COURT FILE NO.: FC-13-1778-2

DATE: 2022/01/31

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

COURTNEY MEACOE Applicant

– and –

ANDREW DAVID ISAAC CUTLER Respondent

Alison Southern, for the Applicant

Rebecca Rosenstock, for the Respondent

HEARD: In writing.

Costs decision

Audet J.

1On August 26, 2021, I rendered a decision on a motion to change the parenting provisions of a final consent order made in 2016, as well as child support. Supplementary reasons were provided on October 12, 2021, following the receipt of additional information that I was missing to complete my decision in relation to special and extraordinary expenses. At that time, I advised the parties that if they were unable to agree on costs, they could provide me with written submissions and I would decide. The parties were unable to resolve that issue and as a result, they both filed cost submissions.

2The mother takes the position that she was the successful party on both parenting and child support, and that the father behaved unreasonably. She seeks her full recovery costs in the amount of $28,747.49.

3The father takes the position that he was the successful party overall, and as such is entitled to his costs. To the extent that the court finds that success was divided, the father submits that the mother acted unreasonably and in bad faith, which he says should negatively impact any entitlement that she may have based on success. He seeks full recovery costs in the amount of $22,318.35.

4The costs sought by both parties are those they incurred for the entire proceeding, not just the motion heard before me.

My conclusions

5I find that success was divided in this motion. The father was more successful than the mother on the parenting issues, but the mother was more successful than the father on the issue of child support. Although each party was successful in relation to one disputed issue, even then success was divided in the sense that neither party got exactly what they were seeking.

6The mother argues that the father behaved unreasonably in the following ways;

• The father did not provide basic disclosure such as his 2020 tax information, misled the court on his income and employment, and the disclosure he did provide was provided several months late.

7I disagree that the father “misled the court on his income and employment”. Simply because I imputed a higher income to him than the income reflected in his tax returns, or because the father maintained his position that his income was as reflected in his tax returns, does not amount to unreasonable behaviour. Further, the income that I ultimately imputed to the father was much lower than the income the mother sought to impute to him. To the extent that I was to conclude that the father’s position was unreasonable, which I do not, then the mother’s position would be as well.

• The father behaved unreasonably by failing to accept portions of the mother’s offers (such as the communications clause and income imputation) and not making an offer until three days before the motion hearing.

8The father’s failure to accept an offer to settle, or part thereof, does not amount to unreasonable behavior. It is, however, a factor that needs to be considered in assessing costs. This said, while the father did not make a formal offer to settle outstanding issues in dispute until three days before the motion hearing, it is important to note that almost all of the issues in dispute between the parties had been resolved before the motion was heard. This means that during the months that led to this partial settlement, the father also made efforts to resolve the disputed issues. Therefore, to claim that the father made “no effort to settle”, when indeed most of the issues had been resolved prior to the motion hearing, is quite a misstatement.

• The father engaged in unreasonable behaviour by filing his motion materials late and introducing new claims (primarily raising mobility issues) at the same time.

9It is to be noted that the mother consented to the late filing of the father’s materials. Further, the reason why the father introduced new claims, all related to mobility issues, is because the mother unilaterally relocated the child’s residence in July 2021. The parties’ motion materials were filed in August 2021. It is hard to see how much earlier the father could have possibly raised his new claims.

10The father, similarly, claims that the mother behaved unreasonably and in bad faith in the following ways;

• By making representations and refusing to increase parenting time/holidays based on concerns that are not supported by the evidence.

11I am not prepared to find unreasonable behaviour on this account. The mother had concerns, those concerns were investigated by the OCL, and once she received the OCL’s report and recommendations, the mother stopped refusing increased parenting time based on those concerns. She did, however, engage in behaviour to create numerous barriers and obstacles for the father to exercise his parenting time, including unilaterally imposing requirements which were not part of any court order, thus increasing both parties’ costs.

• By failing to provide requested disclosure with regards to daycare and extraordinary expenses.

12Both parties failed to meet their disclosure obligations in a timely manner.

• By making unilateral decisions about the child that impacted the respondent’s involvement and parenting time.

13This was a high conflict parenting dispute. Both parties behaved in ways that contributed to the conflict, and which increased the cost of the litigation that ensued.

14In the end, I find that the vast majority of the parties’ time and resources spent in this litigation related to the parenting dispute (i.e. the parenting arrangements). The father was clearly the more successful party on this issue because he obtained the increased parenting time that he was seeking, as well as many of parenting provisions aimed at protecting his role and involvement in this child’s life. For that reason alone, I find that he is entitled to some costs.

15The parties have spent a similar amount of legal fees pursuing their claims in this matter. Looking at all the above, I find that the mother should be responsible to pay the father $5,000 in costs, all inclusive. Those costs shall be set-off against any outstanding child support owing by the father to the mother.