Court File and Parties
COURT FILE NO.: FC-20-110
DATE: 2023/02/02
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jessica Lee McMillan Barta, Applicant
-and-
Michael Barta, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Jason Isenberg, for the Applicant
Jamie Marie Mookerjea, for the Respondent
HEARD: In Writing
costs endorsement
Overview
[1] This is my decision on costs in this motion to change, following my decision released on January 5th, 2023.
[2] Both parties have filed written submissions on costs. Both parties take the position that they should be awarded costs in this motion to change. The Respondent seeks his costs on a full recovery basis, of $30,702.10, inclusive of HST. The Applicant seeks her costs on a “substantial indemnity” basis, or, in other words, 90% of her full recovery costs of $52,442.62 inclusive of HST. In the alternative, the Applicant takes the position that she should be awarded “partial indemnity” costs, or, in other words, 60% of her full recovery costs[^1].
[3] The bills of cost provided by the parties seek costs incurred over different periods of time. The Respondent’s costs were incurred during the period from April 5th, 2022, to the final hearing on November 23rd, 2022, plus costs related to time after the final hearing, including making cost submissions. The Applicant's bill of costs relates to costs incurred dating back to March of 2020. For the reasons below, I do not need to decipher further the parties’ respective costs incurred.
[4] The parties had divided success on the motion to change. The main issues argued on November 23, 2022, were whether the Applicant's parenting time should be subject to the child's wishes and whether child support should be payable by the Applicant retroactive to August of 2017. I found that the Applicant's parenting time should be subject to the child's wishes, although I also found that both parties had a role to play in the current situation where the child was resistant to contact with her. I dismissed the Respondent’s claim that the Applicant should be required to pay child support retroactive to August of 2017, although I required her to pay child support effective July 1st, 2020.
[5] Given the parties divided success, as well as a consideration of all of the factors under Rule 24, and their respective positions on the motion to change, I find that each party should bear their own costs of this motion to change.
[6] Both parties referred me to various offers to settle upon which they each claimed entitlement to costs. None of these offers, however, qualify for full recovery of costs pursuant to Rule 18.
[7] The Respondent did not achieve a result that was as favorable or more favorable than his offers to settle. The first two of his offers to settle, dated October 7th, 2021, and January 12, 2022, were not severable and included terms on child support that were less favorable than the result achieved. The Respondent’s offer to settle dated February 14th, 2022, was severable but I do not find the Respondent has established that he achieved a result that was as favorable or more favorable than this offer. He did not achieve a result that was as favorable as the child support terms of this offer. With respect to parenting, the parties were able to reach an agreement on several of the issues that were included in his February 14, 2022 offer, as well as the Applicant's offer of May 12, 2022, as part of the May 25, 2022 Consent Final Order. The May 25, 2022 Consent Final Order does not refer to costs, nor did either party provide me with copies of minutes of settlement that speak to how costs should be resolved for the issues that were settled. I do not find a basis before me to award costs with respect to the issues that were agreed upon by the parties as part of the May 25, 2022 Consent Final Order.
[8] The Applicant also relies on several offers to settle that she made. In particular, she argues that she should be entitled to “substantial indemnity” costs because of her offer to settle dated May 12, 2022. That offer was severable but, again, several portions of that offer were addressed by the May 25, 2022 Consent Final Order. Neither party served an updated offer to settle in advance of the November 23rd, 2022 final hearing of the motion to change, which is unfortunate because such an offer would have, presumably, spoken to the issues that would be determined on the final hearing of the motion to change and the parties would then have been able to argue if they had achieved a result that was as favorable or not. Neither party did so and I do not find the offers that they served prior to the May 25, 2022 Consent Final Order establish that they achieved a result as favorable or more favorable in the final hearing.
[9] In particular, with respect to the Applicant’s May 12, 2022 offer, I do not find that as a whole, she achieved a result that was more favorable or less favorable than her offer. Although, for example, she did obtain terms for the child to have access to a cell phone, her offer did not provide that her parenting time would be subject to the child's wishes.
[10] Overall, given the parties’ offers, and positions at the November 23, 2022 hearing, I conclude that the Respondent was more successful on the parenting issues in that he achieved a result that parenting time was subject to the child's wishes. I also conclude that the Applicant was more successful on the child support issues, in that she was not required to pay child support prior to July 1, 2020. There are several other issues where one or the other of the parties was successful. For example, the Respondent was not successful on his position with respect to future relocations due to his possible postings and the Applicant was not successful in having the term with respect to alcohol and drug use removed.
[11] Both parties argue that the other acted unreasonably such as to warrant sanction by a costs award, or higher cost award. I do not find that either party acted in such a manner that costs should otherwise be awarded on the basis of “unreasonable conduct”. In particular, both parties played a role, and were allocated blame, for the unfortunate situation that has been created with respect to the parenting situation for their child.
[12] Given the parties divided success, the purposes modern costs rules are designed to foster, the factors under Rule 24 emphasizing reasonableness and proportionality, including consideration of the parties offers, I find that it is just that each party bear their own costs.
Justice P. MacEachern
Date: February 2, 2023
COURT FILE NO.: FC-20-110
DATE: 2023/02/02
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Jessica Lee McMillan Barta, Applicant
-and-
Michael Barta, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Jason Isenberg, for the Applicant
Jamie Marie Mookerjea, for the Respondent
costs ENDORSEMENT
Justice P. MacEachern
Released: February 2, 2023
[^1]: The Family Law Rules do not refer to substantial or partial indemnity costs. The Rules refer only to “full recovery” costs under rule 18. Rule 24 does not refer to a scale of costs but the overriding factors of reasonableness and proportionality.