2017 ONSC 5721, 2017 ONSC 5721

CITATION : K.M. v. C.W., 2017 ONSC 5721 KINGSTON COURT FILE NO.: 397/12 DATE: 20170926 SUPERIOR COURT OF JUSTICE – ONTARIO RE: K.M., Applicant AND: C.W., Respondent BEFORE: Justice A. C. Trousdale COUNSEL: Jacques J. Ménard, Counsel for the Applicant C.W., 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. 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 ] 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. [ 4 ] 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 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. [ 5 ] The Respondent who had previously been represented by counsel was self-represented at the hearing of the Motion and Cross- motion. The Respondent has not contested the Applicant’s claim for costs nor has she made any claim for costs.

Offers to Settle [ 6 ] 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. [ 7 ] 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 more or less favourable than the result obtained by the Applicant at the hearing. [ 8 ] 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 [ 9 ] 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. [ 10 ] 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 [ 11 ] 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 a location four hours’ drive away from the child’s residence in Kingston where she had lived all her life, the decision as to with which parent the child would reside became even more important. [ 12 ] 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. [ 13 ] 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. [ 14 ] 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 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 [ 15 ] 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. [ 16 ] 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 her primary care in Kingston. The lawyer’s rates [ 17 ] 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

[ 18 ] 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. [ 19 ] 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.

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. There was also a considerable amount of time spend on preparing for a motion in February, 2017 regarding settling an Order and substitutional service which was a little excessive.

Expenses paid or properly payable [ 20 ] The disbursements consist primarily of charges for photocopies, courier fees, and costs of obtaining medical records which seem reasonable. The medical records were of assistance to the court in this matter. Conclusion [ 21 ] There were previous motions and conferences in this matter, but either no costs were ordered or there was silence on the issue of costs.

I do not find that the Respondent acted in bad faith or unreasonably such that it warrants full recovery costs throughout. [ 22 ] I have no evidence of either party having an offer to settle that complied with the Rules and was open for acceptance at the time the hearing of this matter commenced. There was the proposed parenting plan put forward by the Applicant in November 2014 but it was not structured as an offer to settle on its face.

I was not provided with a copy of the Applicant’s offer to settle in December, 2016 so I do not know the terms of that offer or whether it was open for acceptance until the time of the hearing. [ 23 ] In considering the issue of success, I find that the Applicant had more success than the Respondent on the motion as he was successful in obtaining an order for custody of the child, thereby changing the prior order for joint custody of the child, and he was successful in obtaining an order permitting him to change the child’s residence to Borden, Ontario.

Those two issues were the most important issues on the motion. The Applicant was not successful on the issue of shared transportation for the child in the first instance although some component of shared transportation is built into the court order after the first 6 months from the date of the order. [ 24 ] I find that the Applicant is entitled to some costs on a partial indemnity basis during the period subsequent to the motion in July 2017. [ 25 ] I have considered the written submissions on costs filed by the Applicant, and taken into account the provisions of Rule 24 of the Family Law Rules .

I find that it is also reasonable to consider what would be in the fair and reasonable expectations of the parties regarding the costs of a motion of this nature.

Taking into account all of the aforesaid factors, and in the exercise of my discretion, I find that it is fair and reasonable in this particular case that there be an order that the Respondent pay costs to the Applicant fixed in the sum of $8,500.00 inclusive of fees and disbursements. [ 26 ] The Applicant has requested that 25% of the costs award be attributed to the collection of child support with the collection of same to be enforceable as child support by the Director of the Family Responsibility Office.

As there is no child support order, I find it is not appropriate to make the allocation requested by the Applicant. [ 27 ] Order to go accordingly. ___________________________ Justice A.C. Trousdale

Released: September 26, 2017 CITATION : K.M. v. C.W., 2017 ONSC 5721 KINGSTON COURT FILE NO.: 397/12 DATE: 20170926 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: K.M. Applicant - and - C.W. Respondent BEFORE: Madam Justice A. Trousdale COUNSEL: Jacques J. Ménard, Counsel for the Applicant C.W., Self-represented ENDORSEMENT ON COSTS Madam Justice A. Trousdale Released: September 26, 2017