Court File and Parties
Court File No.: FO-15-0005-01 (Dryden) Date: January 24, 2018 Ontario Court of Justice
Between: Derek Alan Anderson
- and - Cheryl Lisa Ann Froome
Before: Justice Sarah Cleghorn
Counsel:
- Ms. Beth White for the Applicant
- Cheryl Lisa Ann Froome, self-represented
Reasons for Costs
Released on January 24, 2018
Introduction
[1] This court heard an unsuccessful motion, brought by the mother, seeking to change custody and access for the child, K.J.F-A., born December 27, 2004. The Final Order, that the mother sought to vary, was issued by the Honourable Justice Hoshizaki on December 8, 2015. I heard the mother's motion on November 8, 2017. Reasons for Judgment were released on November 29, 2017.
[2] The mother, Cheryl Froome, was seeking sole custody with no specified access to the paternal uncle, Derek Anderson. Derek Anderson was seeking joint custody with the primary residence in his home and specified access to the mother.
[3] The court ordered the following, on a final basis:
Derek Anderson shall have sole custody of K.J.F-A. born December 27, 2004. The primary residence of K.J.F-A. will be with Derek.
Derek Anderson and Cheryl Froome shall each be entitled to communicate directly with and receive information directly from any persons involved in K.J.F-A.'s education, medical care, religious upbringing, and social or recreational activities. Both Derek Anderson and Cheryl Froome shall be entitled to attend K.J.F-A.'s school functions, extracurricular activities, and parent-teacher interviews.
Cheryl Froome will have specified access to K.J.F-A. as follows:
a) Alternate weekends from Fridays after school until Sundays at 7:00 p.m. If Friday is not a school day, exchanges shall be made at 4:00 p.m. at a mutually agreeable location.
b) In odd numbered years, Cheryl shall have one week of the Christmas holidays that will include Christmas Eve from 4:00 p.m. until Boxing Day at 7:00 p.m. In even numbered years, Derek shall have the one week of Christmas holidays to include Christmas Eve from 4:00 p.m. until Boxing Day at 7:00 p.m.
c) In odd numbered years Cheryl shall have K.J.F-A. over the March break.
d) Cheryl shall have Mother's Day if it does not fall on her regular parenting time from 9:00 a.m. until 7:00 p.m.
e) Cheryl shall have the first two weeks of the July summer holidays and the first two weeks of the August summer holidays commencing in the year 2018. A "week" consists of starting on a Friday at 4:00 p.m. and ending on a Sunday at 7:00 p.m.
f) Derek shall have the last two weeks of the July summer holidays and the last two weeks of the August summer holidays commencing in the year 2018. A "week" consists of starting on a Friday at 4:00 p.m. and ending on a Sunday at 7:00 p.m.
g) Such further and other times as the parties may agree.
[4] If costs were in issue, both parties were invited to submit written submissions within specified time frames. On behalf of Derek Anderson, his counsel, Ms. White, served and filed material. Cheryl Froome did not.
[5] Ms. White is asking that a cost award to Derek Anderson be ordered fixed in the amount of $12,944.79 (inclusive of disbursements and HST).
[6] These are my reasons on the issue of costs.
Analysis on the Issue of Costs
[7] The framework for assessing the appropriate cost award is found in Rule 24(1) of the Family Law Rules. This rule states that, "[t]here is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal."
[8] Derek Anderson sought an order for joint custody with the primary residence. In the end, he was granted sole custody. In terms of the final decision ordered by the court, Derek Anderson, by any measure, was the successful party. There is therefore a presumption that he is entitled to costs.
[9] Rule 24(11) sets out the factors to be considered when assessing costs, and they are stated:
(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.
[10] It is trite to state that all matters that proceed to a hearing involving a child are of significant importance to the parties. Having said this, the motion was not complex in terms of either the law or the evidence. However, unique difficulties did arise. In particular, the views and preferences of K.J.F-A. were given great consideration by Derek Anderson. Meaning, that the steps that Derek Anderson chose to take in terms of litigation were largely driven by the child. Just prior to the initial hearing date of October 3, 2017, Derek Anderson was prepared to resolve the matter by way of joint custody, with the primary residence being with the mother and access to Mr. Anderson. On Derek Anderson's account, K.J.F-A. approached him and requested to return to his primary care. As a result, the hearing date was adjourned, pleadings were amended, and a new hearing date was scheduled for November 8, 2017.
[11] I turn next to an assessment of the reasonableness or unreasonableness of each party's behaviour on the motion. To be sure, Cheryl Froome's decision to represent herself made the litigation more difficult than was necessary. Cheryl Froome has mental health difficulties. The challenges she had in managing the litigation (comprehending procedural issues, understanding legal complexities, and entering into meaningful negotiations) were undoubtedly exacerbated by her mental health. Given this, I am not prepared to find that either party acted unreasonably.
[12] Ms. White has filed her accounts on the motion. Her hourly rate, given her years of experience, is appropriate.
[13] I am mindful, though, that the adjournment of the first hearing date of October 3, 2017 could have been avoided. A motion to amend the pleadings and vacate the date should have been brought at a much earlier time by Derek Anderson. When the matter did proceed forward on November 8, 2017, it resembled more of an uncontested trial by way of affidavit. The hearing itself took less than one hour.
[14] An offer to settle was served, as required, in the Settlement Conference brief of Derek Anderson.[^1] With respect to a settlement conference, it has long been established that what is said or not said, done or not done, written or not written, shall remain confidential. This includes the entire brief, including the offer to settle as contained in the form. The court held, in Entwistle v. MacArthur,[^2] that an offer to settle in the Settlement Conference brief is not to be disclosed except as outlined in Rule 17(23). As none of the factors in Rule 17(23) are applicable in the matter before the court, there has not been an offer to settle served for purposes of the costs analysis.
[15] Having addressed the Family Law Rules as they pertain to costs does not end the analysis, as I must also take into consideration that a cost award must be one that is reasonable in all of the circumstances.
[16] In doing so, I am mindful that there are three fundamental purposes of cost awards, as explained in Fong et al v. Chan et al,[^3] and confirmed in Serra v. Serra:[^4]
(1) to indemnify successful litigants for the cost of the litigation;
(2) to encourage settlements; and
(3) to discourage and sanction inappropriate behavior by litigants.
[17] The respondent is of very modest means; her income is from a long-term benefit payable under the Ontario Disability Support Program. However, limited means is not a shield against the making of a cost award.[^5] Unfortunately, this matter became unnecessarily protracted. The respondent commenced the Motion to Change only six months after the final order dated December 8, 2015. Further, it was evident that the respondent, at no time, was willing to engage in meaningful settlement discussions. To the contrary, she remained firm in her position that she should be awarded sole custody, with contact to Derek Anderson and the paternal side of the family at her discretion. The evidence before the court was overwhelming that she had no intention of maintaining contact with the paternal side of the family despite the unconditional love and support that the Anderson family provides to K.J.F-A. I fear that the respondent is blinded by the animosity she harbors towards the Anderson family. Unfortunately, I fear these emotions have, at least at times, compromised her ability to place K.J.F-A.'s best interests at the forefront.
[18] For all of these reasons, I have concluded that a cost award is required at this juncture to give meaning and weight to both the fundamental purposes of a cost award and the Family Law Rules.
[19] Taking all of the above into careful consideration, I have concluded that it is appropriate that costs be ordered payable by Cheryl Froome to Derek Anderson, fixed in the amount of $1,000.00, payable forthwith.
Released: January 24, 2018
Justice Sarah Cleghorn
Footnotes
[^1]: The settlement conference brief was attached to the written submission on costs and is dated August 24, 2016.
[^2]:, 157 (Ont. Fam. Ct.) see paragraphs 13 thru 44.
[^3]: (1999), 46 O.R. (3d) 330 (ON CA).
[^4]: 2009 ONCA 395.
[^5]: See Snih v. Snih; and Takis v. Takis, [2003] O.J. No. 4059 (S.C.J.).