C.A.M. v. D.M. [Indexed as: M. (A.C.) v. M. (D.)]
67 O.R. (3d) 181
[2003] O.J. No. 3707
2003 ONCA 18880
Docket No. C36786
Court of Appeal for Ontario
Rosenberg, Goudge and Sharpe JJ.A.
September 23, 2003
Family law -- Children -- Access -- Mother having history of making false accusations against father -- Some evidence existing that mother suffered from psychiatric problems but trial judge concluding that he [page182] did not have sufficient expertise to decide that issue -- Trial judge ordering that mother's access to child be supervised until properly qualified psychiatrist had given her "clean bill of health" -- Trial judge also ordering that psychologist who had assessed and counselled child be involved in any decision to grant unsupervised access to mother -- Trial judge improperly delegating his decision-making regarding access -- Requirement of "clean bill of health" too vague -- Conditions relating to "clean bill of health" and involvement of child psychiatrist deleted from access order -- Order for supervised access upheld.
Family law -- Practice -- Costs -- Family Law Rules circumscribing but not removing trial judge's broad costs discretion -- Rule 24(1) creating presumption that successful party is entitled to costs of case but not requiring that successful party is always entitled to costs -- Financial situation of parties may be taken into account in setting amount of costs award under Rule 24 or Rule 18 -- Court having discretion not to make award of full recovery even where party has met conditions in rule 18(14) -- Even when making award of full recovery, trial judge must ensure that costs are reasonable -- Family Court Rules, O. Reg. 114/99, Rules 18, 24.
Family law -- Evidence -- Fresh evidence on appeal -- Parties participating in pilot mediation project designed to assist parties to family law appeals -- Mediation unsuccessful -- Investigator's reports prepared in course of mediation not admissible as fresh evidence on appeal.
Following a nine-and-a-half-day trial, the trial judge ordered that the father have sole custody of the child. The mother had a history of making serious and unfounded allegations against the father, and her behaviour had disturbed the child to the extent that R, a psychologist, was retained to assess and counsel the child at the request of an investigator for the Office of the Children's Lawyer ("OCL"). R's report had contained a recommendation that the mother receive a psychiatric assessment. The trial judge found that the mother had repeatedly lied at the trial and had attempted to fabricate evidence. However, he found that he lacked the expertise to conclude that she was suffering from a mental health problem. He ordered that the mother's access to the child be supervised at the Supervised Access Facility until she was "given a clean bill of health by a properly qualified psychiatrist". He further ordered that the child continue to see R and that R be involved in any decision to grant unsupervised access to the mother. The father had made an offer to settle which the trial judge found was "spot on" as it related to the issues of custody and access. The trial judge held that the father was entitled to costs generally and to full recovery of costs after the date of the offer in accordance with Rule 18(14) of the Family Court Rules. He held that the line of cases holding that costs should not be awarded in custody actions except in exceptional circumstances had been overtaken by the Family Court Rules, and that financial hardship was not a factor in making the costs order. He awarded the father costs in the amount of $49,405. The mother appealed.
Held, the appeal should be allowed in part.
The parties had participated in a pilot mediation project designed to assist parties to family law appeals. According to the Practice Direction for Pre-Hearing Settlement Conferences in Family Law Appeals Pilot Project, in the absence of a successful resolution, "the fact of the settlement conference, the memoranda filed and all deliberations in the process, will remain strictly confidential and without [page183] prejudice to the parties' legal positions". The reports of the OCL investigator were not admissible as fresh evidence on the appeal. The OCL's involvement was only because of the settlement conference process. To allow one party to the appeal to place the reports before the court could prejudice the other party's legal position on the appeal and thus undermine the legitimacy of the settlement conference process. The fact that the Court of Appeal takes a more liberal approach to the admission of fresh evidence in child custody cases than in other civil cases did not outweigh the very strong public interest in preserving the confidence of litigants in the integrity of the court's process.
The access order was too vague. The mother or even a treating psychiatrist could not know what the trial judge meant by "a clean bill of health". Even if the mother did not find a psychiatrist to give her a clean bill of health, that would not disentitle her to access to the child, even unsupervised access, if such access would be in the best interests of the child. Conversely, a clean bill of health would not entitle her to unsupervised access, if that access would not be in the best interests of the child. Moreover, the trial judge appeared to have improperly and impermissibly delegated decision-making regarding access to two other parties, an unnamed "properly qualified psychiatrist" and R. Finally, the order might represent an improper fetter on the mother's access to the courts. It was not open to the trial judge, in the circumstances of this case, to delegate to third parties the right to determine if and when the mother could apply to the court for unsupervised access. The "clean bill of health" condition and the condition with respect to R's involvement should be deleted from the access order. However, the condition that access be supervised was valid and fully supported by the evidence.
While the Family Law Rules have circumscribed the broad costs discretion granted by s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, they have not completely removed the trial judge's discretion. Rule 24(1) enacts a "presumption" that the successful party is entitled to costs of the case but does not require that the successful party is always entitled to costs. The financial situation of the parties can be taken into account in setting the amount of the costs award either under Rule 24 or Rule 18. In fixing costs, the courts cannot ignore the best interests of the child and thus cannot ignore the impact of a costs award against a custodial parent that would seriously affect the interests of the child. That was not, however, a consideration in this case, as the mother was not the custodial parent. The court has a discretion not to make an award of full recovery even where the party has met the conditions in rule 18(14). Even when making an award of full recovery, the trial judge must ensure that the costs caught by the successful party are reasonable. This was clearly an appropriate case for the costs consequences in rule 18(14). Moreover, the mother's financial circumstances did not constitute a reason to deprive the father of costs.
APPEAL from an access order of Timms J., [2001] O.J. No. 1859 (QL) (S.C.J.) in child custody case and from order for costs.
Cases referred to Biant v. Sagoo, 2001 ON SC 28137, [2001] O.J. No. 3693 (QL), 20 R.F.L. (5th) 284, [2001] O.T.C. 695 (S.C.J.); Brennan v. Brennan, [2002] O.J. No. 4743 (QL) (S.C.J.); Church v. Church, 2003 ON SC 2084, [2003] O.J. No. 2811 (QL) (S.C.J.); Lord v. Haner-Lord, [2003] O.J. No. 1440 (QL) (S.C.J.); M. (B.P.) v. M. (B.L.D.E.) (1992), 1992 ON CA 8642, 97 D.L.R. (4th) 437, 42 R.F.L. (3d) 349 (Ont. C.A.); R.S.-C. v. T.C., [1992] O.J. No. 1860 (QL) (S.C.J.); Ramsay v. Ramsay, 1999 ON SC 15027, [1999] O.J. No. 4835 (QL) (S.C.J.); Sims-Howarth v. Bilcliffe (2000), 2000 ON SC 22584, 6 R.F.L. (5th) 430 (Ont. S.C.J.); Strobridge v. Strobridge (1994), 1994 ON CA 875, 18 O.R. (3d) 753, 115 D.L.R. (4th) 489, 4 R.F.L. (4th) 169 (C.A.), revg (1992), 1992 ON SC 7488, 10 O.R. (3d) 540, 95 D.L.R. (4th) 503, 42 R.F.L. (3d) 154 (Gen. Div.); Talsky v. Talsky (1975), 1975 SCC 29, [1976] 2 S.C.R. 292, 62 D.L.R. (3d) 267, 7 N.R. 246, 21 R.F.L. 27, revg on other grounds 1973 ON CA 53, [1973] 3 O.R. 827, 38 D.L.R. (3d) 343, 11 R.F.L. 226 (C.A.); [page184] Taylor v. Branconnier, [2003] O.J. No. 924 (QL) (S.C.J.); Williams v. Ellul (1996), 1996 ON CA 1330, 19 R.F.L. (4th) 40 (Ont. C.A.) Statutes referred to Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 112, 131(1) Rules and regulations referred to Family Law Rules, O. Reg. 114/99, Rules 18, 24
Jeffrey Wilson, for appellant. Heather G. Ritchie, for respondent.
The judgment of the court was delivered by
[1] ROSENBERG J.A.: -- This is an appeal from the judgment of Timms J. in a child custody case. Following a nine-and-a-half- day trial, the trial judge ordered that the respondent father have sole custody of the appellant and respondent's daughter, who is now seven years old. The appellant does not now contest that part of the order. She does, however, argue that the trial judge erred with respect to the access provisions of the order. The impugned provisions are terms two and three of the order:
that as per the Order of The Honourable Madam Justice Benotto dated March 8, 2001, the mother CAM's access to the child, BPM, born April 27, 1996, will remain supervised at the Supervised Access Facility until she, CAM, has been given a clean bill of health by a properly qualified psychiatrist;
that the child, BPM, born April 27, 1996, shall continue to see Dr. Russell, and that Dr. Russell will be involved in any decision to grant unsupervised access to the [applicant], CAM;
[2] The appellant submits that the order represents an improper delegation of the court's power to determine access, and that the condition "until she, CAM, has been given a clean bill of health by a properly qualified psychiatrist" is, in any event, vague and unworkable and constitutes an unlawful fetter on the appellant's ability to gain access to the courts.
[3] The appellant also appeals the costs award of $45,000 plus $4,405 for disbursements. The appellant submits that the trial judge erred in principle in his application of Rules 18 and 24 of the Family Law Rules, O. Reg. 114/99.
[4] I agree in part with the appellant. In my view, parts of the order were improper and I would vary the order accordingly. The appellant submits that in the event this court were to find that the order was improper, we should order instead that the mother [page185] be allowed unsupervised access to her child. That submission is based on reports prepared by a Clinical Investigator for the Office of the Children's Lawyer ("OCL"). Those reports were prepared as part of an attempt at mediation of the appeal. That mediation attempt failed. In my view, those reports are not admissible in this court. In any event, on the state of this record, this court is not in a position to determine that the mother should have unsupervised access. That is a matter that will have to be determined by the Superior Court if the mother seeks to vary the order.
[5] Accordingly, subject to deleting a part of para. 2 and all of para. 3 of the order, I would dismiss the appeal. I would also dismiss the appeal from the costs order.
The Facts
[6] The parties met when they were both students and by 1993 were living together. The parties separated on several occasions and in 1995 during one of those separations the mother became pregnant. The child's biological father has never played any role in the child's life. The respondent has always treated the child as his own and in these reasons I will refer to him as the father. I will likewise refer to the appellant as the mother.
[7] The parties separated in 2000 and since then the father has had the care and custody of the child. It is unnecessary to set out in detail the circumstances surrounding the separation or the ensuing events. There is no contest that the trial judge was right to award sole custody of the child to the father. The appellant also does not contest the trial judge's factual findings that led him to order that the mother only have supervised access to the child. I intend to refer to some of the facts, mostly by reference to the trial judge's reasons, as they bear on the question of the access order.
[8] The evidence at trial showed that even before the parties finally separated, the father was the child's primary parent. The evidence of the father, confirmed by several independent sources, including an investigator from the OCL, showed that the mother had difficulties parenting. Around Christmas of 1999, the mother indicated that she wanted the father and the child to move out of the home. At the time, the parties and the child were living in a semi-detached home linked to the mother's parents' home. Throughout the first half of 2000, the mother continued to make statements that led the child to believe that her mother wanted her and her father to leave. The mother, however, kept changing her mind and at one point told the father that she would "destroy" him by making allegations to the Children's Aid Society [page186] and to his employer (the father is a primary school teacher). Things came to a head on August 30, 2000 when the mother told the father that she wanted him out that night. He refused to leave without the child. Finally, he left with the child and went to his sister's home.
[9] After the father and child left, the mother called the police and alleged that the father was sexually abusing the child. The mother had previously made allegations of inappropriate behaviour by the father but this was the first complaint to a state agency. On August 31, 2000, the mother obtained an ex parte order for custody. This order was changed to joint and shared custody in early October 2000. At the same time, the OCL was asked to become involved.
[10] In the meantime the CAS and the police began an investigation of the allegations of sexual abuse and the father was suspended from teaching. The Society and the police ultimately completely cleared the father and the father's employment was reinstated. However, the false allegations of abuse by the mother continued. She also attempted to convince the child that the father was abusing her. Finally, this led to the order of Benotto J. in March 2001 providing that the child was to live with the father and the mother was to have access only at the supervised access centre. This order was in place when the matter came for trial before Timms J. later that year.
[11] As I have indicated, the OCL became involved with this case some time in October 2000. At the request of the OCL investigator, a psychologist, Dr. Alex Russell, was retained to assess and counsel the child. His findings were troubling. The child had become very withdrawn and was regressing to a baby- like state. Dr. Russell saw the child with both the mother and the father. The child was much more relaxed with the father and the father interacted well with her. The mother, however, did not appear able to respond in an emotionally appropriate manner to the child. The child tended to be frightened and extremely wary in her mother's presence. The mother ultimately sabotaged Dr. Russell's sessions with the child by trying to get the child to make a false allegation of sexual abuse against the father. When the child arrived at the fourth session with her mother, she was screaming and punching her mother. Dr. Russell could not re-engage with the child and his involvement ceased. He concluded his report to the court with a recommendation that the mother receive a psychiatric assessment.
[12] The mother also disrupted the child's day care and school with threats to various staff and teachers. She also went to the father's school and disrupted the class he was teaching by yelling [page187] and threatening him. She has stated that she intends to launch lawsuits against the director of the day care centre and the director of the York Toy Library.
[13] During her testimony, the mother continued to make false allegations of sexual impropriety against the father. The trial judge found that the appellant repeatedly lied at the trial and attempted to fabricate evidence. He found her to be "almost without credibility" and "to be among the least credible persons that have ever appeared in front of [him]".
The Trial Judge's Order and Reasons
[14] As I have said, the appellant does not now argue that the trial judge was wrong to award sole custody of the child to the father and that the mother only have access. For convenience I will again set out the parts of the order that are in issue in this appeal:
that as per the Order of The Honourable Madam Justice Benotto dated March 8, 2001, the mother CAM's access to the child, BPM, born April 27, 1996, will remain supervised at the Supervised Access Facility until she, CAM, has been given a clean bill of health by a properly qualified psychiatrist;
that the child, BPM, born April 27, 1996, shall continue to see Dr. Russell, and that Dr. Russell will be involved in any decision to grant unsupervised access to the Respondent, CAM;
(Emphasis added)
[15] To understand the basis for these parts of the order, I need to set out part of the trial judge's reasons [at paras. 63-64, 69]:
As a lay person, I lack the expertise to conclude that the applicant is, or is not, suffering from some sort of mental health problem. Dr. Russell believes she is. Mr. Barnett [a counsellor] and Dr. Evans [the family doctor] believe otherwise. I tend to believe that she simply says whatever she thinks will assist her, without realizing how it will appear to third parties and how it might impact upon her relationship with others, including BPM. Once she says things, then she is stuck with what she said and so she just forges ahead. If she is just a grand confabulator, as opposed to having a major psychological problem, then Mr. Barnett and Dr. Evans could be correct. Perhaps Dr. Russell is not used to dealing with persons who lie in such a bald-faced manner. On the other hand, perhaps that is in itself a psychological disorder.
Accordingly, I don't see that it makes much difference whether the applicant deliberately made up her stories about sexual impropriety/abuse using a few innocent things or whether she took those things and twisted them all around because she has significant psychological problems. The fact remains that she now appears unable to stop with her accusations. She cannot, or will not, listen to others who disagree with her position.
. . . . . [page188]
I agree with Justice Benotto that the applicant's access must be supervised for the time being. By now, her access at the Supervised Access Centre should have started. Her access will remain supervised until she has been given a clean bill of health by a properly qualified psychiatrist. In addition, since BPM will be going back to see Dr. Russell (that is a term of my order) he must be involved in any decision to grant unsupervised access. Dr. Russell is to be given a copy of my judgment.
The Costs Order
[16] The mother also appeals from the costs order. The father made an offer to settle on February 28, 2001. The trial judge found that this offer was "spot on" as it related to the issues of custody and access, the only live issues at the trial. The trial judge held that the father was entitled to costs generally and to full recovery of costs after the date of the offer in accordance with Rule 18(14) of the Family Law Rules. He held that the line of decisions going back to Talsky v. Talsky, 1973 ON CA 53, [1973] 3 O.R. 827, 38 D.L.R. (3d) 343 (C.A.) (reversed on other grounds 1975 SCC 29, [1976] 2 S.C.R. 292, 62 D.L.R. (3d) 267) that costs should not be awarded in custody actions except in exceptional circumstances had been overtaken by the Family Law Rules. He also held that financial hardship was not a factor in making the costs order. He therefore made the costs order for $49,405.
The Proposed Fresh Evidence
[17] The trial judge's decision at trial was delivered on May 7, 2001, and his decision on costs was given on July 4, 2001. Thus, over two years have passed. The reasons for the delay were not fully developed at the hearing of the appeal. Part of the delay seems to be attributable to the mother's delay in perfecting the appeal. Following the trial, the mother exercised access to the child at a provincial Supervised Access Facility. However, the access facility discontinued offering its services to the mother after the mother made a further false allegation against the father. It is the policy of the facility not to offer its services to parties while there is an open CAS file. As a result, the parties were able to agree on the mother having supervised access through a private agency, Bartimaeus Inc. Another problem was that Dr. Russell was no longer involved because the mother made a complaint against him to his professional discipline body.
[18] On May 3, 2002, Feldman J.A. made an order allowing the supervised access to continue through Bartimaeus Inc. once every two weeks. The mother was to continue to pay the costs of the supervisor. Feldman J.A. also arranged for the appeal to be [page189] heard in July 2002. However, before the appeal could be heard, the parties agreed to take advantage of this court's settlement conference pilot project. As a result of that process, an investigator for the OCL made two reports. After the first report, the parties agreed to somewhat more liberal, but still supervised, access by the mother. In the second report, the investigator recommended that the mother have unsupervised access. The father disputes the findings of the investigator and does not accept her recommendations. As is apparent, the parties did not settle the appeal. The mother seeks to introduce the investigator's reports. The father objects to their admission. He submits that the mediation process is to be confidential and that he has not had the opportunity to cross-examine the investigator.
Analysis
The order
[19] The mother was not represented by counsel at the trial. I think that the trial judge made his order in the way that he did to assist the mother in understanding what she had to do to get unsupervised access to her daughter. It was apparent to the trial judge that the mother's mental health was in some way interfering with her ability to parent the child. As he said, he was not an expert and was making the obvious point that until the court had some expert assistance it would not be possible to make a different access order. The trial judge also probably hoped that his order would lead to the mother seeking expert psychiatric assistance. Once she had obtained this assistance and a favourable report she would be in a position to go to court to make a realistic application to vary the access.
[20] That said, in my view there are several problems with the order. First, it seems to me that it is too vague. I do not see how the mother or even a treating psychiatrist would know what the trial judge meant by "a clean bill of health". For example, there was some suggestion from Dr. Russell that the mother might be psychotic. As a psychologist, he did not have the expertise to make that judgment. The question is whether it would have been sufficient for the mother to show the father that a qualified psychiatrist did not find her to be psychotic. What if the mother suffers from serious depression? Would that disentitle her to a "clean bill of health"?
[21] Second, even if the mother did not find a psychiatrist to give her a clean bill of health, that would not disentitle her to access to the child, even unsupervised access, if such access would be in the best interests of the child. Conversely, a clean bill [page190] of health would not entitle her to unsupervised access, if that access would not be in the best interests of the child. Put another way, the mother's mental health, while not an irrelevant consideration in this case, was not the only consideration as to whether the mother should have access to this child.
[22] Third, the trial judge appears to have delegated decision making regarding access to two other parties, an unnamed "properly qualified psychiatrist" and Dr. Russell. It may be that the trial judge expected that the mother would apply to the court to vary the access. However, that is not how the order reads. It appears to leave decision making in the hands of third parties. There is no authority that would permit this type of delegation. See Strobridge v. Strobridge (1994), 1994 ON CA 875, 18 O.R. (3d) 753, 4 R.F.L. (4th) 169 (C.A.), at p. 765 O.R., p. 181 R.F.L. I also note that the trial judge did not obtain Dr. Russell's consent to remain involved in the case. As it happens, he did briefly remain involved until the mother's complaint against him made that impossible.
[23] Finally, it may be that the order represents an improper fetter on the mother's access to the courts. It was not open to the trial judge, in these circumstances, to delegate to third parties the right to determine if and when the mother could apply to the court for unsupervised access. See Williams v. Ellul (1996), 1996 ON CA 1330, 19 R.F.L. (4th) 40 (Ont. C.A.), at p. 43.
[24] Counsel for the mother makes one further argument. He submits that the order was improper because it resulted in supervised access over the long term and such access is not in the best interests of the child. See M. (B.P.) v. M. (B.L.D.E.) (1992), 1992 ON CA 8642, 42 R.F.L. (3d) 349, 97 D.L.R. (4th) 437 (Ont. C.A.), at p. 361 R.F.L. The difficulty with this submission is that there did not seem to be any other practical solution at the time. It is apparent that if there was going to be any access by the mother it would have to be supervised. The alternative was no access. See R.S.-C. v. T.C., [1992] O.J. No. 1860 (QL) (S.C.J.), at pp. 13-14. The trial judge obviously was of the view that denying access altogether would not have been in the best interests of the child. Probably, the trial judge expected that the mother would heed his words, seek expert help, and in a relatively short time be able to return to the trial court to vary the order. Regrettably, that did not happen. I do not see how the trial judge can be faulted on this basis.
[25] Accordingly, in my view, the trial judge's order cannot stand in full. Paragraph 3 relating to Dr. Russell must be deleted. I would also remove the clean bill of health condition. However, the condition that the access be supervised is valid [page191] and fully supported by the evidence. I will deal with the question of the method of access after I consider the proposed fresh evidence.
The fresh evidence
[26] This court has started a pilot mediation project as an attempt to assist parties to family law appeals. This court recognized that parties would likely not agree to be involved in mediation at the appeal level without a strict policy of confidentiality. We therefore offer a promise to the parties. That promise is set out in the Practice Direction for Pre- Hearing Settlement Conferences in Family Law Appeals Pilot Project. If there is a successful resolution, the resulting agreement and draft order are disclosed to the panel when the appeal is to be heard. Otherwise, "the fact of the settlement conference, the memoranda filed and all deliberations in the process, will remain strictly confidential and without prejudice to the parties' legal positions."
[27] In my view, that part of the mother's proposed fresh evidence that sets out the fact of the conference, the involvement by the OCL, and the parties' interim agreement to vary access in accordance with the first set of recommendations of the OCL's investigator is not in accordance with the Practice Direction. Those matters clearly should not be accepted as fresh evidence by this court.
[28] I am also of the view that the investigator's reports are not admissible as fresh evidence. I understand that the OCL was acting under its statutory mandate in accordance with s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43. However, its involvement was only because of the settlement conference process. To allow one party to this appeal to place the reports before the court could prejudice the other party's legal position on the appeal and thus undermine the legitimacy of the settlement conference process. The facts of this case could not provide a clearer example. Counsel for the mother argued that even if this court found the trial judge's order to be completely valid, the appeal should still be allowed and an order made giving the mother unsupervised access in accordance with the recommendations of the investigator's second report. This is incompatible with the promise made by this court that the settlement conference process is without prejudice to the parties' legal position.2 [page192]
[29] I appreciate, of course, the force of the submissions by counsel for the mother that the best interests of the child weigh very heavily in determining whether fresh evidence should be admitted. Thus, this court takes a more liberal approach to admission of fresh evidence in child custody cases than in other civil cases. However, that very important concern does not outweigh the very strong public interest in preserving the confidence of litigants in the integrity of this court's process.
[30] Moreover, the mother was not without other means of supplementing the record, if so advised. In fact, when the appeal was originally to be argued, the mother had offered fresh evidence from several experts. She later withdrew that evidence in favour of the investigator's reports.
[31] Finally, even if I had held that the investigator's reports should be admitted, they would not affect what I consider to be the proper result of this appeal. As I have said, the father disputes the findings, and has not had an opportunity to cross-examine the investigator. These are reasonable concerns and I would have attached little or no weight to the investigator's recommendations.
[32] The only admissible evidence concerning the mother's access is as set out in the reasons of Feldman J.A. and in that part of the mother's affidavit where she states that she has been exercising supervised access three of four weekends for one day up to eight hours. Pending any variation application that the mother or father may choose to bring in the Superior Court, the mother's access should continue to be on those terms. The issue of whether or not the OCL's investigator's reports would be admissible at such an application is not before this court. That is a matter that the application judge will have to determine having regard to the circumstances at that time and the context in which the attempt, if any, is made to tender those reports.
The Costs Award at Trial
[33] The mother submits that the trial judge erred in principle in holding that he had no discretion but to award costs to the father on a full recovery basis from the date of the offer. In his reasons, the trial judge considered it "unfortunate" that the Family Law Rules had reversed the effect of this court's decision in Talsky. In Talsky, at p. 833 O.R., Jessup J.A. held, speaking for the court, that "since the paramount consideration in a custody matter is that of the children, the participation of the adversaries is not that in ordinary litigation so that, except in very exceptional cases, costs should not follow the event." [page193]
[34] The trial judge also held that in family law cases the courts previously would consider "the ability of a party to pay costs and likewise the impact of a costs award upon a party's ability to comply with the judgment". He found that under Rule 24, "hardship is not a component under the new rules" and that custody and access cases are "not to be treated differently than any other type of litigation". As I have indicated, the trial judge also held that the father was entitled to full recovery of his costs from the date of his offer to settle.
[35] Counsel for the appellant submits that there is an emerging line of authority in the jurisdictions where the Family Law Rules apply giving the trial courts greater discretion than would appear to have been the case when the rules were initially enacted. As examples, he referred to the decisions in Taylor v. Branconnier, [2003] O.J. No. 924 (QL) (S.C.J.), Lord v. Haner-Lord, [2003] O.J. No. 1440 (QL) (S.C.J.), Biant v. Sagoo, 2001 ON SC 28137, [2001] O.J. No. 3693 (QL), 20 R.F.L. (5th) 284 (S.C.J.), Sims-Howarth v. Bilcliffe (2000), 2000 ON SC 22584, 6 R.F.L. (5th) 430 (Ont. S.C.J.) and Ramsay v. Ramsay, 1999 ON SC 15027, [1999] O.J. No. 4835 (QL) (S.C.J.).
[36] To appreciate counsel's argument it is necessary to set out the relevant parts of the rules. The starting point is Rule 24(1):
24(1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.
[37] Subrules (2) to (10) then deal with matters such as awarding costs against an agency, when the successful party may be deprived of his or her costs or required to pay the costs of the unsuccessful party, and the awarding of costs against the lawyer personally. Under subrule (4) a successful party who has behaved unreasonably may be deprived of all or part of the party's costs; however, the father did not act unreasonably in this case. Subrule (11) speaks to the factors in awarding the "amount" of costs. It does not have an impact upon whether a party should be awarded costs:
(11) A person setting the amount of costs shall consider,
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness or unreasonableness of each party's behaviour in the case;
(c) the lawyer's rates;
(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;
(e) expenses properly paid or payable; and
(f) any other relevant matter. [page194]
[38] The balance of Rule 24 deals with matters such as security for costs that are not germane to this case. Rule 18 deals with offers to settle. The relevant part for this case is subrule (14), which deals with the costs consequences of an offer:
(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[.]
[39] The subrule then sets out five conditions. It is common ground in this appeal that the father met those conditions, in particular condition 5, as he obtained an order that is as favourable as or more favourable than the offer he made.
[40] Reference should also be made to s. 131(1) of the Courts of Justice Act, which provides that subject to the provisions of an Act "or rules of court, the costs of and incidental to a proceeding . . . are in the discretion of the court". It is apparent that the Family Law Rules have circumscribed the broad discretion granted by s. 131(1). See Biant v. Sagoo, at para. 15. They have not, however, completely removed the trial judge's discretion. Thus, the general provision, Rule 24(1), enacts a "presumption" that the successful party is entitled to costs of the case but does not require that the successful party is always entitled to costs.
[41] While it is not necessary to decide the issue in this case, I think it is arguable that a successful party may not obtain a costs award in his or her favour even in circumstances not falling within subrule 24(4). There may be circumstances aside from the unreasonableness of the successful party's conduct that rebut the presumption. See Ramsay v. Ramsay, at para. 10.
[42] I am also of the view that the financial situation of the parties can be taken into account in setting the amount of the costs award either under Rule 24 or Rule 18. Thus, while subrule 24(11) enumerates a number of factors that must be taken into account, the person setting the amount of the costs is directed to take into account "any other relevant matter". I agree with Aston J. in Sims-Howarth, at para. 4, that the "Family Law Rules demand flexibility in examining the list of factors in subrule 24(11) without any assumptions about categories of costs". In my view, a consideration of particular relevance may be the financial position of the parties, especially of an unsuccessful custodial parent. See Biant, at para. 17 and Brennan v. Brennan, [2002] O.J. No. 4743 (QL) (S.C.J.), at para. 11. In fixing costs, the courts cannot ignore the best interests of the child and thus cannot ignore the impact of a costs award against a custodial parent that would seriously affect the interests of the child. That, however, was not a consideration in this case. The mother is not the custodial parent. [page195]
[43] I am also of the view that the court has a discretion not to make an award of full recovery even where the party has met the conditions in Rule 18(14). The rule makes that clear since it provides that "unless the court orders otherwise" the party is entitled to full recovery. Again, a relevant consideration would be the financial condition of the parties, especially an unsuccessful custodial parent. See Church v. Church, 2003 ON SC 2084, [2003] O.J. No. 2811 (QL) (S.C.J.), at paras. 14-18. Finally, I am of the view that even when making an award of full recovery the trial judge must ensure that the costs sought by the successful party are reasonable.
[44] The mother's counsel agrees that the father was entitled to the costs of the trial in accordance with Rule 24(1). He submits, however, that the trial judge erred in principle because he did not recognize that he had a discretion not to make an order for full recovery of costs from the date of the offer. He particularly relies upon this part of the reasons:
I feel compelled to apply rule 24, as it stands, to the facts of this case. Perhaps one day, the Court of Appeal or the Family Rules Committee will restore greater discretion to Judges when it comes to cases of this nature.
[45] If the trial judge was of the view that he had no discretion or that the financial position of the parties could not be a relevant consideration then he erred in principle. That said, I see no circumstances in this case that would lead me to interfere with the costs award in this case. The mother's conduct before and during the trial was unreasonable. As I have said, the trial judge found that she lied during the trial and attempted to fabricate evidence. She put the father through a nine-and-a-half-day trial and was completely unsuccessful. According to the trial judge, the father made an offer that was "spot on". This was a case for the costs consequences in Rule 18(14). In the circumstances, I do not see that the mother's financial circumstances are a reason to deprive the father of his costs. This was money he had to pay to defend this litigation that would otherwise have been available, at least in part, for the care of the child. Counsel for the mother did not suggest that the costs sought by the father were unreasonable. Accordingly, I would dismiss the appeal from the costs order.
Disposition
[46] Accordingly, I would allow the appeal in part and delete term 3 from the order. I would also delete term 4 (that Dr. Russell receive a copy of the trial judge's judgment) since that term is now spent. I would delete term 2 of the order and replace it with the following: [page196]
that the mother CAM's access to the child, BPM, born April 27, 1996, be for three of four weekends for one day up to eight hours supervised as provided for in the Order of The Honourable Madam Justice Feldman dated May 3, 2002.
[47] In all other respects I would dismiss the appeal. The parties will have ten days from the release of these reasons to provide brief written submissions concerning costs of the appeal. They may file a brief reply to each other's submissions within ten days of receiving the other party's submissions.
Appeal allowed in part.