Sanchez v. Sanchez 2022 ONSC 5296

Court File and Parties

COURT FILE NO.: FC-2022-2

DATE: 2022-09-19

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Tanya Sanchez, Applicant

AND

John Paul Sanchez, Respondent

BEFORE: The Honourable Mr. Justice Pierre E. Roger

COUNSEL: Marc Coderre, Counsel for the Applicant

Frederic Huard, Counsel for the Respondent

HEARD: In writing

COSTS DECISION

Roger j.

Background

1I heard a motion brought by the respondent father, and a cross-motion brought by the applicant mother on July 22, 2022.

2The parties were married and cohabitated briefly. They have one daughter, born in June 2020. At the time of the motion, the parties’ two-year-old daughter lived primarily with her mother and had parenting time with her father, pursuant to a March 2022 consent order, every Wednesday from 3:30 pm to 6:30 pm, and every second weekend from Friday at 3:30 pm to Monday morning.

3The father sought equal parenting time based on a 2 – 2 – 3 schedule, shared decision-making responsibility, and an order that the child’s name not be changed. Essentially, the father brought a motion for summary judgment, yet did not spell this out or attempt to meet the test of such a motion. The father also argued that the mother’s responses to a request to admit were not admissible because they had been filed late, but he failed to consider that the mother’s previous lawyer had, during that time, been appointed to this court. Additionally, the father resisted the mother’s claim to exclusive possession of the matrimonial home, yet he had found alternative living arrangements.

4The mother resisted the father’s motion. Oddly, as she brought no evidence that the current arrangement was not working, the mother sought to reduce the father’s parenting time by one overnight until she returned to work in September 2022. The mother brought a motion seeking exclusive possession of the matrimonial home and the sale of the matrimonial home.

5Too many materials were filed on this motion. This is a recuring problem. Lawyers must be reminded that point first writing and brevity is more convincing. All that is needed is evidence demonstrating why the relief sought is in the best interests of the child, or why a party is or is not entitled to the relief sought. Yet, for example, despite voluminous materials, little was focused on the best interest of the child.

6Most of the evidence was disputed. Nonetheless, it was clear that both parties have a strong relationship with their daughter, and that both parties can properly parent their daughter. It was also clear that neither parent appeared willing to adequately maintain and foster a good relationship between the child and the other parent, and that this case has the potential of becoming a high conflict case. As the child is only two years old, and as the evidence was highly contested, I was not comfortable making, at this point, an order for equal parenting time. However, I did indicate that on the evidence presented, this is a case where, at the right moment, equal parenting time would likely be in the best interests of the child.

7Ultimately, I essentially granted the following temporary relief. I denied the father’s motion for equal parenting time, but I increased the father’s parenting time by two overnights, from three overnights to five overnights (out of fourteen). I ordered decision-making responsibility to be joint and ordered both parents to communicate appropriately. I ordered child support and section 7 expenses, I granted the mother’s motion for exclusive possession of the matrimonial home, and left issues relating to the name of the child to be decided either on consent or at trial.

Positions of the Parties

8The parties could not resolve the issue of costs for these motions, and costs submissions were received by the Court by August 25, 2022.

9The applicant mother argues that she was clearly the more successful party. She argues that based on her partial success, she should be entitled to 65% of her full indemnity costs. Her full indemnity costs total $12,920.42, and she seeks $8,398.27 for her costs of these motions.

10The father argues that he was clearly the more successful party. His full indemnity costs total $24,194.71, and he seeks 75% for his costs of these motions, for a recovery of $18,146.03.

Analysis

11Costs are always within the discretion of the judge who heard the matter to do what is fair and reasonable considering all circumstances. When dealing with costs in family matters, a successful party is presumptively entitled to costs. However, this does not mean that a successful party is presumptively entitled to full indemnity costs. Here, no offer to settle was brought to my attention, the conduct of either party is not sufficient to warrant full indemnity costs, and no party acted in bad faith. If either party had been entirely successful, in the circumstances of this case, I would not have ordered full indemnity costs.

12Costs seek to indemnify successful litigants, encourage settlement, discourage and sanction inappropriate behaviour, and ensure that cases are dealt with justly. At the end of the day, costs seek to reflect what the court views as a fair and reasonable amount that should be paid usually by the unsuccessful party. The conduct of the parties, success, whether an offer was made, the time spent, steps taken, and any other relevant factors are considered when deciding and assessing costs. A successful party who behaved unreasonably may be deprived of all or a portion of his or her costs. If success is divided, the court may apportion costs as appropriate.

13Here, success was divided. No party was clearly the successful party. At best for the mother, success was equally divided. However, three to four of the issues were more probably at the crux of these motions: parenting time, decision-making responsibility, sale of the matrimonial home, and exclusive possession of the matrimonial home. The other issues were ancillary issues or connected issues, such as, for example, primary residence and child support. Of the four more important issues, the respondent father was successful on two and partially successful on one.

14Indeed, the father’s parenting time was increased even if equal parenting time was dismissed, and decision-making responsibility was ordered to be shared. So, I consider that the father was only very slightly the more successful party. However, the father resisted the exclusive possession of the matrimonial home despite having secured other accommodations, disputed the timeliness of answers to a request to admit when he should not have, and he brought what amounted to a motion for summary judgment without stating so or attempting to meet the applicable test. He also filed too many materials, which might explain why his costs are so high, in comparison to those of the mother.

Conclusion

15When I consider all relevant circumstances, I find that what is fair and reasonable is to order that there be no costs for these motions.

P. E. Roger J