Court File and Parties

Court File No.: FS-17-90706 Date: 2024-02-09

Ontario Superior Court of Justice

Between: E.M.B., Applicant/Father

And: M.F.B., Respondent/Mother

Before: Mandhane J.

Counsel: Jared Teitel, for the Applicant/Father M. Freeman, for the Respondent/Mother

Heard: In writing

Reasons for Costs on Motion for Contempt

[1] These are my reasons on costs on the Applicant/Father’s motion for contempt. In 2021, I found that the Respondent/Mother in contempt for breaching a final order by refusing to facilitate the Applicant/Father’s court-ordered overnight parenting time on three occasions: E.M.B. v. M.F.B., 2022 ONSC 4838. In 2024, as a penalty for the Mother’s contempt, I ordered that the Mother facilitate make-up parenting time, and expanded the Father’s summer parenting time: E.M.B. v. M.F.B., 2024 ONSC 162. As a result of a “material change in circumstances,” I further ordered that the parties minimize their conflict by using a parenting coordinator and minimize their communication by using a parenting communication application.

[2] The parties were encouraged to agree on the matter of costs but were unable to do so. The Father asks me to order that the Mother pay him costs of $28,701, and that these costs be set off against his child support obligations. The Father says that he is entitled to costs because he was successful in having the Mother found in contempt, and because he served an offer to settle on March 10, 2022 that would have provided him with four weeks of make-up parenting time, and $10,000 penalty for past non-compliance. He asks that I further order that costs be set off against the ongoing child support his owed the Mother.

[3] The Mother asks that I order that the Father pay her costs of $38,137. While she was found in contempt at the first stage, she says that she was more successful at the penalty stage because I refused the Father’s request for a reversal in primary parenting time. She says that the Father’s position at the penalty stage was unreasonable in light of the recommendations of the Office of the Children’s Lawyer and that it should attract cost consequences.

[4] The parties agree that I have a broad discretion when it comes to awarding costs: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131(1). To properly exercise my discretion, I must consider and apply Rule 24 of the Family Law Rules, O. Reg. 114/99.

[5] Overall, I am prepared to order that the Mother pay the Father’s costs in the amount of $20,000. Foremost, the Father was the more successful party at both stages of the motion. He was successful in having the Mother declared to be in contempt, and he was also successful in having his parenting time significantly expanded as a remedy for her contempt. The Mother opposed any expansion of parenting time as a penalty and had encouraged me to decline to impose any penalty at all. She clearly was not successful in this regard.

[6] However, the Father was not more successful than his offer to settle such that he is not entitled to substantial indemnity costs for any period of time. His offer contemplated the Mother paying a fine of $10,000 and providing four weeks of make-up parenting time. In contrast, I only ordered five weekends of make up parenting time and no financial penalty.

[7] While the Father’s position at the contempt hearing—that I order a reversal of primary parenting—was not supported by the OCL, I refuse to find that it was so unreasonable that it should be sanctioned through costs. Indeed, the OCL itself found that a reversal may be appropriate in the future if the Mother continues her pattern of breaching court orders.

[8] The Mother is up to date on all costs orders made by this Court. I also understand that she is now working. There is no reason that the costs award should be set-off against child support.

[9] The Mother shall pay the costs as follows:

• First installment of $7,500 within 30 days;
• Second installment of $7,500 within 60 days;
• Final installment of $5,000 within 120 days.

Mandhane J. Released: February 9, 2024