Court File and Parties

Ontario Court of Justice

Date: August 23, 2013

Court File No.: Owen Sound 232/10

Between:

TAMARA LEE STECKLEY Applicant

— AND —

BRIAN DOUGLAS STECKLEY Respondent

Before: Justice P.A. Hardman

Decision on Costs released on: August 23, 2013

Counsel:

• Mr. Scott C. Vining — counsel for the applicant
• Ms. Brigitte Gratl — counsel for the respondent

Decision

Hardman, J.:

[1] Introduction

[1] The matter before the court is the issue of costs regarding matters dealt with by the court in June 2012. The costs submissions were received in the fall of 2012, but part of the submissions were missing from the documents provided until August 22, 2013.

[2] The mother sought her costs which were resisted by the father. The OCL made no claim for costs.

The Proceedings

[3] In June 2009, the mother sought financial disclosure from the father in order to establish guideline support for the children. However, it appears that the father was not prepared to provide the disclosure requested and instead sent a rambling reply. Given his failure to respond, the mother had to commence proceedings to obtain child support. The mother was successful in her motion for interim support, obtaining an order for $1211 per month.

[4] The father however then decided to bring a motion to change (MTC) custody and access, a notice of motion seeking that the mother be found in contempt and a motion to add his parents as parties. As a result of these new proceedings, the mother had to file further documentation and the Office of the Children's Lawyer (OCL) became involved.

[5] On August 2011, father notified the court that he had retained Ms. Gratl as counsel although she was not in attendance. The father notified the court that he had quit his employment. The father had not paid any of the interim child support. In September 2011, the mother sought updated financial disclosure from the father.

[6] On October 11, 2011, Ms. Gratl sent an agent but the disclosure had not been made and so the case conference could not proceed. An access visit was arranged between the father and the youngest child K who was twelve years of age through the OCL, the mother and the father. However, that access visit did not happen as the child refused to go.

[7] On October 18, 2011, the return date for the father's MTC, his counsel failed to appear without explanation and the matter had to be adjourned.

[8] The father then brought a further contempt motion returnable on November 29, 2011. On that date he provided partial disclosure and, given the late disclosure, the matter was adjourned to another date.

[9] On March 2, 2012, the father's counsel confirmed that the trial management conference March 6, 2012 was going ahead. However, Ms. Gratl did not attend that day. Instead counsel filed a trial management conference brief indicating that she did not have the father's instructions. The father was in attendance.

[10] The court did not deal with the MTC due to the absence of counsel but did confirm the interim order of child support and reserved on costs. The matter was adjourned to April 24, 2012. Ms. Gratl failed to attend court and the Justice ordered costs of $100 each to the OCL and the mother. The father told the court on the return date that Ms. Gratl was tied up in a trial in London. By email dated April 30, 2012, Ms. Gratl said that her agent had not appeared as the agent had made a mistake in the date.

[11] On the April 24, 2012 date, the court adjourned the matter to May 16, 2012 at 1:30 pm peremptory on the father. Ms. Gratl arrived part way through the trial management conference. The matter was put on the trial list for the trial week of June 25, 2012. The court informed Ms. Gratl that the matter had to proceed and refused to excuse her from the trial, indicating that she or another counsel had to be present and ready to proceed. As the father had not paid the costs that had been ordered, the mother indicated that she would be seeking security for her costs. Ms. Gratl indicated that she might remove herself as counsel for the father. The father and Ms. Gratl refused to accept evidence of the children's wishes through the OCL investigation and refused to agree not to call the children as witnesses.

[12] On May 31, 2012, the OCL provided the Will Say statements of the children to the parties setting out that the children did not wish to see their father.

[13] After further demand for costs, the father paid the costs on June 14, 2012.

[14] On June 25, 2012, Ms. Gratl failed to appear before this court at the trial sittings. She had not provided any indication that she was not coming. An offer was served on her that same date.

[15] The next day, the matter was again in court. Once again Ms. Gratl did not appear. Her agent spoke to the matter but did not have instructions regarding proceeding with the trial. The father indicated that he had a job taking home $600/week. On this date, I indicated that the matter was peremptory on the father with clear instruction that it was going to proceed on June 28, 2012.

[16] On June 28, 2012, Ms. Gratl did attend. The father maintained his position that he was claiming custody of the children despite their ages and clear wishes expressed through the OCL. The MTC seeking to change custody was dismissed. The motion regarding access was dismissed. The notices of motion seeking findings of contempt against the mother were dismissed. All issues were dealt with summarily except the mother's claim for support.

[17] The father filed a financial statement indicating that he was not employed despite his statement about his employment made two days earlier. The issue of support was adjourned to September 5, 2012 in front of another court.

[18] Counsel for the father has submitted that the father's disclosure made November 29, 2011 was complete. Given the constant changing of the father's employment circumstances, it is difficult to know what point in time to pick as disclosure being complete enough to proceed.

[19] Counsel for the father has also noted that the "Will Say" statements of the children were only received May 31, 2012. However, at no time was there any evidence that the children wanted to live with the father. Given their ages, it would have been simple for the children to contact the father had they so wished. The children were represented in the litigation since 2011 by the OCL and the position of the children had been clear.

[20] Further, neither the father nor his counsel changed their position after the receipt of the "Will Says", confirming that the children's wishes were not a factor the father was prepared to consider.

[21] Certainly the OCL involvement in the proceeding caused delay. However, the father was the one when faced with a request for child support insisted on pursuing a custody claim for children who had not expressed any interest in even a full access relationship with him and were too old to force to have one.

The Law

[22] The Family Rules clearly support every effort on the part of the parties to settle matters. Rule 2 sets out the primary objective of dealing with cases justly and identifies that dealing with cases justly includes dealing with cases in ways that are appropriate to their importance and complexity (subrule 2(3)(c)). That subrule also notes that dealing justly with a case includes the allocation of appropriate resources (subrule 2(3)(d)). The duty to manage cases set out in subrule 2(5) includes disposing of those cases at an early stage which do not require full investigation and trial. Subrule 2(4) sets out that the parties and their lawyers are "required" to help the court to promote the "primary objective".

[23] Rule 13 regarding financial disclosure makes full and frank disclosure a mandatory requirement. Time lines are set for disclosure, once again trying to ensure that a matter proceeds smoothly without any unnecessary waste of court time and resources. Failure to comply can result in quite punitive orders by the court including incarceration.

[24] Rule 17 provides further direction regarding the management of cases to achieve the primary objective of dealing with matters justly. That rule expects that at every opportunity there will be attempted settlement.

[25] All of these rules together with the rules regarding costs make it clear that parties are expected to be reasonable and settlement oriented. Part of the expectation is that parties will attempt to settle matters prior to trial.

[26] The mother has filed a copy of an offer made to the father June 25, 2012 seeking full settlement of the matters before the court. In that offer, the mother offered to settle all the matters before the court by having the Motions and MTC dismissed and the interim order of child support made final. She also sought her costs for the contempt motions, the MTC and the child support proceedings to that date.

[27] Rule 18 expects that offers conform with certain expectations including being signed by the party and lawyer, being made at least one day before the motion date or seven days before a hearing, and being open to acceptance at the start of the hearing. Also the party who made the offer must be as successful or more successful in the order obtained than the offer made.

[28] Certainly this offer does not conform to all of the expectations of Rule 18. It was not signed by the mother and her counsel. However, while the offer may not automatically entitle the mother to full recovery of her costs from the service of the offer and her costs before that service as set out in subrule 18(14), subrule 18(16) notes that the court can still take the offer into account in determining costs.

[29] Rule 24 is the primary rule dealing with costs. The first issue to determine is whether the mother was successful. The mother asked the court to dismiss the MTC and the other motions and I did.

[30] The mother was not in the position when I heard this matter to seek a final order regarding the child support as the father was providing the court with conflicting information regarding his employment and was not making the independent disclosure required of him under the rules that could support a final order. He had told the mother and the court that he had quit his employment that had been the basis of the interim support order. He then said that he had new employment. Then two days later said that he was unemployed. It is impossible for a party to make an offer and seek a final order without confirmation of the father's employment or financial circumstances.

[31] It is clear that subrule 24(10) expects the court to deal with costs "promptly" after each step. Generally courts do not look at individual steps such as adjournment or conferences until the conclusion of the matter unless the costs of that particular step should be paid immediately as a result of wrong doing by the party or counsel. In this case, for example, the justice ordered costs as the matter had to be adjourned as a result of the counsel and her client not being able to proceed as scheduled.

[32] However, in this matter, the costs of the mother's proceeding to obtain child support and the costs of her defence of the MTC and the father's other motions are intertwined. Further, it is clear that this court was in a position in June 2012 to examine the reasonableness of the father's behaviour in his response to the mother's request for child support from the beginning in 2009. Given that review, it is open to this court to consider the costs regarding the child support litigation up until June 2012. The court should not expect the mother and her counsel to determine the number of minutes spent on each individual process. The father was the one who unreasonably chose to complicate the initial proceedings for child support. He should not be allowed to defend a claim against him in costs by using his unreasonable litigation as a shield.

[33] Further, the father will not be prejudiced as should there be a further claim of costs against him at the termination of the support proceedings, the order made by this court can be taken into consideration.

[34] There is no evidence of any unreasonable behaviour or bad faith by the mother in her conduct of this litigation.

[35] The father however demonstrated an unreasonable approach to his responsibilities and this litigation from the beginning in 2009:

• The father failed to respond appropriately to a request for financial disclosure by the mother in 2009 forcing her to start a proceeding
• When the father did provide disclosure during the course of the proceeding, it was inadequate and not timely
• Despite his active obligation to support these children in law, the father never paid any of the support ordered by the court
• The father quit his employment after the interim support order was made
• The father was ordered to pay modest costs on April 24, 2012 but did not pay them until June 14, 2012 after being threatened with a motion to secure further costs
• The father provided information regarding new employment only to change his position two days later
• The father insisted on maintaining a MTC seeking custody of and a motion for access to his children despite knowing the ages and wishes of the children
• The father unreasonably insisted that he wanted a trial and his children to testify despite knowing that the court would not be in a position to order the children into his care or to access with him given their respective ages without their consent
• The father unreasonably ignored the information provided by the OCL and insisted on maintaining his motions to have the court find the mother in contempt despite the clear evidence that the children were making their own decisions

[36] It was because of the father's unreasonable behaviour that the matter of the child support was in court and taking so long to be dealt with in the court. The father brought the MTC and motions slowing down the litigation and refused to deal with the matters reasonably despite the intervention by the OCL. His actions of quitting work as opposed to paying his interim child support also caused further attendances and new concerns in the litigation. It became clear that he was focussed on attempting to both control and delay the proceedings. His actions belie any interest in being frank with the court regarding his financial circumstances or any interest in the welfare of his children.

[37] Certainly given the conduct of the father and the success of the mother she is entitled to at least some of her costs of the litigation.

[38] The Courts of Justice Act (R.S.O. 1990, c. C. 43, as am.) subsection 131(1) makes it clear that, despite the entitlement of a party to costs under the rules, the court has the discretion to determine what costs should be paid. It is appropriate in exercising that discretion to consider the respective circumstances of the parties and the particular circumstances of the person against whom costs are sought.

[39] In this case, the father has not demonstrated any focus on financially supporting his children although that his obligation to do so is a consideration. Also the limitation of his potential earnings and his personal financial expenses also can have a role to play in tempering the amount of costs ordered.

[40] The mother obviously has been supporting herself and the children without much financial help from him. Further as the children are not interested in visiting with their father, she bears the full load of their care, financially and otherwise.

[41] I have examined the Bill of Costs provided to the court. While Ms. Gratl complained about the size of the Bill, there were no specific concerns raised about individual items. Indeed it appeared to me that there were some charges missing from the account detail. For example, I was unable to find the amount charged for the mother's counsel's appearance of June 26, 2012 although I know that he attended court.

[42] However, overall I did not have issue with the total amount of the account given the significant time period that the matter was outstanding.

Costs Against Ms. Gratl

[43] The mother has also asked for costs to be ordered against the father's counsel Ms. Gratl for her failure to attend court prepared for trial on June 25, 2012 and June 26, 2012 as directed by the court. Subrule 24(9) sets out that a court may order costs against a party's lawyer if the court is satisfied that the lawyer has "run up costs without reasonable cause or has wasted costs".

[44] The evidence is clear that Ms. Gratl was told by the court directly to be at court with her client ready to proceed or to have an agent ready to proceed in her stead.

[45] On the first day, Ms. Gratl simply did not show. On the second day, Ms. Gratl had an agent attend who was not properly instructed to proceed with the hearing. This behaviour had been exhibited by Ms. Gratl during the course of the litigation and the justice was clear that the behaviour would not be tolerated any further. Ms. Gratl was expressly instructed by the court to ensure that she or an agent attended the trial week ready to proceed. Ms. Gratl had options if she were genuinely unable to participate as directed by the court and she failed to take them. Therefore Ms. Gratl should bear the mother's costs for those two appearances.

[46] Further, I am prepared to use the 1.3 hours from the adjournment of June 25, 2012 as the basis for costs on June 26, 2013. Therefore those costs would be $350/hour, being counsel's substantial indemnity hourly rate, for 2.6 hours, being a total of $910.

Order of Costs

1. The father is to pay to the mother or as she directs the sum of $9,000 as costs.

2. Commencing October 1, 2013, the father is to pay the sum of $200/month toward these costs until they are paid in full. Should the father fail to make any of the monthly payments on time, the entire amount of costs may become due and payable at the discretion of the mother.

3. Ms. Gratl is to pay the sum of $910 to the mother forthwith as her costs for June 25 and June 26, 2012.

Released: August 23, 2013

Signed: "Justice P.A. Hardman"