Court Information

File No.: D48483/09

Date: 2013-07-24

Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1

Parties

Between: S.R., Applicant, moving party on the motion (mother)

- and - J.S., Respondent, responding party on the motion (father)

Before: Justice Robert J. Spence

Heard: 22 July 2013

Reasons for Judgment released: 24 July 2013

Counsel

Mr. Anser Farooq — for the applicant mother

Mr. Lance Talbot — for the respondent father

Introduction

[1] On March 18, 2013 I released my judgment finding the father in contempt of a court order. These reasons now address the parties' subsequent submissions in respect of costs, as well as sentencing on the contempt finding.

Structure of these Reasons

[2] The factors the court is required to consider in assessing the quantum of costs are such that my decision on costs is inextricably intertwined with the sentencing on the contempt finding.

[3] Subrule 24(11) of the Family Court Rules ("Rules") provides as follows:

Factors in 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. O. Reg. 114/99, r. 24(11).

[4] It is primarily because of the wording of clause 24(11)(b) that I am taking a holistic approach to costs and sentencing.

Parties' Positions on the Issues

[5] The applicant submits a Bill of Costs in the amount of $15,033 and seeks full recovery in that amount. Alternatively, the applicant requests partial recovery in the amount of $10,880. Various sentencing alternatives were proffered, including changing the substantive custody and access orders, as well as a requirement that the father participate in family counselling.

[6] The respondent submits that if costs are ordered, the amount should not exceed $1,500, given the modest financial means of the father. Father opposes any change in the substantive orders respecting custody and access. He argues that the penalty should be make-up access for the access that the mother missed as a result of the father's contempt.

Discussion

a. Costs

[7] I turn first to clause 24(11)(a), the importance and complexity of the issue. This motion was certainly important in that it was about the mother's ability to interact in a positive way with her children, free of interference by the father. Even more important, the subject matter of the motion went directly to the heart of the best interests of the children in that it impacted on their ability to engage in a conflict-free manner with their mother. However, the actual proceeding, which culminated in a half-day trial, was not particularly complex.

[8] I turn next to clause 24(11)(b), dealing with the "reasonableness or unreasonableness of each party's behaviour". This may be the single most important factor in my consideration of the assessment of costs. When a court finds, as this court did, that a party wilfully, and without justification, breached an order of the court, the only logical conclusion open to the court is that by so acting, the party's behaviour was "unreasonable". However, despite my conclusion that the father's conduct in this proceeding was unreasonable, I wish to emphasize that the word "unreasonable" is the most benign way to characterize the wilful contempt of a court order. I will have more to say about the father's behaviour later in these reasons.

[9] Clauses 24(11)(c) and (d) direct the court to consider the reasonableness of the lawyer's rates, and the time properly spent by the lawyer. Mr. Farooq charged his time at $400 per hour. He is an 11-year lawyer with extensive litigation experience, including appearances as counsel at the Court of Appeal and Supreme Court of Canada. Mr. Talbot argued that the hourly rate is excessive, and that more properly it should be about $275 per hour. This reference to $275 per hour is somewhat arbitrary in that it was not supported by any evidence or authority. That said, this court hears costs submissions frequently. My sense is that $275 per hour is likely on the lower end of the scale for a lawyer of Mr. Farooq's experience, and $400 is toward the higher end. However, I do not consider $400 to be unreasonable, particularly given Mr. Farooq's extensive litigation experience and skill. In my view, $400 per hour is a reasonable rate.

[10] The respondent argued that the time spent by applicant's counsel, namely, 30 hours for preparation and court time was in excess of what was reasonably required. This motion was dealt with by way of a viva voce trial which lasted for approximately three hours, and which included rather extensive cross-examination of the father by Mr. Farooq. At one point, the court was advised that father's former counsel had accumulated costs for his own client of almost $10,000. In this case, mother's counsel was required to do considerably more work, primarily in connection with summonsing the apartment building video tapes, and reviewing them on a frame-by-frame basis. It turned out that these tapes were very important in undermining the father's credibility, and I relied heavily on the content of those tapes in my substantive decision finding the father in contempt. Furthermore, the cross-examination of father was very effectively carried out, in that father's credibility was essentially undone as a result of that cross-examination. In my view, the 30 hours of time spent was reasonable in the circumstances.

[11] With respect to clause 24(11)(e), no argument was raised that the expenses paid by the applicant were improper.

[12] Clause 24(11)(f) requires the court to consider "any other relevant matter". While financial means is not a defence to the liability for costs, the financial means of the party liable for costs has long been considered to be a factor in determining the quantum of those costs. See M. (C.A.) v. M. (D.), 43 R.F.L. (5th) 149 (Ont. C.A.)

[13] In Kassay v. Kassay, [2000] O.J. No. 3373 (Ont. S.C.J.), the court was required to decide costs in favour of the father, following a finding that the mother was in contempt of a court order. At paragraph 36 of his reasons, Justice J.W. Quinn stated:

Ms. Workman submits that, since this motion arises in a family law context, I should exercise my discretion regarding costs in accordance with the principles set out in Andrews v. Andrews, 120 D.L.R. (3d) 252 (Ont. C.A.). In other words, she argues that success by the husband on this motion is only one of the factors to consider.

In my view, the essence of this motion is the element of contempt - not that it arises in the context of a matter factually rooted in family law; and, it would be a rare instance in which a contemner escapes having to pay solicitor-and-client costs. Such costs are reserved for "rare and exceptional" cases and are usually awarded only where there has been reprehensible, scandalous or outrageous conduct by one of the parties. Contempt in respect of a court order satisfies all of the criteria of "wrongdoing" associated with an award of solicitor-and-client costs.

[14] In this case, I would have started from the same point as Justice Quinn, namely, that mother should have her full costs, having regard to my earlier finding that the father wilfully breached a court order, and that such behaviour is deserving of the same condemnatory characterization as employed by Justice Quinn. While clause 24(11)(b) of the Rules talks about the "unreasonableness" of a party's behaviour, in this case, the father's behaviour far exceeded mere unreasonableness. His conduct, in wilfully breaching a court order to the detriment of the children's wellbeing, was in fact reprehensible and inexcusable.

[15] Nevertheless, relying on clause 24(11)(f), I have concluded that I must depart from an award of full indemnity costs in this case. While I was not given specific evidence regarding the financial means of the parties, I can infer from all the evidence I have heard throughout, as case management judge, that both parties are of modest financial means. And because of this, an award of full indemnification of costs would likely be excessive for the father to bear.

[16] Further, I agree with father's counsel that another "relevant matter" is the fact that father has custody of both children and he receives no child support from the mother. To the extent that father is required to bear the burden of an excessive costs order, this could conceivably have a negative impact on the children as well.

[17] Additionally, I take into account that there is a history between the father and the mother's partner, Mr. V. Mr. V. does have two convictions for crimes against the father. Arguably, the missed access, perpetrated at the hands of the father, could have been understood in the context of that history and the possible fear that the father had that the children, or either of them, would come into contact with Mr. V. But again, that factor does not excuse the contempt.

[18] Despite the foregoing considerations, an award of costs in the amount of $1,500, as requested by father's counsel, would be entirely inappropriate. Such an award would be little more than licence to continue to disobey court orders in the future. Furthermore, it would saddle mother with the vast bulk of the legal fees which she was forced to incur to bring her contempt proceeding, in circumstances where the father was not only in contempt, but where he also dug in his heels and steadfastly refused to settle the proceeding before it spiralled out of control.

[19] Father would have been much better off had he negotiated a prompt settlement of the contempt motion. He ought to have acknowledged the breach, offered some form of makeup access, and perhaps some small amount for costs to recognize the minimal legal work which would have been performed at that early stage of the contempt proceeding. Instead, the father donned his suit of armour and went to war. Engaging in hardball tactics is never a good thing to do in a family law proceeding. See Scott v. Scott, [2002] O.J. No. 1418 (Ont. S.C.J.)

[20] In the result, I have concluded that an order for partial indemnity of costs is appropriate, and I order the father to pay the mother the sum of $10,000, inclusive of H.S.T. and disbursements. Those costs shall be paid by the father at the rate of not less than $800 per month, beginning August 1, 2013, until paid in full.

[21] In making this order, I appreciate that, in theory, mother still has to bear the burden of the difference between this amount and her lawyer's full Bill of Costs. However, it is my hope that perhaps Mr. Farooq will be flexible with his client and adjust his bill accordingly in order to minimize the financial impact of this proceeding on the mother. But that will be a matter between Mr. Farooq and the mother to sort out.

b. Sentencing on the Contempt

[22] I turn first to the applicant's argument that there should be a change in the custody and access orders. Chan v. Town, 2013 ONCA 478, is a decision of the Ontario Court of Appeal, released earlier this month. In overturning the decision of a Superior Court Judge to change a custody order as part of a punishment imposed on a finding of contempt, the Court of Appeal stated, at paragraph 6:

We therefore set aside the finding of contempt. It is nevertheless necessary to state that the remedy imposed by the motion judge was not an available remedy under Rule 31(5) of the Family Law Rules. Custodial arrangements of children cannot be used as a punishment for contempt.

[23] Although the Court of Appeal did go on to state that, in the appropriate circumstances it is open to a court to make such substantive orders where it can be shown to be in the best interests of the children to do so, in my view, it is not appropriate to make any changes to the substantive custody and access orders at this stage of this particular proceeding.

[24] As I stated at the outset, I view the costs order and the sentencing on the contempt as very much tied together. Sentencing following a finding of contempt is often based on the fact of wrongdoing by the contemner, the extent of that wrongdoing, and what steps if any that the contemner has taken to purge his contempt - in other words, the contemner's behaviour. And behaviour was very much in the forefront of my consideration in respect of deciding costs.

[25] While I recognize that the costs order I am making is, to a large extent, designed to compensate the mother for the costs she incurred in this proceeding, it also has the parallel effect of punishing the father by imposing on him a substantial financial burden, which will be challenging for him to discharge. And in the circumstances of this case that punishment is near-sufficient to send a clear message to the father that court orders must be obeyed.

[26] However, it is not entirely sufficient, and I will make one additional order as part of the sentencing. This case is very much about the family dynamics and how those dynamics have impacted on the children's relationship with their mother. In my reasons for judgment finding the father in contempt, I stated:

I have adjourned this matter to June 17, 2013. I will refrain from embarking on a consideration of penalty at this time. Instead I would prefer to see how father conducts himself over the next few months. For example, it would be instructive in determining penalty to ascertain whether father has a change of heart and is willing to engage in holistic counselling involving everyone, including the children, and whether he will ensure that the children are entirely insulated from the parental conflict whenever they are in his presence. In general, it will be helpful to ascertain what steps, if any, father is willing to undertake between now and the next court date to assist in normalizing the relationship between the children and their mother, including the expansion of access into overnight visits.

[27] Yet despite this clear message, delivered more than four months ago, the father has done nothing to purge his contempt. That is a factor which I must take into account. More specifically, I am told that father has taken no steps whatsoever to engage in the kind of family counselling which is absolutely essential in this case. Despite having been provided with the names and resumes of therapists by the applicant's lawyer, the father has yet to agree to move forward. In my view, this will only increase the likelihood of further damage to these children. Because of that, and having regard to the best interests of the children, I make the following order which shall form part of the sentencing on the contempt finding:

Sentencing Order

1. Father shall forthwith submit to family counselling to be facilitated by Ms. Allison Stewart.

2. Father shall make himself available for all suggested appointment dates and times and, in case of an emergency which prevents him from attending a particular appointment, he shall cooperate with mother and the counsellor in arranging for a mutually agreeable alternate appointment date and time.

3. The first five appointments shall be paid for entirely by the father. The father shall honour the accounts submitted by Ms. Stewart in a prompt manner and, in particular, sufficiently prompt to ensure that Ms. Stewart is not left with the only option of having to cancel ongoing counselling sessions for non-payment of her fees. Alternatively, if Ms. Stewart requires a retainer in advance, which is intended to cover a number of sessions, the father shall pay the entire cost of the equivalent of the first five sessions in the calculation of that retainer. Thereafter, the parties shall share equally in the cost of any further counselling.

4. The father shall cooperate fully with all recommendations made by Ms. Stewart, including recommendations, if any, for the participation by Mr. V. in the counselling process.

5. The father shall refrain absolutely from involving either of the children in the adult conflict. More specifically, he shall not directly or indirectly permit the children to obtain any information about the litigation between the mother and the father, and he shall refrain entirely from making any negative comments to the children about either the mother or Mr. V.

[28] I am told that the father has appealed the contempt finding, but a date has yet to be set for argument of that appeal. And it may well be the case that the father will include in that appeal this present decision respecting costs and sentencing. However, the father must understand that unless and until that appeal is successful, the orders contained in these reasons are binding on him and it is my expectation that he will comply fully, in good faith and without reservation. To be clear, father shall immediately submit to the implementation of the foregoing order, as set out in paragraphs numbered 1 through 5.

[29] I am not inclined to order costs of the submissions in connection with these reasons for judgment.

Justice Robert J. Spence

July 24, 2013