2011 ONSC 7364, 2011 ONSC 7364

CITATION :Morelli v. Potter , 2011 ONSC 7364 COURT FILE NO.: 345/10 MOTION HEARD: May 30, 2011 SUPERIOR COURT OF JUSTICE - ONTARIO RE: JORDAN MORELLI , Applicant - and – CYRENE ELIZABETH POTTER, Respondent BEFORE: JUSTICE ABRAMS COUNSEL: LINDA SMITH, for the Applicant STEPHEN L. ZAP, for the Respondent COSTS ENDORSEMENT [ 1 ] This matter came before me on May 30, 2011, on an urgent basis as a result of the Respondent’s unilateral decision to deny and/or frustrate access between the Applicant and their child, Seneca. [ 2 ] The Applicant retained counsel, Ms.

Smith, in August 2010, when the Respondent unilaterally terminated the liberal and generous access that the Applicant previously enjoyed with Seneca. [ 3 ] In correspondence from Ms. Smith dated August 10, 2010, the Respondent’s position was put forward thus: Reinstate the visits between Seneca and the Applicant immediately, failing which the Applicant would be proceeding to Court seeking an Order, as well as costs. There is no question that Ms.

Smith’s letter conforms with the requirements of Rule 18(2) of the Family Law Rules making it a formal offer to settle. [ 4 ] Through a rather long and circuitous process the matter ended up before me on May 30, 2011, as a result of other dates for argument being lost when, for example, Counsel for the Respondent was not available due to a family emergency. Based on my review of the material, none of the delay and multiple appearances were in any way attributable to the Applicant.

[ 5 ] When the matter came before me on May 30, 2011, not only was the Applicant successful in getting back what had been taken away from him (access), I Ordered that custody of Seneca be changed to the Applicant. Accordingly, not only did the Applicant achieve the result set out in his formal offer to settle, he beat the offer. [ 6 ] Ms. Smith contends that her client is entitled to full indemnity, which totals $16,320.05 inclusive of fees, disbursements, amounts paid to access facilitators and HST.

There is nothing unreasonable about the amount of time spent on the file, the hourly rate, nor the disbursements incurred by the Applicant to achieve the success that he did. Moreover, the Applicant made it clear in his formal offer to settle, served almost a year in advance of the motion, that he would be seeking his costs, if successful. [ 7 ] Mr. Zap contends that no costs should be awarded due to the “continued good faith on the Respondent mother in protecting her daughter” and certain variables beyond her control.

Firstly, the reasons for my decision on the Motion found no “good faith” on the part of the Respondent. Rather, the Respondent’s conduct was found to be self serving and unilateral. Secondly, there were no “variables beyond her control”.

To the contrary, the Respondent refused to obey Court Orders and frustrated access in every way imaginable. [ 8 ] Both Counsel agree that costs should be assessed at Counsel’s normal hourly rate, regardless of the fact that the Respondent was legally aided. [ 9 ] When I consider all of the factors set out in Rule 24(11), with particular attention given to 24(11)(b), I am driven to conclude that the Respondent’s behaviour was unreasonable for all of the reasons set out in my endorsement on the Motion.

Moreover, the Applicant caused his Counsel to serve a formal offer to settle before the litigation was commenced, which was unequivocal and capable of being accepted by the Respondent: Reinstate the visits between the Applicant and Seneca, failing which the matter would be proceeding to Court. The Applicant was ultimately successful in being awarded custody. [ 10 ] Accordingly, in the particular circumstances outlined above, the Applicant is entitled to full indemnity.

Therefore, costs are fixed in the amount of $16,320.25 payable to the Applicant forthwith, inclusive of disbursements and HST. ___________________________ ABRAMS, J. DATE: DECEMBER 9, 2011