ONTARIO COURT OF JUSTICE
CITATION: Troeder v. Troeder, 2019 ONCJ 184
DATE: 2019 02 26
COURT FILE No.: Halton 219/18
BETWEEN:
Sebastian TROEDER Applicant
— AND —
Winnie TROEDER Respondent
Before Justice Victoria Starr
Hearing dates on June 25 and 27, 2018, August 28, 2018, and October 15, 2018
Reasons for Cost Decision released on February 26, 2019
John Hodgins................................................................................. counsel for the applicant
Jean DeMarco............................................................................ counsel for the respondent
VICTORIA STARR J.:
INTRODUCTION
[1] This decision addresses the issue of costs with respect to a motion and cross-motion ultimately heard on October 17, 2018. Prior to that date there were attendances on June 25, 2018 (father’s ex parte motion), June 27, 2018 (return of father’s ex parte motion), and August 28, 2018 (initial return date for mother’s cross-motion).
[2] In reaching this cost decision I have carefully reviewed the mother’s written costs submissions brief which includes her bill of costs, proof of disbursements, miscellaneous schedules and documents, and legal authorities; the father’s written cost submissions, which includes his bill of costs and legal authorities; and the mother’s written reply cost submissions, with various attachments.
CONTEXTUAL BACKGROUND
June 25, 2017 Ex Parte Motion
[3] On June 25, 2018, the father brought an ex parte motion wherein he sought sole custody of the parties’ two children, an order that the children shall reside with him, that the mother’s access to the children be fully supervised, and a restraining order which would prohibit the mother from coming within 500 m of the children’s home and school. The motion was made prior to a case conference on the basis of urgency. The main thrust of the father’s evidence was that the mother was threatening to kill him, herself and the children, that she had made some of these threats in front of the children, that he had tried to get help from the police but they were unwilling to act in any meaningful way, and although a referral to the Halton Children’s Aid Society had been made, they were not likely to take any steps for at least another week. The situation was not acceptable to the father and as he deposed:
This is not an option. I am terrified that my wife will kill or harm the children and kill or harm me as per her threats while having unrestricted access to the children, their school, their home and myself.
[4] The court granted the order requested on a temporary and without prejudice basis. It did so, on the basis of the very serious threats, including death threats and the threats of suicide, and because it was concerned that if the order was not made immediately and the mother given notice of it first, the mother’s alleged behaviour might escalate to the point that she would make good on her threats to harm or kill herself, the father, and the children.
June 27, 2018 – Return of Ex Parte Motion
[5] The matter returned before the court on June 27, 2018. At that time the mother was represented by a different lawyer than she is now. By that time the mother had served an affidavit and the father had also served his reply.
[6] The Child Protection Court Liaison worker attended and spoke with the parties and counsel and spoke briefly to the court. She confirmed that an investigation had started and that a worker had been assigned. She advised that the investigation was not likely to be completed for about 45 days.
[7] After speaking with the parties the matter was held down and the parties returned with an agreement to various substantive orders (which included supervised access to the mother), to adjourn the motion to a date to be set following a case conference, and setting August 28, 2018, as the case conference date. The terms of their agreement were incorporated into a temporary and without prejudice order.
August 28, 2018 Mother’s Urgent Motion
[8] By August 28, 2018, the mother had changed lawyers. She brought a motion returnable that day (the day scheduled for a case conference). The father sought an adjournment because there had been insufficient time to fully respond to the mother’s voluminous and extensive evidence. The mother consented to this but insisted on terms. The court heard submissions as to the terms of the adjournment.
[9] The court, among other things, significantly expanded the mother’s access. It directed that she have access every weekday (Monday through Friday) from the end of school until 6 PM. That weekday access was to be exercised in the matrimonial home provided that arrangements were made to ensure that the mother and father do not come face-to-face with one another. In addition, the court ordered access on alternating weekends. That weekend access was to be exercised outside of the matrimonial home, unless the father agreed otherwise. Provision was also made for additional access between the mother and children by agreement of the parties. The court also expanded the scope of people who could supervise the mother’s access. The mother’s right to access information and documentation from third-party professionals and other sources was also extended to be equal in stature to the father’s access to same. The mother was also permitted to drive with the children so long as the access supervisor was present. The court went on to give other procedural directions.
October 17, 2018 Hearing of Motion and Cross-Motion
[10] The father’s motion initially before the court on June 25, 2018 and the mother’s cross-motion, initially before the court on August 28, 2018, were heard on October 15, 2018.
[11] Although the court gave its decision on the day of the hearing, it released its endorsement on October 17, 2018. The only issues not decided then were costs and the mother’s request for damages. The decision to dismiss the mother’s claim for damages was released on November 1, 2018 along with directions to be followed in the event that a party sought costs. The parties followed those directions and as a result, their submissions on costs are in written format.
Material and Length of time at court
[12] The attendances on August 28^th^ and October 15^th^ were long ones spanning several hours. The materials filed on these motions are also voluminous and lengthy. To illustrate this I note that by the fourth appearance on October 15, 2018, the material spanned four continuing record volumes with facta and briefs of authority on top of that.
LEGAL CONSIDERATIONS
[13] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that cost orders are in the discretion of the court. Rule 24 of the Family Law Rules, O Reg 114/99 sets out a framework for awarding costs for family law cases in the Family Court of the Superior Court of Justice, in the Superior Court of Justice and in the Ontario Court of Justice. See: Mattina v. Mattina, 2018 CarswellOnt 17838, 2018 ONCA 867, [2018] O.J. No. 5625, 299 A.C.W.S. (3d) 770, at para. 9.
[14] The Ontario Court of Appeal has held that modern family cost rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement, and; (3) to discourage and sanction inappropriate behaviour by litigants: Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40 (Ont. C.A.), at para. 8; Fong v. Chan (1999), 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330 (Ont. C.A.), at para. 22. Rule 2(2) adds a fourth fundamental purpose: to ensure that cases are dealt with justly: Family Law Rules, r. 2(2); E.H. v. O.K., 2018 ONCJ 578 (Ont. C.J.), at para. 8; Sambasivam v. Pulendrarajah, 2012 ONCJ 711 (Ont. C.J.), at para. 37, Mattina v. Mattina, 2018 ONCA 867, at paragraph 10.
[15] In his decision in J.N.M. v. A.T., 2018 ONCJ 668, 2018 CarswellOnt 16236, Justice S.B. Sherr summarizes the purpose of cost awards as follows, at paragraphs 4 to 5, which summary I adopt:
4 Subrule 2 (2) of the Family Law Rules (all references to rules in this endorsement are the Family Law Rules) adds a fourth fundamental purpose for costs: to ensure that the primary objective of the rules is met - that cases are dealt with justly. This provision needs to be read in conjunction with rule 24. See: Sambasivam v. Pulendrarajah, 2012 ONCJ 711, [2012] O.J. No. 5404 (Ont. C.J.).
5 Modern costs rules accomplish various purposes in addition to the traditional objective of indemnification. Costs can be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice. See: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71 (S.C.C.), paragraph 25.
[16] The Ontario Court of Appeal in its decision in Beaver v. Hill, 2018 ONCA 840, confirms that there is no provision in the Family Law Rules that provides for a general approach of “close to full recovery” costs. In some instances the rules expressly contemplate full recovery in specific circumstances, e.g. bad faith under r. 24(8), or besting an offer to settle under r. 18(14). Rule 24(12) sets out the appropriate considerations in fixing the quantum of costs. As the wording of the rule makes clear, proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs. See Beaver v Hill, Supra at paragraphs 11, 12 and 13.
[17] Rules 18 and 24 are the two rules that address costs. In this case none of the various offers to settle made met all of the formal requirements of subrules 18(4) and (14), and thus, costs in this case are governed by Rule 24. Rule 24(1) creates a presumption of costs in favour of the successful party of a motion, case, or appeal.
[18] Consideration of success is the starting point in determining costs: Sims-Howarth v. Bilcliffe (2000), 2000 CanLII 22584 (ON SC), 6 R.F.L. (5th) 430 (Ont. S.C.J.), at para. 1. This presumption does not, however, require that the successful party always be entitled to costs: M. (C.A.) v. M. (D.), 2003 CanLII 18880 (ON CA), [2003 CarswellOnt 3606 (Ont. C.A.)], at para. 40. An award of costs is subject to: the factors listed in r. 24(12), r. 24(4) pertaining to unreasonable conduct of a successful party, r. 24(8) pertaining to bad faith, r. 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party: Berta v. Berta, at para. 94. See: Mattina v. Mattina, 2018 CarswellOnt 17838, 2018 ONCA 867, [2018] O.J. No. 5625, 299 A.C.W.S. (3d) 770, at para. 13.
[19] Rule 24(12) sets out a list of factors the court shall consider in determining an appropriate amount of costs:
(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:
(i) each party’s behaviour,
(ii) the time spent by each party,
(iii) any written offers to settle, including offers that do not meet the requirements of rule 18,
(iv) any legal fees, including the number of lawyers and their rates,
(v) any expert witness fees, including the number of experts and their rates,
(vi) any other expenses properly paid or payable; and
(b) any other relevant matter.
[20] The Rules only expressly contemplate full recovery costs in specific circumstances, e.g. where a party has acted in bad faith or has beat an offer to settle under r. 18(14). See: Mattina v. Mattina, 2018 CarswellOnt 17838, 2018 ONCA 867, [2018] O.J. No. 5625, 299 A.C.W.S. (3d) 770, at para. 15.
[21] Rule 24(4) addresses the situation in which a successful party has behaved unreasonably:
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.
[22] Rule 24(5) provides guidance on how to evaluate reasonableness:
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.
[23] Rule 24(8) discusses the cost consequences for a party who has acted in bad faith:
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.
[24] In reaching my decision with respect to the issue of costs, I have turned my mind to all of the forgoing legal principles and considerations.
POSITIONS
[25] The mother seeks an award of costs of the motions in her favour on a full recovery basis in the amount of $107,580.93 by reason of being substantially successful on the motions, having made reasonable attempts to resolve the matter from the outset, including formal offers to settle, and, by reason of the bad faith behaviour of the father evidenced through his material non-disclosure throughout. In the alternative she submits, even if the court decides that success is divided, that by reason of its wide discretion to apportion costs as appropriate, and due to the unreasonable behaviour of the father in failing to make full disclosure at the time of the ex parte motion and thereafter, and refusing all attempts to settle, the mother should nevertheless be entitled to close to partial or substantial costs in the amount of between $88,602.24 and $100,913.93.
[26] The father’s position is that the time expended by counsel for the mother was neither reasonable nor proportional to the issues before the court. Further, there should be a finding that the mother acted in bad faith, and that the provisions of rule 24 (8) should be applied such that she is deprived of some or all of the costs as a successful litigant. In the alternative he submits that the mother has acted unreasonably, that her claim for costs in the amount of $107,580.93 are not reasonable and proportional, and that the provisions of rule 24 (4) should be applied.
DISCUSSION – ENTITLEMENT
Success
[27] To determine whether a party has been successful, the court should take into account how the order compares to any settlement offers that were made. See: Lawson v. Lawson, 2008 CanLII 23496 (ON SC), [2008] O.J. No. 1978 (Ont. S.C.J.) and J.N.M. v. A.T., 2018 CarswellOnt 16236, 2018 ONCJ 668, 297 A.C.W.S. (3d) 115 (Ont. CJ) at paragraph 5.
[28] The court should also look at the positions that the parties took on the motions to determine who, if anyone, was the successful party. See paragraph 11 of J.N.M. v. A.T., 2018 CarswellOnt 16236, 2018 ONCJ 668, 297 A.C.W.S. (3d) 115 (Ont. CJ).
[29] Here, the temporary order made after the motion and cross-motion were heard, included, among other things:
(a) A setting aside of the June 25 and 27, 2018 and August 28, 2018 orders. This was, however, conceded by the father at the start of the hearing on the basis that they had all been temporary and without prejudice orders meant to stay in place until the motions were heard;
(b) An order requesting the involvement of the Office of the Children’s Lawyer. Also made on consent ultimately;
(c) An order that the mother’s contact with the children be unsupervised;
(d) An order that the children reside with each parent in an equal time sharing regime (2/2/3), with the children effectively “nesting in the matrimonial home” until it is sold;
(e) An order that there be no direct or indirect contact between the parents except as provided for in the order;
(f) An order granting the parties joint custody, subject to certain terms and conditions including the use of Our Family Wizard;
(g) Counselling for the children including with the Reach out Centre for Kids and Dr. Markel if possible or someone else, if not;
(h) An order that the mother continue in therapy until advised by her doctors/counsellors that no further treatment is required;
(i) Without prejudice to either party’s right to seek a retroactive reapportionment, commencing August 28, 2018 interim spousal support of $1181 per month;
(j) Without prejudice to either party’s right to seek a retroactive reapportionment, commencing August 28, 2018, interim child support of $1085 per month,
(k) Without prejudice to either party’s right to seek a retroactive reapportionment, commencing August 28, 2018, an equal sharing of the net cost of section 7 expenses;
(l) An order that a child shall not be enrolled in a future extracurricular activity that will occur on the other parent’s time without the written consent of the other party; and,
(m) An order directing that either party may request a review (no material change in circumstance required) of the level of support payable and apportionment of section 7 expenses under certain conditions.
[30] I turn first to compare the party’s positions on the motions with the ultimate result. The father did not seek relief outside of that which he sought in his initial notice of motion. Thus, at the hearing on October 15, 2018, he sought:
(1) A no contact order except through Our Family Wizard and under certain specified exceptions (he had abandoned his request for a restraining order)
(2) Sole custody of the children;
(3) An order that the children shall reside primarily with him; and,
(4) An order that the mother’s access to the children be fully supervised.
[31] Ultimately, the only relief the father was successful in obtaining was the no contact order and the non-removal order. His success in the later regard was only partial because the ultimate order was a mutual non-removal order and that order was made with the consent of both parties.
[32] The order the mother requested in her notice of motion dated August 20, 2018, included:
(a) An order setting aside the June 25 and 27^th^ orders as well as the August 28^th^ order in their entirety;
(b) Interim joint custody;
(c) A mutual non-removal order;
(d) If the father consents, that the parties retain a parenting coordinator;
(e) If the father consents, a four-way meeting between counsel and the parties;
(f) Effective August 29, 2018, the mother be given an initial temporary “nesting” order. That is that she be entitled to reside in the matrimonial home with the children and the dog for a period equal to the number of days that the father had had possession of the home since June 25^th^; and then following this initial nesting stage, that the nesting arrangements continue on a week about basis, running from Wednesday to Wednesday;
(g) Proportionate sharing of the children’s capital expenses;
(h) Children to attend counselling sessions as recommended by CAS at ROCK etc;
(i) Freedom on the part of each party to enroll the children in activities during his or her time;
(j) The payment of $10,497.50 with respect to a property on Danforth Avenue to be paid when due;
(k) Passwords for the home security camera to be shared and not change without consent;
(l) Interim spousal support of $2196 per month;
(m) Interim child support of $1557 per month;
(n) Access to extended medical, dental health benefits available through the father’s employment to be made available to the mother;
(o) Costs of the motion; and
(p) Damages.
[33] For ease of reference, I have underlined above the prayers for relief which the mother was either not successful in obtaining, or, only partially successful.
[34] The degree of success achieved by the mother is muted somewhat by several factors. For example, several terms were agreed to at the start such as the setting aside of the three prior orders.
[35] The key contested issues at the hearing were: custody, whether the mother’s parenting time with the children should be limited and supervised, where each parent would exercise their parenting time with the children, the schedule of parenting time, interim spousal and child support, counselling for the children, and whether the mother should be awarded damages.
[36] The mother enjoyed complete success on the issue of custody, whether her access should be supervised, counselling, and that parenting time would be exercised in the matrimonial home (i.e. a nesting order). She was partially successful with respect to interim child and spousal support, in that while she did not secure the levels she sought, she at least obtained an order. However, she was not able to secure retrospective support or proportionate to income contribution towards section 7 expenses.
[37] I have not placed great weight on the fact that the parties consented to the order for appointment of the OCL, or on the fact that the father ultimately consented to the mother’s request for joint custody, the appointment of a PC, and to an equal time sharing nesting regime. In my view the fact of his consent does not diminish the degree of success enjoyed by the mother. This is because he only consented to this near the end of the hearing when the court ask his position on this relief. His consent was conditional in that he was prepared to consent to such relief but only if the court saw fit to grant the mother unsupervised contact with the children.
[38] My view might have been very different had a consent been signed and filed in advance of the start of the hearing or had the father indicated his consent at that time. In my view, he cannot put the mother to the expense and task of proving her case and then shield himself from cost consequences by consenting just before the ruling is given.
[39] The support issues were contested. As I have said the mother was successful in securing both child and spousal support and section 7 contribution but not in securing the amount she wanted for each, or, the commencement date (she was looking back to June), or in securing proportionate to income sharing of section 7 expenses. The ultimate result also preserved each party’s rights to seek readjustment of all of these amounts.
[40] The mother was wholly unsuccessful in her bid for orders relating to the Danforth property and in securing an award of damages. While the Danforth property was not really addressed by anyone, the mother did pursue her claim for damages. She devoted part of her evidence, factum and brief of authority to addressing this issue. At the end of the hearing she asked the court to decide the issues of damages. The father devoted no time to addressing this issue in his materials or submissions, except to confirm when the mother’s counsel asked for a decision, that the father wanted the claim dismissed. I do not find the father entitled to costs based on his seeming success in defeating the mother’s claim. I, would however, deprive the mother of a portion of the costs she would otherwise be entitled to on the basis that she pursued a claim that she knew or ought to have known had no merit and insisting that the court decide the issue, wasted court time and resources that could otherwise have been spent helping other families in need of court time and resources.
[41] In deciding who was the more successful party, I have also given great weight to the fact that she was successful on the most important and most contested issues of custody, parenting time in general and where the mother’s parenting time was to be exercised, and, whether her parenting time should be supervised and limited.
[42] For the foregoing reasons I find therefore that comparing the ultimate result with the positions taken by the parties in their notices of motion and at the hearing, shows that the mother was overall significantly more successful than the father.
[43] Turning to compare the result on the motion to the parties’ settlement positions and offers to settle: The mother made two offers to settle, the second replaced the first. The father made one offer to settle in the afternoon on the day before the hearing. Despite the late delivery of his offer, the mother was able to review it with her counsel and to deliver a counter offer before the hearing stated. All of these proposals contain terms that were not severable and include terms relating to property and other issues not before this court.
[44] The terms of the mother’s formal offers mirror many of the terms set out in her notice of motion and thus, my comments and findings regarding her success (complete and partial), lack thereof, and divided success, equally apply at this stage of my analysis. I will not repeat them.
[45] What I found particularly helpful in measuring success is the comparison between the father’s offer to settle and the mother’s counter proposal to that offer. The terms of the father’s offer that are reflected in the ultimate outcome include: appointment of the OCL; joint custody; a 2/2/3 parenting regime; mother’s parenting time to be unsupervised; no telephone contact with the children when not in the parent’s care; continued use of OFW, mother to continue to obtain frequent and regular assistance from her medical professionals; maintenance of counselling for the children at the Reach Out Centre for Kids (“ROCK”) and with Dr. Markel or another professional; ongoing disclosure of job search efforts; and children to remain in the same school, daycare and activities.
[46] The terms of the mother’s response/counteroffer to the father’s offer more greatly approximate the ultimate order. She accepted most of the terms the father proposed as outlined above and which ultimately, were ordered (i.e. joint custody, the 2/2/3 time sharing proposed by the father, counselling provisions, school, lifting of requirement of supervision).
[47] She counter proposed the appointment of a PC/Parenting consultant, which order she obtained, albeit on consent near the end of the hearing when the father consented. She proposed that the June 25, 27 and August 28 orders be set aside, which order she obtained at the start of the hearing on consent. She did not agree to use Our Family Wizard as the father had offered and this was ordered by the court. She did not agree to no phone calls to the children, and proposed one call a night at a specific time. While the court agreed with the father that there should be none, it did indicate it would consider this request again, at the next court date.
[48] I note that the mother offered to settle child support, spousal support and section 7 expenses. The father made no offer to settle these specific issues. The mother obtained an order addressing each of these issues, although not the amounts she proposed.
[49] As a result of comparing the offers made by the parties with the ultimate result, I find that the mother was by far, the substantially successful party.
[50] Given all of the above, and my finding that despite the divided success and in some instances the mother’s lack of success, the mother was the substantially more successful party. As such it is she who is entitled to costs. The father’s minimal success on his motion and the mother’s partial and lack of success on some issues, is a factor that I took into account in fixing the amount of costs to be awarded to the mother.
Behaviour of the Parties
Efforts and Offers to Settle
[51] Upon retaining her current counsel in early July 2018, a letter was forwarded to counsel for the father providing disclosure of relevant material relating to the mother’s medical condition and requesting a four-way meeting and negotiation of the issues. The requests were rejected outright.
[52] The mother was advised that it would be six months or more before any changes in the existing order for occasional supervised access would be considered and that a completed final report by the Office of the Children’s Lawyer and medical proof that her alleged “mental illness” had been cured were preconditions to any change.
[53] Because of the father’s refusal to discuss any changes to the existing order, a formal interim offer to settle dated August 8, 2018 was served on August 8, 2018. This represents early efforts on her part to reach a resolution. One thing that makes her first offer to settle particularly reasonable when it comes to issues of custody and access, is that the mother made it clear that the terms would not “kick in” until she delivered to the father a psychological assessment from an accredited assessor confirming that she is not a danger to herself, the children, or the father. This was an extremely reasonable position and offer to make.
[54] As further effort to resolve the issues the mother provided medical records along with notice that if no response was received to the interim offer to settle, the mother would have no choice but to proceed with a motion to set aside the existing orders immediately. She later retained an expert to do an updated mental health/medical assessment and provided the report to the father, well in advance of the ultimate hearing date.
[55] On August 21, due to the mother’s unexpected termination of her employment, the offer was necessarily amended. The difference between the first and the second offer relates to support. The changes were to request Guidelines spousal support and child support based on shared custody. The Guideline amounts requested in that order were exclusive of any award of unemployment insurance, since at that point the mother was unaware as to whether she qualified or what amount she would receive. This offer was again completely ignored.
[56] It is also noteworthy that up to that point the father had consistently failed to provide any information whatsoever with respect to counselling for the children despite multiple request by the mother through Our Family Wizard.
[57] By the August 28, 2018 hearing date when the father requested an adjournment, there had been no offer to change any aspect of the original court orders by the father whatsoever. The court heard lengthy submissions and made significant changes to the orders on an interim basis to allow significantly more access, entry to the home, and input with respect to counselling, among other things.
[58] As I have noted above, around 3 p.m. the day before the motion the father sent an email to the mother, via counsel, offering to settle the motions and other issues. The way the offer is drafted and in light of my review of the two earlier offers made by the mother, the terms of the father’s offer follow along with the terms set out in the mother’s earlier offers. This is important because it demonstrates that the mother’s offers were the first to contain many of the terms ultimately found in the order.
[59] The father does not dispute the mother’s submission that his offer was sent at a time when the mother was commencing an afternoon visit with the children so was unavailable for consultation with her lawyer. Nevertheless, the mother and her lawyer were able to speak at approximately 9 p.m. later that day (the eve of the day before the hearing) and composed the mother’s counteroffer.
[60] The importance of efforts to settle and offers to settle was discussed in J.N.M. v. A.T., 2018 CarswellOnt 16236, 2018 ONCJ 668, 297 A.C.W.S. (3d) 115 (Ont. CJ), by Justice S. B. Sherr at paragraph 7 which reads:
7 This court wrote about the importance of making offers to settle in paragraphs 4-5 of Klinkhammer v. Dolan, 2009 ONCJ 774, [2009] O.J. No. 6370 (Ont. C.J.), as follows:
4 It was surprising that there were no formal offers to settle in this case. It is reflective of the polarity of the parties. It should be a fundamental step in any family law case to serve at least one offer to settle. Parties and their counsel now have a mandate under subrule 2(4) of the rules, to promote the primary objective of the rules; to deal with cases justly (subrule 2(2)). Dealing with a case justly includes taking steps to save time and expense (subrule 2(3)). 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.
5 There are consequences in the rules for not making or accepting reasonable offers to settle. Subrule 18(14) sets out the costs consequences of not accepting an offer to settle that is as good as or better than the final result. When determining the reasonableness of a party’s behaviour in the case, clauses 24(5)(b) and (c) of the rules direct the court to examine the reasonableness of any offer made, withdrawn or not accepted. This does not preclude the court from examining the failure of a party to make an offer to settle.
[61] In Beaver v Hill, supra, the Ontario Court of Appeal makes it clear that offers to settle are expected where the situation is such that it is realistic to expect offers to settle to be made, and that offers to settle ought to contain a true element of compromise. In this regard, at paragraphs 15 and 16 the Ontario Court of Appeal writes:
15 The motion judge also gave undue weight to the respondent’s offer to settle, along with the appellant’s failure to make an offer to settle. Although I accept that the presence or absence of offers to settle can properly be taken into account in fixing costs, it remains the fact that the appellant was not under any obligation to proffer an offer to settle. Further, before the absence of an offer to settle can properly be used against a party, the situation has to be one where it is realistic to expect offers to settle to be made. The case here was not a situation where the issues could have been settled in any practical way. Either the appellant was going to be able to proceed with his constitutional claim or he was not. There was no way of compromising on that central issue. Consequently, this was not a case where the presence or absence of offers to settle should have played any material role in determining the appropriate quantum of costs.
16 That salient point also impacts on the respondent’s offer to settle. Her offer to settle does not reflect a compromise, given that it included a requirement that the appellant completely abandon his constitutional argument. It is recognized that the failure of an offer to settle to contain a true element of compromise is a factor to be considered in deciding whether the offer properly impacts on the appropriate award of costs. In addition, judges should be very cautious about relying too heavily on this factor to increase or decrease the quantum of costs, when the specific Rules regarding such offers are not directly engaged. Even under r. 24(5)(a) of the Family Law Rules, it is but one factor that is to be considered.
[62] The words of the Court of Appeal are equally applicable, in my view, when assessing the timeliness of offers made. Here the situation was such that it is realistic to expect offers to settle to be made long before the hearing date, and thus, the father’s failure to do so was unreasonable and the mother’s offers very timely and thus, reasonable. In my view, the mother’s genuine and sincere efforts to settle are reflected in the fact she and her counsel made the time to meet to review the offer, to put together a counter offer that was indeed reflective of a compromise on her part, and to deliver it to the father in advance of the start of the hearing. The mother’s efforts to settle or at least narrow the issues and to do so early and repeatedly are to be applauded and encouraged. This heightens her entitlement to costs. I have also taken the need to encourage such behaviour in future into account when fixing the amount of costs to award to the mother.
[63] I am completely shocked, having reviewed the father’s offer and the mother’s counter offer that the parties proceeded to argue almost all issues on the motion. There was considerable consensus and the parties should have been able to resolve almost all of them thereby narrowing the time required to hear these motions. It stands to reason that if the father had made his offer to settle sooner, there may have been more than enough time to accomplish this, thereby saving time and expense.
[64] In any event, it was unreasonable of the father to ignore and rebuff the mother’s early and timely efforts to discuss settlement, to refuse her requests for a four-way meeting to try and resolve the issues, to completely ignore her offers to settle until the afternoon of the day before the hearing, and to deliver his one and only counter offer with such late notice. Even if he is given the benefit of the doubt because as he told the court, what was new in June 2018, was the mother’s threat to harm the children, as soon as he received the current expert assessment report, he knew, or ought to have understood that the mother was not a danger to anyone and thus, that it was time to compromise. He received some medical records in July and some in August. So, by August at the latest it is reasonable to expect that he would make his own offer to settle or at least, engage in settlement discussions. His failure to make any effort to settle until the day before the hearing was completely unreasonable.
[65] Further, because of what he knew about the mother’s medical condition (Adjustment Disorder) her long history of “acting out” episodes, and the medical information he had prior to the ex parte motion, and later ought to have known based on the medical records and expert report produced to him, and because he offered unsupervised and an equal timesharing regime to the mother, I find the position taken on the motion (that the mother’s time should be limited and supervised and that he should have sole custody) to be unreasonable and disingenuous.
[66] Offers 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. Where, as in this case, one party has made sincere efforts to do this which the other has completely ignored the possibility of settlement until after both parties have expended thousands of dollars preparing for a motion, the court ought to sanction the party who failed to make sincere efforts to settle or risks inviting further conduct of this kind in future. The mother is entitled to costs on this account and I have factored this into the amount of costs to be awarded to the mother.
Bad Faith
[67] Both parties have alleged that the other acted in bad faith. Both relied on the decision in S. (C.) v. S. (M.) (2007), 38 R.F.L. (6th) 315 (Ont. S.C.J.), at paragraph 17, 2010 ONCA 196, 262 O.A.C. 225 (Ont. C.A.). At paragraphs 17 and 18 of his decision, Justice Craig Perkins of the Superior Court of Justice, provides critical guidance to courts tasked with deciding whether a party’s behaviour rises to the level of bad faith. There he writes as follows:
17 In order to come within the meaning of bad faith in rule 24 (8), behaviour must be shown to be carried out with intent to inflict financial or emotional harm on the other party or other persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court. A misguided but genuine intent to achieve the ostensible goal of the activity, without proof of intent to inflict harm, to conceal relevant information or to deceive, saves the activity from being found to be in bad faith. The requisite intent to harm, conceal or deceive does not have to be the person’s sole or primary intent, but rather only a significant part of the person’s intent. At some point a party could be found to be acting in bad faith when their litigation conduct has run the costs up so high that they must be taken to know their behaviour is causing the other party major financial harm without justification.
18 In construing rule 24 (8), I think there is an implication from the context of the provision that the bad faith must relate to the issues at stake in the case or to the conduct of the case — not behaviour outside the issues in the case or in a separate (even if related) case — in order to justify a costs penalty in the case.
[68] The Ontario Court of Appeal confirmed the legal test for bad faith in Scalia v. Scalia, 2015 ONCA 492, 2015 CarswellOnt 9780. It wrote as follows at paragraph 68:
68 The application judge was obliged to identify and apply the legal test governing bad faith in this context. This he did not do. The legal test for bad faith in the family law context, as set out in S. (C.) v. S. (M.) (2007), 38 R.F.L. (6th) 315 (Ont. S.C.J.), at para. 17, 2010 ONCA 196, 262 O.A.C. 225 (Ont. C.A.), is that the impugned behaviour must be shown to be carried out with “intent to inflict financial or emotional harm on the other party or persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court.” In short, the essential components are intention to inflict harm or deceive.
Did the Father act unreasonably or in bad faith?
[69] The mother asserts that there was a material lack of disclosure provided to the court when the father obtained his ex parte order. This, she claims, is best revealed by police records she recently obtained. Based on those records his nondisclosure continued throughout this proceeding with his refusal to produce the critical police reports from the incidents of June 22 and June 24. The June records were unavailable to the mother and eventually had to be obtained by her through court order. The mother seeks leave to refer to the un-redacted police reports she received pursuant to the court order dated October 17, 2018. She attached these to her costs submissions. She attached a summary of the critical facts omitted or conflicting with the father’s affidavits.
[70] She submits that these records show that he had decided to separate in March 2018, (although his affidavit stated June 17), he had sought legal advice in April and in June from a criminal lawyer rather than a family law lawyer, his primary concern was that he not be wrongly accused of harming the mother, and to take custody from her, that he seriously exaggerated her mental health condition, and that he had been explicitly told by the police on June 22 that the mother was not a danger to anyone and that he should pursue other options such as speaking to the mother’s medical doctor or proceeding under the Mental Health Act. He continued to get legal advice during the June 22 to June 24, even calling his lawyer from the police station when he became angry that the police would not help him secure sole custody. He specifically advised the police that he wanted them to help him get sole custody and that he wanted his wife to have no access whatsoever. This, the mother submits, shows a man with an agenda, with complete disregard for the children’s best interests. The police concluded that he had been “goading” and “intentionally provoking” the mother, and she was reacting simply in frustration and in an attempt to get a reaction.
[71] The father’s Freedom of Information request to the police is dated June 26, 2018. He requested only the records relating to the March 15, 2018 incident and made no effort to secure the police records from June 22 and June 24, despite knowing they would contain significant relevant facts which were material to the motion.
[72] The father urges this court to disregard the police reports in their entirety as the test in Martin v. Watts, 2018 CarswellOnt 7940, 2018 ONSC 3133, 292 A.C.W.S. (3d) 566 (Ontario SC), is not met. At paragraphs 14, 15 and 16 of that decision the court writes:
14 When a matter is brought before the court by way of motion or otherwise, it is the responsibility of the parties to marshal the evidence in support of or in opposition to the proposition being adjudicated. Ordinarily, decisions are final and parties are not permitted to develop additional evidence so that they can seek to reargue the matter. As the saying goes, there is “one kick at the can”.
15 In exceptional circumstances a party may seek to re-open the matter and to have the court admit fresh evidence. The test for granting such a request was outlined by the Supreme Court of Canada in R. v. Palmer. Although the Palmer test addressed re-opening of a trial, the same principles apply to re-open a motion. The test is as follows: (1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at the original hearing although that may not be applied as strictly in a criminal case. (2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue at the hearing. (3) The evidence must be credible in the sense that it is reasonably capable of belief. (4) It must be such that if believed it would in all probability have changed the decision.
16 The so called “fresh evidence of mortgage fraud” and other evidence is set out in a 43 paragraph affidavit sworn by the Respondent. It does not in any way satisfy the Palmer test. Firstly, there is no evidence in the affidavit that could not have been available at the time of the motion by the exercise of reasonable diligence. Secondly, none of the evidence which is now tendered would have altered the outcome of the motion as it was structured and argued. Thirdly, some of the evidence is opinion or argument and is internally inconsistent.
[73] I am persuaded by the argument of counsel for the father and have completely disregarded the police reports the mother included in her cost submissions. While it is true that the court has broad discretion when dealing with costs and procedure, this discretion does not extend to altering the rules of evidence. The fact of the matter is, the police reports the mother relies so heavily on to demonstrate the father’s lack of disclosure, true intentions and deceit of the court, are not in evidence. This court is not prepared to act as if it is, particularly when there was a procedure available for the mother to get this material into evidence and ample opportunity for her to follow that procedure in order to get it before the court for consideration in reaching this decision. She did not avail herself of the proper procedure. It would be unfair and unjust in any event, to allow the mother to do through the backdoor what she did not even attempt to do through the front door. The unfairness is compounded by the fact that the police reports are full of inadmissible hearsay and opinion, and given that to do so would deprive the father of any opportunity to challenge their contents through voir dire or cross-examination.
[74] Turning to the question of whether the father acted in bad faith without regard to the police reports referenced above, I am not persuaded that he acted with the intent to harm, deceive or conceal information from the court but I am persuaded that the father’s behaviour was substantially unreasonable and certainly bordered on bad faith. I reach this conclusion for three reasons:
[75] First, there is the father’s failure, as discussed above, to make any real efforts to settle until the last minute and the late and suspicious timing of his offer.
[76] Second, there is his position on the motion that he should have sole custody, that the mother’s parenting time should be limited and supervised, and that the children should reside primarily with him. Given the terms of his offer to settle, it is clear that he knew the mother was not a physical risk to anyone. It is reasonable to assume that one does not offer to compromise on the issue of supervised access if one is truly terrified and truly believes their children will be harmed or killed.
[77] Third, there was a material lack of disclosure provided to the court when the father obtained his ex parte order. As can be seen from a review of the facts alleged at the initial hearing on June 25, 2018 (set out in the father’s affidavit of that date and my endorsement), the father failed to tell the court of several material facts. Ultimately, it is those facts coupled with the historical medical records and reports and the most recent expert report that led to the mother’s success on these motions with respect to custody and access.
[78] To be clear, what the father “left out” of his evidence included the following:
(a) The mother had a long history of acting out in ways similar to what occurred in June 2018;
(b) The mother’s mental health was assessed by Dr. Marjana Drandic in November 2012. Around that time the mother had “acted out” in a manner similar to that which occurred in June 2018. At that time the father had contacted the police who took the mother to the hospital for an assessment. A follow up appointment occurred in January 2013. The conclusion at that time was that the mother suffers from Adjustment Disorder and “there is no safety concerns regarding this woman as she has no thought of harming herself or her daughter or anybody else…..;”
(c) The father knew of the mother’s diagnosis, the assessment, and of the conclusion that she is not a danger to anyone;
(d) Ongoing therapy was recommended in 2013, but there were child care issues. As a result, the mother did not go to therapy. The father knew of this recommendation, did not support the mother, and acquiesced in the mother’s failure to follow up;
(e) There were several other incidents over the years similar to what occurred in June 2018. On those occasions the father generally did nothing. One of these occurred in March 2018;
(f) In March 2018, the mother called the police alleging that the father had assaulted her, and the father was asked by the police to leave the home; and,
(g) As recently as June 23, 2018 (two days before his ex parte motion), the father had told the mother that he was agreeable to joint custody and had suggested that the parties live in close proximity to one another.
[79] In Sangster v. Sangster, 2003 CanLII 48248 (ON CA), [2003] O.J. No. 69, the Ontario Court of Appeal stated with regard to the failure to make full and fair disclosure on an ex-parte motion:
The want of full and fair disclosure is sufficient reason to allow the appeal and we would allow the appeal on that basis alone. The court is entitled to rely on materials filed being full and frank, particularly where, as here, the motion is brought on an ex parte basis.
[80] In Alexander v. Cherry, [2007] A.J. No. 632, Paperny J.A., on behalf of the Alberta Court of Appeal stated that when counsel proceeds on an ex parte basis, he or she does so “...with a significant burden, namely to make full, fair and candid disclosure of all non-confidential, non-privileged material facts, including those that are adverse to his position...”
[81] I find that in this case the father failed in his duty of candour. In fact, given the ultimate weight I put on the evidence once the mother brought it to my attention, vital information that was known to the father, highly relevant and very probative, and thus, material was withheld from the court. His lack of legal representation and claim that he acted on the advice of the court’s duty/advice counsel, is not sufficient. I am not persuaded, however, the father had the requisite intent to harm, conceal or deceive. Nonetheless, failure to make full, fair and candid disclosure of all non-confidential, non-privileged material facts, including those that are adverse to his position, amounts to substantial misconduct, making it highly unreasonable conduct. Whether he intended to or not, he torqued the facts to suit his needs. The result was a significant interruption in the mother’s relationship with the children, emotional hardship to the mother and children as a result of their limited contact and relationship, the inability of the mother to gain access to the home, massive depletion of the mother’s resources and financial standing as she was forced to incur very significant legal fees and debt to bring the truth to light and to advance the best interests of the children.
[82] The court must sanction all of this behaviour clearly, or it will invite more of this behaviour from the father and other like-minded individuals contemplating ex parte motions. The best way to do this and the way that will signal the egregiousness of such conduct is by finding the mother is entitled to costs on this basis and by making a significant cost award in her favour.
Has the mother acted in bad faith?
[83] Counsel for the father submits that her conduct exceeded reasonable bounds and proportionality. He urges this court to find that the mother acted in bad faith because her litigation conduct has run the costs up so high that she must be taken to know her behaviour was causing the father major financial harm without justification. He submits that even if the court does not find she acted in bad faith, it should find that she behaved in ways that were substantially unreasonable.
[84] In addition to relying on the cases I have already cited regarding bad faith, to demonstrate that the mother knew or ought to have known she was engaging in conduct that unreasonably and unnecessarily running up the father’s costs, the father relies on Justice Carole Curtis’ decision in Navarro v. Luongo, 2018 CarswellOnt 8031, 2018 ONCJ 342, 292 A.C.W.S. (3d) 351 (Ont. CJ). Justice Curtis not only discusses “expectations” but also, the types of behaviours that unreasonably and unnecessarily drive up the costs of litigation. Some of the behaviours in that case are the same as the ones the father’s complains the mother engaged on in this case.
[85] With respect to expectations and the consequences of certain conduct, at paragraphs 29 to33, 36 and 37 of that decision where she wrote:
29 One of the purposes of costs is to change behaviour.
30 The justice system is a precious public resource. Access to the justice system by individuals must be balanced with the need to ensure that the resource is available for all those who need it. This is one of the purposes of Rule 2.
31 Family law litigants are responsible for and accountable for the positions they take in the litigation.
32 Parties to litigation must understand that court proceedings are expensive, time-consuming and stressful for all concerned. They are not designed to give individual litigants a forum for carrying on in whatever manner they may choose, oblivious to the impact of that conduct on the other side and, perhaps most importantly for the purposes of this case, oblivious to the mounting costs of the litigation.
33 Matrimonial litigation is an occasion for sober consideration and thoughtfulness rather than intemperate behaviour.
36 When awarded on a full recovery scale, costs can serve to express the court’s disapproval of unreasonable conduct during the litigation.
37 The unreasonable conduct of a litigant is a factor in both the awarding of costs and in fixing the amount of costs.
[86] In that case Justice Curtis cites at paragraph 40 some examples of the father’s unreasonable behaviour. Some of these such as the first one, are examples given by the father in this case with respect to the mother’s behaviour. Justice Curtis found the father’s conduct unreasonable in part because his “material on the motions was far too long and far too voluminous. His affidavits contained far too many exhibits, and too many pages of exhibits. He attached many texts, emails and photos to his affidavit. There were hundreds of pages attached as exhibits. This much material was overwhelming and was not helpful to the court. While it may have been suitable to include some texts, some e-mails and some photos, the amount included was inappropriate”. She also found that the “material presented was not proportionate to either the claims made or the issues in dispute. It was not reasonable for the father to file such material in support of a motion. It actually hurt his case, rather than advance it”.
[87] She goes on at paragraph 41 to write:
41 The conduct of the father directly contributed to the time, effort required and the length of the case. The father was unreasonable in the conduct of the motions. The mother is entitled to costs.
[88] While at first blush the mother’s conduct in this case shares some characteristics of the father’s in the case before Justice Curtis, there are key distinctions. It is these distinctions, in my view, that save the mother from being found to have acted in bad faith or to have engaged in conduct that exceeded reasonable bounds and proportionality or reasonableness. These are just some examples:
(a) While the mother did serve voluminous materials, her materials were thorough and detailed. There may have been a bit too much, but on the whole all of her material was very helpful to the court, including the exhibits.
(b) The material she presented was proportionate to the claims made and the importance of the issues in dispute. It was reasonable for the mother to file such material in support of the motion and they actually advanced her case;
[89] It must also be remembered that the mother in the case at bar acted reasonably in trying to settle or narrow the issues and that I have found the father has, for the reasons I have already given, acted in a substantially unreasonable fashion. The father’s unreasonable conduct necessitated a defence and offence by the mother that was detailed, comprehensive, and corroborated wherever possible by additional evidence and exhibits.
[90] There were, however, some aspects of the mother’s litigation approach that I find unreasonable on the basis that they prevented this matter from being managed in a way that could have saved the parties time and expense. For example:
(a) As I have already discussed, her insistence that the court take the time to decide her claim for damages, which she knew or ought to have known, as the court found, this court has no jurisdiction to grant;
(b) The fact that the mother consented to the order on June 27^th^ when she had the benefit of being represented by counsel of her choosing, and then when she retained a new lawyer, changed her mind and sought to have it and others that followed set aside;
(c) Like the father in the case before Justice Curtis, she also brought a motion prior to a case conference for relief that would not have met the test to proceed prior to a case conference (i.e. support, extended health coverage). The timing of her motion was selective. It was tied to when she had all of the records she needed available, not to any change in circumstance creating urgency;
(d) In making her motion returnable on the same day of the case conference, she effectively hijacked the very case conference process that could have resolved or at least narrowed the issues and thus, saved the parties some time and expense;
(e) She also complicated matters by seeking relief that this court did not have jurisdiction to grant and for relief it could grant but only on consent (i.e. appointment of a PC);
(f) She also brought her motion supported by her very lengthy affidavit material, with very little notice, when more notice was called for (due to the length and number of exhibits), and could have been given. Her conduct left insufficient time for the father to have an opportunity to fully respond. This then resulted in an adjournment.
[91] While I find that these behaviours were unreasonable, there is nothing to suggest that she acted with intent to harm, deceive or conceal or to drive up the father’s legal costs to the point of causing him harm. She was a desperate mother who had been treated unjustly because the father brought a motion without notice to her, breached of his duty of candour, would not engage in any form of settlement discussions, when such discussions and efforts were called for, and, because of what may have been ineffective representation on June 27^th^ and institutional delay due to a lack of available court time.
[92] For all of the foregoing reasons, while I would reduce the amount of costs awarded to the mother so as to send a message to her and other litigants considering consenting to orders they should not be or who are intent on hijacking the case conference process, I would not deprive her of all of her costs or award costs to the father, on the basis of bad faith.
DISCUSSION – QUANTUM
The Importance and Complexity of the Issues
[93] The issues on this motion were very important particularly for the mother and children who had the most to lose and were suffering. The issues were complicated by the complexity of the mother’s mental health, its impact on her behaviour, and the need for the court to assess risk.
[94] It was also important to be resolved from the perspective of the children who had been separated from their mother, exposed to the father’s inappropriate behaviour towards the mother, the mother’s inappropriate behaviour including her threats to kill them and herself hem, and to the conflict between their parents, all of which put their emotional well-being at risk.
[95] The tremendous amount of time expended by the mother’s lawyer as set out in her bill of costs is reasonable and proportional to the issues and complexities of the issues.
Offers to settle and the Parties’ Behaviours
[96] The father’s substantially unreasonable behaviour as outlined above and including with respect to his effort and offer to settle and the position he took along the way made this matter more litigious than it needed to be and caused the mother to incur significant legal fees preparing for and arguing a motion that should have and could have been resolved. All of this points me to an award of significant costs in the mother’s favour.
[97] As I have found elements of the mother’s litigation conduct to have been unreasonable (but far less so than the father’s), there will be some discounting of the amount awarded to her.
Reasonableness and Proportionality
Fees and Hourly Rates
[98] The father did not take issue with the legal fees, including the number of lawyers, clerks and students who worked on the mother’s legal team, or with their rates. Given this and having reviewed the material filed, I find them reasonable and proportional. I note as well that counsel for the mother also delegated appropriate work to those with the necessary qualifications but whose hourly rates were lower.
Time Spent
[99] As to the time invested by each party, I note that a combined total of about 207 hours was spent by mother’s current counsel and her team on these motions. This does not include the time spent by the mother’s previous lawyer. The total time claimed by the father’s counsel is about 91.7 hours.
[100] In reviewing the time spent I note that the time claimed by the mother includes time spent on issues the mother was not successful on (i.e. damages, payments regarding the Danforth property). It also includes time spent on issues that the mother enjoyed limited or only partial success on (one. s. 7 expenses, retrospective support, spousal and child support, the parenting schedule, time to be spent with the children to make up for time lost). I am not prepared to allow all of the time related to these tasks.
[101] Furthermore, the time spent includes time preparing and reviewing offers to settle that include terms that have nothing to do with the issues on these motion (i.e. property, NFP statements, disclosure for equalization, sale of the matrimonial home, and sharing of property related expenses). I am not prepared to allow the fees related to these.
[102] The bill of costs also includes time spent from October 18, 2018 to December 21, 2018, on tasks that are not related to the hearing, taking out the order, or preparing costs submissions (i.e. obtaining, reviewing and summarizing the police reports I have disregarded entirely). I am not prepared to allow the fees related to these.
[103] I am also not prepared to allow any of the time spent by the mother’s former counsel. That counsel assisted the mother with preparing materials containing information that was in part later duplicated in the mother’s subsequent affidavits. That counsel also assisted the mother in negotiating an adjournment of the motion and a consent order that the mother later sought to and was successful in having set aside, making the attendance on June 27^th^ a complete waste of time. These costs should be borne by the mother alone. I have thus, refused to allow the $9,153 claimed by the mother on account of the work done by her former counsel.
Father’s Reasonable Expectations
[104] I have little doubt the father would have been aware of the high cost of litigation based on his own lawyer’s actual hourly rate of $435 per hour and his own legal fees of $45,075.14 (inclusive of HST). In fact, the actual hourly rate of counsel for the mother is lower than his lawyer’s as her highest hourly rate shown is $425 per hour.
[105] I am also of the view given the time spent by the father’s counsel, and the volume of materials the mother’s lawyer served and her numerous communicators to his lawyer, and the offers to settle she sent, that the father was well aware the mother’s lawyer and her team were doing much more work than the father’s lawyer. Thus, I find it reasonable to conclude that he expected or ought to have expected the time spent by his lawyer and thus, his own legal fees would be far less than the cost of the litigation to the mother.
[106] Thus, I find it reasonable to conclude that the father would have foreseen having to pay the mother’s costs and that these costs would much higher than his own.
Disbursements
[107] The father takes issue with the mother’s claim of the expense of Brayden Supervision Services. From his perspective she should have used friends and family instead and thus, the expense was unnecessary, unreasonable and not proportional. I am not persuaded of this.
[108] The need for supervised access is a direct result of the father’s ex parte motion and possibly the breach of his duty of candour, and the extensive access the court gave to the mother on both June 27^th^ and later on August 28^th^. To expect friends and family to be willing and available to supervise for full weekends and after August 28^th^, on an almost daily basis during the weekdays as well as full alternate weekends, is completely unreasonable. It is also completely reasonable and understandable for the mother to try and exercise her access with the children at all available times. The total cost of Brayden was $7415.63 with the lions share relating to the mother’s exercise of access after August 28, 2018.
[109] I also note that much of this expense was incurred after the father had the expert report and other medical records and knew or ought to have known that supervised access was not necessary to protect the children from any physical risk of harm. Given the exceptional circumstances, I find it fair and reasonable to allow this disbursement.
[110] I have also considered the expert’s fees. As a result of the father’s allegations and motion the mother was forced to incur the cost of hiring an expert to assess her medical condition / mental health and to write the report the mother and the court relied so heavily upon. This report was necessary, compelling, relevant and highly probative. Indeed, the mother would not likely have achieved the level of success that she did and when she did without it. The expert’s fees and rates appear quite reasonable and proportional. I have thus, included them in my award.
[111] Finally, as I have not allowed the mother to rely on the police reports she attached to her cost submissions or to claim the time spent by her legal team obtaining, reviewing and summarizing them, I am not prepared to allow this disbursement. I have concluded based on the fact that copies were delivered to counsel for the mother and the court that some portion of the amounts claimed for scans and photocopies relates to these reports. I cannot tell from the bill of costs what portion of those disbursements relates to this so I have, based on the volume, estimated the expense to be about $200 and reduced the mother’s allowable disbursements by that amount.
CONCLUSION
[112] The court is not required to conduct a line by line analysis of the mother’s bill of costs and I have not done so. Having considered the reasonableness and proportionality of the amount claimed and having taken into account all of the forging considerations including the necessary discounts to be applied to sanction the mother’s unreasonableness and to account for her partial, limited, or lack of success on some issues, and the need to elevate the cost award so as to sanction the father’s very unreasonable behaviour, and after considering the father’s reasonable expectations and other factors discussed in this decision, I have decided that the mother should receive 70% of her total fees, all of her disbursements less $200, and none of the fees she incurred with her former lawyer.
[113] Thus, to arrive at the total costs to be awarded I have used the aggregate of following amounts:
(a) $53,714.22: $76,734.60 x 70% (Legal fees)
(b) $6,982.85: HST on fees
(c) $11,517.94: total disbursements $11,717,94 less $200 for copies and scans of police reports
(d) $1497.33: HST on disbursements
(e) = $73,712.34 total fees and disbursements allowed and awarded, inclusive of HST.
[114] For all of these reasons I make the order below.
Order:
The applicant shall pay the respondent her costs of the motion and cross-motion heard on October 15, 2018, fixed in the amount of $73,712.34, inclusive of fees, disbursements and HST. These costs are to be paid within 60 days.
The Judicial Secretary is requested to send a copy of this decision to both counsel.
Released: February 26, 2019
Signed: Justice Victoria Starr