Court File and Parties
Between:
D.J., Applicant
— and —
S.F., Respondent
Justice: Sheilagh O'Connell (In Chambers)
Counsel:
- S. Lawrence Liquornik, for the Applicant
- Harold Niman and Meysa Maleki, for the Respondent
- Catherine Bellinger, for the Child
Costs Endorsement
1. Introduction
1On December 22, 2017, the court released its judgment following a lengthy hearing of the mother's motion to change the custody and access provisions of the Final Order of Justice Heather Katarynych, dated December 19, 2009.
2The motion to change hearing was heard over a fifteen day trial. Eighteen witnesses, including the parties, were called at trial. More than 100 exhibits were filed and thousands of pages of documents, including six volumes of the trial record, fifteen volumes of transcripts, and several document briefs and correspondence briefs. The court also heard pre-trial and post-trial motions and conducted two contested voir dires during the trial. In addition, the court received submissions, both written and oral, of considerable length from the parties.
3At the conclusion of the trial, the following final order was made:
All existing custody and access orders are terminated.
The mother shall continue to have sole custody of the child. The child's principal residence shall continue with the mother.
Commencing immediately, the father shall have regular unsupervised access to the child as follows:
a) Commencing Sunday, December 24, 2017, for the first six weeks, every Sunday from 10:00 AM to 6:00 PM. As the first Sunday is Christmas Eve and alternate Christmas plans may have already been made with the mother and child, then the first Sunday can commence on Sunday, December 31, 2017.
b) Commencing Saturday, February 3, 2018, the father shall have alternating weekend access from Saturday at 10:00 AM to Sunday at 6:00 PM. On the weeks that the father does not have weekend access with the child, from Tuesdays and Thursdays after school, overnight until the following morning return to school;
c) Commencing Friday, March 9, 2018, the father shall have alternating weekend access from Friday after school until Sunday at 6:00 PM, to extend until Mondays at 8:00 p.m., if the Monday is a statutory holiday. On the weeks that the father does not have weekend access with the child, then from Tuesdays and Thursdays after school overnight until the following morning return to school;
If the access exchange occurs on a non-school day, all access exchanges shall take place at the mother's home. The father shall remain in his car (unless necessary to place items in the trunk or on top of the car, such as bicycles, skates, clothing, etc.) and not approach the front door of the mother's residence. If the access exchange occurs on a school day, then the father shall pick up and drop off the child at school.
When the father is returning the child to school the next morning, the child shall be delivered to school on time.
The holiday schedule with the child shall be as follows:
a) Summer holidays: the father shall have two non-consecutive weeks (two periods of seven days) with the child each year. The father shall advise the mother by email of the weeks that he is requesting by March 1st of each year.
b) March Break: in even-numbered years, the child shall spend the entire March school break with the father, from 6:00 PM on the Friday preceding the commencement of the March school break until Sunday at 6:00 PM at the conclusion of the March school break. In odd-numbered years, the child shall spend these times with the mother.
c) The child shall spend every Mother's Day with the mother from 10:00 a.m. onward, if he would otherwise be with the father, and every Father's Day from 10:00 a.m. to 6:00 PM if she would otherwise be with the mother.
d) Thanksgiving: in even-numbered years, the child shall spend the Thanksgiving weekend with the father from Friday after school until Monday at 6:00 PM. In odd-numbered years, the child shall spend the Thanksgiving weekend with the mother.
e) Christmas: in even numbered years commencing 2018, the child shall reside in the care of the father from after school on the day the Christmas school vacation begins, normally a Friday, until December 25 at 12 noon. In odd-numbered years, commencing 2019 this schedule will be reversed. The balance of the Christmas school vacation shall be divided equally between the parties but with the child always returning to his mother's care by Sunday at 6 PM before the start of the new school year.
f) For Christmas 2017, unless alternate arrangements have already been made and agreed to between the parties, the child's shall spend Christmas Eve (December 24th) from 10 AM to 6 PM with the father and Boxing Day (December 26th) from 10 AM to 6 PM with the father, in addition to the regular Sunday visits set out in paragraph 3 above.
All other statutory holidays shall be shared in accordance with the regular weekend access schedule.
The holiday access schedules set out above shall take priority over the ordinary access schedule.
The father's access above is subject to the following conditions:
a) the father shall ensure that the child has his medical fanny pack with him at all times, including two Epi-pens, Flovent and Ventolin;
b) the father shall exercise caution in ensuring the safety of all food consumed by the child during access visits;
c) if the child becomes ill during an access visit with the father, then the father will immediately notify the mother and take whatever steps are appropriate;
d) even if there is no clear or definitive diagnosis regarding the child's medical condition, the father should give the child the consistent message that he has a medical condition in which he should avoid food containing tartrazine or yellow food dye.
Each parent shall be entitled to have reasonable telephone and "Skype" or "Facetime" contact with the child while he is in the care of the other parent. The child shall also be able to communicate with either parent directly by calling on her mobile device. The parents shall be able to call the child directly on the child's mobile device.
The mother's travel with the child outside of Ontario with the child and her ability to obtain a passport for the child shall continue to be governed by the July 28, 2014 Travel Order.
The father is permitted to travel with the child outside of Canada for the purposes of vacation, contact with extended family, or special occasions, with the consent of the mother, such consent not to be unreasonably withheld. The father shall provide the mother with a minimum two weeks' notice of the travel request. The mother shall provide a notarized travel letter authorizing the child to travel outside the country with the father. The father shall provide the mother with a complete itinerary, to include a description of travel arrangements and an address and telephone number where the child and he may be reached.
The father is permitted to travel outside of Toronto with the child during his access weekends or on other holidays. If the father and child are away from his principal residence overnight during any period in which the child is in the father's care, the father shall notify the mother and provide her with an address and telephone number where the child and the father may be reached.
The father shall be permitted to take the child sailing on his sailboat or other sailboats, provided that the child is wearing his life jacket at all times.
Neither parent shall enrol the child in any extra-curricular activity that impacts on the time with the other parent without the knowledge and the consent of the other parent. In the event that the child is now enrolled in a regular extra-curricular activity on Tuesday or Thursday evenings, then the father shall ensure that the child continue to attend that activity and can fully participate in that activity.
In the event that there are any activities occurring that are beyond the control of either parent, such as a school recital, sporting event or competition, then the parent who has care of the child on that day shall ensure that the child is taken to the activity on time and with sufficient time to prepare.
Neither parent shall make disparaging or derogatory comments or talk negatively about the other parent in front of the child.
The father shall immediately advise the mother in writing of any change of address or contact information and no later than 24 hours after such change occurs.
Unless there is an emergency, the parents shall communicate by email and/or text and they shall respond to all time-sensitive emails and texts concerning the child as soon as possible and no later than 12 hours. In the event of an emergency, the parent should text or call the other immediately.
The mother shall consult the father by email about any major decision concerning the child. After consultation, she will make the final decision.
The father shall have permission to meet with any doctor, medical professional, teacher, leader, coach, principal or other professional who has contact with the child in order to obtain information about the child. The mother shall, upon the father's request, execute any direction or authorization to permit the father to do this. The father is encouraged to check in with the child's therapist periodically to ensure that she has a balanced perspective on any concerns raised by the child or the mother.
The father shall be permitted to obtain his own copies of school report cards and notices directly from the school. In the event that the school does not provide second copies, then then mother shall provide the father with copies of the child's report cards.
The father shall be given notice of any school events to which parents are invited and be permitted to attend. He shall also be permitted to arrange and attend at parent-teacher meetings at different times than the mother.
The mother shall provide the father with a copy of the child's health card.
The mother shall provide the father with the schedules of extracurricular activities of the child as soon as she is enrolled in same, and promptly notify him of any changes to these schedules. The father shall not enrol the child in any extra-curricular activities without the mother's written consent if the activity interferes with the mother's scheduled time with the child.
Either parent may attend at special events at the child's extracurricular activities outside of school on days that they are not scheduled to be with the child, such as for a concert, final competition or game. The child shall be permitted to greet the other parent, provided that they return to the parent that they are scheduled to be with at that time.
The father shall be listed as one of the emergency contacts with any school or any service provider (such as doctors, dentists, camps or counselors) for the child. The father shall provide the mother with any alternate emergency contacts in writing and she will provide those to the appropriate service provider.
The parents may agree on further and other access.
The parents are not to change this schedule without the consent of the other parent. The only exception is if a child is too ill to exercise access on the father's weekend. If this occurs than the child shall remain with the mother. The mother shall provide the father with a doctor's note evidencing this after the weekend if requested by the father. If a visit is cancelled for this reason, it shall be made up on the following weekend.
The mother shall not move the child's permanent residence further than twenty-five kilometres from her current residence without the father's written consent or a further order of the court.
4The court further set out timelines and directions regarding any cost submissions that the parties wished to make. Both parents requested several extensions to serve and file their written submissions, as the parties were attempting to negotiate the issue of costs. These requests for an extension were granted by the court. The parties were not able to resolve the issue of costs and the court received all of the written submissions by the end of April of this year.
2. Position of the Parties
5The father is seeking recovery of his costs on a full indemnity basis in the amount of $213,653.63.
6The mother submits that there should be no order for costs awarded to either party. She submits that the father does not have standing to seek costs given what she states are his breach of seven previous cost orders, a number of which are now subject to a bankruptcy proceeding brought by the father.
7In the alternative, the mother submits that if the court determines that the father has a right to seek costs and decides to award costs to the father, then costs should be fixed in the amount of $25,000.00 and set off against the $25,000.00 in costs awarded by Justice Cohen on June 13, 2016, and not yet paid by the father. In the further alternative, the mother submits that any cost award to the father should be a modest one after consideration of a number of factors.
8Finally, if costs are awarded to the father, the mother submits that these costs be held in trust by her counsel and paid to the father once he complies with all outstanding cost orders "of all Courts."
9The mother provided a chart attached to her Costs Submissions in which she sets out seven previous cost orders totaling $89.919.00, excluding interest, which she asserts are outstanding and owed by the father to her.
10During the trial, evidence was heard that the father had filed for bankruptcy. The mother is a creditor given the outstanding costs awards owed to her. In a discharge hearing before Master Weibe in July of 2014, the mother intervened and successfully challenged the father's discharge from bankruptcy pending a resolution of the monies owed to her. She was awarded $10,000.00 in costs in the bankruptcy proceedings. At the time of the trial, the father has not yet been discharged and the bankruptcy proceedings were ongoing.
11The mother testified during the trial that her lawyers (not the lawyers in this trial) have taken over the father's bankruptcy and that she was opposing his discharge because she is owed well over $65,000.00 in costs included in the bankruptcy.
12The court also heard evidence in that trial that the mother had brought separate proceedings in the Ontario Superior Court of Justice against the father and the paternal grandparents seeking judgment, damages and other relief totalling $915,000.00, excluding costs and pre-judgment interest. The mother was claiming fraudulent misrepresentation, and conspiracy to defeat the mother's claims arising out of present and future judgments in her favour in the matrimonial litigation.
13The Office of the Children's Lawyer is not seeking costs.
3. Brief Background
14The child who is the subject of this litigation is H.F., born in 2006. He is the only child of the parties.
15The parties have been litigating parenting issues regarding H. since August of 2006, when he was approximately four weeks old. He was 11 years old at the conclusion of the trial.
16In 2009, in a Final Order made on consent of the parties, Justice Heather Katarynych granted sole custody to the mother and unsupervised alternating weekend, mid-week and holiday access to the father, among other numerous other provisions, in accordance with the recommendations of the custody and access assessor, Dr. Irwin Butkowsky.
17The mother brought a motion to change the 2009 Final Order. In her amended motion to change, the mother sought an order that the father have indefinite supervised access to the child, that the father be prohibited from removing the child from the Greater Toronto Area and that he be prevented from attending the child's school and daycare. She also sought an order that the father be prohibited from having the child sleep overnight on the father's boat or living on his boat and that he not take the child sailing on his boat.
18In his response to the mother's motion to change, the father sought a return to the Final Order of Justice Katarynych, or further liberal and unsupervised access as determined by the Court. In the alternative, should it be determined that the mother is unable or unwilling to facilitate the child's relationship with him, the father sought an order for sole custody.
19In her opening statement at the commencement of trial, the mother acknowledged that supervised access is not a long term remedy and that she was prepared to move towards unsupervised access, subject to a number of conditions and restrictions, although not a return to the 2009 Final Order.
20At the commencement of this trial, the father was exercising supervised access to the child, pursuant to a Temporary Order of Justice Marion Cohen. Partway through the trial, the mother consented to move to unsupervised day visits, subject to a number of conditions. However, in November of 2016, after the father underwent surgery for a dislocated shoulder, the mother withdrew her consent to unsupervised visits. Subsequently, the mother asserted that during an unsupervised visit, the father fed the child food that causes a potentially life threatening anaphylactic-type reaction for the child, in breach of a court order. Supervised visits were reinstated.
21By the conclusion of the trial, the mother had reverted to her position that the father's access to the child should continue to be supervised on an indefinite basis, subject to a number of conditions, which were set out in a draft order provided to the court.
22The trial was originally scheduled for only six days. The length of the trial was underestimated. Unfortunately, due to counsel's schedule and the court's schedule, it was impossible to find continuous or consecutive days to conclude the trial. A number of telephone conferences were scheduled with counsel to find dates in which all counsel were available after the first six days were completed. This proved to be a difficult task and the trial continued over a period of several months.
Pre-Trial Motions
23The mother brought a pre-trial motion seeking an order requiring the father to post security for costs in the sum of $60,000.00 before trial. She further sought costs rulings on a number of case management motions. In two separate written rulings, Justice Cohen, the case management judge, dismissed the mother's motion for security for costs but awarded costs to the mother of $25,000.00 for various court appearances throughout the proceeding in which costs were specifically reserved.
24The father also brought a pre-trial motion seeking to call Dr. Irwin Butkowsky as a witness in this trial. Dr. Butkowsky conducted the custody and access assessment leading to the resolution of the 2009 trial in this matter. The mother was opposed to Dr. Butkowsky giving evidence at trial. The court permitted the father to call Dr. Butkowsky as a witness at trial, for reasons addressed in the judgment. The issue of costs of that motion was reserved upon completion of trial.
Post-Trial Motions
25At the conclusion of the trial, the mother brought a motion for an order to introduce fresh evidence, to amend the title of proceedings to use initials to identify the parties and the child, and for an order that no person shall publish or make pubic any information that has the effect of identifying the parties or the child, among other relief. The father opposed this motion. The court reserved its ruling on this issue until the release of the judgment.
26It is not disputed that during the course of the trial, that there were a number of people sitting in the court room observing and taking notes. The case attracted some media attention in a national newspaper and an article was written. The journalist did not refer to the parties or the child and their identities were kept confidential. However, the father identified himself as being the father in the article on the newspaper's web-site in response to comments from the public at large, thereby also identifying the child. The mother also produced a number of social medial postings from the father's Twitter and Facebook accounts in which he made numerous references identifying himself as the father in the case, including one that read, "My problem officially made the front page of a national newspaper".
27In order to protect the confidentiality of the child, the court granted the motion in part for reasons set out in the judgment. The title of proceedings in this case were amended to use initials to identify the parties and the child. The court further ordered that no person shall publish or make public any information that has the effect of identifying the parties or the child in these proceedings. The costs of that motion were reserved.
28The father also sought to bring a post-trial motion to vary the temporary order to unsupervised access pending the release of the trial judgment. The court declined to hear that motion, as generally the governing temporary order is intended to remain in effect pending the final disposition of the issues at trial, absent a compelling change in circumstances, particularly when the issue to be determined on the temporary motion is the main issue to be determined at trial. It was a highly contested issue, where the parties disagreed on virtually every material fact. Costs of that motion were also reserved.
Contested Voir Dires During the Trial
29During the trial, the court heard two contested voir dires, one of which lasted a number of days. In the first voir dire, counsel for the mother sought to introduce several out of court statements made by the child to his therapist for the truth of their contents. The hearsay statements were in a report prepared by the therapist for trial, dated May 3, 2016. The therapist was also called as a witness at trial. The father objected to the admission of the child's hearsay statements.
30Prior to hearing of the first voir dire, counsel for the father brought a motion for the production of the therapist's clinical notes and records. This motion was contested by the mother and the Children's Lawyer. The court granted the father's request, subject to certain limitations, following the contested hearing, so that the father could properly prepare for the voir dire. All counsel were provided copies of the therapist's notes and records, subject to the same limitations to protect the child's privacy, and the notes remained sealed in the court file.
31Following the lengthy voir dire, which included extensive cross-examination of the child's therapist, the court declined to admit the child's hearsay statements to the therapist for the truth of their contents, for lengthy reasons given in the trial judgment.
32The second voir dire concerned the introduction of the observation reports of the supervised access workers from Brayden Supervision Services. The father wished to have the Brayden supervisors' observation notes or reports of the father's access introduced as a business record exception to the hearsay rule for the truth of their contents. There were approximately nine or ten Brayden supervisors involved in this case and the father did not wish to call every one of the supervisors as witnesses in this trial.
33The mother objected as she had concerns about the reliability of the supervisors' notes and did not want them to be admitted for the truth of their contents. The mother was prepared to agree, in an agreed statement of facts that the visits have gone well for the most part, but she did not want the notes admitted as evidence of the truth of their contents. The father sought to introduce the records as they referenced and described several incidents during access visits which were disputed by the parties.
34The Service Director for Brayden was called to testify during the voir dire. Following that voir dire, for detailed oral reasons given during the trial, the court ruled that the supervisors' observation notes do meet the business records exception to the hearsay rule and can be presumptively admitted as evidence for the truth of their contents.
4. The Law and Governing Principles
35The starting point in addressing the issue of costs is Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C-43. Section 131 gives the court discretion as to determination of costs. However, that discretion is structured by the Family Law Rules, O. Reg. 114/99.
36Section 131 of the Courts of Justice Act must be read in conjunction with Rule 24 of the Family Law Rules (all references to rules in this endorsement are to the Family Law Rules). Rule 24 governs the determination of costs in family law proceedings.
37The sections of Rule 24 relevant to the circumstances of this case are as follows:
Successful Party Presumed Entitled to Costs
- (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. O. Reg. 114/99, r. 24 (1).
Successful Party Who Has Behaved Unreasonably
(4) Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party's own costs or ordered to pay all or part of the unsuccessful party's costs. O. Reg. 114/99, r. 24 (4).
Decision on Reasonableness
(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,
(a) the party's behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
(b) the reasonableness of any offer the party made; and
(c) any offer the party withdrew or failed to accept. O. Reg. 114/99, r. 24 (5).
Divided Success
(6) If success in a step in a case is divided, the court may apportion costs as appropriate. O. Reg. 114/99, r. 24 (6).
Bad Faith
(8) If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately. O. Reg. 114/99, r. 24 (8).
Deciding Costs
(10) Promptly after dealing with a step in a case, the court shall, in a summary manner,
(a) determine who, if anyone, is entitled to costs in relation to that step and set the amount of any costs; or
(b) expressly reserve the decision on costs for determination at a later stage in the case. O. Reg. 298/18, s. 14.
(10.1) Revoked: O. Reg. 298/18, s. 14.
Same
(11) The failure of the court to act under subrule (10) in relation to a step in a case does not prevent the court from awarding costs in relation to the step at a later stage in the case. O. Reg. 298/18, s. 14.
Setting Costs Amounts
(12) In setting the amount of costs, the court shall consider,
(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:
(i) each party's behaviour,
(ii) the time spent by each party,
(iii) any written offers to settle, including offers that do not meet the requirements of rule 18,
(iv) any legal fees, including the number of lawyers and their rates,
(v) any expert witness fees, including the number of experts and their rates,
(vi) any other expenses properly paid or payable; and
(b) any other relevant matter. O. Reg. 298/18, s. 14.
Supporting Materials
(12.1) Any claim for costs respecting fees or expenses shall be supported by documentation satisfactory to the court. O. Reg. 298/18, s. 14.
38Rule 24 created a new framework for determining costs in family law proceedings. The presumptive nature of Rule 24 has curtailed the court's discretion regarding costs in family law proceedings and absent compelling circumstances or the exceptions set out in the rule itself, costs are generally awarded to the successful party. The Ontario Court of Appeal in C.A.M. v. D.M., 2003 CanLII 18880 (ON CA), 67 O.R. (3d) 181, held that while the Rules have not completely removed a judge's discretion, the Rules nonetheless circumscribed the broad discretion previously granted to the courts in determining costs (paragraph 40 of that decision). Courts must not only decide liability for costs, but also the amount of those costs.
39In Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, at paragraph 8, the Ontario Court of Appeal confirmed that costs rules 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 behaviour by litigants.
40Sub-rule 2 (2) of the Family Law Rules adds a fourth fundamental purpose for costs: to ensure that the primary objective of the rules is met – that cases are dealt with justly. This provision needs to be read in conjunction with rule 24. See: Sambasivam v. Pulendrarajah, 2012 ONCJ 711.
41As noted above, subrule 24(1) creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. See: Sims-Howarth v. Bilcliffe, 2000 CanLII 22584 (ON SC). To determine whether a party has been successful, the court should take into account how the final order granted compares to any settlement offers that were made. See: Lawson v. Lawson, 2008 CanLII 23496 (ON SC).
42Subrule 18 (14) reads as follows:
Costs Consequences of Failure to Accept Offer
18(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:
If the offer relates to a motion, it is made at least one day before the motion date.
If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
The offer does not expire and is not withdrawn before the hearing starts.
The offer is not accepted.
The party who made the offer obtains an order that is as favourable as or more favourable than the offer.
43Even if subrule 18 (14) does not apply, the court may take into account any written offer to settle, the date it was made and its terms when exercising its discretion over costs (subrule 18(16)).
44The onus of proving that the offer is as or more favourable than the trial result is on the person making the offer. See: Neilipovitz v. Neilipovitz, [2014] O.J. No. 3842 (SCJ).
45Close is not good enough to attract the costs consequences of Rule 18 (14). The offer must be as good as or more favourable than the trial result. The technical requirements of subrule 18 (14) must be met to attract its costs consequences. See Justice Stanley Sherr's decision in E.H. v. O.K., [2018] O.J. No. 4384, at paragraphs 14 and 15; Gurley v. Gurley, 2013 ONCJ 482; T.M.B.-P. v. B.P.G., 2018 ONCJ 517; Reid v. Thomas, 2017 ONCJ 122.
46The court's role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees. The court must consider the proportionality of the cost request. As was pointed out in Boucher et al. v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579, 71 O.R. (3d) 291, the award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings rather than an exact measure of actual costs to the successful litigant.
47In Delellis v. Delellis and Delellis, 2005 CanLII 36447, [2005] O.J. No. 4345, at paragraph 9, Justice David R. Aston states the following:
"… recent cases under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended, have begun to de-emphasize the traditional reliance upon "hours spent times hourly rates" when fixing costs...Costs must be proportional to the amount in issue and the outcome. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant..."
5. Offers to Settle
48The mother and the father both made offers to settle. The mother's offer to settle was dated May 11, 2016. The father's offer to settle was dated May 18, 2016.
49The mother's offer to settle provided for a variation of the access schedule in the 2009 Final Order. The mother's offer proposed that the regular schedule as set out in the Final Order be replaced with a graduated schedule, moving from supervised access to unsupervised access as follows:
Phase 1: Until the father is prepared to see the child for six hours instead of four, access shall continue to be supervised by Brayden Supervision Services Inc. ("Brayden") each Sunday from 12 p.m. to 4 p.m.;
Beginning when the father is prepared to see the child for six hours, for the first 12 visits the child shall be in the care of his father each Sunday from 12 noon to 6 p.m., supervised by Brayden;
On the child's birthday in July 2016, the child shall be in the care of the father from 12 noon to 4 p.m., supervised by Brayden;
Phase 2: For the next 12 visits thereafter, the father shall have unsupervised access from 12 noon to 6 p.m.;
For the next 12 visits thereafter, the father shall have unsupervised access each weekend from Saturday at noon to Sunday at 10:00 a.m., except that during the ski season (January to April), the father shall have unsupervised access from Sunday at 12 noon to Monday return to school at 8:30 a.m.;
For the next 12 visits thereafter, the father shall have unsupervised access every other weekend from Saturday at noon to Sunday at 6 p.m.;
Thereafter, the father shall have regular unsupervised access every other weekend from Friday at 6 p.m. to Sunday at 6 p.m.
50The mother's proposed Holiday Schedule provided the following holiday access to the father:
The child shall be in the care of the father on Christmas Day from 1:00 p.m. to 7:00 p.m. in 2016;
The child shall be in the care of the father on New Year's Day from 1 p.m. to 7 p.m. in 2018;
Except for the child's birthday in 2016, the child shall be in the care of his father from July 21 at 6 p.m. to July 22 at 10 a.m.
51In the mother's offer to settle, the father's access was subject to a number of conditions, including the following:
The father shall not remove the child from the Greater Toronto Area;
During all access visits, the father shall ensure that he has the child's fanny pack containing Ventolin, two Epi-pens and an antihistamine and that the fanny pack containing medication will be with the child at all times during the access visit;
During all access visits, the father shall immediately notify the mother in the event that the child becomes ill and shall immediately return the child to the mother's care or to the appropriate hospital facilities is required prior to returning him to the mother;
The father shall not have the child sleeping overnight on his boat or living on his boat and will not take the child sailing on his boat.
52The mother's offer to settle was non-severable and could not be accepted in parts. The offer also provided that if there is any inconsistency between the terms of the offer and the Parenting Plan of Dr. Butkowsky which was appended as Schedule "A" to the Final 2009 Order, then the terms of the mother's offer to settle shall prevail.
53The father's offer to settle dated May 18, 2016 provided for the immediate reinstatement of unsupervised access and the return to the final 2009 Order in a graduated schedule as follows:
The father shall have unsupervised day time access to the child on six consecutive Saturdays from 10:00 a.m. to 8 p.m.;
Thereafter, the parenting schedule as contained in the final 2009 Order shall be reinstated;
The father shall be entitled to have the child on his sailboat;
Both parties shall adhere to any medical protocol for the child as set out by the child's doctors.
54The father's offer was also non-severable or "indivisible".
55Prior to delivering his May 18, 2016 Offer to Settle, the father previously sent a letter dated May 12, 2016 to the mother's counsel proposing a resolution of the family law case, other civil matters commenced by the mother against the father and his parents, as well as a resolution of the father's bankruptcy proceedings, which the mother was also challenging. In addition the father sought as a condition of settlement that the mother "acknowledge in writing that she has engaged in parental alienation."
56The mother submits that the father's offer to settle dated May 18, 2016 "could only be interpreted as disingenuous" and was "truly not capable of acceptance" because of the earlier correspondence above to her counsel dated May 12, 2016. She asks the court to find that the father's conduct is demonstrative of "bad faith".
57The court rejects this argument. The father's May 18, 2016 offer to settle was a valid Rule 18 Offer to Settle and capable of acceptance by the mother. The letter dated May 12, 2016 from father's counsel was an invitation to resolve all of the outstanding civil litigation and bankruptcy proceedings in addition to the family law case between the parties and not an example of bad faith. This invitation was clearly rejected by the mother's counsel in his letter dated May 13, 2018 to father's counsel. The father then sent a proper Rule 18 Offer to Settle the family law case on May 18, 2016, which was clearly capable of acceptance.
5. Analysis
58The father was the successful party following the trial. The father's offer to settle was far closer, if not almost equal to the outcome at trial. The mother's offer to settle was not.
59The court did not continue the supervised access that the mother was seeking, both at trial and in her offer to settle as "Phase One", subject to a number of conditions. The court did not impose any of the conditions sought by the mother on the father's access, save and except for the conditions regarding the child's medical fanny pack and food safety, out of an abundance of caution.
60The main issue in this trial was the father's access to the child. At trial, the mother took the position that the following material changes in circumstances have occurred since the 2009 Final Order:
The child suffers from a potentially life-threatening food allergy to tartrazine or yellow food dye which the father does not accept, leading to reckless and irresponsible care of the child, placing the child at serious risk of physical harm. Based on his past and current behaviour, the father cannot be relied upon to abide by court orders which might otherwise ensure the child's safety during access;
It was the mother's position that the father could not be trusted to deal with the child's medical condition, which she described at trial as a "catastrophic physical response" and that his "muscles collapse", he suffers "uncontrollable projectile vomiting" and that there is also "a concern that his heart will stop". She further testified that the illness has been categorized by a number of medical professionals as "anaphylaxis or life threatening".
The father failed to provide proper sleeping accommodation for the child for overnight access, failed to properly care for the child, including returning the child unbathed, fatigued and improperly dressed and returned the child to school chronically late after his weekend access visits;
The father failed to abide by the ruling of the parenting coordinator/arbitrator Dr. Barbra Fidler, and took the child on his sailing boat, placing the child at serious risk. The child will continue to be at serious risk of harm if he is allowed on the father's sailing boat;
The father is a flight risk and will remove the child from Canada if he is provided unsupervised access, or unless strict conditions are placed on his ability to remove the child from the Greater Toronto area;
The father is an irresponsible and unreliable parent who is unable to exercise consistent access, including choosing not to see the child at all for periods of several months on more than one occasion, causing the child emotional harm;
The father repeatedly breached court orders, including cost orders, child support orders, FRO default orders and access orders and this history of non-compliance demonstrates his inability to comply with court orders made in the child's best interests;
61The majority of the evidence and the witnesses in this trial were about these issues and the father's access, as is abundantly clear from the lengthy judgment and the table of contents included therein. At the conclusion of the trial, the court reinstated unsupervised access between the father and child immediately and fully reinstated the Final 2009 Order in accordance with Dr. Butkowsky's recommendations, on a graduated basis. At paragraph 572 of the decision, the court made the following finding:
"Based on all of the evidence in this trial, I find that unsupervised access between the child and the father should be reinstated immediately. There is no credible evidence that the child is at physical risk or unsafe the father's care. I find that after everything that has happened in this child's life since the 2009 Final Order, including the evidence of the child's medical condition that the father will be vigilant and careful in ensuring that the child's medical needs will be met."
62The court found that the evidence at trial did not establish that the child suffered from a life threatening medical condition or allergy to yellow food dye or tartrazine. There was no medical evidence in this trial of a definitive diagnosis regarding the child's allergy or medical condition.
63At best, the medical evidence, in particular the medical report of Dr. Sussman dated August 21, 2013, states that there is a question whether child has an anaphylactic reaction to yellow food dye. Dr. Sussman could only recommend that the child continue to avoid "large amounts of yellow food dye" and that the child carry epipen(s) with him at all time.
64There was no evidence led in this trial regarding what "large amounts of yellow food dye" actually means. It was very unfortunate that the mother did not call Dr. Sussman or any other medical experts to give evidence regarding this critical issue at trial.
65The court found that the mother's evidence regarding the child's medical condition and the medical incidents that occurred in 2012 and 2013, was significantly exaggerated and contradicted the evidence of neutral third party professional witnesses and some of the medical evidence introduced at trial. A great deal of time was spent on this evidence at trial.
66The court found the mother to be an excellent parent in all respects except the child's relationship with the father. The court found that the mother was hyper-vigilant, over-reactive, extremely controlling and manipulative regarding H.'s relationship with his father. This was overwhelmingly obvious throughout the entire trial.
67The court found that the mother's exaggeration of the child's medical condition was used to restrict the child's relationship with the father.
68The court found that there was no credible evidence that the father was a flight risk.
69The court found that there was no credible evidence that the child's physical safety was at risk on the father's sail boat and ordered that the father be permitted to take the child on his sail boat. The mother's offer to settle continued to seek a complete restriction on the father's ability to take the child on his sail boat, which the court rejected.
70There is no credible evidence that child's physical safety is at risk on the father's sailboat. The court accepted the evidence of Dr. Butkowsky that the mother's numerous concerns about the father's boat was an example of a potential effort by the mother to restrict the father's relationship with his son. Dr. Butkowsky testified that this was one of a number of examples of the mother's efforts of restricting activities that were very much a part of the father's life and that he enjoyed, with the child.
71The father was not successful in changing the custody order. The court ordered that the mother should continue to have sole custody of the child. However, this issue did not take a lot of court time, as the main issue at trial was the father's access. The court disagrees that a significant amount of court time was spent on this issue, and certainly not as much time as the issue of access. Further, the father's offer to settle did not seek sole custody. In his Offer to Settle dated May 18, 2016, the father sought a return to the 2009 Final Order, which granted the mother sole custody.
72It is certainly true that the father alleged that the mother was engaged in alienating conduct. Although the court did not make a finding of parental alienation, the court found as a fact that the mother was not supportive of the child's relationship with the father and had actively undermined it. The court also found that the mother's "fixated belief" that the father is a completely unacceptable, deficient and irresponsible parent who has placed H.'s life at risk on many occasions has interfered with H.'s relationship with his father. Furthermore, although Dr. Butkowsky acknowledged in cross-examination that he did not make a finding of parental alienation in his custody and access assessment, he did observe in his assessment that "[the mother's] potential to engage in a long-term pattern of behavior commonly associated with efforts at 'parental alienation' could not, effectively, be ruled out."
73In considering the amount of costs to set, the court must consider the factors set out under Rule 14 (12), in particular, the reasonableness and proportionality of the following additional factors, as it relates to the importance and complexity of the issues:
Each party's behaviour;
The time spent by each party;
Any legal fees, including the number of lawyers and their rates;
Any expert witness fees, including the number of experts and their rates;
Any other expenses, properly paid or payable and
Any other relevant matter.
74The issues in this trial, in particular the father's access, were very important to both parties. The trial was complex and difficult and the case had a lengthy and complex history involving issues of supervision of access, medical issues and safety issues. It was fifteen days in length. Eighteen witnesses were called, there were a number of contested evidentiary issues, and over 100 exhibits and thousands of pages of documents were filed.
75Two lengthy and highly contested voir dires regarding the admissibility of certain evidence were conducted mid-trial. The father was successful on both of these voir dires. The father was also permitted to call Dr. Butkowsky as a witness at trial following a highly contested pre-trial motion. Dr. Butkowsky was a very helpful witness to the court. The father was also successful in obtaining the release of the therapists' clinical notes and records in advance of the voir dire following a contested motion.
76Counsel for the father is a very experienced family law lawyer and litigator. He was called to the bar in 1992 and has 26 years of experience. His hourly rate is $495.00 per hour, a very reasonable rate for someone of his experience and skill. A junior lawyer who was called to the bar in 2011 was billed at $300.00 per hour, also a reasonable rate. The expert witness fee for Dr. Butkowsky, a very experienced and highly regarded custody and access assessor was $9,500.00, also very reasonable. The time spent by the father's counsel for attendance at trial and preparation was 337 hours. The time spent by the junior lawyer was 42 hours.
77The father's total legal fees, disbursements and HST of $213,753.63 were reasonable given the length and complexity of this trial, as noted above. In comparison, the mother's total legal fees and disbursements were $521,903.06, according to the Bill of Costs submitted.
78However, the father is not entitled to full recovery of his costs. His offer to settle was close but not equal to or more favourable than the final order of the court to trigger Rule 18 consequences. Further, the court considered whether the father had behaved reasonably or unreasonably in relation to the issues, in accordance with Rule 24(5).
79The mother submits that the father's breach of seven previous cost orders, a number of which are now subject to a bankruptcy proceeding brought by the father is unreasonable behaviour that should disentitle him to any costs, or that any cost award should be either set off against the costs owed to the mother, or held in trust by the mother's lawyer until he complies with all outstanding cost orders. She states that the father has not come to court with clean hands and that he should not be rewarded for this failure to comply with orders of the court.
80The mother provided a chart attached to her Costs Submissions in which she sets out seven previous cost orders totaling $89.919.00, excluding interest, which she asserts are outstanding and owed by the father to her.
81It is not disputed that the father has filed for bankruptcy and that the mother is a creditor in the bankruptcy proceedings for the outstanding cost awards that the father has not paid. The father is entitled to claim bankruptcy and the court has no knowledge of the reasonableness or not of the bankruptcy proceedings. Whether the court can consider the father's claim for bankruptcy as unreasonable behaviour is questionable.
82Further, the father has not yet been discharged from bankruptcy. The mother has successfully challenged the father's discharge, according to the mother's evidence at trial. Presumably, some or part of any cost award that the court makes will go to the trustee in bankruptcy to pay off the father's creditors, which includes the mother.
83However, the father has engaged in other unreasonable behaviour regarding the issues in this trial.
84The father's decision to identify himself as the father of the child in a newspaper article written about this case (which kept the identities confidential), thereby also identifying the child, and to refer to the article on his social medial accounts, showed poor judgment and limited insight regarding the impact of these actions on the child. This was unreasonable conduct and led to the post-trial motion brought by the mother to amend the title of proceedings to use initials to identify the parties and the child, and for an order that no person shall publish or make pubic any information that has the effect of identifying the parties or the child, among other relief. The father opposed this motion. He was not successful as the court granted the mother's motion in part.
85The father's decision not to exercise access to the child for a period of approximately eight months on two separate occasions, a total of sixteen months in H's young life was very unreasonable. It was detrimental and harmful to his relationship with H. and demonstrated poor parenting. The court accepts the evidence that the child was angry, upset, hurt and disappointed by this decision of the father. The court finds that the father's actions have affected his relationship with the child.
86Further, notwithstanding the supervised access order, and the fact that he refused to exercise access to the child pursuant to the supervised access order, the father showed up unexpectedly at the child's school on two separate occasions in direct breach of the supervised access order. There is evidence that during the January 17, 2018 incident that took place during this trial, the child experienced confusion and anxiety when the father showed up unexpectedly. Again, the father had limited insight into how his conduct impacted the child.
87The court also found that the father did not understand that the child experienced confusion and distress over the parents' obvious disagreement about his food allergy. Even if there was no clear or definitive diagnosis, and there was no evidence of what "large amounts" of yellow food dye actually means, the court found that the parents should give the child a consistent message that he has a medical condition in which the child should avoid food containing tartrazine or yellow food dye in order to minimize the child's confusion and anxiety.
88Further, the father, like the mother, had limited insight into how his conduct was contributing to the conflict between the parties. The father's oppositional tendencies as described by Dr. Butkowsky, were evident in this trial, and have led to some poor decisions.
89The father's refusal to meet with the child's therapist for almost one year and then to surreptitiously record the only meeting that he had with her with a view to undermining her credibility at trial, was another example of very poor judgment and unreasonable behaviour. If the father had chosen to meet with the therapist from the beginning of her involvement with the child he could very well have provided her with a much more balanced perspective thereby assisting in the therapeutic process for this child.
90Contrary to the mother's submissions, the court does not find that the father's behaviour amounted to bad faith. There is a difference between bad faith and unreasonable behaviour. The essence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose. It is done knowingly and intentionally. See S. (C.) v. S. (M.), 2007 CanLII 20279 (ON SC), 38 R.F.L. (6th) 315. The father engaged in unreasonable behaviour but the court found that the father presented as a caring and concerned parent at trial. The court found his testimony regarding many of the significant events in this trial to be credible.
91The court also considered the mother's ability to pay the costs order and the fact that she is the sole custodial parent and the main financial provider for the child. Although the mother did not raise an inability to pay costs, she did submit that a cost award will have a negative impact on the child. See MacDonald v. Magel, 2003 CanLII 18880 (ON CA), 67 O.R. (3d) 181. The court did not have sworn evidence regarding the mother's financial assets and income, although the court received some submissions regarding the mother's circumstances.
92However, a party's limited financial circumstances (if that is the case here) will not be used as a shield against any liability for costs but will only be taken into account regarding the quantum of costs. See: Snih v. Snih, 2007 CanLII 20774 (Ont. S.C.J.).
93In carefully considering all of the above factors, the court orders that the mother shall pay the father's costs fixed in the amount of $150,000.00, inclusive of fees, disbursements and HST.
Released: September 27, 2018
Signed: Justice Sheilagh O'Connell