Court File and Parties

Court File No.: D71132/14 Date: November 2, 2015

Ontario Court of Justice

Re: Nisha Adams - Applicant And: Caleb Adams - Respondent

Before: Justice Roselyn Zisman

Counsel:

• Sheila C. MacKinnon - for the Applicant
• Caleb Adams – self-represented
• Veena Pohani - counsel for the children

Heard On: By written submissions

Endorsement on Costs

Introduction

[1] The parties are the parents of four children, Kayne Alleyne-Adams born December 13, 2000, Kayesha Alleyne-Adams born October 27, 2005, Selah Alleyne-Adams born December 21, 2008 and Zhyon Alleyne-Adams born October 19, 2011. Although only at the temporary stage of proceedings this case has an extensive litigation history to date regarding parenting arrangements for the parties' four children.

[2] On December 31, 2014 a temporary motion was heard and the decision released on January 5, 2015 awarded sole custody to the Applicant ("mother"), the Respondent ("father") on agreement was granted access on alternate weeks from Thursday after school to Monday morning, neither party was to plan activities on the other parent's parenting time without prior consent and there was a detailed communication protocol. The father was ordered to pay child support on the basis of an imputed income of $43,000 and he would be solely responsible for private school fees as he wished the children to continue to attend their private school and the paternal grandparents were committed to paying the fees. Based on the offers to settle filed and the success of the mother on the motion the father was ordered to pay costs of $12,700 to the mother.

[3] The mother then brought a motion on June 18, 2015 to vary the temporary order of January 5, 2015 to permit her to change the children's school, for three weeks of Christmas holidays and preventing the father from bringing any further motions until he paid the outstanding cost order. The father also filed a motion to vary the temporary order and requested an order for joint custody, one extra day of access, an order that the children remain in their school, sharing of the driving for the youngest child and disclosure from the mother. On June 22, 2015 I released my decision. I held that although the mother had met the threshold test of proving a material change in circumstances as she had moved residences, her motion to change the children's school was dismissed as I found it continued to be in the children's best interests to attend their present school. A position supported by counsel for the children. The mother's request to take the children for a three week holiday to Trinidad was granted. Counsel for the mother initially requested the father not be permitted to proceed with his motion as he has not paid his child support or costs. However, prior to the motion being argued the father paid the child support arrears and was abiding by the order that he pay $500 per month with respect to the outstanding costs order. The father's motion was essentially attempting to re-litigate the temporary motion. His motion to vary was dismissed as he failed to prove that there had been a material change in circumstances.

[4] During the submissions it became clear that the father had breached the terms of the temporary order. The temporary order of January 5th, 2015 provided that neither party arrange activities for the children when they are with the other parent. However, the father had arranged for Kayne to volunteer at a summer camp near the paternal grandparents' trailer for the entire summer. The father had also cancelled Kayne's paper route which was the basis upon which the mother and court had agreed that the father's access commence on Thursdays. The father also failed to comply with the outstanding disclosure order especially with respect to his work schedule which was relevant as the father had moved into his own residence and it was not clear who was caring for the children as he had previously worked overnight when he resided with the paternal grandparents. I therefore requested that counsel file further affidavits and indicated that I wished to hear further submissions with respect to whether or not the outstanding order should be varied based on the change in circumstances. A further order was made with respect to disclosure from the father with respect to his work schedule. As the result was mixed I endorsed that I assumed there would be no request for costs but if either party was seeking costs a timeline for costs submissions was provided.

[5] The continuation of the motion was heard on July 16, 2015. The evidence revealed that the father had misled the court with respect to Selah's school progress and that she had failed her school year, the father failed to provide complete disclosure regarding his work schedule, the father deceived the court regarding his earlier affidavit that Kayne wanted to continue his paper route, the father had manipulated enrolling Kayne in summer camp thereby interfering with the mother's ability to see him during the summer and was interfering with the mother's relationship with the children. For oral reasons, I ordered that Selah attend public school where her learning needs could be better met, that the father's access be reduced to alternate weekends to coincide with his work schedule from Friday after school to Monday morning and every Wednesday evening from 4:00 to 8:00 p.m. and shared holidays. Mother's counsel indicated that she was now seeking costs for both attendances on the motion.

[6] Cost submissions and a Bill of Costs were subsequently filed and the father filed his response along with his offer to settle.

Position of the Parties

[7] The mother seeks full recovery of her costs of the attendances on June 18 and July 16, 2015 in the amount of $14,028.39 inclusive of disbursements and applicable taxes on the basis that:

a. Two attendances were necessary to argue the motion to change the temporary order of January 5, 2015 as the father failed to provide full details of his work schedule and to disclose who cared for the children while he was at work;

b. The father acted in bad faith in unilaterally enrolling Kayne in summer camp without consulting the mother in breach of the temporary court order;

c. The father until just before the motion was argued was in arrears in his child support and cost order;

d. The father deceived the court with respect to Kayne's desire to continue his paper route close to the father's home which was the basis for the access schedule made on January 5, 2015;

e. The father misled the court as to Selah's progress at her private school and misled the court to believe that the school was meeting her needs; whereas Selah failed grade 1 and the mother was successful in obtaining an order to change Selah's school to a public school close to the mother's home; and

f. The mother was successful in reducing the father's access.

[8] The father submits that no costs should be payable by either party on the basis that:

a. He did not act unreasonably or in bad faith;

b. The mother withdrew her offer to settle and he was then forced to attend court;

c. He was willing to attend mediation and that it was the mother's counsel who interfered with that process;

d. The mother should have known how Selah was doing at school;

e. He did not go behind the mother's back in enrolling Kayne in summer camp;

f. He is not manipulating the children; and

g. The result of the motion was mixed as the children remained in their private school and he agreed that the mother could take the children to Trinidad for three weeks during Christmas.

Settlement Attempts and Offer to Settle

[9] The mother submits that she was unable to prepare an offer to settle as the father's failure to provide full details of his work schedule made it impossible to attempt to settle the case. It is submitted that although the father stated that his work schedule would be changing in September 2015 he failed to disclose that schedule.

[10] The father makes reference to the fact that the mother made an offer to settle that was withdrawn. As the offer to settle was withdrawn it has no relevance. The father provided a copy of his offer to settle dated May 6, 2015. Although the father submitted that he agreed to the mother's request for Christmas access in fact the offer to settle only agrees that the mother have two weeks of Christmas access and that he be provided with make-up access. The father's offer to settle refers to acceptance of various provisions of the mother's offer to settle but her offer to settle was then withdrawn and the father did not submit a new offer to settle. The remainder of the offer to settle refers to sharing of holidays which was not disputed. The father's offer to settle stipulates that the children continue to attend their current school and except for Selah the father was successful on this issue.

Applicable Legal Principles

[11] Rule 24(1) of the Family Law Rules provides guidance on costs in a family law context. Rule 24(1) sets out the basic assumption that a successful party is entitled to costs. This provision still permits a court broad discretion in determining if costs should be paid, by whom and in what amount.

[12] Rule 24(11) provides a further list of factors a court should consider in dealing with costs:

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 behavior in the case;

c. the lawyer's rates;

d. the time properly spent on the case, including conversations between the lawyer and the party, 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.

[13] In Serra v. Serra, 2009 ONCA 395, [2009] O.J. No. 1905 at para. 8, the Ontario Court of Appeal confirmed that costs rules are designed to foster three important principles:

1. to partially indemnify successful litigants for the cost of litigation;

2. to encourage settlement; and

3. to discourage and sanction inappropriate behavior by litigants.

[14] I also agree with the comments by Justice Perkins in Biant v. Sagoo, [2001] O.J. No. 3693 (S.C.J.) that:

the preferable approach in family law cases is to have cost recovery generally approach full recovery, so long as the successful party has behaved reasonably and the costs claimed are proportional to the issues and the result.

[15] I am also mindful that the court's role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees. As was pointed out in Boucher v. Public Counsel (Ontario), 2004 CarswellOnt 2521, [2004] O.J. No. 2634 (Ont. C.A.), the award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings rather than an exact measure of actual costs to the successful litigant.

[16] Subsection (b) of Family Law Rule 24(11) relates to the reasonableness of each party's behavior in a case.

[17] In considering if a party acted reasonably, Family Law Rule 24(5) directs the court to consider if a party served made an offer to settle and the reasonableness of any offer to settle.

[18] Rule 24(5) provides that:

(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.

[19] Offers to settle are an essential part of family litigation. The parties and counsel have a positive obligation to conduct their cases to ensure that the primary objective of the Family Law Rule 2(2) is met that is, to deal with cases justly. This includes taking appropriate steps to save time and expenses, per Rule 2(3). Offers to settle play an integral role in saving time and expenses by promoting settlements, focusing parties and often narrowing the issues in dispute. Offers to settle are therefore important in any consideration of the issue of costs.

[20] However, when parties do not abide by court orders for disclosure or provide the information upon which the other party can properly assess the merits of a case, the court cannot fault a party for not making an offer to settle.

[21] In this case, the father failed to disclose his work schedule and misled the court regarding Kayne's paper route, therefore it is understandable that the mother did not make an offer to settle the parenting schedule. With respect to the father's offer to settle, the result the mother obtained on the Christmas vacation issue was better than that offered by the father. Further, the father's offer to settle was not severable and overall, except for the school issue, the result the mother obtained was better than the father's offer to settle.

Application of Legal Principles to the Facts

[22] The motion primarily dealt with a change to the children's schools and the parenting schedule. Although not completely successful, overall the mother was more successful than the father. The father's access was reduced and one of the children is now permitted to attend public school.

[23] In determining the amount of costs, I have considered the legal principles and the following factors as set out in Rule 24(11) as follows:

a. the importance, complexity or difficulty of the issues: As in any family law case the issues are important to the parties. Although the issues were not complex or difficult legally, the motion needed to be heard on two separate dates as the father misled the court and the mother with respect to how Selah was doing at school and if her learning difficulties were being met and with respect to his plans for caring for the children while he worked. Further, he misled the court regarding Kayne's desire to continue his paper route and this in turn resulted in further affidavits needing to be filed;

b. the reasonableness or unreasonableness of each party's behavior in the case: I find that the father acted unreasonably and deliberately misled the court, manipulated the children, Kayne in particular and breached the court order regarding disclosure and in arranging for Kayne to attend summer camp when this interfered with the mother's time with him. The mother, on the other hand, acted reasonably in permitting Kayne to attend summer camp as once the arrangements were made as she felt it was in his best interests to attend despite the fact she would not see him for almost the entire summer;

c. the lawyer's rates: The hourly rate of $350 for an experienced family law counsel is reasonable as is $175 for her law clerk;

d. the time properly spent: A detailed Bill of Costs was submitted. The father submits that he should not be responsible for the cost of emails and telephone discussions with lawyers not representing him. But the father consulted with these lawyers who then contacted the mother's counsel, it is completely reasonable that she would speak to them and include the time spent in her Bill of Costs;

e. the expenses properly paid and payable: The usual disbursements are claimed for courier and process service. The total costs of $575.76 are reasonable.

f. any other relevant matter: The father wasted court time by trying to re-litigate issues that had already been determined.

[24] In considering all of these factors, I find that the mother is entitled to costs although not full recovery of her costs as she was not successful with respect to the relief she sought for all of the children to attend public school. However, the father went to great lengths to mislead the court, failed to abide by court orders and should be sanctioned for his conduct. As a result of his conduct, the motion needed to be argued on two separate days and further materials needed to be provided. I find that the father should be required to pay the mother's costs fixed at $10,000 payable at a rate of no less than $500.00 per month.

[25] As the issues on the motions related to parenting issues the cost order is not properly enforceable by the Family Responsibility Office. However, in order to ensure that the father is discouraged from bringing further court proceedings and causing the mother to incur further legal fees without any consequences to himself, he shall not be permitted to initiate any further court proceedings, without leave of the court, until this cost order is paid in full.

Order

1. The Respondent shall pay to the Applicant costs fixed at $10,000.00 inclusive of disbursements and applicable taxes.

2. The Respondent shall not be permitted to initiate any further court proceedings, except with leave of the court, until this cost order is paid in full.

3. Counsel for the Applicant shall prepare this order and the approval of the Respondent or counsel for the children as to form and content is hereby dispensed with.

Justice Roselyn Zisman

Date: November 2, 2015