Court File and Parties

Ontario Court of Justice

Date: 2014-10-09

Court File No.: Kitchener 3121/12

Between:

Brendan Van Wieren Applicant

— And —

Catherine Bush Respondent

Before: Justice P.A. Hardman

Decision on Costs released on October 9, 2014

Counsel:

• Mr. Barry Paquette — counsel for the applicant
• Ms. Anna Towlson — counsel for the respondent

Decision

Hardman, J.:

[1] I have received submissions from the respondent mother seeking her costs regarding an application that was determined by this court June 16, 2014. The applicant father filed responding submissions. No reply to those submissions was received.

Application of the Law

[2] Generally a consideration of costs commences with Rule 18 of the Family Law Rules. Where there has been an offer to settle by the ultimately successful party that complies with the specific expectations of Rule 18 and was not accepted by the other party, then the successful party is presumptively entitled to costs before the service of the offer and full recovery of costs afterwards.

[3] In this matter, the successful party, the respondent mother, did not make an offer to settle.

[4] Rule 24 also sets out issues to be considered in terms of awarding costs.

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

[6] In this matter, the mother was clearly successful. That issue was not contested in submissions.

[7] Section 24(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.

[8] Rule 24(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.

[9] As noted, the mother did not make any offer. In her submissions, the mother appears to be critical of the offer made by the father and the process by which it was made. It would seem to me that given the mother's failure to serve any offer to settle herself, she cannot complain about the offer that the father did make. As was noted in her submissions, making an offer to settle can be difficult in what she has identified to be "mobility" cases.

[10] The applicant father has asked the court to find that the mother behaved unreasonably during the case and to deprive her of her costs.

[11] Certainly the mother's decision to breach the court order was both unacceptable and unreasonable behaviour. However, the mother's decision to seek a court order in Orillia was not unreasonable in her circumstances: she was afraid that the child was going to be taken from her care and the police officer told her to get the order.

[12] Regardless, her decision to go to Orillia or to seek the order in Orillia did not affect the costs incurred by the father as there was no significant litigation carried on in that jurisdiction.

[13] The father's submissions suggest that the mother's failure to exercise access during a period of time was somehow unreasonable in the context of a consideration of costs. I do not agree. That behaviour had little if any impact on the process and was certainly explained to the court's satisfaction as noted in my decision.

[14] The complaint regarding the mother's possible involvement in the child calling her new partner "daddy" has no role to play in assessing the mother's reasonableness during the "case".

[15] However, some remark must be made regarding the father's behaviour in his conduct of this litigation. I noted a number of concerns in my decision regarding the father and his lack of focus on the best interests of the child throughout this matter. Despite being unable to establish the truth of the myriad of accusations he levelled at the mother's parenting throughout the course of the proceedings, he continued to maintain his position at trial. He was not truthful with the court in affidavit or testimony. He used information regardless of source or his own experience to discredit the mother as a parent to gain advantage.

[16] He even participated in taking photographs of the child after access with the mother in the attempt to document negligible marks as part of his continuing effort to discredit her even at the costs of the best interests of the child.

[17] Had the father been prepared to be more reasonable about the child's contact with the mother once he realized that the new partner's offence occurred as a young person some time ago and that the society were allowing him unsupervised contact with his own child, the outcome of this matter might have been different. However, the father insisted on relying on information that he saw as giving him the advantage over the mother.

[18] His decision to keep up the attack on the partner, even after learning the details, was ill-advised and unfair to the person and the process. It should not have been necessary for the witness to be called regarding that issue.

[19] There was a lot about the father's behaviour in this matter that was concerning and that has been set out in my decision. The root of much of the father's unreasonable behaviour was his failure to acknowledge that it was in the child's best interests to have any meaningful contact or relationship with the mother.

[20] Rule 24(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.

[21] In this matter, it is clear that the father intentionally tried to deceive the court about the mother's role in the child's life and the risk she posed to the child. While he may have received some misleading information from a third party, his decision to use information that was contrary to his own knowledge about the mother and to minimize the involvement of the mother in the child's care was a deliberate attempt to mislead the court to his own advantage.

[22] Even at trial, the father was unwilling to acknowledge the mistakes he had made or the wrong information that he had put before the court to gain advantage. His evidence was clearly designed to mislead the court.

[23] While it is open to the court to consider his behaviour as "bad faith", given all the circumstances I would simply prefer to classify the behaviour as very unreasonable.

[24] The mother's breach of a court order in some circumstances could be seen as "bad faith". However, in this matter, it cannot be seen as affecting the costs outcome. Any misbehaviour by the mother in the court process is significantly less of a concern that that of the father.

[25] Rule 24(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 the amount of costs.

[26] The father has asked the court not to include a number of claims in the consideration of the costs. He states that the costs of settlement conferences, and the preparation of affidavits and the hearing of the motion (presumably September 20, 2013) should not be considered by the court.

[27] While it is true that the rule supports the premise that costs should be considered at each step, case law has acknowledged that there are attendances during litigation for which a party cannot seek costs at the time. It would be impossible for example to argue who was successful during an appearance or a case conference. It would not be possible to apply the criteria in Rule 24 to these appearances.

[28] Therefore the expectation is that parties must seek their costs at the discrete steps of the litigation such as motions but the general costs of a "case" being before the court is something that can only be determined and considered at the conclusion of the trial. It should be noted that subrule 24(1) includes the entitlement to the costs of a "case". Clearly that includes the costs of the litigation in general and not just the trial and trial preparation.

[29] Thus the preparation for and attendances at conferences and appearances are part of the costs of the case which often must wait to be considered until the conclusion of the matter.

[30] Therefore I am not prepared to exclude those costs in a consideration of costs.

[31] Further, it is my understanding from the submissions made by counsel that the only motion costs included in the claim before the court are those from the motion returnable September 20, 2013. On that date a written consent was filed including a term that the costs of the motion were reserved to the trial judge. That consent was signed by counsel for the father and counsel for the mother. While it would have been preferable for the issue to have been dealt with at the time, the father agreed through counsel not to argue the issue at that time. Therefore he cannot complain about those costs being included in the mother's submissions.

[32] The father requests that the costs for counsel to attend court on December 16, 2013 be excluded as counsel for the mother was not in attendance. In fact, the endorsement in the Continuing Record confirms that mother's counsel was indeed in attendance on that date.

[33] The father also objects to the claim for costs related to the father's desire to obtain a DNA test to confirm that he really was the father. Surely it was appropriate for the mother's counsel to be involved in that matter given the timing of the issue. It was all part of the resolution of the issues between them in the application and cross-claim.

[34] Rule 24(11): A person setting the costs should 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 rate;

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.

[35] Certainly both parties agree that the issues to be considered were important. While not difficult perhaps from a legal perspective, there were challenges in dealing with the evidence that made the matter somewhat complex. The mother's counsel noted that the matter was complicated by the issue of dealing with the impact of a dated youth record.

[36] I have already reviewed the issues of unreasonableness.

[37] Counsel for the mother has identified her rate as being $275/hour given her 2002 call to the bar. Counsel for the father submitted that counsel had not identified what rate she charged her client. While I am unclear as to what was being suggested, in my view it is the rate that the lawyer is entitled to charge that should be the consideration of the court.

[38] The father has also complained about six hours billed to prepare a Bill of Costs. I agree that that appears somewhat excessive.

[39] The father has also stated that the costs of preparing the cost submissions should be excluded. However, it is the evidence before the court that the mother's counsel attempted to negotiate costs with the father's counsel but was not successful. It appears to me that reasonable work to obtain one's legitimate costs may be included in the circumstances in this claim.

[40] Rule 24(12): The court may make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including lawyer's fees.

[41] The mother has sought her out of pocket costs of $500 for having to stay in a motel for the trial. The father states that such a claim is not "appropriate".

[42] While there can be a claim for out of pocket expenses by a litigant, in this matter one must take into account that the mother's difficult circumstances were created by the decision to remove herself from the jurisdiction and while I understand that the financial impact of the trial continuation was significant on the mother and her family, the father should not bear that burden.

Courts of Justice Act

[43] Section 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.

[44] The family law rules regarding costs as reviewed above focus on the proceedings, the parties' behaviour and the outcome. However, section 131(1) allows the court to consider the circumstances of the parties along with the entitlement to costs.

[45] Given the application of Rule 24 to the circumstances before this court, the mother is entitled to costs. However, in the exercise of its discretion under section 131(1), a court should take into consideration the circumstances of the father.

[46] The father has to pay child support every month and is responsible for the higher commuting cost involved with his long distance access.

[47] While the father earns a fairly modest wage, he resides with his parents and has reduced expenses.

[48] In my view, the father's obligations to his child support and costs of access are important ones and should be taken into account. Therefore any order of costs should be structured to reduce any impact on those obligations.

Order

1. The father is to pay the sum of $25,500 as costs to the mother (or as per her written direction), being $25,000 for fees (HST included) and $500 for disbursements.

2. The father is to pay $300/month toward these costs until the costs are paid in full.

3. Given the issue involved of child support, these costs may be collected and enforced by the Family Responsibility Office (FRO).

Released: October 9, 2014

Signed: "Justice P.A. Hardman"