Court File and Parties
Court File No.: 1353-23 Date: 2023/11/27 Superior Court of Justice - Ontario
Re: Kimberley Allison Bell, Applicant And: Leonardo Placidi, Respondent
Before: The Honourable Mr. Justice A. Pazaratz
Counsel: Mackenzie Dean, for the Applicant Respondent, Self-represented
Heard: November 24, 2023
Endorsement
[1] It’s crazy when legal fees to secure a parent’s “travel consent” for a child’s Punta Cana vacation exceed the cost of the trip itself.
[2] The Applicant mother brought this urgent motion seeking permission to take the parties’ 15-year-old daughter on a vacation to the Dominican Republic from December 2 to 9, 2023 – and to dispense with the Respondent father’s consent to the out-of-Canada travel.
[3] The mother filed two affidavits in support of her motion. The self-represented father filed no responding materials but attended the virtual hearing.
[4] At the outset the father said he was confused about what was happening. a. He said that he had already signed the travel consent and returned it to the mother’s lawyer by DocuSign using his cell phone. b. The mother’s lawyer advised that her firm does not use DocuSign. They sent him the letter for signature using Adobe. And they never received a signed consent. c. The father said he used his cell phone. He said he signed, then “pushed the button”, and presumed the document had been sent. d. He said he subsequently tried calling the mother repeatedly to confirm she had received the consent, but he said she won’t take his calls. e. He didn’t explain why he didn’t call the mother’s lawyer, if he wanted to confirm that the document was received by the lawyer. f. It apparently didn’t occur to him that since the mother was still proceeding with her motion, perhaps a signed consent was never received.
[5] The father said in any event he was consenting to the trip. He offered to sign and forward a consent immediately after the hearing, if we wanted.
[6] I agreed with the mother’s counsel that since the matter was before me, with the trip only a few days away, there was no point again waiting for a signed consent from the father. I stated I would make the order as proposed in the mother’s draft.
[7] However, when we got to the part about the mother’s lawyer seeking costs, the father then changed his mind and stated that if she was seeking costs he was no longer consenting to the trip. I attempted to explain to him that by the time the topic of costs had come up, the substantive decision had already been made, based on the mother’s materials -- and based on the father’s initial representation that he had consented long ago and was still consenting.
[8] As the discussion continued, the father’s position continued to waver, and at times he was unclear. It didn’t help that during the Zoom hearing I had to repeatedly ask him to stop walking around and conducting business in his Halifax restaurant, while connecting by video using his cell phone.
[9] In light of the father’s inconsistent and somewhat confusing position, I will explain my decision.
[10] The chronology is fairly straightforward: a. The parties were married January 13, 2007 and separated in 2010. They have one child. b. The May 31, 2010 final order of Justice Zisman includes the following: i. Joint custody, principal residence with the mother. ii. Father to have reasonable access including every Sunday 9:30 a.m. to Monday at 5:30 p.m., and other times as agreed. iii. Father pays $200.00 per month child support, and provides annual income disclosure. Mother to obtain and retain child’s passport. Father to sign required documents. Mother to give father the passport when he needs it for travel. iv. If either parent plans a vacation with the child, that parent will give the other a detailed itinerary at least 30 days before it begins, including the name of any flight carrier, flight times and accommodations (including address and telephone numbers). (paragraph 13) c. When the order was made 13 years ago, everyone was living in Ontario. The father subsequently moved to Nova Scotia. d. The mother’s vacation proposal involves herself, her daughter, the mother’s partner, and the partner’s daughter. e. On October 24, 2023 the mother sent the father a travel consent letter, together with full particulars of the trip, including dates, flight numbers, and hotel accommodation. f. On October 24, 2023 the father called the mother and advised he would not sign the travel consent. g. On October 30, 2023 the father sent the mother a text confirming his position that the child would not be going on the trip. h. On November 5, 2023 the father sent the daughter a text stating "You're going to come to see your dad first and I'm gonna put you to work and you're going to spend good quality time with me love you on this side or the other." The daughter’s response to this message was "Not happening". i. The mother then had her lawyer email a letter to the father on November 10, 2023 formally requesting that he execute the travel consent, and confirming the travel arrangements. The lawyer warned that if he didn’t sign, a motion would be brought and the mother would be seeking costs. j. On November 13, 2023 the father emailed that he had "no problem signing as long as we can confirm (the daughter) comes here Christmas time that's the only way". k. On November 13, 2023 the mother’s lawyer responded by email, inviting the father to provide full details of his proposal for a Nova Scotia visit with the daughter over the holidays. But counsel explained that the mother’s request for the Punta Cana travel consent was a separate issue, and that it was not appropriate for the father to withhold consent to mother’s trip until the mother consented to his trip. l. On November 13 and 14 the father sent the lawyer two separate emails. In the second email he agreed to sign the travel consent. On November 14, 2023 the lawyer sent him a copy for execution. But the mother’s affidavit sets out that the father has never responded, and he hasn’t signed. m. The mother then brought this motion.
[11] I make no comment on the issue of parenting arrangements generally, or the merit of any specific proposal the father may have with respect to his own parenting time with the teenager. But I am satisfied that this particular Punta Cana family vacation would be beneficial and in the best interests of the child. Quite understandably, she wants to go. And it was inappropriate for the father to attempt to barter his consent, in exchange for the mother agreeing to some unrelated proposal on his part.
[12] After I approved the vacation request, we dealt with costs.
[13] When the mother’s lawyer advised that she is seeking costs ($3,890.00 if full indemnity or $3,112.00 if “80% substantial indemnity”), the father reacted somewhat negatively. He indicated in that case he was no longer consenting to the trip.
[14] I advised him that I had already made the travel decision based upon his repeated earlier comments. And that in any event, even if he was no longer consenting, the materials satisfied me that the vacation is in the best interests of the child.
[15] But the costs request created a complication. a. The determination of costs would require a factual finding about whether the father had indeed sent the mother’s lawyer a signed travel consent. b. If he had cooperated after the lawyer became involved, there might still be some minor costs exposure for the work the lawyer had to do prior to receiving a signed consent. c. But if he didn’t send a signed travel consent, then the motion hearing would have been the father’s first communication that he was consenting to the trip. In that case the mother would be entitled to costs up to and including the hearing.
[16] I gave the father an option: a. I explained that I could not simply take his word for his last-minute assertion that quite some time ago (he didn’t specify the date) he had sent a signed consent. b. I said I would give him an opportunity to assemble and present any evidence he may have to corroborate his version of events. c. This would require an adjournment to another day, to deal only with the issue of costs. I was not adjourning the vacation permission issue, which had already been decided. d. I wanted the father to understand that seeking an adjournment for an opportunity to prove that he sent the travel consent entails a bit of a risk for him. If it turns out that the court does not accept his position, his costs exposure would increase, because he will have required the mother’s lawyer to return to court on yet another occasion (not to mention any work the lawyer might have to do responding to any materials the father files). e. The father said he understood it might be more expensive for him if he requests an adjournment to prove something, if it turns out he can’t prove it. But he still wanted the adjournment.
[17] Notwithstanding the father’s request for an adjournment on the costs issue, I also tried to address the reality that the father did not file any materials in relation to the motion. Given the father’s somewhat erratic presentation during the hearing, the mother’s lawyer is understandably concerned that the father is requesting an adjournment but that again he won’t file any materials. I will try to deal with that contingency.
[18] The order: a. Order per draft filed by Applicant, paragraph 1, permitting the mother to travel with the child. The court is to expedite issuing the order. b. The costs issue is adjourned to January 3, 2024 at 10 a.m. as a placeholder date. The Trial Co-ordinator will notify the parties of the exact scheduling of the hearing of the motion. c. The Respondent shall, no later than December 12, 2023, serve and file an affidavit setting out his evidence in support of his contention that he had previously signed and returned the travel consent, and that as a result the motion attendance was not necessary. d. The Applicant shall, no later than December 20, 2023 serve and file any responding affidavit. e. Service may be by email. f. However, if the Respondent does not serve and file an affidavit by December 12, 2023, then the Applicant will not need to file any responding materials, and the January 3, 2024 return date is to be vacated. If he does not submit his evidence by December 12, 2023 there will be a finding that the father did not send a signed consent, and costs of this proceeding will be fixed in the sum of $2,000.00 (plus HST) payable by the Respondent. g. For clarity, the $2,000.00 (plus HST) costs determination only applies if the Respondent does not file materials by December 12, 2023. If he files materials, that costs determination will not apply, and it will be open for both parties to make whatever submissions they may deem appropriate at the costs hearing.
[19] I will provide some additional explanation with respect to the tentative $2,000.00 (plus HST) costs determination.
[20] There is no doubt that if it turns out the father can’t establish that he previously submitted a signed consent, then the mother’s motion would have been necessary. She was successful and presumptively entitled to costs. (Rule 24(1)).
[21] Once entitlement to costs is established, the court must consider Rule 24(12) which outlines the factors to be considered in quantifying costs. This includes consideration of the amount of work which needed to be done to obtain the successful result.
[22] In support of her motion, the mother filed a comprehensive affidavit which set out the whole of her narrative. That affidavit told me everything I needed to know to understand the mother’s position. She could have left it at that.
[23] But the mother also submitted a second affidavit sworn on November 16, 2023 by Jo-Ann Chandler, a law clerk at the office of the mother’s lawyer. a. That three-page affidavit sets out that on November 14, 2023 Chandler received a telephone call from a woman whose caller I.D. stated “Debra Placidi.” Chandler recognized the surname as being the same as the Respondent’s. The woman asked to speak to the mother’s lawyer. Chandler explained that the lawyer was unavailable. The woman said she would email the lawyer instead. b. The next morning Chandler retrieved five voicemails which had been left on the law firm’s telephone system, after hours on November 14, 2023. The woman leaving the voicemails identified herself as the Respondent father’s sister. Chandler stated her belief that this was the same woman she had spoken to on November 14th. c. Chandler described the five voicemails as “aggressive, threatening, and extremely hostile.” d. Her affidavit set out about ten sample comments by the caller. I won’t review them specifically, other than to note that the suggestion “Go fuck yourself” came up a couple of times.
[24] I accept that these voicemails were needlessly offensive and provocative. Family law lawyers shouldn’t have to put up with this type of abuse.
[25] But I do not find that this second affidavit was necessary – or even relevant -- for the determination of the specific issues raised in this motion. a. The unpleasant behaviour described in Chandler’s affidavit is not attributed to the Respondent himself. b. The suggestion is that it was his sister who made these calls. c. There is no indication that the Respondent authorized or was aware of this person’s behaviour. d. And there is no suggestion that these voicemails created any extra work or expense – other than the extra work associated with preparing an affidavit to tell me about the voicemails. e. Indeed, there is no proof that this person was actually the Respondent’s sister or connected to him in any way. f. (I’m not naïve. The woman who left the angry voice mails specifically referred to the Respondent by his first name, and was vitriolic in her disparaging reference to very specific details of the case. She knew a lot. So it probably was his sister.) g. But why did I need to know any of this?
[26] Costs rules are intended to address the conduct of the parties to litigation – not their meddlesome family members.
[27] Accordingly, I have not taken the contents of Chandler’s affidavit into account in relation to either the substantive issue or the costs issue. And if that affidavit was irrelevant, then the costs claimed by the mother should not include any reimbursement for work done in relation to an unnecessary affidavit.
[28] There is no doubt the father has been unreasonable. a. At the very least he put the mother to some unnecessary legal expense. b. If he is unable to establish that he really did sign and return the consent letter, then he put the mother to a great deal of unnecessary legal expense. c. Separated parents who needlessly or spitefully block safe and enjoyable travel plans for their children inevitably discover that such selfish obstinance can result in significant costs orders.
[29] But even where parents have well-founded confidence that they are doing the right thing, they must still be mindful that litigation success and a significant costs award may still leave them “out-of-pocket.” a. Costs awards are discretionary. In exercising that discretion, the court should be mindful of two touchstone considerations: reasonableness and proportionality. Beaver v. Hill, 2018 ONCA 840. b. The Court’s role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees. Aprile v. Aprile, 2016 ONCJ 678. c. There is no presumption in the Rules that provides for a general approach of "close to full recovery" costs. Rules 18 and 24 expressly contemplate full recovery in only two specific circumstances: Matching/exceeding an offer to settle (Rule 18(14)). And bad faith (Rule 24(8)). Beaver v. Hill, 2018 ONCA 840. d. And even in circumstances in which Rules 18(14) or 24(8) trigger "full recovery costs", the court still has an overriding discretion and responsibility to determine a costs award that is proportional, fair and reasonable in all the circumstances. Chomos v. Hamilton. e. “Full recovery” does not mean that the unsuccessful party automatically reimburses the exact amount charged by the successful party’s lawyer. Fearon v. Ellsworth, 2020 ONCJ 583; Natale v. Crupi, 2020 ONSC 8007; Volgemut v. Decristoforo, 2022 ONSC 2520; Tintinalli v. Tutolo, 2022 ONSC 6276. f. The amounts actually incurred by the successful litigant are not determinative. The Court’s role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees. Aprile v. Aprile, 2016 ONCJ 678; Kommineni v. Guggilam, 2022 ONCJ 191. g. The overall objective is to fix an amount that is fair and reasonable from the unsuccessful party’s perspective. This includes considering the amount the unsuccessful party could reasonably have expected to pay if they were unsuccessful in the litigation. Boucher v. Public Accountants Council of Ontario; Arthur v. Arthur, 2019 ONSC 938; Mussa v. Imam, 2021 ONCJ 92; Kerr v. Moussa, 2023 ONCJ 82.
[30] This has turned out to be a very expensive vacation, for everyone. I have tried to limit that expense, by creating a mechanism to avoid a future costs attendance if it would be unproductive.
[31] The mother’s motion did not include a request to vary the January 13, 2007 order, to dispense with the father’s consent with respect to future vacations. The father should anticipate that if we have to go through this again, he will likely lose the right to participate in future vacation plans for the child.
Justice Alex Pazaratz Date: November 27, 2023