Court File and Parties

COURT FILE NO.: FC-22-535-00 DATE: 20231129

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

R.S. Applicant mother

– and –

S.A. Respondent father

Counsel: Thomas J. MacLennan, for the Applicant mother Philip Viater, for the Respondent father Alex Dutka, counsel for the Office of the Children’s Lawyer (the “OCL”) on behalf of the child, I.S.

HEARD IN WRITING

REASONS FOR DECISION ON COSTS

JUSTICE ALEX FINLAYSON

[1] This is my decision about costs arising out of the father’s long motion for reunification therapy and the mother’s request for life insurance heard August 22, 2023. The Court’s Reasons for Decision respecting the motion are dated September 13, 2023: see R.S. v. S.A., 2023 ONSC 5189. Pursuant to ¶ 117 (i) of the Reasons for Decision, I directed that costs would be heard in writing. I have now reviewed both parties’ written submissions. This ruling should be read in conjunction with the Reasons for Decision.

[2] The mother seeks costs of $7,000.00. These are her costs on a partial recovery basis. She asserts that she was the successful party, and that this amount is reasonable and proportionate.

[3] The father argues that there should be no costs order made against him, or that costs if ordered, should be limited to $1,500.00. He argues that the mother did not need to participate in and therefore oppose his motion for reunification therapy. He argues that the mother was not fully successful respecting life insurance; there was some divided success. He argues that the Court found that both parties had misbehaved. Finally, he also argues that the mother’s Bill of Costs is excessive and unaffordable.

[4] I find that the father should pay some costs to the mother for the following three reasons:

(1) The mother was the successful party. She succeeded in resisting the father’s motion for reunification therapy, and she enjoyed substantial success respecting life insurance. The result respecting the latter was much closer to the mother’s position than it was to the father’s. The presumption of success in rule 24(1) of the Family Law Rules operates in her favour;

(2) I agree with the mother, and disagree with the father, regarding the father’s argument that the mother did not need to participate in the motion respecting reunification therapy. While the proposed therapy sought concerned the father-son relationship, the father also asked the Court to order a number of terms that would have been binding on the mother. The father asked the Court to make findings adverse to the mother. Quite apart from that, the mother was entitled, as one the child’s parents, to have put her perspective before the Court and to have made arguments about what she believed to be in the child’s best interests; and

(3) The mother’s lawyer is an experienced and skilled family law lawyer of 34 years. The hourly rate that he claims for partial recovery of $300 is reasonable. The hours he spent preparing for this motion and for court attendance are also reasonable.

[5] I do agree with the father, that the Court made findings about both parties’ poor behaviour in relation to the issues, in its Reasons for Decision. The Court’s summary of those findings is set out in ¶ 90 (a) of the Reasons; there are also more details elsewhere in the body of the reasons. I would therefore discount the mother’s costs somewhat to account for her unreasonable conduct: see rules 24(4) and (5), and 24(12)(a)(i) of the Family Law Rules.

[6] The father’s submissions state that he paid $5,000 in costs for this motion. This is a good litmus test as to the father’s expectations about his exposure to pay the mother’s costs.

[7] Proportionality and reasonableness are core principles when it comes to fixing costs in family law: see Beaver v. Hill, 2018 ONCA 840 ¶ 4 and 19. I find the sum of $5,000.00 to be reasonable and proportionate having regard to the above factors.

ORDER

[8] The father shall pay costs of $5,000.00 to the mother, inclusive of HST and disbursements.

Justice Alex Finlayson

Released: November 28, 2023

COURT FILE NO.: FC-22-535-00 DATE: 20231128

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

R.S. Applicant mother

– and –

S.A. Respondent father

REASONS FOR DECISION ON COSTS

Justice Alex Finlayson

Released: November 29, 2023