Court File and Parties
Ontario Court of Justice
Date: 2015-06-19
Court File No.: DFO 14 11545
Between:
Andreas Veneris Applicant
— And —
Mipha Koh Veneris Respondent
Before: Justice E. B. Murray
Heard on: June 15, 2015
Reasons for Judgment released on: June 19, 2015
Counsel:
- Mr. Jeffrey Wilson, counsel for the applicant
- Ms. Nicole Tellier, counsel for the respondent
MURRAY, E. B. J.:
Introduction
[1] This is my decision on a motion by the Applicant Father Andreas Veneris (Andreas) and cross-motion by the Respondent Mother Mipha Koh Veneris (Mia). Andreas and Mia are the parents of Eirini, born September 19, 2013.
[2] In January 2015, I heard motions in this case which principally dealt with parenting rules and appropriate parenting time and financial support for Mia and Eirini. My decision, released February 3, 2015, contained a recital of relevant facts and issues in this family, which I will not repeat in this decision.
A. Orders Sought
[3] In argument before me, each party abandoned certain relief requested in their notices of motion. I set out below the relief that was ultimately requested.
Andreas seeks an order which provides as follows:
- The Applicant shall have parenting time including overnights on the following basis:
- a. Every Tuesday from 9:00 a.m. until 5:00 p.m.;
- b. Every Thursday from 10:30 a.m. until 4:30 p.m.;
- c. Every Friday from 3:00 p.m. until Saturday at 5:00 p.m.;
(Andreas notes that day access may have to be adjusted if there are changes to his teaching schedule.)
- Costs of the March 31, 2015 conference on a full recovery basis.
[4] Mia seeks an order which provides as follows:
Mia seeks an order which provides as follows:
Any expansion of access shall be contingent on father's attendance with Carole-Jane Parker for:
- a. parental education; and
- b. assistance in improving communication and defusing conflict;
Father shall attend with Ms. Parker for 1.5 hours forthwith, following which the parties shall attend as directed by Ms. Parker, with or without the child;
Access shall be expanded beginning at the commencement of the academic year, following the schedule below, with overnights starting September 19, 2013:
- a. Monday - 9:30 a.m. - 3:30 p.m.
- b. Wednesday - 12:00 a.m. - 5:00 p.m.
- c. Saturday 3:00 p.m. - Sunday 10:00 a.m.
Dr. Papadouris shall be replaced forthwith with Dr. Munk as the child's physician. The initial consultation should be attended by both parents;
Father shall be prohibited from taking audio or video recordings during access exchanges.
[5] After argument, the parties agreed through counsel on two important issues:
The parties shall attend with Ms. Parker for the purposes set out above. One of the issues that they will attempt to sort out with her help is that of appropriate makeup time for Andreas. (Andreas' lawyer was clear, however, that he did not agree that attendance with Ms. Parker was a precondition for any change in the child's residential schedule.) My directions with respect to this work with Ms. Parker are set out in a separate endorsement.
Eirini's pediatrician shall be changed to Dr. Morton Goldbach.
I deal below with the remaining issues.
B. Schedule for Eirini's Time with Andreas
[6] Eirini's schedule with Andreas now is as ordered on February 3, 2015. Each week the child is with him on Tuesday 10:30 a.m. to 3:30 p.m., Thursday, 9 a.m. to 5 p.m., and on Sunday, 12:30 p.m. to 5:30 p.m.
1. Positions of the Parties
[7] The parties' positions today concerning Andreas' time with Eirini remain very much the same as were identified in January.
[8] Andreas wants expanded time with Eirini, including overnight stays.
[9] Mia says that there are continuing problems with Eirini's behaviour before and after her time with Andreas, problems which make Mia reluctant to change the child's schedule. Mia says that Eirini often cries when transferred to Andreas, and displays avoidant behaviour before the transfers. She says that upon return, Eirini is clingy, and has taken to waking in the night, crying, calling out for her, needing to be held and breast fed. On one occasion in late May, the child became so emotionally distressed that Mia took her to Hospital for Sick Children for a consultation. (This was the day after a visit.)
[10] Mia attributes these behaviours to two things.
Conflict between the parties. Mia says that she and Andreas argue over issues like feeding, makeup time, or whether the child can be referred to by her middle name (Hana). This conflict manifests itself in unpleasant exchanges in the log book and at transfer times. Andreas has taken to video or audiotaping exchanges. This all creates anxiety for Mia, which causes anxiety for Eirini.
Failure to follow Eirini's routines. The parties agreed that Andreas would follow the routines which Eirini had at home with Mia to the extent possible. Mia says that he fails to do so regularly, leading to disrupted meal/sleep routines with the child.
[11] An additional reason that Mia gives to delay the start of overnights is that she is still breast feeding Eirini. She references the World Health Organization recommendation that children be breast fed for the first two years. Although Mia acknowledges that she stopped providing expressed milk to Andreas for Eirini months ago, she says that breast feeding, particularly at night, provides psychological support and comfort to Eirini.
[12] Despite her concerns, Mia says that she is ready to start overnights in 3 months, on the child's 2nd birthday. This delay will give her time to wean Eirini, and for the parties to begin work with Ms. Parker that will improve their communication.
[13] Andreas denies that Eirini manifests distress during transfers, and says that she is happy and well-adjusted when with him. He acknowledges that he and Mia have differences of opinion with respect to some issues about Eirini's care, but denies being aggressive or domineering in raising those issues. He says that he faithfully follows Eirini's routines. In any event, Andreas says that none of Mia's complaints constitute reasons why the child should not spend overnight time with him. He says that if Mia wants to provide him with expressed milk, that he will attempt to give it to Eirini. Mia has done so only once in the past 9 months, and on that occasion, Eirini showed little interest.
2. Analysis and Conclusions
[14] As is clear in my prior decision, Andreas and Mia are each very suspicious of the other. Each resents and feels animosity to the other—Mia because she feels that Andreas is domineering and disrespectful, Andreas because he feels that Mia marginalizes his role in Eirini's life. If there is ambiguity in a situation, or different possible explanations for an occurrence, each parent is likely to arrive at a conclusion that puts the other parent in a negative light. For example, Andreas was reluctant to consult Dr. Parker, despite my recommendation months ago that the parties do so, because Mia contacted her and met with her first. He thought that this was an effort on Mia's part to bias Ms. Parker. Andreas, in an effort to reassure Mia about Eirini's condition when with him, attempted to show Mia a video of Eirini during a visit. Mia was suspicious as to Andreas's intentions, and would not even look at the video.
[15] I am confident that the parties' work with Ms. Parker will improve their communication and lead to a modest growth of trust between them as parents. They are committed to be good parents, and I expect that they will make this work a priority over the next few months, and the order I will make is premised in part on this expectation. Having said that, I see no reason to provide that attendance with Ms. Parker is a "pre-condition" to the order which I will make.
[16] I also expect that some of the parties' disagreements about medical care and diet for Eirini will be resolved now that they have agreed to work with a pediatrician whom they both trust.
2.1 Some Conclusions and Observations from the Evidence
I cannot determine whether Eirini is distressed on transfers or not. Andreas' attempts to resolve the issue by the affidavit of his godson, Mr. Zissos, who was present on a recent transfer, a transfer at which Mia says Eirini entered in tears, stopping after she was passed to Andreas. Mr. Zissos entered once the transfer had already begun, and did not report that Eirini was crying. The two accounts are not inconsistent. It may be that each parent sees and emphasizes what they expect to see.
Andreas and Mia, despite a vigorous use of a logbook, have poor communication with each other. It is not unusual that during transfers between parents who have some animosity towards each other and poor communication, that a child may cry. That does not necessarily mean that the child is unhappy or distressed at being with the visiting parent, but it is an indicator that the child is under stress.
If Eirini is distressed at transfers, some of that distress is linked to Mia's anxiety about the visits. Mia acknowledges that she is anxious at transfers, and that her anxiety affects the child. Mia may require help controlling her anxiety. Andreas may need to improve his insight into what causes this anxiety—such as videotaping the transfers (to prove his version of events), or raising complaints about Mia's conduct during transfers (e.g., Mia's referring to the child by her middle name).
There is some indication in the logbook (e.g. lunches given at 2:30 or 3 p.m.) that Andreas still has some trouble following Eirini's routines.
I accept Mia's evidence that Eirini has been more clingy and difficult to settle in recent weeks. I cannot determine the cause(s) of this behaviour. The behaviour could indicate developmental changes, could be related to the child's recurrent illnesses, and/or could be the child's reaction to tension between her parents.
The relationship of the parents is relatively high-conflict. Each of them is angry with the other, and anxious about the issues in their separation. Even if the parents do not argue openly in front of Eirini, it appears that the tenor of their meetings is uncomfortable. I would be surprised if this atmosphere does not cause some anxiety in Eirini.
The transition to overnight visits will be an anxious period for both Andreas and Mia. New questions and issues will inevitably arise from Mia and from Andreas. The anxiety felt by the parents during this transition will affect Eirini.
The WHO directive filed by Mia refers to the nutritional benefit of breast feeding for children up to two years. Mia abandoned the effort to provide breast milk for Eirini during visits some time ago. As for the possible emotional benefits of breast feeding for a young child, I do not have the evidence that establishes those benefits would be compromised by the introduction of some overnight stays (e.g., 1 out of 7 nights).
Other than what Mia reports above, the parties agree that Eirini is a healthy, happy child who is developing normally. She has no special needs that must be factored into the decision.
The CLRA has been interpreted to provide that a child should have the maximum contact with each parent that is in her best interests. I do not take that to mean that a 50/50 schedule for a child should be the objective of every parenting plan involving two capable parents. I do accept that overnight stays—which entail bath, bed and story times and breakfast routines—allow a deeper, more nuanced relationship between parent and child. I accept that overnight stays are beneficial to a child, assuming that a parent is capable and that they are instituted at a time that does not interfere with a child's healthy development.
However, there is disagreement as to when a child is "ready" for overnights.
- The backdrop for this disagreement involves competing theories about child development. Do infants need to develop one primary attachment figure to insure healthy development? Do overnights before 3 years old disrupt a child's ability to develop a secure attachment with a primary caregiver? Can a child form secure attachments to multiple caregivers at the same time? If so, can overnights start very early? Different guidelines developed about appropriate parenting time reflect different theoretical assumptions. I have no evidence as to any of these issues.
I do not have to attempt to resolve these issues in this case since Mia and Andreas agree that overnights should start soon—within a space of 3 months.
[17] In my view, it is desirable to start overnight stays for Eirini in August, 2015. I do not agree with Andreas's counsel that the communication difficulties, disputes, and tensions between the parties have no relevance to the issue of when overnights should begin. These difficulties, disputes and tensions will continue and likely increase during the transition to overnights, and Eirini will be exposed to the increased anxieties of her parents, a stressor for the child.
[18] A schedule under which overnights start in August will give the parties an opportunity to develop a working relationship with Ms. Parker and to develop strategies to defuse conflict and improve communication. They can have the experience of discussing and resolving issues that are problematic now (such as routines for meal times) as a preparation to deal with the issues that will arise when overnights begin. Eirini will benefit from this preparation.
2.2 The Order
[19] My order is that overnights will commence Saturday August 15, 2015 at 3 p.m., with Eirini to be returned on Sunday at 3 p.m.
[20] If Mia wishes to express milk to send with Eirini, then Andreas shall make his best efforts to feed it to the child.
[21] Andreas shall not audio or videotape exchanges of Eirini between the parties.
[22] With respect to other residential times for the child with Andreas, I understood that the parties agree that it should be based on his teaching schedule for September to the extent possible. The evidence with respect to his schedule was not clear; it appears that he is teaching Tuesdays from 9-11 and Wednesdays and Thursdays from 3-5. His proposal (and Mia's proposal) for the time Eirini should spend with him conflicts with this schedule. Given Eirini's age, it is in my view preferable that the times she spends with Andreas, in addition to the one overnight, be evenly spaced throughout the week.
[23] My order is that Eirini will spend additional time with Andreas each week on Tuesday from 12 noon to 5 p.m. and on Thursday from 9 a.m. to 2 p.m., commencing August 11, 2015. If I have misapprehended the evidence about Andreas's teaching schedule, counsel should advise in writing.
[24] The issue of appropriate makeup time, if any, is, by agreement of the parties, put over for discussion with Ms. Parker. If the parties are unable to reach an agreement, it may be returned to me.
C. Costs of March 31, 2015 Case Conference
[25] Andreas seeks an order for full recovery of his costs of the March 31, 2015 case conference in an amount of $16,148.81. This was the first conference following the comprehensive motion heard on January 9, 2015.
[26] Andreas's lawyer says that Mia wasted the court's time and Andreas' money and misled the court in her conference brief, raising what she presented as an emergency situation which required her to go to Japan—which she would not do without Eirini—within days.
[27] Some background is necessary to give the issue context. Mia is a Korean national, but prior to her marriage to Andreas lived most of her life in Japan. Maternal grandmother lives in Japan, and Mia owns property there. At separation, Andreas had fears that Mia would remove Eirini to Japan. Orders were issued prohibiting Eirini's removal from the GTA, requiring that her travel documents and the parents' passports be delivered to the court, and prohibiting either party from applying for a passport or duplicate birth certificate for the child.
1. Urgent Issue—Proposed Trip to Japan
[28] In the March 31 case conference brief Mia raised the issue of whether she should be allowed to take Eirini with her on a trip to Japan, a trip that she said was necessary for her to renew her special residency status in that country which would expire within days, on April 16, 2015. Mia first raised this issue in a letter from counsel March 19, 2015. In correspondence with Andreas's lawyer and in her brief Mia said as follows:
Although it was her intention to remain permanently in Canada, that renewal of this permit was important for her as well as Eirini. This permit would allow her "automatic entry" to the country to visit family and friends there.
Her personal attendance at the appropriate office in Japan was required to renew the permit. Renewal could not be effected outside Japan (e.g., at the Japanese consulate in Toronto).
She had already purchased airline tickets for herself and Eirini departing April 8, 2015 and returning April 19, 2015.
[29] Andreas's lawyer replied promptly, requesting further information. Andreas said that Mia had never raised this issue before; he was not satisfied that what she was saying was correct. He was very concerned at this last minute attempt to arrange a trip to Japan.
[30] Andreas instructed his lawyer to retain the services of Jeremy Morlock, a U.S. lawyer, whose resume indicates impressive experience in the field of international family law, with particular emphasis on Hague Convention child abduction cases, and considerable experience with cases in Japan. Mr. Morlock prepared a comprehensive report in the form of an affidavit which dealt with Japan's record in dealing with cases of child abduction (both before and after that country signed the Hague Convention in April 2014) and cases in which a "left-behind" parent sought custody or access to their child in Japan. Mr. Morlock deposed that Japan, in its implementing Act, had greatly expanded the scope of the Article 13(b) exception in the Convention to return of a child to the country of her habitual residence, giving a court very broad discretion to decline to make a return order. Mr. Morlock reviewed Mia's evidence in this case in preparation for his report. He expressed the opinion that if Mia was permitted to take Eirini out of the jurisdiction for a trip that there was a "high risk" that Andreas would be unable to secure the child's return to Canada, and that if she retained the child in Japan that there was a "high risk" that Andreas would have no significant contact with the child, unless Mia allowed such contact.
[31] Andreas in his case conference brief asked that if Mia chose to make the trip to Japan that Eirini remain with him.
[32] On March 31, approximately half of the hour-long case conference was taken up with discussion of Mia's proposal to take Eirini to Japan. Andreas's counsel at the time, Ms. Nicoll, advised that she understood from her inquiries to the consulate that Mia could obtain a 1-year extension of her residency permit through the Japanese consulate in Toronto; Mia disagreed. Counsel agreed that they and their clients would attend at the consulate immediately to determine whether Mia could be assisted there. They left the conference for that purpose, with Mia keeping open the possibility of an emergency motion on the issue.
2. Positions of the Parties on Costs Claim
[33] At the hearing of this motion, Mia's counsel advised that Mia was able on March 31 to obtain a 1 year extension of her residence permit. She will be required to attend in Japan before its expiry to obtain a renewal of the permit, which will be valid for 6 years. Counsel advised that Mia had been unaware of this option until March 31, when the parties and counsel attended at the consulate.
[34] In requesting costs, Andreas's counsel makes the following submissions:
Anticipating an objection from Mia based on Rule 24(10) (that costs should be decided at each step of the proceeding), counsel submits that on March 31st there was no time to address the issue. Counsel left with their clients quickly to attend at the consulate; because Mia had represented that she had to travel to Japan within a short period and had actually booked tickets, time was of the essence. Counsel adds that when they left the courtroom on March 31, no one knew who was "successful" on the issue, because the facts about what was required for Mia to renew her permit were not established.
Andreas should have his costs of the conference, including preparation and the cost of Mr. Morlock's report ($5,000 U.S.) because Mia's behaviour on this issue was unreasonable, bordering on bad faith. In the year of litigation which preceded this attendance, Mia did not advise of the necessity for her to renew her permit and of the necessity to travel to Japan for this purpose, despite many court attendances, the last being January 9, 2015. When Mia did raise the issue, she misrepresented the relevant facts in that she said she must travel personally to Japan, and did not disclose the possibility of a temporary extension arranged at the consulate in Toronto.
[35] Mia's counsel opposes the order sought, and makes the following submissions:
- Rule 24(10) is clear.
"(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."
Counsel relies on Islam v. Rahman, 229 O.A.C. 371. In that case, the Court of Appeal varied a trial judge's award of costs that took into account the costs of prior steps in the case, steps in which no award of costs were made by the presiding judge. The Court of Appeal held that R. 24(10) prevents costs being awarded for those steps at a later date, at trial. Counsel says that Andreas cannot—almost 3 months after the March 31 conference—now ask for costs, given that they were not requested at the time and given that no order reserving costs was made.
Further, the Rules and the caselaw seem to contemplate that if costs are ordered for a conference, they are ordered only because one party is unprepared. Counsel says that Mia was prepared, and filed a comprehensive brief.
Mia did not mislead the court. At the March 31 conference, Mia represented that she was required to travel to Japan to "renew" her residence permit. She made no representation that she could not temporarily "extend" the permit from Toronto, and did not know of this possibility until everyone attended at the consulate.
There was no motion before the court March 31, and no possibility that an order allowing Mia to travel with Eirini to Japan would be made that day, unless on consent. It was not necessary for Andreas to incur the substantial costs he did for the case conference. If the issue of a future trip by Mia with Eirini to Japan remains an issue, Andreas can rely upon Mr. Morlock's report on a future motion or at trial.
3. Does Rule 24(10) Bar a Claim for Costs?
[36] The rationale behind Rule 24(10) accords with one major reason that costs are awarded: to promote settlement. If the parties are kept aware of costs as a case is progressing by timely awards of costs, early settlement is promoted.
[37] Does Rule 24(10) bar a claim for costs in the unusual circumstances of this case? In my view, it does not. "Step in the case" is not defined in the Rules, but it is accepted that the term means a discrete event in a case as defined by the Rules, such as a conference, motion or trial. In this case, the case conference was not concluded. A return (if only to schedule an urgent motion) was anticipated if the issue—an issue made urgent by Mia's handling of it—was not resolved by the trip to the consulate. In effect, the conference was adjourned. If, as counsel sped out the door, I had been asked to reserve the costs, I would have.
4. Costs Awards at Conferences
4.1 The Law
[38] Section 131 of the Courts of Justice Act gives the court discretion deal with costs "incidental to a proceeding or a step in a proceeding" subject to the provisions of any other Act or rules of court. The Family Law Rules structure that discretion.
[39] Rule 17(18) provides for a mandatory award of costs of conferences which must be adjourned because of a party's failure to adequately prepare for the conference.
(18) If a conference is adjourned because a party is not prepared, has not served the required brief, has not made the required disclosure or has otherwise not followed these rules, the judge shall,
- (a) order the party to pay the costs of the conference immediately;
- (b) decide the amount of the costs; and
- (c) give any directions that are needed.
[40] Rule 24(7) sets out similar guidelines that apply to each step in a case:
(7) If a party does not appear at a step in the case, or appears but is not properly prepared to deal with the issues at that step, the court shall award costs against the party unless the court orders otherwise in the interests of justice.
[41] The Rules do not restrict awards of costs at conferences to the situations identified in R. 17(18).
[42] There are many cases in which a court orders costs at conferences because of failure to file a brief or to provide required disclosure. "Being prepared" for a conference is not, however, limited to filing a brief or complying with a disclosure order. In Bourgeois v. Bourgeois, (2011) O.J. 3578 (S.C.), Justice Heather Magee observed as follows:
13 Rule 17(18) does not limit an award of costs to circumstances in which disclosure is outstanding. It includes situations in which a party "has otherwise not followed these rules." From the 17(5) purposes I read a positive obligation on litigants to organize the issues they place before the Court, the evidence necessary to determine those issues, and the applicable law.
14 These obligations place additional stress on highly charged family law litigants for whom the legal issues arising from their relationship/parenting breakdown are often quite secondary (if even related) to their sources of distress.
15 Tensions routinely manifest during settlement conferences. The hard work of respectful negotiation and the significant cost of evidencing one's case is often resisted: sometimes to keep the other spouse indefinitely accountable, sometimes to avoid or forestall financial consequences, sometimes out of a personal objection to the operation of the law, and once in a while, for no good reason at all.
16 Family Courts strive to be flexible in the face of litigation drama, and to accommodate periodic lapses in judgement in the hope that litigants will in time collect themselves and move forward in a positive manner. But when the opposite pattern emerges, the rules must be enforced. Appreciating the trauma experienced by certain family law litigants does not excuse the disproportionate harm occasioned to their spouse and/or children.
[43] Justice Roslyn Zisman took an expansive view of authority to award costs at conferences under R. 17(18) in Marton v. Willinger Marton, (2012) 2012 ONCJ 178, O.J. 1429. In that case, a case conference could not proceed at the 11th hour because Mother's lawyer indicated that he wished to bring a motion to have Father's lawyer removed for an alleged conflict of interest. The motion was brought, and at the last minute, withdrawn. Justice Zisman was of the view that Mother should have raised the conflict of interest allegation and brought her motion well before the first scheduled conference date. Father received his costs not just of the withdrawn motion, but of the wasted case conference because, in Justice Zisman's view, Mother's litigation conduct resulted in "a waste of father's financial resources." Justice Zisman opined:
In my view, Rule 17(18) is broad enough to permit a court to award costs where the conference cannot proceed if counsel is not willing or able to deal with the substantive issues before the court.
[44] Both R. 17(18) and 24(10) should be read in the light of Rule 2(4) which provides that the parties have a duty to "help the court promote the primary objective of the rules". Considered in this context, in my view it is open to a court in its discretion to award costs of conferences in circumstances in which a party has failed to raise important issues known only to her in a timely fashion and fails to exercise due diligence in obtaining and disclosing information relevant to the issue. This constitutes a failure to prepare adequately for a conference. This constitutes unreasonable litigation behaviour, behaviour which can increase the costs of the other party and waste the court's time.
4.2 Entitlement to Costs in This Case
[45] I am troubled by Mia's litigation behaviour on this issue for two reasons.
- Although the parties had been litigating for a year, Mia did not before late March 2015 raise the issue of proposed travel to Japan. She did not address the reason for this failure in her evidence on this motion. The necessity of renewing this permit was not a new issue for Mia. It appears that she has been regularly required to renew this permit over the years she lived in Japan. I heard no suggestion that she had forgotten about the need to renew the permit. Renewal of the permit is an issue of great importance to her.
When Mia did raise the issue of renewal of her permit, she cast it as an emergency which required immediate attention—if she could not travel to Japan by April 16, 2015, she (and Eirini) would lose the ability to easily enter and spend time in Japan. It appears that Andreas' lawyer was required to devote 3-4 hours of work after the conference on March 31 to attend at the consulate and cooperate with the paperwork necessary to get the permit extended.
This issue could have been raised and dealt with in a more measured fashion in one of the two conferences which took place prior to March 31, 2015.
- Mia presented information about the issue that was incomplete in a significant respect. She did not need to go to Japan by April 16, 2015; she could get a temporary extension for a year by application in Toronto. Andreas's lawyer suggests that Mia likely knew this, and did not disclose. I am not prepared to make that finding, but I do find that Mia did not exercise the due diligence to be expected in investigating the options available to deal with her problem before she presented the issue as an emergency with only one solution. It did not require much effort to uncover this possibility; it came to light when the parties attended the consulate on the afternoon of March 31.
[46] In my view, Mia should pay some costs of the March 31 conference because of her failure to make timely and adequate investigation of avenues to deal with the issue of extension/renewal of her permit to reside in Japan. Before presenting the issue as an emergency which took up half the conference and an attendance by Andreas and his lawyer at the consulate, Andreas should receive some reimbursement for needless work done by his lawyer because of Mia's lack of due diligence.
4.3 Quantum of Costs
[47] I have considered the issue of quantum of costs in the light of the factors set out in R. 24(11).
The issue—whether Mia should be permitted to take Eirini on a trip to Japan—was important to the parties. It is not legally complex.
I have already said that I find Mia's litigation behaviour on this issue unreasonable.
There is no argument that the rates charged by Andreas's former lawyer are unreasonable.
I have a bill of costs of $11,148.81 which sets out time spent preparing for the conference, preparing the conference brief, reviewing Mia's brief, and attending at the Japanese consulate after the conference to resolve the issue—23.9 hours. I do not take into account all that work in determining costs. Many issues other than the proposed trip to Japan are raised in the brief—proposed changes to the child's residential schedule, makeup time, a proposal to change the child's doctor, Andreas's income, and financial disclosure. I have reviewed the DRD of the conference; the child-related issues were discussed in addition to the trip. Preparatory work on the bill of costs includes calls and correspondence with a psychologist consulted by Andreas as well as his criminal lawyer. The bill of costs does not allow me to isolate with great precision the time devoted to work on different issues. It does set out the time devoted to attendance at court and at the Japanese consulate on March 31, which resulted in cost of $2,640.
I do not at this time take into account the disbursement incurred by Andreas of $5,000 for the Morlock report. March 31 was a case conference, not a motion at which an order allowing Eirini's removal would have been argued. No finding that one party was "successful" and one "unsuccessful" on the issue of removal was made on March 31. The Morlock report can be used on any future motion on the issue, and at trial.
I take into account the fact that at this time Mia has no income independent of child and spousal support payments from Andreas.
[48] I have also considered the principle set out by the Ontario Court of Appeal in Boucher v. Public Accountants Council (Ontario), 2004 CarswellOnt 2521, that an award of costs should be based on the amount which is fair and reasonable for the party obligated to pay costs to pay in a particular case, not the actual costs paid by the opposing party.
[49] In my view, a fair award of costs is $3,000. My order is that Mia pay Andreas $1,500 within 6 months, and a further $1,500 within a further 6 months.
[50] Andreas shall be entitled to raise the issue of costs of the Morlock report on any future motion in which the issue of Eirini's travel outside Canada is litigated or at trial.
D. Next Steps
[51] This case is adjourned to a settlement/trial management conference on August 26, 2015 at 10 a.m. Briefs shall be filed 2 days prior. The case is to be placed on the Assignment Court list for September 21, 2015 at 10 a.m.
Released: June 19, 2015
Signed: Justice E. B. Murray
Footnotes
[1] E.g. Why is Eirini tired after an overnight visit? When are you putting her to bed? Why is Eirini agitated after overnight stays?
[2] Based on the email exchange attached as Ex. B to Andrea's June 12 affidavit.