Court File and Parties

Court File No.: Toronto DFO 03 10563 01 B1 Date: September 11, 2013 Ontario Court of Justice

Between: Susannah Bunce Applicant

— And —

Gregory Peacock Respondent

Before: Justice E. B. Murray

Decision on costs released: September 11, 2013

Counsel: Mr. Bill Rogers for the applicant Mr. Gregory Peacock on his own behalf

Decision

MURRAY, E. B. J.:

Introduction

[1] On July 31, 2013 I released my decision with respect to the parties' motions to change a November 2004 order with respect to the parenting arrangements for their son Jacob, who is now 13 years of age. This is my decision on the costs related to those motions. Mother says she was entirely successful in the case, and claims costs from Father at a full recovery level of $16,370.28. Father says that any order for costs should be minimal.

Decision on the Motions

[2] Father began the litigation as a motion alleging contempt by Mother of the 2004 order. At an early stage that motion was "converted" on consent to a motion to change. Father requested an order for temporary custody, and an order imposing a schedule which would require the child to spend overnight time with him and to travel outside Canada with him for limited periods. The motion was opposed by Mother and by Ms. Mand of the Office of the Children's Lawyer, acting for Jacob. Mother and Ms. Mand requested an order that preserved the provision of the 2004 order granting custody to Mother, and that mirrored the terms of a temporary order made in 2012 for access. The terms of that order provided for extensive day-only access when Father, who has a residence in St. Kitts as well as in Toronto, was residing in Toronto. Mother also requested an order providing that Father give her 30-days' notice of his arrival to and departure from Toronto, and that any further access be at her discretion, in consideration of the child's wishes. She also requested an order preventing Father from bringing any further motions without leave of the court.

[3] My decision continued the temporary day-only access schedule, provided for 30 days' notice from Father of his arrival and departure from Toronto, and provided that further access would be as agreed upon by the parties and in accordance with Jacob's wishes. Mother's lawyer did not in argument pursue the request for a "vexatious litigant" order, and the order was not granted.

The Law

[4] Section 131(1) of the Courts of Justice Act provides that the court has discretion to determine the costs of this case, subject to the Family Law Rules:

131.--(1) Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.

[5] Rules 24 and 18 of the Family Law Rules significantly structure that discretion. Rule 18 provides for automatic costs consequences in certain situations in which formal offers to settle have been made. No offers were exchanged in this case, and thus that rule has no application. The relevant subsections of Rule 24 are set out below.

Successful Party Presumed Entitled to Costs

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

Successful Party Who Has Behaved Unreasonably

(4) 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.

Decision on Reasonableness

(5) 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.

Divided Success

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

Bad Faith

(8) 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.

Costs to Be Decided at Each Step

(10) Promptly after each step in the case, the judge or other person who dealt with that step shall decide in a summary manner who, if anyone, is entitled to costs, and set the amount of costs.

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.

[6] The Ontario Court of Appeal has given us guidance as to the purpose of modern costs rules:

1. Indemnification of a successful litigant;
2. Encouragement of settlement;
3. Discouragement of inappropriate behaviour.

[7] The Court of Appeal has also cautioned that the overall objective in determining costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the circumstances, rather than an amount reflecting the actual costs paid by the successful litigant.

Analysis

Success in the Case

[8] "Success" in litigation is measured by comparing the order made to the relief requested, and also to the terms of any offer to settle.

[9] When the terms of my order are compared to the relief requested, Mother was substantially successful in the case. I say "substantially" because my order for further access did not provide, as she requested, that further access would be solely within her discretion, and because the order restraining Father from bringing further motions was not made. In my view, the facts would not have justified a "vexatious litigant" order.

[10] The presumption of costs to the successful party contained in Rule 24(1) has not been rebutted. The issue before me is the quantum of those costs, considered in light of the factors set out in Rule 24(11).

Reasonable/Unreasonable Litigation Behaviour

[11] Each party submits that the other has engaged in "unreasonable" behaviour.

[12] In my view, it was unreasonable that neither party submitted an offer to settle. I agree with my colleague Justice Stanley Sherr that "it should be a fundamental step in any family law case" -- even one in which the parties are highly polarized, such as this -- to serve at least one offer to settle. Offers to settle would have been useful in this case, as the relief requested by each party expanded and shifted over time, particularly as far as Father was concerned. An offer to settle is a mechanism by which a party says clearly that the case will end if you accept these terms, and can be held to it. As Justice Sherr said: "Offers to settle play an important role in saving time and expense in a case. They are an important vehicle in promoting settlements, focus the parties and often narrow the issues in dispute."

[13] Other than Mother's failure to submit an offer to settle, I do not find her litigation behaviour to be unreasonable. Father's allegations against Mother are a repetition of his submissions in the hearing of the motions to change: that Mother's behaviour is unreasonable because she has no interest in promoting Jacob's relationship with Father and in fact has worked to undermine that relationship. I explained in the reasons for my decision why I rejected those submissions.

[14] Father submits that Mother's refusal following my judgement to agree to his proposal that she participate in counselling with a psychologist is unreasonable behaviour which should affect an award of costs. I question whether post-judgement behaviour can be considered in determining costs; no caselaw has been offered which supports the proposition that it can. Even if post-judgment behaviour can be considered, I would not at this stage find that Mother was acting unreasonably in rejecting such counselling for Jacob. In my decision I urged Father, if he wished to continue to work towards overnight time with Jacob, to "devote himself to a focussed therapeutic process involving himself and Jacob". What I had in mind was involvement with a professional like Dr. Leon Sloman, who had attempted to work with the family, and who is knowledgeable in dealing with children who, like Jacob, suffer from Asperger's syndrome. Instead, what Father proposed was counselling with someone whom he presented as a specialist in "alienation". This is not a case of parental alienation, and counselling with that focus would not be productive.

[15] Mother's counsel argues that Father engaged in unreasonable behaviour in two respects:

1. By renewing his contempt motion in July 2013, after he had agreed to "convert" his original motion into a motion to change;
2. By not participating in good faith in the counselling with Dr. Sloman.

[16] I agree that Father acted unreasonably in renewing his contempt motion. He tacitly acknowledged this by withdrawing the motion as argument began. However, Mother's counsel had to spend time addressing the alleged contempt in the preparation of his client's affidavit and in his factum.

[17] I do not agree that Father was unreasonable in his conduct in the counselling with Dr. Sloman. Father was not required to participate in this counselling; he did so voluntarily. He did not accept Dr. Sloman's advice about the best way to work with Jacob to achieve a schedule which includes the child spending overnight visits. Father was convinced that Mother's antipathy towards him was at the root of Jacob's reluctance to try overnights, and that the short, sharp shock of a change in custody and enforced overnights was the remedy. I did not agree with Father, and I find it regrettable that he was not able to work more productively with Dr. Sloman to achieve his goal, but I am not prepared to find that his attitude constitutes unreasonable litigation behaviour.

Other Rule 24(11) Factors to Be Considered

[18] The issue—parenting arrangements for Jacob—was important to each party. The issue was not legally difficult, but was factually complex for two reasons:

• The evidence about Jacob's special needs had to be presented in a fashion which elucidated its significance in relation to the issues of scheduling and parental decision-making;
• Father, in support of his argument that parental alienation was at the root of the case and of his contempt motions, presented extensive evidence going back years of numerous incidents which he said illustrated Mother's lack of support for his relationship with Jacob. Mother, in her defence, replied in detail.

[19] The bill of costs presented by Mother's solicitor is calculated at counsel's usual hourly rate of $275; counsel presents an alternative calculation based on an hourly rate of $225, a figure which the costs grid suggests is reasonable for a lawyer with less than ten years' experience. Mother's solicitor was called to the bar in 2009. The alternate calculation results in a bill of costs of $13,426.63. In my view, a reasonable hourly rate for me to consider in assessing costs in this case is $225 hourly.

[20] Mother's counsel states in submissions that he has charged her less than this usual hourly rate because he has taken her modest means into consideration, without specifying what rate he did charge. Because one objective of costs rules is the indemnification of a successful litigant, it would have been helpful for me to know the cost of this case to her. Having said that, I acknowledge that costs rules are also meant to encourage settlement and discourage inappropriate litigation behaviour. The cost of a case to a successful litigant is not relevant to those objectives and thus should not represent a "ceiling" on a costs award.

[21] Mother's counsel indicates that he devoted 52.1 hours to work on the motion. The motion was argued based on documentary evidence in one attendance which required two hours. In most cases, I would find this amount of time excessive for a case of this type, but in this case, I find that it is reasonable. Mother's counsel was required to review Father's materials (which included two very lengthy affidavits and a factum), prepare his client's affidavit and a factum, prepare to argue the motion, and attend for that purpose on two occasions. His bill of costs indicates that approximately five hours was devoted to preparing material to argue the issue of child support, which was not properly before me on the motion. I would disregard that time. However, I also take into account the fact that Mother's bill of costs does not include the time required for the initial interview with her and preparation of her initial February 22, 2012 affidavit, which was also before me on the motion.

[22] Father submits that his financial situation should lead me to order a diminished quantum of costs. Although Rule 24(11) does not specify that a losing party's financial situation should be a relevant factor in determining costs, caselaw has recognized that this may be a factor, particularly in situations in which an award will jeopardize a payor's ability to look after children in his/her custody. I am not persuaded that Father's situation is such that a reduction of costs which would otherwise be justified should be ordered. I have no financial statement from Father. I know that the parties had agreed for the purpose of a prior child support order to deem his annual income to be $100,000, and that he owns rental properties in the Annex, and that he is supporting his second family while his partner Elena completes her medical training. I am not satisfied that payment of $10,000-15,000 in costs will interfere with Father's ability to care for the children of his second family in any significant way.

[23] Taking all these factors into account, I find that $11,500 is the appropriate amount for Father to pay in costs, and I order that this amount be paid by him to Mother forthwith.

Released: September 11, 2013 Justice E. B. Murray