Court File and Parties
Court File No.: Toronto DFO-16-14067 Date: 2020-05-27 Ontario Court of Justice
Between: Davianne Daniel Applicant mother
— and —
Gerard Lennox Henlon Respondent father
Ruling on Costs of Summary Judgment Motion
(No one appearing. In Chambers)
Davianne Daniel ............................................................................................. on her own behalf
Rachel Nusinoff counsel for the respondent
Introduction
1On January 23, 2020, the father's summary judgment motion in this matter was heard before me. On the day of the hearing, the parties were able to resolve a portion of the summary judgment motion, in accordance with the relief set out in the father's notice of motion. The balance of the relief sought by the father was adjourned to a focused hearing.
2The father now seeks his full recovery of legal costs for the summary judgment motion in the amount of $8,258.87, inclusive of HST and disbursements. In the alternative, he seeks his costs on a partial recovery basis in the amount of $6,194.15.
3The mother seeks an order dismissing any claim for costs made against her. She also asks for an order that the father pay her legal costs in the amount of $905.55, inclusive of HST and disbursements.
4Both parties served and filed written submissions, bills of costs and offers to settle for my review. Counsel for the father also served and filed a reply to the mother's costs submissions. All submissions were received by February 20, 2020.
Background and Litigation History
5The history of this lengthy litigation has been described in prior decisions and in particular, the trial decision of Justice Brian Scully, dated May 16, 2019. However, in the context of the relief sought by the parties, it is important to repeat some of the history here.
6The parties are the parents of a child, who will be 7 years old in July of this year. The child was born in 2013 in Toronto, Ontario.
7In addition to the child, the mother has two other children of a previous relationship. The child is the father's only child.
8The parties met on an online dating website in July of 2012. At the time, the mother was residing in London, England with her two other children, both daughters. The father was residing in Toronto.
9The mother worked as a social worker in health services in England. The father works as an operating engineer in Toronto.
10The mother's two daughters were ages 6 and 13 at the time the parties met. The mother traveled to Toronto in August of 2012 with her youngest daughter for a family wedding and met the father in person. She returned to England after the wedding. The father visited the mother and her children in England in September of 2012.
11On October 4, 2012, approximately eight weeks after the parties met, the mother and her youngest daughter, who was age 7 at the time, moved to Toronto and started living with the father. The mother's older daughter, age 14 at the time, remained in England with her father.
12The child was born nine months after the parties started living together in Toronto. The father sponsored the mother and her younger daughter and they both became permanent residents of Canada. The mother also has British and Saint Lucian passports.
13The parties separated in November of 2015. They never married.
14The parties' separation can appropriately be described as very high conflict. This litigation started in 2016. The court has been the case management judge throughout until the trial of this matter.
15A Section 112 custody and access investigation and report was completed by a clinical investigator with the Office of the Children's Lawyer. The clinical investigator recommended that the mother have sole custody of the child and that the father have specified access, among other recommendations.
16Numerous temporary orders were made, as well as some final orders regarding spousal support and arrears of support.
17As the parties were unable to resolve the outstanding issues between them, the trial before Justice Scully was held on October 25, 26, and November 27, 2018.
18The parties have made several allegations about each other. As Justice Scully noted in his trial judgment, there is a complete lack of trust and ability to communicate between the parties.
19On May 16, 2019, Justice Scully released his Reasons for Judgment and made final orders regarding custody, access, holidays, travel, and child support, which can be summarized as follows:
a. The mother shall have sole custody of the child, with an obligation to consult the father;
b. The child's primary residence shall be with the mother and the father shall have access in alternating weeks from Thursday to Monday (to be expanded to the following day if falling on a long weekend), and on alternating weeks from Monday to Tuesday;
c. Each parent shall provide their full residential address to the other. In the event that the mother wishes to change her residential address, she must notify the father ninety days in advance with her proposal for variation.
d. The parents shall share the child's Christmas and March break holidays equally;
e. The parents shall each have the child for one month over the summer;
f. Each parent can travel with the child to the United States for a period of up to 72 hours during their parenting time, without the need to obtain the other's approval. Details of the travel shall be provided in advance;
g. For all other travel, the parent intending to travel shall give the other parent 30 days' notice of the intended travel, and within 10 days of the travel provide a detailed itinerary to the other parent, including flight itinerary, contact information, and a consent to travel letter to be signed by the other parent.
h. The father shall pay the mother child support in the amount $853.00 per month, based on an annual income of $92,836.00 annually, in accordance with the Child Support Guidelines for Ontario.
i. The father shall maintain medical and dental coverage for the child as provided by his employment.
Post-Trial Change in the Mother's Circumstances
20Following the completion of the trial and before the release of Justice Scully's Final Judgment, it is not disputed that the mother left Ontario for different periods of time to travel to Saint Lucia, her country of origin, while leaving the child in the father's care.
21The mother travelled to Saint Lucia with her youngest daughter during the following time periods:
a. December 16, 2018 to December 30, 2018; (two weeks)
b. February 13, 2019 to March 29, 2019; (six weeks)
c. May 18, 2019 to May 26, 2019 (one week)
22The child remained in his father's sole care and custody in Toronto during these time periods. The father believes the mother has commenced a new relationship in Saint Lucia. The mother denies this.
23On May 27, 2019, shortly after Justice Scully released his final judgment, the mother sent the father a text in which she stated, "As per our conversation today, I would like to inform you that I am moving to Saint Lucia on July 28th."
24On July 28, 2019, the mother and her youngest daughter relocated to Saint Lucia. The mother's oldest daughter was already living there with her biological father, having re-located there previously some time ago.
25The mother did not provide her new address in Saint Lucia to the father.
26The child was now living with his father in Toronto and the mother was living with her youngest daughter in Saint Lucia.
27During the summer of 2019, both prior to and after the mother's departure, the parties had numerous communications and discussions, some through counsel and otherwise, in an attempt to reach a resolution regarding the new parenting arrangements. They were unable to reach a resolution.
The Father's Motion to Change the Final Order of Justice Scully
28On September 11, 2019, after failing to reach a resolution regarding the mother's change in circumstances, the father commenced a motion to change the Final Order of Justice Scully.
29The first case conference in the father's motion to change was held on December 10, 2019. The mother's lawyer at the time, Ms Daniela Di Rezze, was present in court. The mother participated by telephone conference call from Saint Lucia.
30In her response to the father's motion to change, the mother did not acknowledge that she had permanently re-located to Saint Lucia with her daughter.
31The mother acknowledged that she and her daughter had moved to Saint Lucia in July and that she had registered her daughter in school there. However, the mother alleged that they were just visiting Saint Lucia temporarily for the following reasons:
a. the mother had travelled to Saint Lucia to attend a family funeral and the father had refused to permit the child to travel with her which was very upsetting to her;
b. the mother feared for her and her youngest daughter's safety, as they were frightened by "the level of escalated aggression exhibited" by the father;
c. the mother needed some time with her family in Saint Lucia, her only support system, so that she can heal. She wanted to take care of herself so that she can continue to be a good mother to the child and her other children;
d. the father had sent her numerous harassing messages during the weeks leading up to her departure to Saint Lucia in July of 2019 which caused her a great deal of stress and anxiety;
e. when the mother briefly returned to Toronto in October of 2019, the father denied her access to the child unless she agreed to enter into a temporary consent granting him custody;
f. upon her return to Saint Lucia in the same month, the mother had to undergo surgery related to complications from a previous gall bladder surgery and therefore she could not travel back to Toronto until January of 2020;
g. the mother planned to permanently return to Toronto in January of 2020;
h. prior to entering into any temporary or final variation of the Final Order of Justice Scully the mother wanted the Office of the Children's Lawyer to do a further investigation of the issues of custody and access.
32The father denied the allegations made by the mother against him. In particular, the father has had no communication either directly or indirectly with the mother's youngest daughter since 2015. He also denies harassing the mother.
33The father agrees, however, that he would not permit overnight access between the child and the mother unless she agreed to sign a temporary consent regarding custody and residence because he was afraid that the mother would abscond with the child to Saint Lucia.
34The parties were unable to resolve the custody issues at the case conference on either a temporary or final basis.
35The parties agreed to a temporary schedule of video calls between the mother and the child pending the return of the matter to court. Further, the ongoing child support payable by the father to the mother for the child's care was terminated on a temporary without prejudice basis, effective August 1, 2019.
36The matter was adjourned to January 23, 2020 for a motion regarding custody and other parenting issues.
37On January 7, 2020, Ms Di Rezze, on behalf of the mother, wrote the father's counsel and stated the following: "Ms Daniel has advised me that she has made a final decision to permanently relocate to Saint Lucia in February 2020."
38Notwithstanding this position, the parties were still unable to resolve the issue of the child's custody.
The Father's Summary Judgment Motion
39On January 10, 2020, the father served a motion for summary judgment regarding the issue of custody.
40On January 17, 2020, the mother served her responding affidavit to the father's summary judgment motion through her counsel.
41Shortly thereafter, the mother filed a notice of change of representation, dated January 20, 2020 indicating that she had decided to act in person.
42The hearing took place on January 23, 2020. The mother participated by telephone conference call from Saint Lucia. The mother was unable to attend in person. During the hearing, the mother advised that she was unable to travel to Canada because her Permanent Resident (PR) card had expired. She indicated that she should be able to travel to Canada by February or March of 2020.
43The mother initially sought an adjournment of the motion. However, following further discussion and explanation, the mother also stated that she was consenting to the order of final custody to the father.
44The mother advised that although she was no longer represented by a lawyer in Canada, she had discussions with her Aunt in Saint Lucia, who is also a lawyer.
45The parties had further lengthy discussions regarding the terms of the custody order, as well as terms regarding travel and visits. Not all of the terms were agreed upon. The parties agreed that the disputed terms would be the subject of a focused hearing or trial to be scheduled at a later date.
46On consent, the parties entered into the following final order:
The father shall have sole custody of the child. The father shall be permitted to make all important decisions with respect to the child regarding his health, education and well-being.
The child shall continue to have his permanent and primary residence with the father.
The parties shall arrange access between the mother and the child when the mother travels to Canada for the focused hearing.
The mother shall be permitted to speak to the child at school, subject to school approval.
Service of the draft order and all materials, cost submissions, shall be permitted by email.
Each party shall have no later than 14 days to serve and file written costs submissions.
There shall be a focused hearing (one day only) on March 4, 2020 at 10:00 AM on the following triable issues:
a. The mother's access to the child, and in particular, whether that access can be exercised in Saint Lucia, her current residence, which is a non-signatory country to the Hague Convention;
b. The father's ability to travel outside of Canada with the child for vacation purposes without the mother's consent;
c. Child support;
d. The child's iPad and the delivery of the Apple ID by the mother to the father, or compensation for a new iPad that the child can use;
e. The father's ability to renew the child's passport without the mother's consent.
47The parties also agreed that the father would serve and file his Trial Record for the remaining issues on February 19, 2020 and the mother shall serve any additional materials on February 26, 2020.
48Unfortunately, the focused hearing of the remaining triable issues did not proceed on March 4, 2020, as the mother was still unable to travel to Canada. According to the email filed by the mother, the mother's PR card was still expired and she was having some issues getting the necessary travel documents from Canadian immigration (IRCC).
49Justice Pawagi granted the adjournment request on consent and directed that a new focused hearing date be set by the trial coordinator, in consultation with the parties.
50Given the intervention of Covid-19 and the global pandemic restricting travel and court operations, it is unclear when the next hearing date will be, although a tentative date has been scheduled.
The Law and Governing Principles Regarding Costs
51Costs in family law proceedings are governed by Rule 24 of the Family Law Rules, O. Reg. 298/18.
52Subrule 24(1) of the Rules creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs.
53The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867, set out that modern costs rules are designed to foster four fundamental purposes:
(1) to partially indemnify successful litigants;
(2) to encourage settlement;
(3) to discourage and sanction inappropriate behaviour by litigants; and
(4) to ensure that cases are dealt with justly under subrule 2(2) of the Family Law Rules.
54Costs can be used to sanction behaviour that increases the expense of litigation or is otherwise unreasonable or vexatious. In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice. See: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, paragraph 25; Gordon v. Wilkins, 2020 ONCJ 199, at paragraph 4.
55Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.
56An award of costs is subject to the factors listed in subrule 24(12), subrule 24(4) pertaining to unreasonable conduct of a successful party, subrule 24(8) pertaining to bad faith, subrule 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party. See: Berta v. Berta, 2015 ONCA 918, at paragraph 94; Gordon v. Wilkins, 2020 ONCJ 199, at paragraph 6.
57Rule 24(12) provides that the court shall consider the following:
(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.
Offers to Settle
58When determining whether a party has been successful, the court should take into account how the final order compares to any settlement offers that were made. See: Lawson v. Lawson, 2008 CanLII 23496 (ONSC).
59Offers to settle play an important role in saving time and expense by promoting settlements, focusing parties and often narrowing issues in dispute. See: Laing v. Mahmoud, 2011 ONSC 6737. The failure to serve an offer to settle will be an adverse factor when assessing costs.
60Subrule 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.
61Even 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 (see subrule 18(16)).
62The 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).
63The court is not required to examine each term of the offer as compared to the terms of the order and weigh with microscopic precision the equivalence of the terms. What is required is a general assessment of the overall comparability of the offer as contrasted with the order. See: Wilson v. Kovalev, 2016 ONSC 163.
64Close is not good enough to attract the costs consequences of 18(14). The offer must be as good or more favourable than the trial result. See: Gurley v. Gurley, 2013 ONCJ 482.
65The technical requirements of subrule 18(4) must be met to attract the costs consequences in subrule 18(14). See: Clancy v. Hansman, 2013 ONCJ 702; T.M.B.-P. v. B.P.G., 2018 ONCJ 517.
Severable Offers to Settle
66There is a significant advantage in making severable offers to settle, as opposed to unseverable offers to settle. A court can order full recovery of costs under Rule 18 for specific terms or sections in an offer that are severable from other parts in an offer to settle, so long as the requirements of Rule 18 have been met. See: Paranavitana v. Nanayakkara, 2010 ONSC 2257, [2010] O.J. No. 1566 (SCJ) at paragraph 13.
Unreasonable Behaviour
67Subrule 24(5) provides some criteria for determining the reasonableness of a party's behaviour in a case. It reads as follows:
DECISION ON REASONABLENESS
24(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.
Ability to Pay
68The court should also take into consideration the ability of a party to pay costs. See: MacDonald v. Magel, 2003 CanLII 18880 (ON CA). However, a party's limited financial circumstances will not be used as a shield against any liability for costs but will be taken into account regarding the quantum of costs. See: Snih v. Snih, 2007 CanLII 20774 (Ont. SCJ).
69Those who can least afford to litigate should be most motivated to seriously pursue settlement and avoid unnecessary proceedings. See: Mohr v. Sweeney, 2016 ONSC 3338; Balsmeier v. Balsmeier, 2016 ONSC 3485.
70Family law litigants are responsible for and accountable for the positions they take in the litigation. See: Heuss v. Surkos, 2004 ONCJ 141.
Analysis
71On January 9, 2020, the father served two offers to settle, one severable and one unseverable. Both offers to settle complied with the technical requirements of Rule 18(14) and were served on the mother's counsel.
72The decision to make a severable offer to settle was a prudent one. As Justice Wildman states in Paranavitana v. Nanayakkara, 2010 ONSC 2257, [2010] O.J. No. 1566 (SCJ) at paragraph 13:
"Severable offers are an underused tool that can confer considerable settlement and cost advantages. Because of the full recovery provisions of Rule 18(14), they can provide much more flexibility to the court to award full recovery for at least a portion of the overall costs, if the party is successful on only some of the issues."
73In the father's severable offer, Part One of the offer to settle addressed the custody terms and was severable from all of the parts of the offer. It stated as follows:
a. The child shall continue to have his permanent and primary residence with the father.
b. The father shall have sole custody of the child. The father shall be permitted to make all important decisions with respect to the child's education, health and well-being. The father shall have an obligation to discuss any important decisions with the mother in advance, however, in the case of a disagreement, the father shall be permitted to make decisions in the child's best interests.
c. Contemporaneously, with the acceptance of this Offer to Settle, the child's passport and health card shall be provided to the father.
d. On a go-forward basis, the father shall be the record-keeper for the child's government issued identification. The father shall be permitted to renew the child's passport, health card and any other government issued identification without the mother's consent and signature. If the father renews/obtains a new passport or health card for the child, he shall provide a copy of same to the mother by email.
e. The parties shall use email to communicate about the child. The communication shall be respectful and child-focused.
f. Contemporaneously with the acceptance of this Offer to Settle, the mother shall provide the father with her contact information for where she will be residing in Saint Lucia. This includes her phone number, email, address etc. This information is for emergency use only. The father will not contact the mother except via email, unless there is an emergency.
74To trigger full recovery costs a party must do as well or better than all the terms of any offer (or a severable section of an offer). Paranavitana v. Nanayakkara, 2010 ONSC 2257; Rebiere v. Rebiere, 2015 ONSC 2129; Scipione v. Scipione, 2015 ONSC 5982.
75The father's offer to settle the custody terms was very close, but not equal to or better than the final order for custody that was achieved following the summary judgment hearing.
76In particular, the mother would not agree to permit the father to renew the child's passport without her consent, nor would she agree to the father being the record-keeper for the child's government issued identification, or to provide her contact information and address in Saint Lucia. As well, the communications terms in part one of the father's offer to settle had not been resolved. Some of these issues will be addressed at the focused hearing.
77The mother did not serve a Rule 18 Offer to Settle in this case. However, on January 7, 2020, the mother's counsel sent a letter to the father's counsel with a settlement proposal. The letter proposes a global resolution of all of the issues of custody and access, including access between the mother and the child to be exercised in Saint Lucia every summer break for a period of six weeks, every March break for a period of two weeks, and every other Christmas for a period of two weeks.
78Although the mother's offer did not meet the technical requirements of Rule 18, the court still has the discretion to consider this settlement offer when determining costs, in accordance with Rule 18(16).
79The court reviewed the mother's offer carefully. The offer was not severable. It was an "all or nothing" proposal that contained a number of terms regarding blocks of access to be exercised in Saint Lucia in the summer and winter, even though the mother would not provide her address to the father.
80The correspondence at tab "d" of the father's costs submissions demonstrates that the father's counsel made a number of additional efforts to settle all or some of the issues after receiving the mother's settlement proposal, including the severable offer of the issue of custody only, thereby considerably narrowing the issues.
Success
81Although the father's offer to settle did not trigger a full recovery of his legal costs under the requirements of Rule 18, he was clearly the more successful party.
82This motion should not have been necessary. Once the mother moved to Saint Lucia without the child in July of 2019, leaving him in the care of the father, the mother should have resolved the issue of custody in the father's favour. The child was born and raised in Toronto and has lived here for seven years, his entire life.
83The mother herself acknowledged this in her sworn Affidavit, dated January 17, 2020, wherein she deposed at paragraph 14: "I appreciate that the child has settled in a life with his Dad and I have no intention of disrupting that."
84There is no question that the father would have been successful on the summary judgment motion for custody if it had proceeded on a contested basis on January 23, 2020. There was no genuine issue for trial regarding custody.
85There are certainly triable issues regarding the mother's access with the child. However, the summary judgement motion only dealt with the issue of custody and the father served a severable offer to settle that addressed custody only.
86Although the mother did eventually consent to the father's custody of the child, it was at the eleventh hour on the day that the summary judgment hearing was heard. The father had already incurred very significant legal costs by that time. The father served his severable offer to settle prior to incurring those costs, and well in advance of the motion.
87In her written submissions, the mother states that she has always agreed to give custody to the father. She states that she has "on numerous occasions offered for the father to have custody" and that she has "tried to settle this on many occasions". She states that, "I offered from day one for Mr. Henlon to have custody of the child. All I ask was that I have access to him in Saint Lucia where I will be for the foreseeable future."
88The mother is being disingenuous. In response to the father's motion to change, the mother did not acknowledge that she had relocated to Saint Lucia, even though she had been living there since July of 2019. As late as December of 2019, she continued to insist that she was only visiting Saint Lucia temporarily and that she was intending to return to Canada in January of 2020.
89The mother did not acknowledge that she had made the decision to permanently relocate to Saint Lucia without the child until January 7, 2020, as set out in her lawyer's letter and settlement proposal dated January 7, 2020.
90While the mother finally acknowledged that she had made this decision, she continued to take the position that she would not consent to the father having custody of the child unless he agreed that the child could live with her in Saint Lucia during the summers, March breaks and alternating Christmases, according to her settlement proposal.
91The mother's position was "all or nothing". The mother did not make a severable offer to settle.
92This is clear from the mother's affidavit, sworn January 17, 2020, in response to the father's summary judgment motion. The mother deposes the following at paragraphs 16 and 20 to 22 of her Affidavit:
"16. I would like to have access to the child and for the courts to allow him to spend the summer vacation in Saint Lucia with me and my family.
I would like to go to trial as my circumstances have changed. I want to be able to exercise access with the child in Saint Lucia without Gerard's interference every other Christmas and in the summer for six weeks.
In the mean-time, I ask the Court to allow me to continue to speak to the child at school every Monday at 1st recess for 5 minutes and on Friday at the boys and girls club on a Friday at 4 pm.
All other issues should be heard at trial."
93The father's position not to accept the mother's "all or nothing" proposal regarding custody, access and travel to Saint Lucia was not unreasonable. He had the following concerns regarding access and travel to Saint Lucia:
Saint Lucia is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, which is incorporated into Ontario's Children's Law Reform Act. If the mother refuses to return the child to the father following a visit in Saint Lucia, the father would not be able to enforce a custody order made in Canada. The father would have very little recourse or remedy;
The mother has also refused to provide the father with her address or contact information in Saint Lucia;
The mother misled the police when she briefly returned to Canada in October of 2019 and attempted to have the child removed from the father's care by enforcing Justice Scully's Final Order for custody, which no longer reflected reality as the mother had been living in Saint Lucia without the child since July;
The father has a real concern that the mother may not return the child should he travel to Saint Lucia. This is a live issue which will hopefully be resolved at trial following a full evidentiary record and testimony from the parties.
94The mother has also made a number of allegations in her submissions regarding the father and the father's lawyer, accusing them both of "bullying and harassment". I must consider these allegations when determining whether a successful party has behaved reasonably.
95There was no evidence in the record before me that counsel or the father engaged in bullying or harassing behaviour. All of the correspondence that I have read from the father's counsel was professional and courteous. Counsel's conduct in court was also professional and reasonable.
96The mother also stated in her costs submissions that she thought that the motion was a "case conference" and not a motion. The mother was served well in advance of the hearing date with the father's motion materials. She responded to the motion by serving a sworn affidavit in which she clearly acknowledges the father's motion and affidavit at paragraph one and throughout her affidavit.
97Further, the court was careful to confirm that the mother understood the nature of a summary judgment motion and explained the proceedings to her during the hearing.
98I also must consider the amount of legal fees being sought. Ms Nusinoff's hourly rate is $395.00 per hour. Although this is high, it is a reasonable market rate here in Toronto, based on Ms Nusinoff's year of call (2008) and experience in family law (12 years). The entire amount charged ($8,258.00) is also reasonable and proportional to the importance of the issues to the parties regarding their child.
99The father has behaved reasonably throughout this proceeding to date. The evidence indicates that he made numerous attempts to resolve the issues, both before and after the mother moved to Saint Lucia, before he commenced his motion to change.
100The father is therefore entitled to the recovery of some of his legal costs for the summary judgment motion.
The Mother's Ability to Pay
101However, the court must also consider the mother's ability to pay. The mother has provided very little evidence of her financial circumstances since she moved to Saint Lucia. It is unclear where she is living and whom she is living with, or whether she is employed.
102The mother is a university educated and very intelligent woman who is trained as a social worker. She was working as a social worker in the health services field in England for a number of years before moving to Canada. She worked as a hair stylist and hair braider in Canada and had started her own business.
103In a letter dated December 12, 2019 to the mother's former counsel, Ms Nusinoff requested financial disclosure from the mother, which was not provided.
104In her written cost submissions, dated February 13, 2020, the mother states that she has not been employed for a lengthy period of time and that she has been ill since she arrived in Saint Lucia.
105The mother has provided a Medical Certificate of Sickness from the National Insurance Corporation which states that the mother is "suffering from gastrointestinal complications from gall bladder surgery" and that she is incapable of working for "60 (sixty) days commencing on 7/12/2019." It is unclear if this date means July 12, 2019 or December 7, 2019.
106The mother has not paid any child support to the father since she has moved to Saint Lucia, nor has she assisted with any of the child's care or expenses since July of 2019.
Conclusion and Order
107I repeat that this motion should not have been necessary.
108In considering all of the above circumstances, the mother must bear some responsibility for the choices that she has made in this litigation, which has caused the father considerable expense.
109The father served a severable offer of the issue of custody on January 9, 2020 which was ignored by the mother. It was open to the mother to accept part one of the offer dealing with custody only, on a no costs basis. Custody could have been resolved without a motion and hearing, even if the issues of access and travel could not be resolved.
110Although the mother eventually consented to the father's custody of the child, this occurred on the day of the hearing, after the father incurred considerable and unnecessary costs. As the custodial parent of the child, this will no doubt negatively impact the father's ability to support the child, heightened by the fact that he has received no child support from the mother since she moved to Saint Lucia.
111In my view, a fair and proportional costs award in favour of the father is $5,000.00, inclusive of HST and disbursements.
112I have also considered that the mother may not have the ability to pay, and that she has another child to support in Saint Lucia. Further, the economic impact of the COVID-19 pandemic may have created additional financial challenges for the mother.
113Given these concerns, the amount payable shall come from the monies currently held in trust for the parties by the Family Responsibility Office, thus assuring that the father will receive some compensation, as there is little or no guarantee that he will receive any reimbursement from the mother while she is living in Saint Lucia.
114I therefore make the following order:
The mother shall pay the father's costs for the summary judgment motion in the total amount of $5,000.00, inclusive of HST and disbursements.
This amount shall be payable by the mother from the amount currently being held by the Family Responsibility Office in this case.
The Family Responsibility Office shall immediately release the amount of $5,000.00 to the father or his counsel from the funds currently being held by them in this case.
If the amount being held by the Family Responsibility Office is less than $5,000.00, then, commencing October 1, 2020, the mother shall pay any balance owing under this Cost Order to the father at a rate of $100.00 per month until paid in full.
May 27, 2020
Signed electronically by Justice S. O'Connell
Endorsement sent to counsel Ms Nusinoff and to Ms Daniel by PDF attachment through the emails provided.
