Thomson v. Kobow, 2010 ONCJ 202

Milton Registry No. 551/09 DATE: 2010·IV·26 CITATION: Thomson v. Kobow , 2010 ONCJ 202 ONTARIO COURT OF JUSTICE BETWEEN: JASON WILLIAM THOMSON, Applicant, — AND — JACQUELINE ANNE KOBOW, Respondent.

Before Justice Theo Wolder Heard on 15 January 2010 Reasons for Judgment released on 26 April 2010 CIVIL PROCEDURE — Costs — Entitlement or liability — Presumption of entitlement for successful party — Grounds for rebutting presumption — Divided success — At “urgent” motion for interim custody of two children made prior to case conference, father claimed that local children’s aid society had grave concerns about mother’s care of children and that results of its investigation would support his claim for sole custody — In fact, society found no child protection concerns and, on day of motion, father was unable to produce any material to support his claim or that it was even urgent — For her part, mother counter-claimed for sole custody — Motion judge made interim joint custody order which, in fact, reflected status quo arrangement between parties before father rushed off to make his emergency motion — Only real success was in father’s request that mother provide full medical disclosure about her mental state and her ability to care for children but, even here, this issue did not have any alleged urgency that needed to be addressed in motion prior to case conference — Father was not successful in that part of his claim that he argued as being brought on “urgent” basis and therefore was not entitled to costs — Similarly, mother failed in her counter-claim to sole custody and thus was not entitled to costs — As result of divided success or lack of success between parties, motion judge refused to award costs to either party in this case.

Daphna A. Schwartz ........................................................................ counsel for the applicant father Peter Tensuda ............................................................................ counsel for the respondent mother For related previous proceedings, see: • dismissal of maternal grandmother’s “urgent” motion for interim custody of grandchild prior to case conference: Kobow v. Kobow (Nielsen) , 2007 ONCJ 514 , 46 R.F.L. (6th) 455, [2007] O.J. No. 4317, 2007 Cars​well​Ont 7238 (Ont. C.J.), per Justice Roselyn Zisman; and • costs against grandmother: Kobow v.

Kobow (Nielsen) , 2007 ONCJ 624 , 51 R.F.L. (6th) 203, [2007] O.J. No. 5121, 2007 Cars​- well​Ont 8593 (Ont. C.J.), per Justice Roselyn Zisman. [ 1 ] JUSTICE T.

WOLDER:— The applicant in this matter initiated an urgent motion prior to the case conference for temporary custody of the parties’ two children (aged four and almost two years) and for a further order seeking that: the respondent mother’s access to the two children be supervised; the respondent mother be restrained from making negative or disturbing comments to the children during supervised access visits; the respondent mother provide medical documentation regarding her mental state and her ability to care for the children; and the Halton Children’s Aid Society be authorized to release information about the respondent mother to the applicant father.

The urgent motion was later amended to include a further request that service of the amended notice of motion and the late filing of the amended notice of motion be permitted. [ 2 ] In the respondent’s cross-motion, she sought an order that the applicant’s urgent motion be dismissed for lack of urgency, and for a temporary order for sole custody of the two children to the respondent, or, the alternative, for an order that she have unsupervised access to the children three days per week.

[ 3 ] After hearing submissions made on behalf of the parties and after considering all of the affidavit evidence filed on behalf of the parties, I made a temporary order awarding joint custody of the two children to both parents, subject to a shared and relatively equal residence regime. In addition, I made an order obliging the respondent mother to disclose certain medical information as sought by the applicant in his motion.

The temporary joint custody and shared residency order reflected the status quo that existed before the applicant commenced this application and motion for urgent temporary relief prior to the case conference. [ 4 ] The respondent mother claims that she is entitled to costs against the applicant on the grounds that she was successful on the motion since the court basically accepted that the status quo should largely continue.

She further argues that she would have agreed to disclosure of her medical information if it had been specifically asked for by the applicant. [ 5 ] The applicant submits that there was divided success and, as a result, costs should be apportioned between the parties. [ 6 ] The main issue in dispute between the parties in this urgent motion was related to the custody of the children and the access arrangement. [ 7 ] Although I agree that, in this motion, there has been some divided success between the parties, I find that the respondent has been substantially successful in resisting the applicant’s motion to change the “ de facto ” shared custody arrangement to one of sole custody in favour of the father.

On the other hand, the respondent mother’s cross-motion to similarly change that status quo to one of sole custody in her favour also failed. [ 8 ] The only real success achieved by the applicant in this motion is the court’s order requiring the respondent mother to provide full medical disclosure.

I find, however, that although this relief was granted, it needed not to have been addressed prior to the case conference on account of any alleged urgency. [ 9 ] Although the applicant submits that he was also successful in having the motion heard as an urgent motion and not having it summarily dismissed, this court’s main reason for hearing the motion as an urgent motion was the assertion made by the applicant that the children’s aid society had protection concerns and that the society was conducting an investigation and that the applicant was about to secure evidence from the children’s aid society that would support his position that the “ de facto ” joint custody arrangement should be changed to one of sole custody in favour of the applicant.

On the day of the hearing, the children’s aid society concluded that there were no verifiable protection concerns and such evidence in support of the applicant’s position was therefore not available. Although the court agreed to hear the motion on an urgent basis prior to the case conference, based upon the applicant’s assertion that further evidence in support of the relief being sought by him would be forthcoming, such evidence, in fact, was not provided by the applicant. As a result, the applicant was not able to persuade this court that there was sufficient urgency to warrant a change to the status quo .

Therefore, the fact that the court agreed to hear the motion as an urgent motion does not assist the applicant’s claim for costs, since he was not able to establish, at the time that the motion was argued, the existence of any evidence that justified a change to the status quo , in the children’s best interests. [ 10 ] The respondent claims costs against the applicant in the sum of $5,888.69. The applicant claims costs against the respondent in the sum of $13,552.88. [ 11 ] I find therefore that the applicant was not successful in that part of his claim that he argued as being brought on an urgent basis.

Therefore, there should be no costs awarded to the applicant. Similarly, the respondent failed in her counter-claim to change the shared custody and shared parenting arrangement to one of sole custody in her favour and therefore she is not entitled to costs. Therefore, on account of the divided success, or lack of success between the parties, I am not going to award costs to either party in this case. [ 12 ] Accordingly there will be no order for costs.