Ontario Court of Justice

Date: 2021 03 02 Court File No.: Toronto DFO-17-15534-01

Parties

BETWEEN: L.D., Applicant Mother

— AND — A.E., Respondent Father

Presiding Judge

Justice Alex Finlayson

Hearing Dates

Submissions Regarding Costs Heard on: February 25, 2021 Reasons for Decision respecting Costs released on: March 2, 2021

Counsel

For the Applicant Mother: William Hutcheson (agent) For the Respondent Father: A.E. (on his own behalf)

ALEX FINLAYSON J.:

Part I: Overview

[1] Over various dates in July and August, 2020, I heard argument of a motion and a cross-motion brought by each parent. Essentially, the motions concerned whether the father should continue to have access to the parties’ child pursuant to two prior Orders of this Court, or whether that access should be suspended, or alternatively supervised.

[2] There were four different court appearances in connection with the motions. Primarily that was because the mother’s cross-motion raised certain procedural and evidentiary issues, which required organization and oversight by the Court. The Court heard preliminary submissions and gave directions regarding the conduct of the motions.

[3] The Court released its Decision on September 18, 2020 (see L. D. v. A.E., 2020 ONCJ 417). At ¶ 306 to 308 of the Decision, the Court directed that costs, if not settled, would be argued orally. The Court directed the parties to file Bills of Costs, copies of any Offers to Settle and relevant case law in advance of argument.

[4] The father subsequently filed two additional affidavits of January 12, 2021 and February 17, 2021 [1]. The mother filed a responding affidavit of February 22, 2021. Attached to the father’s first affidavit is his former counsel’s Bill of Costs. The mother did not file a Bill of Costs reflecting how much time her former counsel spent on the motions. In her affidavit of February 22, 2021, the mother did include some, albeit incomplete information about her ability to pay costs. Neither side’s affidavits include formal Offers to Settle. That is because neither party served one.

[5] Both parents were represented by different counsel at the motions. The mother was formerly represented by Nicholas Cartel, a lawyer for whom she was also employed as a law clerk at the time. By the time the Court heard costs submissions, Mr. Cartel was no longer representing the mother. Nor is the mother working as Mr. Cartel’s law clerk any longer.

[6] Mr. Hutcheson assisted the mother as agent at two subsequent Court appearances for the costs submissions and certain limited other matters. He is not retained for all aspects of the litigation. Mr. Hutcheson played no role in advising the mother about the past litigation choices that she made.

[7] The father was represented by Irina Davis at the motions. He is now acting on his own. The father can no longer afford legal fees. He has an account receivable with Ms. Davis. The father told the Court that he initially paid about $10,000 to Ms. Davis, using a credit card. He is incurring interest charges of 23% on that amount. He also says he entered into a repayment plan with the law firm for the balance of the fees that he owes, at 5% interest. The father’s partner has taken on additional work to help him pay his legal fees.

Part II: The Parties’ Positions

[8] The father former counsel’s Bill of Costs lists total fees and disbursements of $38,951.94, or “partial recovery” fees and disbursements of $25, 734.02. The father says that he has since received an additional Bill from his former counsel, so his actual fees and disbursements are closer to $44,000.00. The father did not file the subsequent Bill with the Court. It is not clear to me whether the subsequent Bill pertains to matters since the motions, or not. The Bill of Costs that the father did file includes charges for work up to and including the preparation of the Bill of Costs.

[9] Regardless, the father asks the Court to order even more costs of $56,462.00. That is because of the interest charges that he will incur. But then during argument, the father conceded that he would not seek to add 23% interest on the first $10,000. However, he does ask the Court to adjust the post-judgment interest rate on any costs Order it makes, to 5%, to reflect the amount of interest that he will have to pay to his former lawyer over time.

[10] The father argues that the motions should not have been necessary. Although he did not serve a formal Rule 18 Offer to Settle, he says that he offered to settle this matter with the mother “out of court”, but the mother would not agree. He also says the mother filed voluminous materials to which he had to respond. The father is concerned that if the mother is not sanctioned with a costs order, she will engage in repeat behaviour of the kind that triggered the motions.

[11] The mother does not acknowledge any liability to pay costs. The mother claims that this case is one of divided success. Although she did not serve one either, the mother criticizes the father for not having made a formal Offer to Settle. The mother says that the father’s counsel’s Bill of Costs is excessive, and the father was involved in making the motions more complicated than necessary. Finally, the mother argues that she cannot afford to pay costs. She suggests that the Court might address costs by making her responsible for a greater share of certain of the child’s future section 7 expenses.

Part III: Issues and Analysis

A. Overall Framework and Law Concerning the Purposes of Costs Orders

[12] Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, provides that cost orders are in the discretion of the Court. The framework for awarding costs in a family law case is set out in Rule 24 of the Family Law Rules, O. Reg. 114/99, as amended.

[13] Modern costs rules are designed to foster three fundamental purposes: to partially indemnify successful litigants; to encourage settlement; and to discourage and sanction inappropriate behaviour by litigants. Rule 2(2) of the Family Law Rules adds a fourth, to ensure that cases are dealt with justly. See Mattina v. Mattina, 2018 ONCA 867 ¶ 10. I find that a costs order is warranted in this case to foster all of these purposes.

B. Entitlement

(1) Success

[14] An important factor in the determination of costs is success. Rule 24(1) provides a presumption that the successful party is entitled to costs of a motion. The Court may apportion costs if success is divided, pursuant to rule 24(6).

[15] To assess success, it is necessary to set out some brief history of this case. The parties have a 5 year-old girl, A.-E.D. On December 13 and 19, 2017, when A. E-D. was just two years old, this Court heard a two-day custody and access trial. The Court granted the mother custody and the father certain specified access. In a subsequent Order, the Court made an order dividing holiday time.

[16] Those Orders were never varied. In March of 2020, the mother unilaterally suspended the father’s access, based on allegations that the father’s partner had been physically and emotionally abusing the child, and based on allegations that the father was allowing this to happen.

[17] After suspending his access, the mother did not bring the matter before the Court promptly, even though in correspondence, her former counsel said more than once that he was going to do so. It was the father who eventually brought the matter before the Court, after first trying to reinstate his contact with the child through correspondence.

[18] In his Notice of Motion, the father sought a temporary order re-instating the access provisions in the Court’s prior Orders made following the 2017 trial. He also asked for make-up time.

[19] Orally during the motion, the father’s former counsel added a request for an order for police enforcement, for an order that the father’s partner could assist with the child’s pick up and drop off, and for an order prohibiting any further audio or video recording of the child going forward. The evidence revealed that the mother had been audio recording the child, and others, on numerous occasions. [2]

[20] In her Notice of Cross-Motion, the mother sought an order to “prohibit all in-person access and visitation”… “until [the child] reaches an age which the court deems appropriate, such that she is able to make her own decisions”. The mother sought a restraining order against the father’s partner, yet she did not serve her with the motion.

[21] Orally, the mother softened her position and said she would be content with the father having phone or video access, or alternatively supervised access at Access for Parents and Children in Ontario. And the mother took the position that she should be allowed to continue to tape the child.

[22] In its Decision of September 18, 2020, the Court did not make the findings of abuse that the mother sought. It re-instated the father’s access, with only some very minor modifications. The Court dismissed the mother’s request for the restraining order, and it made an Order that the parents not record each other, the child, or any professional without the express authorization of that particular person.

[23] In this context and despite the outcome, the mother still claims there was divided victory. She does so based on the fact that the Court did not order make up time as requested in the father’s Notice of Motion, or police enforcement per the father’s former counsel’s oral request. Although the mother argues that rule 24(6) applies to deprive the father of costs, it was crystal clear to the parties and their counsel at the time (this is also stated at ¶ 1 of the Decision), that the principal issue at the motions was whether the father’s access ought to be re-instated, or varied in some fashion on a temporary basis.

[24] In rejecting this argument of a divided victory, I would further direct the mother to review again ¶ 294-296 of the Court’s Decision. In those paragraphs, the Court found it “unfortunate” and not in the child’s best interests, that the mother saw fit to cancel so much access of the father’s access. But the reason it ultimately declined to order make up time was a function of the sheer amount of time that would have to be made up. The mother is solely responsible for that. I find it incredible that the mother would now argue, after she cancelled so much of the father’s access in the first place, that the father lacked success, just because the Court did not order make-up time on a 1:1 basis.

[25] The Court’s reason for rejecting the mother’s divided victory argument, based on the father’s failure to achieve an order for police enforcement, is similar. And the Court did not reject the prospect of police enforcement out of hand. The Court indicated that it would prefer not to order it “at this point”, worried that it might increase the parental conflict. By the same token, the Court directed both parties, but the mother in particular, to follow the Court’s Order. The Court stated that a request for police enforcement could be revived, should there be non-compliance by the mother in the future. See ¶ 296 of the Decision.

[26] For those reasons, I find that the presumption in rule 24(1), entitling the successful party to costs, applies to the father. I also find rule 24(6) is not engaged. Any lack of success that the father may have enjoyed on the motions was insignificant.

(2) Behaviour of the Successful Party

[27] Pursuant to rule 24(4), a successful party who has behaved unreasonably may be deprived of all or part of his or her costs, or even be ordered to pay the other side’s costs. Rule 24(5) sets out the factors the Court is to examine in deciding whether a party behaved reasonably or unreasonably.

[28] The mother’s argument in regards to this rule is that the father failed to make an Offer to Settle. I accept that the Court may take this into account in its deliberations. However, I would not deprive the father of costs, or reduce them, on account of his failure to serve a formal Rule 18 Offer to Settle in this case. I say this for two reasons.

[29] First, an Offer to Settle should involve some element of compromise. What the father really wanted, and achieved, was an Order re-instating his access. It is hard to imagine what Offer the father could have served, other than perhaps to say “re-instate my access”. I suppose the father might have abandoned the request for make-up access. But largely, the options before the Court were to re-instate the access, or to limit it. And there is no issue that it was on that issue, that the majority, if not all of the costs were incurred.

[30] This is like an “either-or” situation. I find the Court’s commentary on this point in Beaver v. Hill, 2018 ONCA 840 to apply. I would not penalize the father for failing to somehow compromise his position on whether his access should be re-instated, in a formal Offer to Settle. In the circumstances of a case like this, where the Court has now found that the mother was not justified in breaching the Order in the first place, it should not be said that the father deserves a reduction to his Bill of Costs because he didn’t serve an Offer to take less time than that to which he was already entitled in an Order. Nor should he have had to “offer” that a pre-existing Order resume.

[31] Incidentally, I note that the mother, who is criticizing the father for not having made an Offer, did not do so either. Quite to the contrary, she rejected his efforts to resolve the impasse prior to the commencement of the litigation, which I address next.

[32] Second, the father tried to avert the need for this round of litigation by way of correspondence, before coming to Court. As I have just said, his efforts were rejected by the mother. More particularly, there is correspondence in the Continuing Record that reveals the father’s efforts both to arrange telephone access, and to reinstate his in-person access with A. E-D. after the mother suspended it. Yet on April 1, 2020, Mr. Cartel wrote to the father that there would be “no physical access” and that he would not “entertain any more discussion on the point”. On May 8, 2020, Mr. Cartel wrote that the mother “fully realizes that she is in breach of a court order but the alternative is to put her child into a situation which may lead to her injury or worse”. Now it is true that the mother eventually allowed the father to have some visits, supervised by her in her backyard. But at some of those visits, she taped him and the child together. In this context, one wonders to what extent the father could have realistically achieved a meaningful settlement, had he served a Rule 18 Offer.

[33] While I would not find that the father behaved unreasonably by failing to make a Rule 18 Offer to Settle, I did already find in the Decision that the father engaged in some inappropriate behaviour in a different respect. At ¶178(d), I found that the father recorded the child too. The Court intends to send another message, to both parents, to discourage such conduct. The mother will be ordered to pay costs. The father will get less costs than to which he might have otherwise been entitled.

[34] That said, the assessment of the father’s behaviour must be done in context. It was the mother’s recordings that were particularly problematic. She did so to gather and to present evidence in a manipulative fashion. By contrast, I note again that the father recorded the child much less than the mother. He readily proposed a prohibition against this in the future. And it appears to me that any recording on his part, while misguided, was reactionary to the mother’s behaviour. Although I would find that the father engaged in some unreasonable behaviour, it does not warrant an order for no costs. There will be some discount to his Bill, but in the end this is not a significant factor when the Court looks at this matter in its totality.

C. Quantum

[35] The quantum of costs is determined with reference to the factors in rule 24(12). It reads:

24(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.

(1) Each Party’s Behaviour

[36] I have already addressed the father’s behaviour as it relates to rules 24(4) and 24(5). I would make similar findings in regards to his behaviour for the purpose of rule 24(12)(a)(i).

[37] These motions were very important to the father. His relationship with A. E-D. was at stake. He had to respond.

[38] I find the mother’s behaviour was highly unreasonable. The manner in which she conducted herself, and the positions she took, are fully set out in the Decision. In summary, the mother interrupted the father’s relationship with the child for several months. She suspended the father’s access with the child, and then unnecessarily imposed supervision wherein she was the supervisor. She breached Orders of this Court. She audio recorded the child when she was alone with her, and attempted to tender that as evidence of alleged abuse. The manner in which she conducted the recordings was problematic. She taped the father and the child during the supervised visits that she imposed, too. She audio recorded the child’s teacher. She assembled two years of photographs purportedly depicting abuse, even though there were explanations for most of the photographs, and even though the Children’s Aid Society had investigated. She took the child to Mr. Cartel’s law firm, and then had another employee there swear an affidavit about the child’s purported statement. She even engaged a therapist, largely with the goal of having the child make a disclosure of abuse. The Court addressed the therapy evidence, expressing much concern about it.

[39] The Court invited additional arguments about whether this therapist should be allowed to continue working with the child. In the end, the therapist is no longer involved with this family. While the Court did make a consent Order to this effect on February 25, 2021, it appears from the mother’s affidavit of February 22, 2021, that by February 6, 2021, the mother had already terminated the therapy. Now that the Court has placed little weight on this evidence, the mother nevertheless says she terminated the therapy, because of its cost.

[40] The Court placed little weight on most of the evidence tendered by the mother for numerous reasons set out in the Decision. I will not repeat all of those reasons. But for example, at ¶ 176-177 of the Decision, I found that there was a “dark cloud of suspicion over all this evidence”. The Court also expressed the concern that the child was being manipulated.

[41] Arguably, the father could have asked for a finding of bad faith behaviour by the mother within the meaning of rule 24(8). But that was not sought. Needless to say, it is for those reasons that I have no hesitation in finding that the mother engaged highly unreasonable behaviour within the meaning of rule 24(12)(a)(i).

(2) Time Spent and Fees Incurred

[42] I turn next to subrules 24(12)(a)(ii), (iv) and (vi). Ms. Davis was called to the bar in 2007. I find her hourly rate of $390, while perhaps on the high side, to be reasonable, especially having regard to the skill she demonstrated in the presentation of the father’s case.

[43] Ms. Davis’ Bill of Costs contains 88.9 hours of lawyer’s time, and 30.7 hours of law clerk time, plus about $870 in disbursements. I take no issue with the disbursements charged. The mother asserts that the time spent by Ms. Davis was excessive.

[44] The mother did not file a Bill of Costs of her own from Mr. Cartel for comparison, for the purposes of this argument. Instead, in her affidavit, she says that she did much of the work on her own time, and that Mr. Cartel only spent about 30 hours preparing for and arguing the motion.

[45] Given the volume of material before the Court, it seems unlikely that Mr. Cartel only spent 30 hours on this case. To better assess this argument, it would have been more helpful for the mother to have filed a Bill of Costs from Mr. Cartel. Even if the mother could not get this (for example if that is because she is no longer on good terms with Mr. Cartel), she could have given better details of the time she says that she spent.

[46] Regardless, Ms. Davis’ task was made more difficult by the mother’s approach to the litigation. I make that finding based on the summary of the prior proceedings, which is already set out at ¶22-28 of the Decision. For example, the material placed before the Court for these motions was voluminous. As explained at ¶24 of the Decision, it consisted of Notices of Motion, affidavits, affidavits from collateral witnesses and dozens exhibits. I found that it was the mother who filed most of the exhibits. Those included several audio recordings, numerous photographs of the child, a private investigator’s report (which the Court struck on consent), and reports from the play therapist.

[47] At the preliminary attendances before the main argument, the mother advised the Court that she wished to tender a report of the therapist as an “expert report”. A further attendance to organize how this evidence would be received became necessary, since the report had not been filed with the Court when the mother’s former counsel first said this. The Court later heard arguments from the mother that the play therapist should also be allowed to give viva voce evidence.

[48] The father’s counsel then said she wanted to question the therapist, not because of the “expert” nature of her evidence, but to clarify a factual matter. Ultimately, the father’s counsel was able to speak to the therapist out of court. This was achieved only after this Court issued a direction allowing this. Until then, the mother had been refusing to allow the father’s counsel to speak to the therapist, without her counsel present, even though the father had the right to information about the child and even though there was no property in this witness. The therapy notes reveal that after the Court gave the direction, the mother warned the therapist that the father’s counsel would be calling her.

[49] Two appearances were devoted to dealing with how this evidence from the therapist would be tendered at the motion. In the end, the Court did not qualify the therapist as an “expert”, nor did it allow her to testify orally at the motion as had been requested, nor did it place weight on her reports, for the numerous reasons set out in the Decision.

[50] A number of other evidentiary issues were also addressed at the preliminary attendances on August 10 and 14, 2020. These are explained at ¶ 25, 26 of the Decision. For example, there were in excess of 200 pages of notes and records from the Children’s Aid Society of Toronto that had been filed with the Court. As well, numerous notes and records from the therapist had also been obtained and filed. Ms. Davis had to read and respond to these voluminous materials. She summarized for the Court the most important and relevant excerpts, from the hundreds of pages of records. She had to advance the father’s position, and respond to the mother’s claims. During submissions, it was obvious to the Court that she was very prepared and very familiar with the material.

[51] Costs should be proportional to the issues. But greater proportionality by father was impossible to achieve in the face of the positions and steps taken by the mother. I find in general, that time spent by father’s counsel was necessary in these circumstances. I would not discount the Bill of Costs, just because Ms. Davis spent some extra time preparing for Court that the mother’s agent now characterizes as excessive. The amount of preparation that Ms. Davis invested, while perhaps at first blush might seem high, paid off for the father. The extent of her preparation translated into her performance in Court during argument.

D. Ability to Pay

[52] In regards to rule 24(12)(b), the mother argues that she cannot afford to pay costs. The mother did not file a financial statement to enable the Court to assess this fully. In her affidavit of February 22, 2021, the mother does state that she receives employment insurance of $2,000 per month, $946 per month in child support and section 7 expenses from the father, child tax benefits of $630 per month, and $120 per month from the Ontario Trillium Benefit. The mother also states that the balance in her savings account is less than what she owes in rent and on credit cards.

[53] The mother says her rent is $2,200 per month and she owes $1,000 on each of two credit cards. She says that the child’s Occupational Therapist will cost $220 per month as of March. She sets out the cost of the play therapist, too, although play therapy ended as of February 6, 2021. Finally, the mother also sets out the anticipated future cost of behavioural therapy, which she says will be $600 per month. I will address this latter expense separately, below.

[54] The mother did not explain in her affidavit the other amounts that she needs each month to cover utilities, groceries, the interest on her credit cards, other personal expenses, and other expenses relating to the child. During submissions, the Court did ask her to provide some information about this orally. The mother told the Court that she spends about $600 per month for groceries and utilities.

[55] The mother must take responsibility for the choices she made. The mother chose to have her former employer represent her. She acted very aggressively in the litigation. The mother did not advise the Court whether she paid Mr. Cartel for his representation, or whether he represented her pro bono. If in fact the mother had access to free legal services while she was employed for Mr. Cartel, the Court cannot help but wonder whether the mother would have embarked upon the litigation in the same manner, had she been paying for legal fees like the father had to.

[56] The mother is now no longer employed with Mr. Cartel. The reasons for this too, were not explained in the mother’s affidavit. During submissions, the mother told the Court that there was some “tension” between her and her former employer since the motions. Whatever the reason for her job loss, the reality is that the mother now has less income. She receives employment insurance, rather than employment income. Not only is the Court is left questioning the wisdom of the mother’s choices in the litigation, the Court is also left questioning the wisdom of her selection of counsel.

[57] In the result, I find that the mother’s ability to pay argument does not relieve her of the responsibility to pay costs, as she argued. Many costs decisions have expressed that family law litigants are accountable for the positions they take in litigation. They have an obligation to assess their cases at the outset, and to reassess as the case unfolds. Courts have repeatedly stated that those who can least afford to litigate should be motivated to pursue settlement and to avoid unnecessary proceedings.

[58] The mother should have conceded an obligation to pay some costs during submissions. Her position that she should pay no costs is just as unreasonable as many of the substantive positions she took during the motions. Despite that, I am prepared to take her ability to pay into account in three different ways.

[59] First, I will reduce the overall amount of father’s costs claim somewhat. But in so doing, I am more so taking into account the Court’s previous finding of some unreasonable behaviour by the father. As such, I need not decide whether it would have been appropriate to discount the father’s Bill, had he not engaged in unreasonable behaviour too, based on the mother’s ability to pay alone.

[60] Second, I will allow the mother to pay off the costs over time. I am mindful that the mother has the child in her primary care, and I have taken into account her financial circumstances, to the extent I was told about them. I have even taken into account the unsworn, oral information, that she told me about. That is because as a matter of common sense, the mother must incur expenses for things like utilities and food, and the amounts she told me about were reasonable.

[61] Based on the mother’s affidavit, she has funds of $3,696 coming in each month. On a modest monthly budget of $3,020 per month [3], she will have about $676 left over. I therefore find that she can afford to pay costs at the rate of $600 per month. I appreciate that the mother’s expenses are likely higher, but unfortunately I was not given more and better information. Nevertheless, to address that concern I am also prepared to give her more time to find new employment, to increase her income to meet her additional, not yet disclosed expenses.

[62] Third, although this was also not in sworn form, during submissions the Court asked the mother whether she is looking for work. She said she was, and that she hoped to have new employment soon, within a few months. I am prepared to accept her say-so about this and I will delay the commencement of installments for costs, to allow her to increase her income as set out above.

[63] All that said, while the Court is prepared to grant the mother these allowances, to recognize her ability to pay argument, the Court would equally not find it to be fair to saddle the father with all of the interest charges that he will incur with his lawyer, while he awaits payment from the mother over time. The reality of this case is that father cannot afford to pay his lawyer’s Bill all at once, so he will incur interest. He should not have been put to the expense of the motions. The mother requires a payment plan since she cannot afford to pay costs as a lump sum. She should not have approached the litigation in the manner that she did. Therefore, I see it as fair and reasonable to shift the responsibility to the mother, to pay the interest associated with the costs that the Court is ordering the mother to pay.

E. Post-Judgment Interest

[64] The prescribed post-judgment interest rate of 2% is less than the interest that the father is incurring under the repayment plan with his lawyer. Section 130(1)(b) of the Courts of Justice Act empowers this Court to change the post-judgment interest rate. To shift the burden of that interest onto the mother, I intend to increase the post-judgment interest rate to 5%.

[65] However, an additional term is required, since the Court is allowing the mother to pay costs over time, in installments. Section 129(2) of the Courts of Justice Act says that where an order provides for periodic payments, each payment in default shall bear interest only from the date of default. If I were to say nothing more about this, without adjusting the default operation of section 129(2), the mother might never pay the increased interest of 5%. That is because for so long as the mother made all of the installment payments on time, there would be no post-judgment interest. Meanwhile the father will continue to owe interest to his lawyer.

[66] Thus, I intend to order that the increased post-judgment interest of 5% will start to accrue now. Section 130(1)(c) of the Courts of Justice Act empowers the Court to do this.

[67] I also intend to order that if the mother defaults, all of the costs then owing will become immediately due and payable.

[68] In addition to the reasons that I have already provided for making these Orders, I also rely on the factors in sections 130(2)(b), (f) and (g) of the Courts of Justice Act.

F. The Arguments that Costs Should Be Addressed, By the Court Adjusting the Responsibility for Section 7 Expenses

[69] There is one final argument that both parties made, which I intend to address. In the Decision, I was concerned with certain evidence, that the child was exhibiting certain behaviours perhaps warranting a diagnosis and treatment, but which the parents were not addressing. When I released the Decision, I suggested to the parties that they consider a custody and access assessment. I suggested that they might address costs, by adjusting the responsibility to pay for that assessment. Had the parents pursued that, then I would have expected that they would have returned to Court with information about potential assessors, including required retainers and estimated costs. That would have put the Court in the position to consider how to address costs and the cost of an assessment.

[70] However, the parties decided against an assessment on affordability grounds, and instead asked the Court to appoint the Children’s Lawyer. I made that order.

[71] They now appear to agree that the child should see a behavioural therapist. But they only just agreed to the identity of that therapist, on February 25, 2021.

[72] The mother says that will have a cost attached to it. According to the mother’s materials, that could be $600 per month. She also says that the child will start soccer in May at a cost of $80 per month, and she says she will incur day care expenses when she goes back to work.

[73] Orally, the mother argued that this Court might order something similar to what is set out above regarding adjusting the cost of the potential custody and access assessment, but instead for the behavioural therapy. In other words, the mother suggested that the Court might just require her to pay for the cost of the behavioural therapist, or a greater portion of that cost, in lieu of paying costs to the father. She did not really specify a breakdown.

[74] Yet in her affidavit of February 22, 2021, the mother did not say this. Rather, she says that the child will need some testing when she is in grade 1, which will cost $5,000.00. That is what the mother says the Court should adjust.

[75] In his affidavit of January 12, 2021, the father seems to be asking for an order reducing his already ordered section 7 expenses payments to zero. It is not fully clear if this is a separate request, or if it is designed to compensate him for costs in addition to the costs order that he seeks.

[76] The difficultly with these arguments, made by both parents, are fivefold.

[77] First, as I have just said, the parents only agreed to the identity of the therapist at the attendance before me on February 25, 2021. The therapy is not yet underway.

[78] Second, I do not yet know fully what is required of this therapist, for example how often she will want to see the child and so on. Nor do I have proof of the cost, in terms of any documentary receipts or estimates.

[79] Third, the Court appointed the Children’s Lawyer. So while I appreciate that the parents have sourced the need for this therapist, other recommendations may come from the Children’s Lawyer.

[80] Fourth, I do not know for how long the behavioural therapy will continue. In making the Order sought by the mother, I would be guessing as to the value of the child’s behavioural therapy, apportioning it to the father, and then crediting it against costs. And that may work an unfairness to one parent or the other, depending on how much therapy is required and the eventual, total cost. Nor do I know whether the cost of this therapy is sustainable. There may also be tax credits that need to be factored in. The mother may get health coverage with any new employment. Likewise, I do not have any other information about the potential future testing, its necessity, or its cost, other than the mother’s say-so. She does not even explain who recommended this testing, or why it is required.

[81] And fifth, the Court’s jurisdiction to make orders in the nature of section 7 expenses, whether by way of set off, or under section 7 itself, was not fully argued. In fact, relief in connection with section 7 expenses is not even pleaded.

[82] Making ad hoc adjustments to existing or future section 7 expenses is very different from adjusting the costs of a custody and access assessment. Moreover, there is already an order for section 7 expenses that the father pays. Neither side has sought to vary child support or section 7 expenses in his and her Motion to Change and Response to Motion to Change. Neither side has filed a financial statement. Neither side has put the necessary evidence before the Court to address section 7 expenses.

[83] If the parties wish to have the Court address existing or future section 7 expenses, they will need to amend their pleadings, follow the Rules, file financial statements and evidence about the section 7 expenses, and this may be dealt with in due course. This will have to be looked at, in the context of the previous Order, to see if there has been a change in circumstances. The Court will deal with this properly, if and when all the relevant information is before it, properly.

G. Conclusion

[84] As the Ontario Court of Appeal held in Beaver v. Hill, 2018 ONCA 840 ¶ 12, “… proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs.” Having regard to all of the above factors and considerations, I find that the mother shall pay costs to the father in the amount of $25,000. I find this to be reasonable and proportionate in all of the circumstances.

[85] These costs shall be paid at the rate of $600 per month commencing June 1, 2021, with interest, on the terms set out below. The monthly repayment amount is less than the $1,000 per month that the father asked for in his January 12, 2021 affidavit. That higher figure appears to have been based on a higher quantum of costs claimed, that the Court did not order. The repayment amount of $600 is instead based on the above analysis about the mother’s ability to pay. I would not have found that she can afford to pay $1,000, based on the information before me. And I am giving the mother three more months to find new employment, based on her statements to the Court during submissions.

Part IV: Orders

[86] I make the following orders:

(a) The mother shall pay costs to the father in the amount of $25,000;

(b) The mother may repay these costs at the rate of $600 per month, commencing on June 1, 2021;

(c) The mother is at liberty to make additional payments in advance, to pay off the costs earlier, if she wishes to avoid the interest charges, set out below;

(d) If the mother defaults on any payment for more than 7 days, then the entire amount then owing shall become fully due and payable;

(e) Interest on any unpaid amounts shall accrue at the rate of 5% per annum, commencing immediately. To be clear, interest on the whole amount shall begin to accrue immediately, and does not depend on her defaulting on any particular installment. This paragraph overrides the usual operation of section 129(2) of the Courts of Justice Act; and

(f) With each installment payment the mother makes, interest of 5% shall continue to accrue on the balance and so on, until the costs are paid in full.

Released: March 2, 2021 Signed: Justice Alex Finlayson

[1] Both of the father’s affidavits were unsworn when they were initially e-filed. They were sworn before me in Court via zoom prior to argument on February 25, 2021.

[2] The evidence also revealed that the father had taped the child once, and possibly twice.

[3] This is an estimate only based on the information that the mother supplied in sworn and unsworn form. It consists of rent, utilities, food and the child’s occupational therapy.