Court File and Parties

Court File No.: FC-20-00000082-0000 Date: 2024-10-01 Ontario Superior Court of Justice Family Court

Between: M.R.M., Applicant And: A.R.M., Respondent

Counsel: James D. Higginson, Counsel for the Applicant Luigi De Lisio, Counsel for the Respondent

Heard: In writing

The Honourable Justice L. E. Standryk

Costs Decision on Contempt Motion

Introduction

[1] The applicant, M.R.M., brought a motion against the respondent, A.R.M., following the consent order of Walters J. dated January 24, 2023. The prime focus of the applicant in pursuing the motion was to enforce the order’s provision regarding paternal grandparent visits with the three children of the marriage.

[2] The contempt hearing took place over four days and involved viva voce evidence from and on behalf of both parties. For reasons set out in my decision of August 6, 2024, I found that the applicant had proven contempt by the respondent beyond a reasonable doubt. I declined to make a finding of contempt through the exercise of judicial discretion because: (i) the applicant had failed to pursue other steps to address the respondent’s non-compliance with the order before proceeding with a contempt motion; and (ii) a finding of contempt against the children’s mother may only intensify the children’s negative feelings toward the applicant and his family, increase conflict, and create further distrust between the children and the paternal family. Such a finding of contempt would not serve the objective of reestablishing a relationship both parties acknowledged as being in the children’s best interests.

[3] While I declined to find the respondent in contempt, I concluded that the respondent was in breach of the order. I granted relief with a child-centred and solution-based focus, contemplating the involvement of both parties, the children, and the paternal grandparents. The relief granted also addressed the logistical challenge to ongoing visitation in light of the respondent’s decision to relocate her primary residence without notice to the applicant or the paternal grandparents.

[4] If the parties could not agree on costs, they were invited to file written submissions. I have received and reviewed those submissions. What follows is my decision on costs.

Positions of the Parties

[5] The applicant seeks costs on a full recovery basis in the amount of $32,711 inclusive of HST and disbursements. The applicant submits that he was successful in the motion to enforce the terms of the order and is therefore presumptively entitled to costs.

[6] The applicant submits that: i. His behaviour in attempting to obtain grandparent visits was reasonable; and ii. The respondent’s behaviour has been unreasonable since the date of Justice Walters’ order; she failed to encourage and facilitate the grandparent relationship with the children, failed to provide any meaningful detail as to why the children refused visits, and furthermore failed to accept any level of responsibility in the parties inability to resolve the contempt motion.

[7] The respondent submits that the applicant was unsuccessful on the motion because I failed to make a finding of contempt and the court did not grant the entirety of relief sought by the applicant. The respondent submits that she successfully obtained an order for updated particulars and further information regarding the court ordered therapeutic counseling by the applicant, and she was successful in defending the applicant’s claim of contempt. The respondent submits that costs should be awarded to her on a partial indemnity basis in the amount of $20,289.15 inclusive of HST and disbursements.

Analysis

[8] Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, authorizes the exercise of judicial discretion in an award of costs. Rule 24 of the Family Law Rules, O. Reg. 114/99, sets out the guiding principles that I am required to consider.

[9] A successful party is presumptively entitled to costs. However, if they have acted unreasonably during the proceeding, they may be deprived of a cost award. In circumstances where success is divided, the court has the discretion to apportion costs appropriately.

[10] The applicant successfully reestablished visits between the paternal grandparents and enforced provisions of the order related to the respondent’s obligation to provide ongoing information regarding the children’s education and extracurricular activities. The respondent successfully obtained an order that required updated information about the applicant’s court-ordered therapy.

[11] I disagree with the respondent that she was successful in defending the contempt motion. After considering all of the evidence, I was persuaded that the applicant had proven all the necessary elements to find contempt but exercised my discretion not to do so having regard to the impact of such a finding on the children and on this family’s ability to transition from conflict to healing and eventual restoration of relationships. The respondent was not successful in defending the contempt motion.

[12] The respondent’s view of the failing relationship between the children, the paternal grandparents, and the extended family was to place blame squarely on the shoulders of the applicant and his family. There was virtually no dialogue in the evidence before me of a solution-based focus taken by the respondent to reestablish relations other than asserting a single-minded view that she must supervise visitation between the children and their paternal grandparents.

[13] The events leading up to and following the parties' separation have had a lasting impact on each of them. Family relationships have been fractured, and the parties now find themselves in high-conflict litigation. Notwithstanding these facts, I am not persuaded that either party acted unreasonably during this contempt proceeding. Therefore, this is not a situation where the applicant should be ordered costs on a full recovery basis or deprived of his costs altogether.

[14] Moreover, while the applicant acted in good faith in pursuing this contempt motion, he failed to take enforcement measures before pursuing a contempt remedy of last resort.

[15] In the ordinary course, cost awards are intended to partially indemnify the successful party for the costs of litigation, encourage settlement, and discourage and sanction inappropriate litigant behaviour.

[16] Based on the foregoing considerations, I am satisfied that the applicant is entitled to an award of costs on a partial indemnity basis.

[17] Having reviewed the bill of costs filed on behalf of the applicant, I find that counsel’s hourly rate is reasonable in light of his year of call and experience. Similarly, I take no issue with the amount of time dedicated to the preparation of the motion material and attendance at the four-day hearing.

[18] I note that part of the time recorded in the bill of costs relates to an urgent motion served by the respondent which she subsequently withdrew. Neither party provided me with any submissions regarding the urgent motion and its impact, if any, on my decision. The need to respond to the urgent motion as a part of the contempt hearing was necessary and the time dedicated to the task by counsel was reasonable.

[19] The applicant’s partial indemnity fees calculated at 60 percent are $16,668 not including HST. While the respondent was not successful in defending the contempt motion, she was successful in requesting a more detailed and updated status regarding the applicant’s therapeutic counselling. As a result, I reduce the cost responsibility of the respondent by a further $1,500.

[20] Therefore, in exercising my discretion under section 131 of the Courts of Justice Act, having regard to the principles set out in rule 24 of the Family Law Rules, I award costs to the applicant on a partial indemnity basis in an all-inclusive sum of $18,459.84 ($15,168, plus HST in the amount of $1,971.84, plus disbursements in the amount of $1,320).

[21] This amount is relatively similar to the partial indemnity amount shown in the respondent’s bill of costs and, therefore, is an amount that the respondent would have reasonably contemplated.

Order

[22] Costs are awarded to the applicant in the all-inclusive sum of $18,459.84, payable by the respondent within 90 days.

L. E. Standryk J. Date Released: October 1, 2024