COURT FILE NO.: FS-20-43418

DATE: 2023 07 17

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: A.L., Applicant

AND:

B.N., Respondent

BEFORE: Conlan J.

COUNSEL: Ms. A. Stoner, for the Applicant

Ms. C. Marchetti, for the Respondent

ENDORSEMENT on costs

I. Introduction

[1] On May 10, 2023, in Milton, this Court heard two motions, one by each side. On May 12, 2023, the Court decided the issues raised in both motions, A.L. v. B.N., 2023 ONSC 2894.

[2] In his Amended Notice of Motion, the Respondent father, B.N., asked for an order that he have increased parenting time with the two children, on a specified schedule, culminating in an equal shared parenting, 2-2-5-5, regime.

[3] The father also asked for make-up time for missed parenting time, an order that the parties share the expense of reunification therapy 50-50, and an order that the Applicant mother, A.L., shall not record the children’s telephone calls with the father and shall not facilitate or encourage the children to record those telephone calls themselves.

[4] In her Notice of Motion, the mother asked for an order that the father’s parenting time take place in public, and be professionally supervised, and be limited to two-three hours on each occasion.

[5] The mother also asked for an order that the cost of the reunification therapy shall be split 75% to be paid by the father and 25% by the mother, after utilizing the father’s extended benefits plan to cover as much as possible of the cost.

[6] On the issue of the recording of the children’s telephone calls, the Court agreed with the father’s position. It was ordered that the mother shall not record the children’s telephone calls with the father and shall not facilitate or encourage the children to record those telephone calls themselves.

[7] On the issue of the cost of the reunification therapy, the Court agreed with the father’s position. It was ordered that, after exhausting all potential coverage under the father’s benefits, the cost of the reunification therapy shall be divided equally between the parents.

[8] On the issue of make-up time for missed contact between the father and the children, the Court declined to make any order.

[9] On the issue of whether the father’s parenting time should be supervised, the Court agreed with the father’s position.

[10] The Court also agreed with the father on the issue of whether his parenting time must take place in public settings.

[11] The Court concluded that no order for supervision would be made, and no order for public visits only would be made.

[12] On the issue of the parenting schedule going forward, the Court ordered something in between the two positions advanced, but much closer to that proposed by the father than that suggested by the mother.

[13] The Court commented that the clear intention of the order was to move towards a shared parenting regime.

II. The Parties’ Positions on Costs

[14] Unable to agree on the costs of the two motions, the parties have filed brief written submissions.

[15] The father, the successful party, asks for costs in the total amount of $7541.15, on a substantial indemnity scale. He asserts that he “beat” his offer to settle signed on May 8, 2023, and that the mother has behaved unreasonably.

[16] The mother, the unsuccessful party, asks that there be no order for costs in favour of either side or, alternatively, an order that she shall pay costs to the father in the total amount of $3500.00.

III. Decision on Costs

[17] This Court orders that the mother shall pay costs to the father in the total amount of $5500.00.

[18] That figure is chosen because it represents a slight reduction in the partial indemnity costs being sought by the father ($6127.20), to account for the fact that he was not wholly successful on his motion.

[19] In my view, $5500.00 in costs is a fair, just, reasonable, and proportionate amount of costs to order in this case, and it reflects the objectives of at least partially indemnifying the successful litigant (the father) and encouraging settlement.

[20] As for the third objective of a costs order, that is to address bad faith or clearly unreasonable conduct on the part of litigants, I do not see that as a factor in this case.

[21] There is no merit to the mother’s suggestion that each side should bear its own costs. That is contrary to the well-recognized principle that a successful party is presumed to be entitled to some costs. This is not an instance of divided success. The father was much more successful than the mother.

[22] There is no merit to the father’s suggestion that he be awarded his costs on a substantial indemnity scale. He served a reasonable offer to settle (certainly more reasonable than the mother’s offer). He did meet or exceed parts C (the cost of reunification therapy) and D (the recording of video calls) of his offer, and his offer was severable. He did not meet or exceed parts A (parenting schedule) or B (make-up for missed parenting time) of his offer. I cannot determine from the Bill of Costs filed which costs relate to parts C and D of the father’s offer, and I cannot simply take the substantial indemnity figure for all of the costs being claimed ($7541.15) and award that quantum in favour of the father, which is what the Court is being asked to do.

[23] In any event, the father is receiving suitable “credit” for making a reasonable offer to settle in that this Court is awarding to him his partial indemnity costs for both motions, subject to only a $627.20 reduction. It is the end result that matters. $5500.00 is not an insignificant sum, particularly given that the father achieved most but not all of what he was asking for.

Conlan J.

Date: July 17, 2023