Marques v. Raulino, 2013 ONCJ 609

COURT FILE NO.: 452/12 DATE : November 12, 2013 Citation: Marques v. Raulino , 2013 ONCJ 609 ONTARIO COURT OF JUSTICE RE: ANN MARIE MARQUES – Applicant and JEFFERY MELO RAULINO – Respondent BEFORE: Justice Roselyn Zisman COUNSEL: Paula L. Bateman for the Applicant Marcel R. Banasinski for the Respondent HEARD ON: By written submissions C O S T S E N D O R S E M E N T INTRODUCITON [ 1 ] This is to determine costs regarding a temporary motion argued before me on August 13, 2013. [ 2 ] The Respondent father brought a motion to implement the recommendations of a report of the Office of the Children's Lawyer.

The Applicant mother filed a dispute to the recommendations of the report of the Office of the Children's Lawyer. The Office of the Children's Lawyer found the objections to be without merit. [ 3 ] The parties agreed to some terms of the recommendations of the Office of the Children's Lawyer and at the commencement of the motion filed a consent with respect to these terms. [ 4 ] The primary issue argued related to the implementation of the recommendations of the Office of the Children's Lawyer namely that the parties have joint custody with primary residence to the mother and an increase in the father’s access.

The secondary issue was with respect to summer access. [ 5 ] As the issue of summer access needed to be determined immediately, I rendered an oral decision on that issue and reserved the remainder of my decision. [ 6 ] My decision dismissing the father’s motion was released on September 3, 2013. Counsel were invited to make written submissions as to costs. POSITION OF THE PARTIES

[7] It is the mother’s position that she the successful party with respect to the father’s motion to implement the recommendations ofthe Office of the Children's Lawyer. Further, it is submitted that she was also successful on the issue of summer access as the ordermade was similar to the summer access proposed by the mother namely, that the father have several blocks of two consecutive days.

The order made provided the father with three blocks of specified access for two to three days whereas the father was seeking three non-consecutive weeks of summer access. [8] The mother also submits that in her dispute to the report of the Office of the Children's Lawyer she disputed the amount ofvacation time provided for in the report. Subsequent to the hearing of the motion and the filing of the Notice of Dispute the Office of theChildren's Lawyer acknowledged an error was made with respect to the summer access outlined in the report.

Instead of four weeks,taken in two consecutive weeks during the summer, the recommendation now is only for two non-consecutive weeks, one in July andone in August.

It is submitted that the recommendation is now much closer to the mother’s position than the father’s position regardingsummer access. [9] The mother’s counsel seeks costs of $2,726.05 inclusive of disbursements and applicable taxes. [10] It is the position of father’s counsel that the father was the successful party on the motion or in the alternative that success wasdivided and there should be no order as to costs. [11] It is submitted that the father acted reasonably in trying to enforce the recommendations of the Office of the Children's Lawyerafter the mother’s objections to the report were found by the Office of the Children's Lawyer to be without merit.

He further submitsthat at the motion the mother agreed to several of the recommendations that settled most of the issues. He submits that the father wasawarded more summer access than the mother would consent to. The father incurred costs as his counsel prepared a factum and brief ofauthorities whereas mother’s counsel did not do so. [12] The father’s counsel submitted a bill of costs seeking $9,715.00 inclusive of disbursements and all applicable taxes. APPLICABLE LEGAL PRINCIPLES [13] Rule 24 of the Family Law Rules, O. Reg. 114/99 provides guidance on costs in a family law context.

Rule 24 (1) sets out thebasic assumption that a successful party is entitled to costs. Rule 24 (11) provides a further list of factors a court should consider indealing with costs: A person setting the amount of costs shall consider,

a) the importance, complexity or difficulty of the issues;

b) the reasonableness or unreasonableness of each party’s behavior in the case;

c) the lawyer’s rates;

d) the time properly spent on the case, including conversations between the lawyer and the party, drafting documents andcorrespondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;

e) expenses properly paid or payable; and

f) any other relevant matter. [14] In Serra v. Serra 2009 ONCA 395 , [2009] O.J. No. 1905 at para. 8, the Ontario Court of Appeal confirmed that costsrules are designed to foster three important principles: 1. to partially indemnify successful litigants for the cost of litigation; 2. to encourage settlement; and 3. to discourage and sanction inappropriate behavior by litigants. [15] The court’s role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees. As was pointedout in Boucher v. Public Council (Ontario) (2004), (ON CA), 2004 CarswellOnt 2521, [2004] O.J.

No. 2634 (Ont.C.A.), the award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particularproceedings rather than an exact measure of actual costs to the successful litigant. APPLICATION OF LEGALPRINCIPLES TO THE FACTS [16] On the primary issue argued on this motion the mother was the successful party and is presumed to be entitled to costs.

Thefather’s motion to implement the Office of the Children's Lawyer recommendations was dismissed. [17] Although the parties and counsel are to be congratulated for narrowing the issues and thereby acting reasonably by consenting to

some of the recommendations made by the Office of the Children's Lawyer, this does not diminish the fact that on the main issue that was argued the mother was totally successful. [ 18 ] I agree with father’s counsel that although there is a presumption that a successful party is entitled to costs, the court still retains the discretion to make an order for no costs. [ 19 ] With respect to the secondary issue argued regarding summer access, this issue did not take much time and I find that the mother was more successful than the father. [ 20 ] Further, the factum and book of authorities relied on by father’s counsel all related to the issue of the implementation on a temporary motion of recommendations made by either an assessor or by the Office of the Children's Lawyer. [ 21 ] I find that the mother was the successful party and there is no reason that she should not be entitled to costs. [ 22 ] Applying the factors set out in Family Law Rules 24

(11) I find the following to be relevant:

a) the importance, complexity or difficulty of the issues: motion was extremely important to the parties as if granted it would have resolved, on a temporary basis, the issues at trial and thereby could have had a very significant effect on the likelihood of success at trial; the issue was somewhat complicated as there is a significant amount of law related to the implementation on a temporary basis of recommendations in a report by the Office of the Children's Lawyer.

b) the reasonableness or unreasonableness of each party’s behavior in the case: each party acted reasonably.

I do not agree with the father’s submissions that just because the mother would not agree to implement the recommendations of the Office of the Children's Lawyer that she acted unreasonably; the recommendations of the Office of the Children's Lawyer are only just that recommendations and at this temporary stage have not been subject to scrutiny by the court; in view of the high conflict between the parties it is understandable that the mother would not agree to a joint custody order or change a status quo residential arrangement until all of the evidence was heard.

Further, the report recommended the appointment of a parent coordinator which this court does not have jurisdiction to order.

c) the lawyer’s rates: mother’s counsel hourly rate is $330.00. This is a reasonable rate; the father’s counsel whose hourly rate is $300 did not dispute the rate.

d) time properly spent on the motion: a detailed docket was provided and all of the time relates to this motion; the time spent is also reasonable especially in contrast to the time spent by father’s counsel.

e) expenses properly paid: the disbursement expenses are also appropriate.

f) any other relevant matter: there are no other relevant considerations. [ 23 ] In considering all of these factors, I find that a fair and reasonable amount of costs payable by the father to the mother for this motion is $2,900.00. ORDER AS FOLLOWS: [ 24 ] The Respondent Jeffery Melo Raulino shall pay to the Applicant Ann Marie Marques costs of $2,900.00 inclusive of all disbursements and applicable taxes within 30 days. ___________________________ Justice Roselyn Zisman DATE: November 12, 2013