Court File and Parties

COURT FILE NO.: FS-16-10624-01 DATE: 2024/01/04 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: S.F., Applicant AND: W.F., Respondent

BEFORE: Tranquilli J.

COUNSEL: Sara Robinson, for the Applicant James Battin, for the Respondent

HEARD IN WRITING: January 4, 2024

Endorsement on Costs

[1] By reasons released October 11, 2023, I granted the respondent father’s motion for an interim variation of the final parenting order with respect to the child E.F., providing that E.F. was to reside primarily with his father with interim parenting time with his mother on alternate weekends.

[2] The parties have been unable to resolve costs, and each have filed written submissions.

[3] The successful respondent seeks costs of the motion on a substantial indemnity basis, fixed in the amount of $3,931.50. With reference to rules 24(1) and (5), he notes he was wholly successful. He submits that the matter should have been resolved much earlier and at less expense to the parties. Offers to Settle were exchanged. He submits his offer was much closer to the result of the motion.

[4] The applicant submits that no costs should be ordered. None have been made to date in the proceeding. She views the result of the motions as one of divided success. The respondent succeeded in varying residency and decision-making; however, the applicant was successful in securing parenting time. She submits it was necessary for her to bring a cross motion as the respondent’s motion did not address parenting time for the applicant if E.F.’s residency was to change as sought in the respondent’s motion. The respondent’s offer to settle was not capable of acceptance as it purported to suspend and delete terms of the final order that applied to all children of the marriage; not just E.F., and also required payment of $1,500 in costs, which the applicant cannot afford, let alone the sum now sought. This would result in financial hardship as she currently is unemployed and responsible for four other children in her care, one of whom has a disability. She relies on social assistance and employment insurance due to her care responsibilities for that child, as well as the fact that she is on maternity leave.

Analysis

[5] The respondent was successful on the motion and is presumptively entitled to costs. I am not persuaded that the applicant’s cross-motion was necessary to secure parenting time for the applicant. The focus of her motion was both a dismissal of the respondent’s motion and a variation of the parenting order with respect to E.F. to a range of alternatives depending upon the time of year to a week about or 2-2-3 schedule or specified parenting time to each parent. The core of the contested motion was whether residency and decision-making in respect of E.F. should vary. Parenting time to the applicant was not contested by the respondent on his motion and the parenting order variation along with parenting time to the mother is consistent with the Voice of the Child Report.

[6] In reviewing the settlement offers, one sees that the respondent did not succeed on every issue; however, all of those issues did not proceed to argument on the motion and the respondent is not seeking full recovery. On the whole, the motion result is as favourable as the terms proposed in the offer. The offer is therefore one factor I will consider in the exercise of my discretion.

[7] The overarching concern is reasonableness and the fundamental object of access to justice. In comparing the respective cost outlines it appears that each party incurred a similar amount of costs in addressing the motion, although it is difficult to directly compare as the respondent’s submission presents the substantial indemnity rate whereas the applicant shows her actual fees. Nevertheless, they appear to be within a similar range.

[8] I will not lose sight of the applicant’s concerns about ability to pay, her current limited income and other family responsibilities. However, this must be balanced against the policy behind these rules that litigants are responsible and accountable for the positions they take in the litigation. To that end, the court notes the result is consistent with the Voice of the Child Report, which the applicant refused to accept.

[9] Having regard to all the circumstances, I fix costs in the amount of $1,200 payable by the applicant to the respondent, on terms that she has 120 days to pay same from today’s date, either in instalments or in a single lump sum.

Justice K. Tranquilli Date: January 4, 2024