Court File and Parties

Date: June 4, 2020

Court File No.: F147/15B

Ontario Court of Justice

Between:

Joseph Theodore Kruis Applicant

— And —

Allison Elizabeth Marry Respondent

Before: Justice K.A. Baker

14B reviewed: June 3, 2020

Endorsement released on: June 4, 2020

Counsel:

• E. Van Looyen, for the Applicant
• A. Marry, Self Represented Respondent

Endorsement

BAKER, J.:

Introduction

[1] This is my judgment on the outstanding issues of make-up access time and costs.

[2] The parties were able to negotiate a resolution to almost all of the substantive issues underlying the original Form 14B motion. These two issues were left. In my endorsement dated May 8, 2020, I ruled that these two limited and discrete issues would be determined by way of limited affidavit evidence and written submissions.

Make-Up Access Time

The Applicant's Position

[3] Dealing first with the Applicant's request for make-up time with the child, Elizabeth Grace Marry: There does not seem to be any dispute that the Applicant missed two full weekends of in-person access with the child during the month of April 2020. He is requesting two full weekends of make-up access. He proposes that this occur on any two of the following weekends: July 17-19, 2020, August 14-16, 2020, August 28-30, 2020 or October 23-25, 2020.

The Respondent's Position

[4] The Respondent says that although personal access did not occur, the Applicant enjoyed contact with the child remotely, including through Zoom, Skype and other applications. He was also permitted to visit the child personally for an unspecified time, at the Respondent's home, on April 5, 2020.

[5] The Respondent further says that make-up time for any period of time prior to the public health emergency was not pleaded in the original Form 14B motion and thus the claim is not properly before the court. Despite that position, the Respondent says that she has offered the Applicant make-up time on various days, and he was not amenable to the dates offered. She asks that if make-up time is awarded, it occur on weekdays, in June.

[6] The Respondent also asks that the court be cognizant of the fact that the child shares equal time with her parents on a week about basis, over the summer months. An award of additional access time over the summer months would therefore upset the equal time sharing.

Whether the Claim is Properly Before the Court

[7] Dealing first with the issue whether the claim for make-up time as currently being advanced is properly before the court. The Respondent's assertion at paragraph 7 of her affidavit of May 21, 2020 is that the Applicant, "did not seek any make-up time in his Motion Form dated April 27, 2020 for missed access prior to COVID-19". This may reflect something of a misunderstanding. The Applicant's claim seems to be premised on the fact that he missed two weekends of access in April 2020. His claim is entirely proportionate to the missed time: he seeks two full weekends.

[8] The Applicant does mention that he has "requested" make-up time for time missed in February because he gave up a weekend at that time – to accommodate the Respondent's plans. This does not seem to represent a separate claim however. It would appear to be presented to illustrate the Applicant's contention that the Respondent must be ordered to provide make-up time, else it will not occur.

[9] In any event however, two visits were missed post-the public health emergency, and two visits are sought. The logical way to look at the claim is a day for day compensation for time missed due to the Respondent asserting that the public health emergency pre-empted all access. I therefore view this claim as being validly before the court.

Analysis and Findings on Make-Up Access

[10] The Applicant missed two weekends of in-person time with the subject child as a result of the Respondent's unilateral decision to terminate the usual time share. In doing so, the Respondent was in breach of a valid and subsisting court order.

[11] Remote platform access is a poor substitute for in-person access.

[12] A single, presumably short visit in the Respondent's home is also not comparable to regular weekend access in the Applicant's home.

[13] The Respondent imposed this limitation on the Applicant, against his express objections and in contravention of a court order.

[14] The Applicant, in his original motion materials, deposed that the child was saddened by the cancellation of the visits, and said that she missed the Applicant. This is not denied. The Respondent's actions then, had a real and unfortunate effect on the child.

[15] This evidence also supports the view that the child would benefit by spending extra time with her father.

[16] As a matter of public policy, the mother should not be able to autocratically impose a reduction of court ordered access time without recompense.

[17] I therefore find that it is appropriate to award make-up access time commensurate with the time withheld.

Timing of Make-Up Access: Weekends vs. Weekdays

[18] The issue then becomes whether the make-up time should be on weekends, as requested by the Applicant – or on weekdays in June, as requested by the Respondent.

[19] In his April 27, 2020 affidavit, the Applicant deposed that he is working from home. It would appear that he works during the work week, that is, Monday to Friday. This would explain why his current, ongoing access occurs on weekends.

[20] In his reply affidavit sworn May 26, 2020, the Applicant says that although his part time work with the military has ceased as a result of the emergency, he continues to work in an office setting.

[21] The Respondent for her part deposes that the child is, "engaged in online learning". Presumably that takes place during the usual school week. In fact, that assumption is consistent with the Respondent's assertion that weekday access time would, "be an opportunity for Joseph to engage in Elizabeth's life and education…".

[22] It is very difficult to see how weekday access, when both the father and the child have other obligations, would begin to compensate for weekend access. Weekends are when the father and child are actually able to focus on each other, rather than being distracted by other obligations.

[23] It is difficult to even understand why the mother would be proposing access times of diminished value to what was missed.

[24] I am satisfied that the make-up access should take place on weekends.

[25] The Applicant has proposed a choice of weekends. He says he understands that none of the proposed weekends for make-up access would result in the child missing a pre-scheduled activity with her mother.

[26] The Respondent has not addressed the choice of weekends proposed by the father. Presumably then, all are in fact, open. It is my view that the make-up time should occur sooner rather than later. Given the mother has been laid off from her employment, she is in the home full time and thus has an opportunity to spend time with the child during the week, including in the summer. This minimizes the disruption to the summertime equal time share, as the Respondent still has considerable time with the child. The shift to spend four additional days with the father over the summer will not substantially disrupt the child's routine.

Costs

Principles Governing Costs

[27] Modern cost rules are designed to foster three objectives: 1) to partially indemnify successful litigants for the cost of litigation, 2) to encourage settlement, and 3) to discourage and sanction inappropriate behaviour by litigants.

[28] Rule 24(1) provides a presumption that a successful party is entitled to a contribution to his or her costs. The first task of the court then is to determine who is the successful party.

Determining the Successful Party

[29] This task is rendered more difficult when parties enter into minutes of settlement to resolve all, or the bulk of the substantive issues, and there have been no formal offers to settle. The court was faced with precisely this sort of situation in Hatcher v. Hatcher. Justice Quinn provided the following guidance as to the appropriate factors to be considered in determining the "successful party", saying:

"Absent offers to settle, a party is successful, within the meaning of subrule 24(1) where he or she was required (my emphasis) to commence legal proceedings for the relief obtained."

[30] In this case, the Respondent was effectively in contempt of an existing order. The Applicant made various efforts to personally reach out to the Respondent to secure her compliance. All were rebuffed.

[31] It is clear that the subsequent communication by the Applicant's counsel, which required rapid response over a tight timeline, limited the Respondent's ability to secure legal advice before the motion was actually commenced. It may have been, as the Respondent argues, that with some time, the parties may have been able to negotiate a resolution of the impasse.

[32] But the Applicant was missing time with the child as a result of the Respondent's decision. It is certainly understandable that he would want to take action to have his access reinstated without delay, so as to ensure he did not miss more time with his daughter. This concern would have been heightened by the limitations on court access arising from the public health emergency of COVID-19.

[33] It was the Respondent who initiated the imposition of circumstances that gave rise to this motion. It is the obligation of parties to comply with court orders. The Respondent had no business defying a court order. The fact is – she should have sought legal advice before she decided that she was going to ignore her court ordered obligations.

[34] I therefore accept that the motion was required as a result of the Respondent's actions.

[35] The Applicant sought a reinstatement of his time with the child and make-up time. He has been entirely successful. He is presumptively entitled to a contribution to his costs.

Allegations Against the Applicant

[36] A successful party may nonetheless be denied costs if they have behaved unreasonably. The Respondent has not expressly accused the Applicant of behaving unreasonably. She does however complain that the Applicant has a) "made multiple misleading statements to the Court and to me personally", and has been "dishonest" with the court, and b) that he has failed to comply with several terms of the pre-existing order including failing to make certain support payments.

[37] Although it is not expressly argued, the Respondent seems to rely on these assertions to either deny the Applicant his costs or at least, to reduce their quantum.

[38] Dealing first with the assertion that the Applicant has made misleading assertions: It is important to note that this matter settled without judicial adjudication of disputed facts.

[39] As noted by Quinn, J. in Hatcher (supra):

"Fixing costs following a trial is one of the easiest of judicial tasks. However it can be a challenge to determine costs in a protracted family court file where the parties hand up executed minutes of settlement at the opening of trial, covering all issues but for costs. Caution must be exercised not to make findings of fact in the face of disputed evidence in circumstances where the court is unable to resolve the dispute due to the absence of testimony."

[40] Although this was not a protracted family court file, the same principle applies: I am unable in the circumstances to make a finding that the Applicant has misrepresented facts. The Respondent's bald allegation in this regard cannot be accepted at face value.

[41] As to the failure to completely comply with the prior order; the Applicant acknowledges he was late with his April support payment. He says he was laid off from his part time employment and that the payment has now been made. There is a dispute about whether he has paid his contribution to extraordinary expenses. Again, the court has not made findings of fact in the proceeding and cannot do so now.

[42] But in any case, these issues are irrelevant to the dispute that precipitated this litigation. If the Respondent wishes to take up the issue of noncompliance with the prior order in another proceeding, she may do so. Findings of fact can then be made and consequences (if appropriate), can be imposed.

[43] I am not able to make the findings of fact alleged by the Respondent and am thus precluded from considering them in relation to costs. Further, I take the view that even if accurate, these allegations do not alter the fact that the Applicant was required to commence this proceeding in order to secure the relief he sought and on which he was entirely successful.

[44] Accordingly, I find that neither allegation impacts the assessment of entitlement to, or quantum of, costs.

Quantum of Costs

[45] Turning now to quantum: The Applicant seeks costs of $1,880.20. It is not entirely clear how this figure was arrived at, as there was no detail provided of hours and fees charged.

[46] The Respondent does not address quantum specifically other than to say that any award of costs will cause her financial hardship.

[47] The court's task in adjudicating quantum is to determine what is a proportionate and reasonable contribution to costs. The matter was relatively straightforward. It largely resolved prior to any hearing. The remaining issues were discrete and were resolved on written submissions.

[48] The Applicant was obliged to prepare a Form 14B motion with supporting materials, a second affidavit to address the make-up time, and a reply affidavit. The Respondent did not prepare any materials. No formal hearing was convened, as the remaining unsettled issues were resolved by written submissions.

[49] I am satisfied that the amount of $1,500.00 represents a fair and proportionate contribution to the Applicant's costs.

Financial Hardship

[50] In determining this quantum, I have considered the Respondent's submission that she is of limited means. This is however a relatively bald assertion. The Respondent does not stipulate her income, or the household means. In her submissions, she states her situation as one whereby she supports her disabled spouse and three children. It is apparent from the totality of the materials however, that the Respondent also lives with her parents. The Applicant says that those individuals also have an income that presumably, defrays household costs. If that is the case, the Respondent has not disclosed it.

[51] There is insufficient evidence for me to find that the imposition of costs would indeed reach the level of "financial hardship". Having said that, I do appreciate that, due to the public health emergency of COVID-19, this is a difficult financial time for many people, including the Respondent, who has been laid off.

[52] Financial limitations, while relevant, do not shield people entirely from a costs award. This is because a fundamental purpose of costs orders is to provide accountability. It is reasonable to assume that people with limited financial means take their own situation into account in their decisions around litigation.

Final Order

[53] Accordingly, final order to go:

1. The Applicant shall enjoy make-up access time with the subject child Elizabeth Grace Marry on the weekends of July 17-19, 2020 and August 14-16, 2020. Access will commence at the usual day and time in accordance with ongoing access.

2. This access will also be subject to the provisions previously established between the parties with respect to COVID-19 protocol.

3. The Respondent shall pay costs to the Applicant in the fixed sum of $1,500.00.

Dated at Brantford, Ontario

This 4th day of June 2020

The Honourable Justice K.A. Baker