Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ADAM JONATHAN SHELDON HICKS, Applicant
AND:
JESSIE ALYSSA GEIST, Respondent
BEFORE: THE HON. MADAM JUSTICE M.P. EBERHARD
COUNSEL: Lynn Burgess, for the Applicant
Kenna Bromley, for the Respondent
HEARD: BY WRITTEN SUBMISSIONS
COSTS ENDORSEMENT
[1]
Background
On August 4, 2022 I decided a motion to permit the resumption of contact between the Child, Jackie, and the Applicant Step Father.
2Having announced this decision I asked both counsel: respected, experienced and insightful, to assist in crafting the best circumstances for helping the child through the renewal of contact.
3I then heard further submissions and released a final endorsement, specifically noting that not every detail was covered in the order to further require and encourage parents in learning to work things out appropriately while they still have the benefit of counsel and the social worker to guide them.
4I then invited the parties to address the issue of costs (and any set off against support) by written submissions of no more than two pages together with Bills of Costs and any offers, at a schedule they agree, by September 30, 2022 to my judicial assistant Nicole.anderson@ontario.ca. They have provided those submissions enabling me to now rule on the issue of costs.
[5]
Positions of the Parties
The Applicant Step Father seeks full recovery costs based on success, an offer served before the initial motion date and at a quantum reflecting that the order on this interim motion was in effect determinative of the result if the matter of resumed contact with the child were delayed to trial.
6Th quantum sought is $26,570.27, less a set off of child support to 2022 in the amount of $2880 to September 1, 2022.
7The Respondent Mother counters that success was partial because social work supports were achieved, that such supports were not in the offer, that the mother’s extreme position was trauma based and that both parties are struggling financially and a substantial costs order would negatively impact the resources available for the care of the child. She submits that the costs are disproportional and far greater than hers, demonstrating excess. She offered $5,000 to avoid the necessity for these costs issues to be adjudicated. The Respondent Mother calculated the set off as $3,456 to November 1, 2022.
[8]
Analysis
I find that the Applicant Step Father was successful on the motion. The only real issue was whether contact would be resumed or not. I ordered it would resume. The process and support for such resumption are sequelae to that decision. No offer could anticipate such nuances. The details of resumption which required a second appearance to address do not constitute “partial success” for one party or the other but rather the imperative of further discussion once the real issue had been decided. So, the offer was on point as far as it could go. Thereupon the efforts by each party to craft details were neutral from a costs perspective.
9The steps by the Applicant Step Father to prepare for the motion were proportional to the importance of the issue and the effective finality of the interim determination. Naturally his costs were far greater than those of the Respondent Mother because he had to martial years of evidence in order to succeed.
10To reduce costs based on the assertion of a trauma based motivation for her position would ignore the findings of fact made within my decision as to issues of family violence.
11As to the negative impact of a costs award on her ability to care for the child, I note that the Respondent Mother was effectively prepared to forego child support when she separated from the Applicant Step Father denying him any contact or acknowledgement that he as a person of any consequence to the child. I intend to limit the collection of a costs award to no more than $200/month which would still leave a remnant of child support to be paid, at the current level of table support and with whatever additional support may be payable by way of income increases or section 7 contributions. She will have more for the support of the child than she was living on when she walked away hoping to have no further contact with the Applicant Step Father.
[12]
Disposition
For these reasons, I fix costs at $20,000 all in less $3,456 as of November 1, 2022 when the collection of child support should begin
13The costs shall be payable at a rate of $200/month set off against any child support payable.
14Currently both parties cite the amount of $288/month for child support. A Support Deduction Order to issue to allow the FRO to enforce the child support of $288/month less set off of 200/month for an amount of $88/month to flow to the Respondent Mother commencing November 1, 2022.
EBERHARD J.
Date: October 6, 2022