2018 ONSC 1441, 2018 ONSC 1441

CITATION : MacDonell v. Whitty, 2018 ONSC 1441 KINGSTON COURT FILE NO.: 397/12 DATE: 20180301 SUPERIOR COURT OF JUSTICE – ONTARIO RE: Kenneth James MacDonell, Applicant AND: Cassandra Jean Elizabeth Whitty, Respondent BEFORE: Justice A. C. Trousdale COUNSEL: Jacques J. Ménard, Counsel for the Applicant Cassandra Jean Elizabeth Whitty, Self-represented HEARD: In chambers ENDORSEMENT ON COSTS [ 1 ] This matter was a Motion to Change by the Respondent and a Cross-Motion to change by the Applicant which were heard by me on affidavit evidence and oral submissions on March 13, 2017.

I released a written decision on June 9, 2017. I invited the parties to submit written submissions as to costs if the parties were unable to resolve the issue of costs between themselves. [ 2 ] The Applicant served and filed written costs submissions by July 10, 2017 as specified in my written decision. No written submissions regarding costs were received from the Respondent by the specified date of August 8, 2017. [ 3 ] On September 26, 2017, I released a written endorsement on costs.

The endorsement was sent to both parties by email September 27, 2017. [ 4 ] On September 28, 2017, the Respondent brought a motion returnable on October 11, 2017 requesting that my order dated September 26, 2017 regarding costs be set aside. She further requested that she be given a further 20 days from the date of any order setting aside my order, to file submissions regarding costs in response to the Applicant’s costs submissions already filed. [ 5 ] The Respondent’s evidence was that as she had never received the cost submissions of the Applicant by July 10, 2017, she believed that costs were not an issue.

Accordingly, she did not file any costs submissions herself. [ 6 ] At the return of the motion on October 11, 2017, Justice Minnema on an unopposed basis set aside my costs order of September 26, 2017 and permitted the Respondent to have until October 31, 2017 to serve and file her costs submissions.

Justice Minnema gave the Applicant until November 6, 2017 to serve and file his reply costs submissions. [ 7 ] I have now had an opportunity to review and consider the Applicant’s submissions as to costs, the Respondent’s submissions as to costs and the Applicant’s reply submissions as to costs. [ 8 ] The Applicant claims legal fees and HST and disbursements of $34,315.07 incurred by him from the time that his counsel became involved in this matter.

The Applicant claims full recovery costs as he submits the Respondent has acted unreasonably throughout this matter or has acted in bad faith. [ 9 ] In the alternative, the Applicant claims legal costs of $13,875.00 plus HST and disbursements of $544.24 inclusive of HST which he has incurred since the last substantive order in this matter (July 2016) to the date of the costs submissions on the motion.

The Applicant claims full recovery costs on the basis of what he characterizes as the Respondent’s unreasonable behavior throughout the proceedings. [ 10 ] The Respondent who had previously been represented by counsel was self-represented at the hearing of the Motion and Cross- motion and continues to be self-represented on the issue of costs. The Respondent is not claiming costs but disputes the Applicant’s

claim for costs and is requesting that she not be ordered to pay any costs to the Applicant. [ 11 ] The Respondent submits that the Applicant needlessly incurred extensive legal fees by preparing lengthy and unrealistic parenting plans which were not child-focussed. She disputes that she has acted in bad faith or unreasonably and argues that it was the Applicant who delayed matters and whose unreasonable behaviour factored into the costs of this matter. [ 12 ] The Respondent argues that she is impecunious and unable to pay costs to the Applicant.

She submits she has lived in subsidized housing for the last 4 years. The Respondent is expecting a baby in February 2018 which will negatively impact on her ability to be employed and to pay costs. Offers to Settle [ 13 ] The Applicant states that he put before the court a detailed parenting plan in November, 2014 which covered different scenarios for custody and access depending on whether the Applicant was residing in Kingston, or within a day’s drive of Kingston, or outside a day’s drive of Kingston. The Applicant provided a copy of this parenting plan in his submissions regarding costs.

This parenting plan is not stated on its face to be an offer to settle nor is it dated or signed by the Applicant and his counsel as required by Subrule 18(4) of the Family Law Rules. Accordingly, I am unable to find that this document constituted an offer to settle which would attract the costs consequences of Subrule 18(14) of the Family Law Rules . However, in accordance with Subrule 18(16), this does not prevent me from taking this proposed parenting plan into account when exercising discretion over costs.

I would note however that this document was delivered very early in the process and was based on the child remaining in the primary care of the Respondent. [ 14 ] The Applicant states that once his Cross-Motion to Change was deemed to be amended on September 2, 2016, by court order on consent of the parties to include the Applicant’s claim for sole custody of the child and the ability to move the child’s residence to Borden, Ontario, the Applicant delivered another comprehensive offer to settle on December 15, 2016.

I was not provided with a copy of that offer to settle so I am unable to determine if it was in the proper form, nor what the terms of that offer to settle were, nor whether it was reasonable, nor whether it was more or less favourable than the result obtained by the Applicant at the hearing, nor whether it remained open to acceptance until the opening of the hearing. Accordingly, in my view, I cannot take that offer into account at all. [ 15 ] In his costs submissions, the Applicant submits that the Respondent submitted only one offer to settle as part of her Settlement Conference Brief.

The Applicant argues that the Respondent’s offer to settle was uncompromising. Although the Applicant’s costs submissions seem to suggest that offer to settle was attached to the submissions, I was not provided with a copy of that offer to settle, which in my view was appropriate not to provide it as it was part of the Respondent’s Settlement Conference Brief. Rule 24 [ 16 ] Rule 24 of the Family Law Rules deals with the issue of costs.

Subrule 24(1) provides that there is a presumption that a successful party is entitled to costs. [ 17 ] Subrule 24(11) provides guidance to the court as to what factors the court shall consider in determining the issue of costs. I will review these relevant factors in the following paragraphs. The importance, complexity or difficulty of the issues [ 18 ] The issue of custody and residence of a child is usually a very important issue for both the parents and for the child. This case was no exception in that regard.

Because the residence of the Applicant changed during the course of the proceedings to Borden, Ontario which is located four hours’ drive away from the child’s residence in Kingston where the child had lived all her life, the decision as to with which parent the child would reside became even more important. [ 19 ] This case started off being not such a complex or difficult case, but by the end of the case it had become a relatively complex and difficult case.

A large part of this had to do with the significant change in circumstances from when the case started and when it finished. [ 20 ] When this case started, it was a request by the Respondent to change the existing order from joint custody of the child by the

parties to sole custody by the Respondent. [ 21 ] The Applicant originally sought that the joint custody order would continue and he put forward a plan for his parenting time with the child depending on his location as he is in the Canadian Armed Forces. By the end of the case, the Applicant was seeking sole custody of the child and was seeking to move the child’s residence from Kingston, Ontario to Borden, Ontario. Accordingly, the case changed substantially in nature during the course of the proceedings.

The reasonableness or unreasonableness of each party’s behavior in the case [ 22 ] The Applicant’s position is that the Respondent was unreasonable throughout this matter on insisting that the child remain with her in Kingston and in attempting to shut the Applicant out of the child’s life.

The Applicant also points to the Respondent’s refusal to agree that a request be made to the Office of the Children’s Lawyer to become involved in the case, and the Respondent’s failure to make any offers to settle, although I note that there was apparently one offer to settle made by the Respondent at the time of the Settlement Conference. [ 23 ] On the face of it, however, the child had been in the primary care of the Respondent in Kingston for a period of 3 years by the time this matter was heard as the Applicant had been away for much of the period engaging in military training.

There was a significant status quo established of the child residing in the Respondent’s primary care in Kingston, and for much of the time that this litigation was ongoing, it would have appeared reasonable that the Respondent would defend her position that the child should continue to reside in the Respondent’s primary care in Kingston. I do not find that the Respondent behaved unreasonably in these circumstances. [ 24 ] The Respondent states that she had a difference of opinion with her counsel regarding whether the Office of the Children’s Lawyer should be requested to become involved.

She states she wanted such an appointment. Unfortunately Legal Aid refused to permit her to change to a new lawyer. There was also some confusion regarding an order being inadvertently issued by the Applicant for appointment of the Office of the Children’s Lawyer allegedly on consent of the parties, when there had been no consent given. The order was set aside. This may have tainted the issue as well. The lawyer’s rates [ 25 ] The rates for the Applicant’s lawyer were initially $350.00 per hour, but as of January 1, 2015, he reduced his rate to $250.00 having regard to the Applicant’s modest means.

Given the experience of the Applicant’s lawyer of close to 33 years of practice, this rate seems reasonable. The time properly spent on the case [ 26 ] The Applicant’s lawyer spent a total of 140.4 hours from the commencement of his involvement in the matter for a total cost of $29,710.00 plus HST and disbursements.

The Applicant’s lawyer spent 68.2 hours from the July 6, 2016 order being the last motion other than procedural motions, to the hearing of the Motion to Change for a total of $13, 875.00 plus HST and disbursements. [ 27 ] There was some repetition between the Applicant’s affidavit dated November 22, 2017 and the Applicant’s affidavit dated February 19, 2017, which was not really necessary and which increased the fees.

Although Justice Minnema had ordered on September 2, 2016 that the only evidence was to be one affidavit by the Respondent, one affidavit by the Applicant and any reply affidavit by the Respondent, I ordered on December 13, 2017 that each party could serve and file an updating affidavit by certain set dates plus any further reply affidavit by the Respondent. [ 28 ] The Applicant is in error in stating that my endorsement required one comprehensive affidavit.

The purpose of the updated affidavit was to allow any record disclosure from Family and Children’s Services and others which had not yet been received, to be put before the Court as well as to deal with any new matters arising between December 13, 2016 and the hearing of the Motion and Cross- Motion on affidavit evidence on March 13, 2017. [ 29 ] There was also a considerable amount of time spent on preparing for a motion in February, 2017 regarding settling an Order and

substitutional service which was a little excessive. [30] The Applicant is mistaken in stating that the Respondent had not filed a factum as the Respondent’s counsel had filed a factumon behalf of the Applicant. [31] The Applicant is mistaken in arguing that the Respondent filed no affidavit material for the hearing. In fact, the Respondent hadfiled an affidavit sworn October 25, 2016 setting out her position for the hearing and a reply affidavit sworn on November 25, 2016.

Unfortunately, the Respondent’s former counsel brought a motion to be removed from the record just around the time the Respondentwas supposed to file any updating affidavit or reply to the Applicant’s updating affidavit. The Respondent’s counsel was removed fromthe record on February 14, 2017. The Respondent did not file any updating affidavit or reply. Expenses paid or properly payable [32] The disbursements consist primarily of charges for photocopies, courier fees, and costs of obtaining medical records which seemreasonable. The medical records were of assistance to the court in this matter.

Conclusion [33] There were previous motions and conferences in this matter, but either no costs were ordered or there was silence on the issue ofcosts. Accordingly, I find that only the costs incurred subsequent to July 6, 2016 should be considered. I do not find that the Respondentacted in bad faith or unreasonably such that it warrants full recovery costs throughout. [34] I have no evidence of either party having an offer to settle that complied with the Rules and was open for acceptance at the timethe hearing of this matter commenced.

There was the proposed parenting plan put forward by the Applicant in November 2014 but itwas not structured as an offer to settle on its face and it did not deal with the requested change of physical custody and access that theApplicant was seeking at the hearing.

I was not provided with a copy of the Applicant’s offer to settle in December, 2016. [35] In considering the issue of success, I find that the Applicant had more success than the Respondent on the motions as he wassuccessful in obtaining an order for custody of the child, thereby changing the prior order for joint custody of the child, and he wassuccessful in obtaining an order permitting him to change the child’s residence to Borden, Ontario. Those two issues were the mostimportant issues on the motion.

The Applicant was not successful on the issue of shared transportation for the child in the first instancealthough some component of shared transportation is built into the court order after the first 6 months from the date of the order. [36] The matter was a very difficult one as it involved the disruption of a 3 year status quo of the child residing in the Respondent’sprimary care, and a major move for the child at least 4 hours away from the Respondent and the city in which the child had alwayslived.

I find that the Respondent sincerely believed in the rightness of her position that it was in the best interest of the child to continuein her primary care in Kingston. [37] The Applicant referred me to the case of Scipione v. Scipione, 2015 ONSC 5982. I adopt Justice Pazaratz’s statement of the lawon costs as follows: 21. In Serra v. Serra 2009 ONCA 395 the Ontario Court of Appeal confirmed that costs rules are designed to foster threeimportant principles: a. To partially indemnify successful litigants for the cost of litigation. b. To encourage settlement; and c.

To discourage and sanction inappropriate behaviour by litigants. 22. The assessment of costs is not a mechanical exercise. It’s not just a question of adding up lawyer’s dockets. Boucher et al v. PublicAccountants Council for the Province of Ontario (2004) (ON CA), 71 O.R. (3d) 291 (Ont. C.A.); Dingwall v.Wolfe 2010 ONSC 1044 , 2010 ONSC 1044 (SCJ).

23. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstancesof the case, rather than an amount fixed by the actual costs incurred by the successful litigant. Delellis v. Delellis (ON SC), 2005 CarswellOnt 4956 (SCJ); Serra (supra) 24. The overriding principle is that costs are to be fixed in a way that is fair to the parties and reasonable in the circumstances. Murray v.Murray (2005) (ON CA), 79 O.R. (3d) 147 (Ont.

C.A.); Guertin v Guertin 2015 ONSC 5498 , 2015 ONSC5498 (SCJ). [38] I find that the Applicant is entitled to some costs on a partial indemnity basis during the period subsequent to the last substantivemotion in July 2016. [39] I have considered the written submissions on costs filed by the Applicant and the Respondent, and taken into account theprovisions of Rule 24 of the Family Law Rules. [40] Among the factors I have taken into account in determining costs is my finding that both parties failed to make a reasonableOffer to Settle open for acceptance up to the time the hearing commenced.

I have also taken into account the mother’s very low incomesituation. [41] Taking into account all of the aforesaid factors, and in the exercise of my discretion, I find that it is fair and reasonable in all ofthe circumstances of this particular case that there be an order that the Respondent pay costs to the Applicant fixed in the sum of$2,100.00 inclusive of fees and disbursements. [42] The Applicant has requested that 25% of the costs award be attributed to the collection of child support with the collection ofsame to be enforceable as child support by the Director of the Family Responsibility Office.

As there is no child support order, I find itis not appropriate to make the allocation requested by the Applicant. [43] Order to go accordingly. ___________________________ Justice A.C. Trousdale Released: March 1, 2018 CITATION: MacDonell v. Whitty, 2018 ONSC 1441 KINGSTON COURT FILE NO.: 397/12 DATE: 20180301

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Kenneth James MacDonell Applicant - and - Cassandra Jean Elizabeth Whitty Respondent BEFORE: Madam Justice A. Trousdale COUNSEL: Jacques J. Ménard, Counsel for the Applicant Cassandra Jean Elizabeth Whitty, Self- represented ENDORSEMENT ON COSTS Madam Justice A. Trousdale Released: March 1, 2018