THOMPSON v THOMPSON

This was a costs decision following a parenting and decision-making dispute between separated parents. Both the father and mother sought costs, or alternatively an Order that each bear their own costs. Each also sought costs on a partial indemnity basis or under Column 1 of Schedule C.

The Court identified parenting time as the primary issue and decision-making and scheduling as secondary issues.

Justice Lew confirmed that, in family law matters, costs are based on substantial rather than absolute success.

The Court found the father substantially successful on the primary issue of parenting time. Although he did not obtain the equal shared parenting he sought, he succeeded in obtaining a significant increase in parenting time.

The Court found the mother substantially successful on the secondary issues. Justice Lew accepted her position on decision-making and adopted her proposed parenting schedule.

The mixed result warranted a reduced Costs Award in favour of the father. Applying Rule 10.33, the Court awarded the father 75% of his costs under Column 1 of Schedule C. The 25% reduction reflected the mother’s success on the secondary issues, while recognizing that the father substantially prevailed on the most important issue in the litigation.

The Court declined to award partial indemnity costs because neither party provided evidence of their legal fees or a draft bill of costs. In those circumstances, Lew J concluded that Column 1 of Schedule C provided the fairest basis for assessing costs. The Court also declined to award costs for written submissions because they primarily addressed scheduling and decision-making issues on which the father was unsuccessful.