Court File and Parties

Milton Registry No.: 48/09 Date: 2013-05-10 Ontario Court of Justice

Re: Jennifer Christie, Applicant And: Robert Christie, Respondent

Before: Justice Sheilagh M. O'Connell

Counsel:

• David Acri, for the Applicant
• Marvin Kurz, for the Respondent

Costs Endorsement

1: Introduction

[1] Ms. Jennifer Christie, the applicant, brought a motion for a finding that Mr. Robert Christie, the respondent, was in contempt of the court, and specifically that he breached:

(a) paragraph 3 of the court order dated 17 September 2012 in that he did not discuss proposed changes to the parenting arrangements prior to making those changes;

(b) paragraph 5 of the court order above in that he did not pay support on time, and deducted from support payment extraordinary expenses without first obtaining the applicant's consent.

[2] Mr. Christie, the respondent, in turn, brought a cross-motion for an order striking out the contempt motion and for an order striking out a number of excerpts from Ms. Christie's affidavit in support of the contempt motion.

[3] Both motions were heard before me on 21 March 2013. On a preliminary basis after hearing argument, I struck two of the three paragraphs of the notice of contempt motion for being improper. Contempt proceedings are not available for an alleged failure to pay support and the notice of contempt motion should clearly specify the alleged breach. I also struck a number of portions of the applicant's supporting affidavit that contained speculative and inadmissible evidence. However, I determined that the contempt motion could proceed with respect to the alleged breach of paragraph 3 of the order of 17 September 2012.

[4] After hearing full argument on this issue, for oral reasons delivered that day, I dismissed Ms. Christie's motion for contempt. Both parties were directed to provide written submissions on costs, which have been received and reviewed.

2: Position of the Parties

[5] Mr. Christie seeks full recovery of his costs of the contempt motion and the cross-motion brought by him to strike out all or part of the notice of contempt motion and affidavit brought by Ms. Christie. He submits that he has been completely successful and that he repeatedly warned Ms. Christie, through counsel, not to proceed with this contempt motion and offered to settle by not seeking costs if she withdrew the motion. The total amount of costs that he is seeking is $11,150.55.

[6] Ms. Christie submits that each party should bear their own costs or, in the alternative, that Mr. Christie should only receive a very modest or no award of costs, given what she describes as his reprehensible conduct causing her to bring the contempt motion. She states that, but for the higher quasi-criminal standard of proof on a contempt motion, this motion would have been successful. To award costs would be, in essence, to reward the behavior that the court has previously admonished.

3: Background

[7] The parties separated in 2006 after an eleven year marriage. They have three children together, namely: Owen, born on 31 March 1998 (now 15 years old); Jessica, born on 23 July 1999 (now 14); and Mitchell, born on 22 July 2003 (now 9).

[8] On 14 March 2006, the parties entered into a separation agreement which provided that the parties share joint custody of the children on an equal time-sharing basis. The agreement provided that they would consult with each other before making important decisions about the children's welfare. The agreement also contained a mobility restriction that reads as follows:

4.16 The husband and wife shall maintain the children's residences within the children's present school catchment area so that the children have frequent contact with both parents. Neither parent will move the children's residences out of the said school catchment area without receiving the parent's written consent or a court order.

[9] The children's residence at the time of the separation was Georgetown, Ontario, where they had lived since early childhood. They had attended school there all of their lives. As I understand it, the purpose of the mobility clause set out in the agreement, although restrictive, was to ensure that the children would have frequent contact with both parents and to permit the children to grow up in the same neighbourhood, attend the same schools and extra-curricular activities after the parties' separation.

[10] In February of 2011, Ms. Christie spoke to the children about moving to Woodbridge, Ontario, with her current spouse, which is approximately 34 kilometres away from Georgetown. Although Ms. Christie included the children in her decision and the search for the new home, she did not consult Mr. Christie. According to Ms. Christie, she did not think Mr. Christie would mind as the move would not affect his time with the children. She was prepared to do all of the driving back and forth to the children's school, to their extra-curricular activities, their friends, part-time jobs, etc. By the time that Mr. Christie was aware of the move and indicated that he opposed it, Ms. Christie and her spouse had purchased a new home and listed their old ones for sale.

[11] As a result of Mr. Christie's opposition, Ms. Christie brought an application for the court's permission. The application was adjourned pending mediation and the appointment of an independent social worker to determine the children's views and preferences regarding the move. Pending the adjournment, the parties entered into a temporary mediated settlement, permitting Ms. Christie to move; however, she agreed to pay $5,000.00 to partially indemnify Mr. Christie for his legal costs with respect to the application and the breach of the separation agreement.

[12] In April of 2012, Ms. Christie and her spouse planned a further move, this time to Milton, Ontario, which was closer to Georgetown, approximately 20 kilometers west of the children's school. They planned to open a dog boarding business on a farm in a rural community near Milton, Ontario. This time, Ms. Christie did contact Mr. Christie; however, he did not respond for a period of four weeks, so she considered his silence as acquiescence, as the move was now closer to the children's school and community. Ms. Christie spoke with the children about the move and believed that the children were happier moving closer to Georgetown and their friends and were excited about living on a farm.

[13] Mr. Christie opposed this second move within the period of one year as it was once again done without consultation with him in breach of the parties' separation agreement. Further, he felt that the proposed move was to an isolated rural country area with difficult access, making it difficult for the children to get back and forth to school, friends and activities in Georgetown, especially in the winter. Mr. Christie took the position that, with this second move, it was in the children's best interests to live in Georgetown full time and have their primary residence with him.

[14] During the court process, Mr. Christie strenuously argued that once again, Ms. Christie had deliberately gone behind his back and discussed the move with the children without speaking to him, thereby breaching their joint custody agreement that major decisions affecting the parenting arrangements and the children's welfare should be made together. It was Mr. Christie's firm position throughout that, as joint custodial parents, any major changes to the parenting arrangements should be first discussed with the other parent before speaking to the children about it, in accordance with their custodial agreement.

[15] At this time, after interviewing the children about their adjustment to the first move, the social worker appointed interviewed the children about the second move and reported the children's views and preferences to the court and the parties on 1 August 2012. According to the social worker, the children were in agreement with the move, although they expressed concern about the ability to get back and forth to school. Mitchell, the youngest child, was the most excited about the second move and Owen, the oldest child, was the least excited but wanted to continue the joint parenting arrangement.

[16] After a settlement conference, the parties reached an agreement at court that was incorporated into the consent order dated 17 September 2012. The consent order permitted Ms. Christie's second move with the children, but prohibited any further moves outside of the children's present school catchment area until the youngest child completed high school. Among the other terms of the order are the following three relevant provisions:

3. Should either party wish to make any change in the parenting arrangements between the parties, he or she will discuss the proposed change with the other before speaking to the children about it.

4. If any of the children, namely Owen David Christie born March 21, 1988, Jessica Lynn Christie born July 23, 1999 and Mitchell Robert Christie born July 22, 2003 decide at any time, to live more than sixty percent (60%) of the time at the home of the Respondent, the Applicant will not oppose the change and the child support payments will be immediately adjusted accordingly (i.e. with a split custody set off).

10. The Applicant will pay the costs for this proceeding in the amount of $5,000.00 on or before September 1, 2012.

[17] On 18 September 2012, the day after the consent order was issued, Mr. Christie sent an e-mail to Ms. Christie that stated the following:

Owen has informed me that he has discussed with you that he now wishes to stay in town on Monday, Tuesday and Friday nights every week starting tonight.

Please confirm that you did indeed have this discussion, are aware of his wishes and have agreed to them. [emphasis added]

[18] Ms. Christie responded by e-mail as follows:

Yes, he's let me know that he wants to stay here every other weekend from Saturday morning until I drop him off at school on Monday.

[19] On 21 September 2012, Mr. Christie wrote back to Ms. Christie setting out the details of time and the changes to support, pursuant to paragraph 4 of the 17 September consent order, including the following:

This would place Owen in my custody from Monday after he is dropped off at school through to the next Saturday on your weekend with the other children. That will place Owen in your custody only the Saturday and Sunday of every other weekend.

Please feel free to arrange visits with Owen any other time. Just keep me informed when you do. Owen has mentioned possibly meeting you for lunches.

As per our agreement this would change the child support. I found two different sites to show how to calculate it.

[20] Mr. Christie acknowledges in his affidavit in response to the contempt motion that he and Owen discussed Owen moving into his home full time as Owen was not happy with the move to the farm in Milton. Mr. Christie states that he did not invite this request from Owen. Mr. Christie further acknowledges that he did not consult with Ms. Christie nor did he speak directly with her to discuss this major change in the shared parenting arrangement after Owen approached him to discuss his unhappiness about living in Milton. He simply told Owen to tell his mother that he was moving in with him. He then sent an e-mail to Ms. Christie after the fact confirming that Owen had told her of his intention to move. Owen was fourteen years old at the time.

4: The Law and Governing Principles

[21] Rule 24 of the Family Law Rules, O. Reg. 114/99, governs the determination of costs in family law proceedings and the sections relevant to the circumstances of this case are as follows:

24. Successful party presumed entitled to costs.— (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.

(4) Successful party who has behaved unreasonably.— Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party's own costs or ordered to pay all or part of the unsuccessful party's costs.

(5) Decision on reasonableness.— In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

(a) the party's behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

(b) the reasonableness of any offer the party made; and

(c) any offer the party withdrew or failed to accept.

(6) Divided success.— If success in a step in a case is divided, the court may apportion costs as appropriate.

(8) Bad faith.— If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.

[22] Subrule 24(11) provides a further list of factors that a court must consider when setting the amount of costs:

(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.

[23] Subrules 18(14) and 18(16) of the Family Law Rules, which address the cost consequences of offers to settle, provide the following:

(14) Costs consequences of failure to accept offer.— 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:

1. If the offer relates to a motion, it is made at least one day before the motion date.

2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.

3. The offer does not expire and is not withdrawn before the hearing starts.

4. The offer is not accepted.

5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer.

(16) Costs — Discretion of court.— When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply.

[24] Rule 24 created a new framework for determining costs in family law proceedings. The presumptive nature of rule 24 has significantly curtailed the court's discretion regarding costs in family law proceedings and absent compelling circumstances or the exceptions set out in the rule itself, costs are generally awarded to the successful party. The Ontario Court of Appeal in MacDonald v. Magel, 67 O.R. (3d) 181, held that, while the rules have not completely removed a judge's discretion, the rules nonetheless circumscribed the broad discretion previously granted to the courts in determining costs. Courts must not only decide liability for costs, but also the amount of those costs.

[25] In Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, at paragraph 8, the Ontario Court of Appeal confirmed that costs rules are designed to foster three important principles:

(1) to partially indemnify successful litigants for the cost of litigation;

(2) to encourage settlement; and

(3) to discourage and sanction inappropriate behaviour by litigants.

[26] The court's role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees. As was pointed out in Boucher et al. v. Public Accountants Council for the Province of Ontario, 71 O.R. (3d) 291, the award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings rather than an exact measure of actual costs to the successful litigant.

[27] In Delellis v. Delellis and Delellis, 143 A.C.W.S. (3d) 235, Justice David R. Aston states the following at paragraph [9]:

. . . recent cases under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended, have begun to de-emphasize the traditional reliance upon "hours spent times hourly rates" when fixing costs. . . . Costs must be proportional to the amount in issue and the outcome. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant . . .

5: Analysis

[28] Mr. Christie was successful in striking some portions of Ms. Christie's motion materials, although I did allow the contempt motion to proceed regarding the alleged breach of paragraph 3 of the court order in question. At the conclusion of that hearing, Mr. Christie was completely successful in having Ms. Christie's motion for contempt dismissed. It is not disputed that Mr. Christie attempted numerous times, through his counsel, to persuade Ms. Christie not to bring her motion.

[29] Ms. Christie acknowledges that there is a high onus on her to prove contempt, and that the onus was not met in this case. Given the very serious consequences of a contempt finding, including a potential loss of liberty, a person alleging contempt must demonstrate that the order breached must state clearly and unequivocally what must be done; the party who disobeys the order must do so deliberately and willfully, and the evidence must show contempt beyond a reasonable doubt. The order must be expressed in clear and unambiguous language and the person affected by the order should know with complete precision what he is required to do. See Lossing v. Dmuchowski and Office of the Children's Lawyer, 65 R.F.L. (6th) 182.

[30] The order in this case was ambiguous. The interaction between paragraph 3, which clearly directs the parties to discuss any proposed changes in the parenting arrangements before speaking to the children, and paragraph 4, which seems to permit the children to decide to move in with Mr. Christie without opposition from their mother, is not clear at all.

[31] It is difficult to understand why Ms. Christie proceeded with a contempt motion in the circumstances. Ms. Christie submits that there was essentially no other remedy available to her than to bring this motion. I respectfully disagree. Ms. Christie could have brought a motion seeking directions from the court regarding the operation of paragraphs 3 and 4 of the order and further to provide directions regarding the parties' conduct and compliance with that order.

[32] Notwithstanding the above, Mr. Christie's conduct almost immediately after the parties entered into the consent order was unreasonable and should not be condoned. Given the history of this proceeding, and Mr. Christie's professed outrage throughout that Ms. Christie was making decisions with the children to significantly alter the parenting arrangements without consulting him, it is extremely concerning that he engages in exactly the same behaviour just days after the consent order was reached between the parties.

[33] As Ms. Christie's lawyer states, in the offer to settle attached to his costs submissions, Mr. Christie availed himself of paragraph 4 of the 17 September order "before the ink had even dried on the order" while completely ignoring paragraph 3 of the order. He discussed with Owen a major change in the parenting arrangements so that Owen (who was 14 years old at the time) would reside primarily with him, without any prior notice or discussion with Ms. Christie, the joint custodial parent.

[34] Notwithstanding paragraph 4 of the consent order, paragraph 3 of the order clearly puts a mutual onus on the parties to consult each other first in the event of a proposed change in living arrangements. This was put forth by Mr. Christie specifically to address his concerns about Ms. Christie's conduct regarding their joint custody agreement in discussing these issues with the children before consulting him. This clause applies equally to him and he cannot ignore it when it is convenient to do so or when it suits his own interests to do so, given the costs penalties[1] that were imposed on Ms. Christie for ignoring the joint custody provisions.

[35] Mr. Christie's unreasonable conduct cannot be rewarded or condoned by awarding him costs. Although he was the successful party on the contempt motion, there will be no order for costs in the circumstances.

Justice Sheilagh M. O'Connell

Date: 10 May 2013

[1] In total, Ms. Christie had to pay $10,000.00 in costs for breaching the parties' mobility and consultation clauses in their agreement.