Ontario Court of Justice

Date: September 4, 2020

Court File No.: FO-16-91598

Between:

THOMAS JAMES TARKOWSKI

Applicant

— AND —

LINDSEY VICTORIA LEMIEUX

Respondent

Before: Justice Penny J. Jones

Endorsement as to Costs

Released on: September 4, 2020

Counsel:

• Glenda Perry, for the Applicant
• Lisa Hayes, for the Respondent

JONES, P. J., J.:

Introduction

[1] This is a costs decision arising from a ten-day custody and access trial wherein each parent sought sole custody and sole decision-making authority relating to their child Avery Mae Lemieux-Tarkowski (Avery), born […], 2013.

[2] I released my decision in this matter on June 9, 2020. See Tarkowski v. Lemieux, 2020 ONCJ 280. The Respondent mother was successful in her application for custody and was granted sole decision-making authority on all issues affecting the child with one exception, namely, that of decision-making authority relating to vaccinations, which was granted to the father.

[3] The parties made written submissions to the court on the issue of costs. The mother is now seeking costs against the father fixed in the amount of $59,085.72 inclusive of disbursements and H.S.T., which, according to her bill of costs, represents a 50% scale of recovery at her counsel's regular rate of $350.00 per hour (number of hours expended multiplied by her hourly rate divided by two.) The father opposes the making of a cost award and seeks to have the mother's claim for costs dismissed.

[4] I have considered the submissions of the parties and, for the following reasons, have fixed costs payable by the father to the mother in the amount of $25,000.00 inclusive of disbursements and H.S.T.

Short History of the Case

[5] The father commenced this proceeding in September 2016 seeking joint custody, child support, and access. The mother cross applied for sole custody and child support.

[6] On January 4, 2017, the case management judge ordered that Avery's primary residence remain with the mother, ordered specified overnight access to the father, and referred this family to the Office of the Children's Lawyer requesting a section 112 report under the Courts of Justice Act (R.S.O. 1990, c.C.43 as am.)

[7] The OCL accepted this referral and conducted an investigation. For reasons set out in his report, the OCL investigator recommended, (given the high conflictual nature of the relationship between the parties, and the fact that the child was doing well in the care of the mother), that the mother be awarded sole custody with the father having frequent, specified overnight access to the child. The father filed a dispute to this recommendation making a number of claims, including the claim that the OCL report, by recommending sole custody to the mother, had not properly considered the impact on the child's best interests of the mother's mistrust of the medical system, which had resulted in her failure to take the child to a doctor for three years and in her refusal to have the child immunized. An addendum to the original report was subsequently filed. In the addendum, the OCL maintained its position that sole custody be awarded to the mother, however, it contained a proviso that, if the mother wished to maintain her status as a sole custodial parent with sole decision-making authority on medical issues, she should take the child for regular well checks to a doctor, and that she should generally follow the doctor's recommendations in order to ensure that Avery receives proper medical care.

[8] The father did not accept this sole custody recommendation. For the next two years, the parties were before the case management judge.

[9] Finally, the case was scheduled for a five-day trial set to commence December 16, 2019. By the time the matter was scheduled for trial, both parties were represented by experienced family lawyers.

[10] Prior to the trial commencing, the parties exchanged "offers to settle" within the meaning of the Family Law Rules.

[11] The mother submitted an offer to settle dated December 5, 2019. In her offer, she sought a sole custody order, with a term that Avery would have her primary residence with her. The terms contained in the mother's offer to settle were severable and they set out in detail regular and holiday access as well as various incidents of custody and access. In particular, her offer specified that she would have decision-making authority over all parental decisions except dental care, which would be with the father.

[12] The father submitted an offer to settle on December 8, 2019, amended on December 10, 2019. His offer initially referred to "parenting times" but made no mention of the terms custody and access or primary residence. The amended offer referred to the mother having "primary residence". The father's first offer sought an order that he would have responsibility and decision-making authority over dental care and vaccinations. In his amended offer, he sought authority over dental care and was prepared to accede the decision-making authority over vaccinations to the mother, provided she consented to a court order stating that Avery would obtain the immunizations recommended by Toronto Public Health within a recommended time frame and on specified terms. The offer provided further that if she failed to do so, her failure would constitute a material change in circumstance sufficient to ground a motion to change. Other than the father's request for two further overnights per month during the school year, most other differences in the terms of the parties' respective offers were minor and, in my opinion, could have been resolved through negotiation.

[13] The father's offer was drafted in such a way that all terms in his offer had to be accepted in their entirety. When the mother refused to accept an agreement that did not include a custody order in her favour, the case went to trial on all issues except child support which was settled on consent, no costs.

[14] At trial, rather than focusing on the issues which were the stumbling blocks to settlement, namely, whether the order should include the term custody and what access during the school year should look like, the father sought an order that Avery's primary residence be moved from her mother's home in Toronto to his home in Orangeville. He also sought sole decision-making authority on all parenting issues.

[15] The father called evidence and cross-examined witnesses on the following issues in his attempt to establish why he felt that such a change in the child's primary residence and decision-making authority was in Avery's best interests, namely:

• That he is the parent best able to meet Avery's needs, including her medical and dental needs because the mother has proven herself to be neglectful of the child's medical and dental needs,
• That he has the best plan of care for Avery going forward,
• That the mother has been undermining and devaluing his proper role as Avery's parent,
• That the mother is unfit to be entrusted with custody of Avery as she has proven herself to be unwilling to give effect to the maximum contact principle,
• That the mother has not consulted with him, nor communicated with him openly or honestly about important decisions she has been making concerning Avery, as she is required to do pursuant to the terms of the temporary order of Justice C. Jones.

[16] The mother sought to have the interim custody order in her favour made final; she called evidence and cross-examined witnesses on the following issues in her attempt to establish why she should be awarded a custody order and what access should look like going forward, namely, evidence:

• that she is meeting the child's needs, including Avery's need for medical, and dental care,
• that she has the best plan of care for Avery,
• that Avery is thriving in the current custody and access arrangement,
• that she has never interfered with court ordered access,
• that the father is not prepared to acknowledge the importance of her time with Avery; that he frequently seeks more access than the times specified in the temporary order, and if she does not agree, accuses her of not being prepared to foster his relationship with Avery,
• that the father is a bully; he is manipulative and dishonest in his communications with her which she said explained her reluctance to engage with the father around parenting issues.
• That the father has not consult with her nor communicated with her openly or honestly about important decisions he has been making concerning Avery as he is required to do pursuant to the terms of the temporary order of Justice C. Jones.

[17] I listened to the evidence over a ten-day period, and for the reasons set out in my decision, I reached the conclusion that the mother should be granted sole custody with sole decision-making authority on all parenting issues except on the issue of vaccinations. Although I felt that the father would have been able to meet the child's needs if the mother had not been available to act as custodial parent, once all the evidence was in, my decision to make a custody order in favour of the mother was not a difficult one.

[18] I found on the evidence I accept, that Avery is thriving in her mother's home where she has lived for the past four years. She has a close relationship with both her parents. She sees her father and his family regularly in accordance with the terms of the temporary order. Given the distance between the parties' homes, the fact the child is at school, and the fact that the mother does not have a car, a decision to move the child to Orangeville would result in the child spending only four overnights per month with her mother during the school year instead of the twenty plus nights each month she is currently spending in her mother's home. In my opinion, to uproot Avery at this time and move her to Orangeville would be very disruptive to Avery's sense of security and stability, and, as such, would not be in her best interests.

[19] However, the evidence I heard around the medical and vaccination issue was more problematic, and in this regard, the father was successful in convincing me that he should be awarded decision making authority on the vaccination issue. I heard days of evidence devoted to the medical and vaccination issue. In the end, I accepted the mother's evidence, supported by her current family doctor's evidence, that she was meeting the child's medical needs. However, I questioned, for the reasons set out in my decision, whether the mother would be able to make an unbiased decision on the issue of vaccinations going forward, and I granted authority to the father to decide this issue. Given the importance this issue to the parties and child, I viewed this as a significant instance of divided success at trial.

Legal Considerations

[20] The following considerations, I see as relevant to my deliberations on the fixing of costs in this case, namely:

1. An award of costs is subject to the considerations set out in Rule 24 of the Family Law Rules.

2. This Rule begins with the presumption that a successful party is entitled to his or her costs. (Rule 24(1)).

3. The Rule provides that a successful party may be deprived of his or her costs if they have acted unreasonably. (Rule 24(4)). In considering whether a party has acted unreasonably, the court shall examine the party's behaviour, including whether that party made an offer to settle, the reasonableness of that offer and whether a party withdrew or failed to accept an offer to settle. (Rule 24(5)).

4. Rule 24(6) provides that if success is divided, the court may apportion costs as appropriate.

5. In fixing costs in this case, I have considered the factors set out in Rule 24(12) of the Family Law Rules. Rule 24(12) reads as follows:

   (12) Setting Costs Amounts—In setting the amount of costs, the court shall consider,

   (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.

6. As offers to settle were exchanged in this case, Rule 18 applies. Rule 18 provides, that if an offer to settle is served, and if that offer meets the requirements set out in Rule 18 but is not accepted by the other party, unless the court orders otherwise, the party making the offer is entitled to costs to the date of the order, and to full recovery costs thereafter if the order of the court is as favourable or more favourable than the offer.

7. To determine whether a party has been successful, the court should compare any settlement offers to the order subsequently made. See Lawson v. Lawson, [2008] 1978 (SCJ]).

8. To compare individual terms in a non-severable, or all-or-nothing, offer to the ultimate order granted, for the purposes of assessing whether the order granted is equal to or more favourable to a party, is generally not helpful or appropriate. The terms of such orders may, however, be used to gauge the offer's general overall reasonableness. All-or-nothing offers to settle are to be discouraged as they do little to reduce the length of the trial and possess a much lower chance of being accepted than severable offers. As well, they often have a heavy-handed air about them." See Lawson v. Lawson, [2004] O.J. No. 3206, per Quinn, J. para. 25 and 26.

9. According to Mattina v. Mattina, 2018 ONCA 867, modern costs rules are designed to foster four fundamental purposes,

   (i) to partially indemnify successful litigants,

   (ii) to encourage settlement,

   (iii) to discourage and sanction inappropriate behaviour by litigants and

   (iv) to ensure the cases are dealt with justly under subrule 2(2) of the Family Law Rules.

10. Costs must be fixed in an amount that is "fair and reasonable" for the unsuccessful party", See Farjad-Tehrani v. Karimpour, 2009 CarswellOnt. 2186 (S.C.J.) at para. 32, aff'd 2010 O.C.A. 326 at para. 4.

11. Fixing costs is not simply an exercise in determining the actual costs to the successful litigant by multiplying time spent by counsel's hourly rate, but is rather an exercise in judgment, having regard to all the circumstances as to what would be a reasonable amount to be paid by the unsuccessful party. See Boucher v. Public Accountants Council for the Province of Ontario, cited with approval in Serra v. Serra, 2009 ONCA 395.

Discussion

[21] The mother was granted custody and was the more successful party. Her offer to settle more clearly mirrored the final order, with one notable exception relating to childhood vaccinations. As such, presumptively, she is entitled to her costs.

[22] The father argued that the mother's costs should be reduced or denied as she adopted an unreasonable litigation strategy thereby doubling the trial time originally scheduled by the trial management judge from five days to ten days. He argued that she called additional witnesses, and conducted lengthy and often irrelevant cross-examinations on witnesses generally.

[23] He speculated that she did so because she was on legal aid and did not have to pay her lawyer's fees. He argued that she extended the trial without regard to any restraint as to how much this trial was costing him and this factor should be considered by the court is fixing costs. His argument as to how this factor should affect any order of costs is unclear, however, suffice it is to say, in deciding the appropriate amount of costs to be awarded in this case, the mother, as a legally aided litigant "stands before the court in exactly the same position as any other litigant.' Baksh v. Baksh, 2017 ONSC 3997.. Per Justice Ronald Kaufman.

[24] Although the trial took longer than originally anticipated, I did not find that the evidence called was irrelevant or unhelpful or that the trial was unreasonably protracted by the mother. As the trial judge, I gave permission to both the mother and the father to call additional witnesses and to pursue areas not contemplated at the trial management conference. At the end of the trial, I found that the evidence called by the parties was helpful to me in deciding the issues before the court. For example, it became clear that the father was alleging that the mother was neglectful of the child's medical and dental needs and, as such, calling the child's doctors and dentists helped me to understand the issues. As I was being asked to change primary residence, I needed to hear detailed evidence from the child's teacher about how she was functioning at school. As well, each party blamed the other for their lack of a cooperative parenting arrangement. The history between the parties was complicated and evidence on this issue took time to present and was relevant to each party's fitness to parent.

[25] I have reviewed the offers to settle prepared by the father. Notably, his offers (original and amended) contain no mention of the term custody (only primary residence) and include two additional overnight access periods per month during the school year (which were not granted in the final order.) Other terms were remarkably similar to terms suggested by the mother.

[26] The father's offers to settle were drafted in such a way that the mother had to accept it "all or nothing". This litigation strategy adopted by the father had the effect of increasing the length and expense of the trial. Rather than being able to focus on the issues that were clearly the stumbling blocks to settlement as became evident upon reviewing the various offers to settle, i.e. whether the order should include the term "custody"; how should the father's access during the school term look like; who should have decision making authority on medical and dental issues, all claims were placed before the court, including the request to move the child's primary residence to Orangeville.

[27] In Lawrence v. Lawrence, 2017 ONCJ 431, [2017] O.J. No. 3289, Justice C. Curtis in para. 37 and 38 discusses the importance of offers to settle and how offers to settle are both important to the resolution of cases and to the determination of costs. She describes how these concepts relate to Rule 2(2) of the Family Law Rules which is now recognized as one of the four fundamental purposes that modern costs have been designed to foster. She wrote,

"37. Offers to settle are a significant part of the landscape in family law in Ontario. They are important to the possible resolution of cases. In addition, they are important to determining costs.

38. Parties and their lawyers have a positive obligation to behave in ways which enable the court to move cases forward to resolution (Rule 2). Rule 2(4) imposes a duty on parties and their lawyers to promote the primary objective of the rules to deal with cases justly (Rule 2(2). This includes taking appropriate steps to save time and expense (Rule 2(3)). Offers to settle play an important role in saving time and expense by promoting settlements, focusing parties and often narrowing issues in dispute: Laing v. Mahmoud, 2011 ONSC 6737, [2011] O.J. No. 5134, 2011 CarswellOnt 12972 (Ont. Sup. Ct.), para. 7 ."

[28] At the end of the trial, I did find that success was divided in this case. A considerable amount of evidence was called on the medical, vaccination and dental issues in this case. These issues took time to unravel. Although I decided to leave medical and dental care with the mother, I granted to the father decision making authority over future vaccinations, with specific reference to a possible future vaccination for covid-19.

[29] On the facts of this case I have determined that the mother, as the successful party, is entitled to an award of costs. I do not find that the mother has acted unreasonably so as to deprive her of her costs.

[30] The bill of costs presented by the mother was not particularly helpful in fixing costs. Her bill of costs detailed the number of hours docketed relating to her preparation for trial, preparation of affidavits and offers to settle, attendance at trial, daily trial preparation, closing submissions and drafting of her memorandum of fact and law. Her bill of costs totalled the number of hours docketed, multiplied that number of hours by counsel's hourly rate, then divided the resulting amount in half in recognition of the divided success achieved at the trial. She set out disbursements claimed and calculated H.S.T. Other than totalling up the hours and providing a general description of the work done, no specific details were provided in the bill of costs.

[31] I have decided to fix costs in this case at $25,000.00. In the circumstances, I have exercised my judgment and have determined that this would be a reasonable amount to be paid by the unsuccessful party. As well, I feel that this is a sum sufficient to satisfy the four fundamental purposes of the modern cost rule, namely, this sum will partially indemnify the successful party, it will encourage settlement in the future, it will discourage and sanction inappropriate behaviour and it will ensure that cases are dealt with justly under subrule 2(2) of the Family Law Rules. (See Mattina v. Mattina, supra).

[32] As the bill of cost was restricted to the trial, I approached the task of fixing costs by considering the number of trial days and by allowing a reasonable amount of compensable preparation time for each day of trial, namely,

$2,000 for each day of trial x 10 = $20,000

$1,000 per day for preparation for trial, preparation of affidavits, preparation of closing submissions, memorandum of fact and law, disbursements and H.S.T. x 10 = $10,000.00

$5,000.00 reduction from total to adjust for divided success

TOTAL $25,000.00

Released on: September 4, 2020

Justice Penny J. Jones