount of costs to be paid by the mother is $15,000.

IV. Conclusion

[20] For all of these reasons, this court orders that the Applicant mother shall pay costs of these motions to the Respondent father, in the amount of $15,000, inclusive of taxes and disbursements.

DATE: May 24, 2022

Braid J.