COURT FILE NO.: FC-21-111
DATE: 2022/07/011
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Shakira Mandela Penny Hawthorne (Respondent on the Motion, Applicant on Cross-Motion)
-and-
Robert Chad Williamson (Applicant on Motion, Respondent on Cross-Motion)
BEFORE: Anne London-Weinstein J.
COUNSEL: Elisabeth Sheppard, for the Ms. Hawthorne
Elizabeth Midolo, for the Mr. Williamson
HEARD: In Writing
costs endorsement
[1] A motion regarding parenting time was scheduled for March 8, 2022. The matter had to be rescheduled to February 15, 2022, as it was actually a long motion and could not be accommodated in the time allotted on March 8.
[2] The issues to be decided were parenting time in relation to the two year old child. The Respondent sought increased parenting time and disclosure of documents and information related to the child, including where the child attended daycare.
[3] The Applicant agreed to the Respondent having supervised parenting time, but disagreed with the proposed terms. She also was unhappy with the current supervisor of the visits. She did not wish to disclose where the child attended daycare.
[4] She brought a cross-motion regarding child support and disclosure of income. She was also concerned about adherence to COVID-19 protocols and whether the Respondent’s home was baby-proofed and the environment safe for the child.
[5] Ultimately, the court ruled that after three supervised visits the Respondent should have unsupervised visits one day of the weekend on an alternating basis. Given the state of the record, and the position of the parties regarding whether the Respondent was advised he was not the child’s father, the court determined that the issue of retroactive child support should be determined on a full evidentiary record at trial.
[6] The court did make orders related to baby-proofing the home, COVID protocols, child support, how the exchange should take place and non-consumption of marijuana and intoxicants while parenting.
[7] A successful party is presumptively entitled to costs of a motion. This presumption is rebuttable. Rule 24(12) of the Family Law Rules, O. Reg. 114/99 (hereinafter “the Rules”) provides relevant factors to be considered. Those factors are:
(12) A person setting costs shall consider
(A) the importance, complexity or difficulty of the issues;
(B) the reasonableness or unreasonableness of each party’s behaviour
(C) The lawyer’s rates
(D) The time properly spent on the case
(E) Expenses
(F) Any other relevant matter.
[8] The outcome of this motion was divided. The Respondent was successful in securing unsupervised parenting time after three as opposed to four supervised visits. He also prevailed in terms of where the exchange was to take place. The issues of baby-proofing the Respondent’s home, COVID-19 protocol compliance and child support were decided in the Applicant’s favour. Further, the Applicant was also successful in having the court order disclosure of financial documents, which were not provided when the parties filed their costs materials. The Applicant was also successful in having the court order that marijuana and intoxicants not be consumed during parenting time. The Applicant was provided sole decision-making responsibility regarding the child after meaningful consultation with the Respondent.
[9] The fact that disclosure of financial documents has still not been provided by the Respondent, despite being ordered by the court, is concerning. Costs consequences are one method of ensuring compliance with financial disclosure. Without appropriate financial disclosure, there is no method of ascertaining whether an appropriate level of support is being paid.
[10] Further, I note that an agreement was reached on the eve of the motion in October of 2021 and the parties confirmed same to the court. The Respondent then refused to sign the Minutes.
[11] There were offers to settle by the Respondent, however, the amount of child support ordered by the court was higher than the amount offered. Further, the offers did not contemplate financial disclosure.
[12] Having considered all of the relevant factors in this matter, most particularly that the Respondent has still not provided financial disclosure to the Applicant, despite the court’s order, and given the divided success in this motion and cross motion, the court exercises its discretion by declining to order costs to either party.
Anne London-Weinstein J.
Date: July 11, 2022
COURT FILE NO.: FC-21-111
DATE: 2022/07/11
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Shakira Mandela Penny Hawthorne (Respondent on the Motion, Applicant on Cross-Motion)
-and-
Robert Chad Williamson (Applicant on Motion, Respondent on Cross-Motion)
BEFORE: Anne London-Weinstein J.
COUNSEL: Elisabeth Sheppard, for the Ms. Hawthorne
Elizabeth Midolo, for the Mr. Williamson
costs endorsement
Anne London-Weinstein J.
Released: July 11, 2022