Moreno v. Tuey, 2021 ONCJ 410

ONTARIO COURT OF JUSTICE

DATE: 2021 06 11 COURT FILE No.: Toronto DFO-13-10563

BETWEEN:

RUTH MARGARITA MORENO Applicant

— AND —

HARRY NAY MANN TUEY Respondent

Before Justice Sheilagh O’Connell (In Chambers)

RULING ON COSTS

Counsel: Mercedes Ibghi....................................................................................... counsel for the applicant Valois P. Ambrosino........................................................................... counsel for the respondent

O’CONNELL J.:

Introduction

[1] On April 20, 2020, the father’s urgent motion to reinstate his parenting time pursuant to the Final Order dated September 10, 2018 was scheduled before me for a contested hearing.

[2] The motion was held down and the parties resolved it on consent on that day. The father’s parenting time was reinstated in accordance with the Final Order. The parties also agreed to immediately attend counselling with Claire Watson and that the father would bear the costs of the sessions pending further court order or agreement. These seemed to be the two main issues in contention between the parties.

[3] The father seeks his costs from the mother on a full recovery basis in the amount of $20,172.19. He submits it was only as a result of his urgent motion that the mother eventually complied with the Final Order and reinstated his parenting time with the child after being denied parenting time for approximately forty days.

[4] The mother submits that the father’s urgent motion was not necessary and that both parties should bear their own costs. In the alternative, the mother is seeking costs on a full recovery basis in the amount of $15,667.45.

[5] According to the mother, her main request was for the child to obtain counselling and for the father to bear the costs of the counselling. She asserts that both of these requests were achieved in the resolution of the motion and that she was therefore more successful than the father.

Brief Background

[6] The parties were married on November 7, 2009. They separated on or about August 6, 2013. There is one child of the marriage, Rachel Chloe Moreno-Tuey, born […], 2011 (“Rachel”). Rachel is now 10 years old.

[7] The parties have been in litigation regarding Rachel since they separated, almost 8 years ago, when Rachel was approximately two years old. The parties originally settled all issues between them in accordance with the Final Order of Justice Heather Katarynych, dated May 11, 2015. This Order provided that parties shall share all information regarding the health, education, religious instruction, extra-curricular activities, social environment and welfare of the child, but if they disagree on any issue, then they shall seek input from Claire Watson, a court appointed mediator. In the event that they are unable to reach an agreement, then the mother shall make the final decision (paragraph 5 of the Order).

[8] Justice Katarynych Final Order also provided that the father have regular alternating weekends with the child from Fridays at 4:30 PM to Mondays at 8:00 AM and every Wednesday from 4:30 PM to Thursday at 8:00 AM, in addition to holiday time, among other provisions, including child support and section 7 expenses.

[9] The mother commenced her first motion to change on August 25, 2017. I became the case management judge at that time, following Justice Katarynych’s retirement. The mother sought sole custody of the child and a reduction of the father’s parenting time, including the elimination of the father’s mid-week access.

[10] The mother’s motion to change followed an earlier urgent motion brought by the father after the mother relocated Rachel’s residence from the Leslie neighbourhood of Toronto (east end) to Etobicoke (west end of Toronto) without consulting the father and with very little or no notice. The move resulted in the unilateral change in Rachel’s school and made it more difficult for the father to exercise mid-week access.

[11] At that time, the parties agreed to a social work investigation and report conducted by the Office of the Children’s Lawyer (“OCL”) in accordance with section 112 of the Courts of Justice Act. Susan Walker Kennedy was the clinical investigator assigned.

[12] The OCL clinical investigator completed her investigation on April 27, 2018 and released her full report on May 16, 2018, following a disclosure meeting with the parties and counsel. She recommended that the parties have joint custody of the child with a specified parenting schedule that provided the father with more parenting time with Rachel.

[13] Following the release of the OCL report, the parties resolved the mother’s motion to change pursuant to two Final Orders dated September 10, 2018 and November 14, 2018, made on consent before me (the “Final Orders”). These orders provided that the parties have joint custody of Rachel (now called joint decision-making responsibility under the amended legislation) and granted the father generous parenting time.

[14] The September 10, 2018 Final Order incorporates much of the OCL’s recommendations regarding joint decision making and the regular parenting schedule. The November 15, 2018 Final Order addressed child support as well as several other additional parenting provisions regarding decision making, the child’s school, medical and dental appointments, the holiday schedule, including Thanksgiving, statutory holidays, travel, the child’s health and SIN cards, and the access exchanges when Rachel is not attending school.

[15] Two provisions that are relevant to the events leading up to the father’s urgent motion address issues around counselling and professional intervention for the family.

[16] In the Final Order dated September 10, 2018, which replaced all temporary without prejudice orders, the parties agreed to the following at paragraphs 15 and 16:

a. Each parent shall have access to all school records and information regarding school activities, and parent-teacher conferences, medical and dental reports and any other treatment provided to the child from any other third party, individual or institution having such information and each parent shall execute whatever authorizations or consents are necessary. (par. 15)

b. Any parenting disputes that cannot be resolved by the parties shall be submitted to open mediation with either Ms Claire Watson or Ms Seema Jain or other names provided by and agreed to by the parties. (par. 16)

[17] In the Final Order dated November 14, 2018, the parties agreed to the following final provisions at paragraphs 2, 3, and 4:

a. Neither party shall be permitted to change Rachel’s school, daycare, doctor, dentist, or any other similar professionals providing care to Rachel without the consent of the other party. Consent shall not be unreasonably withheld. (paragraph 1).

b. A party who has made an appointment for Rachel with any of the above-named professionals shall inform the other party immediately. If a party is unavailable, both parties shall cooperate to schedule a new date. (paragraph 2).

c. Each party shall be entitled to attend each appointment and meeting with Rachel’s care providers. (par. 4)

Events leading up to Father’s Urgent Motion

[18] On March 13, 2020, shortly before the Ontario government declared a state of emergency as a result of the Covid-19 global pandemic, the mother suspended the father’s parenting time. In her affidavit in response to the father’s urgent motion, the mother set out a number of different reasons for refusing to follow the Final Order. She first attests that upon Rachel’s return to her care on March 13, 2020, the child was exhibiting Covid-like symptoms, so they had to self-isolate for 14 days from March 15 to March 29, 2020.

[19] Following the expiry of the 14 day period of self-isolation, the father sought the immediate return of Rachel to his care and the mother refused. The mother attests that Rachel refused to go to her father’s home because she did not feel safe there. The mother then refers to an incident that occurred in July of 2019, approximately eight months previously, at the paternal grandparents’ home, in which she alleges caused Rachel to be very upset. Although the mother’s description of this incident is vague, she deposes that the father left Rachel in the paternal grandparents’ and uncle’s care for a few days while he was on a work trip.

[20] The mother states that following this incident, Rachel started to display concerning behavior, which continued through the fall of 2019, and that Rachel appeared anxious and upset. The mother states that she was very concerned about Rachel and wanted her to see a counsellor.

[21] In December of 2019, an incident occurred at the mother’s home. The mother attests that Rachel became very upset, and became “out of control”, according to the mother’s affidavit. The mother described that Rachel “wanted to bite [the mother] and made allusions to using a knife.” The mother took Rachel to the hospital to be assessed. Rachel was briefly hospitalized. According to hospital reports, the mother reported to the attending physician that the father often yelled at Rachel, that he had high expectations of her and that Rachel was afraid of him.

[22] The mother states that throughout this period of time, and both prior to and following receipt of the father’s motion, she sought the father’s consent to take Rachel to a counselor. The mother proposed Ms Andrea Del Vecchio of the Etobicoke Children’s Centre. The mother attests that she could not afford the services of Ms Watson, who has been the family’s counsellor since 2014 and is referenced at paragraph 16 of the Final Order dated September 10, 2018.

[23] The mother also did not utilize the dispute resolution process set out under paragraph 16 of the Final Order, again for the same reason, that she could not afford to pay for these professional services. She proposed Ms Del Vecchio to the father because her services are free.

[24] The mother states that the father would not agree to permit Rachel to attend counselling with Ms Del Vecchio, nor would he agree to any counselling for Rachel.

[25] Following Rachel’s hospitalization in December of 2019, the hospital called the Children’s Aid Society based on the mother’s report at the time. The society commenced an investigation.

[26] During the course of its investigation, the society interviewed the father. The society did not verify any concerns regarding the father’s parenting but recommended that Rachel “participate in counselling to address her parents’ separation,” according to a letter filed in the motion materials.

[27] In January of 2020, following the meeting with the society worker, in accordance with her recommendation, the father brought Rachel to a counselling session with Claire Watson, the counsellor and mediator referred to in the parties’ Final Order.

[28] The father did not advise the mother that he was taking Rachel to a counselling session with Ms Watson. The mother did not become aware of the counselling and Ms Watson’s recommendations until April 2, 2020, after receipt of Ms Watson’s report and the father’s motion materials dated April 1, 2020.

[29] In a report dated April 2, 2020, attached to the father’s affidavit and provided to mother’s counsel, Ms Watson confirms that during her counselling session with Rachel and the father on January 15, 2020, she recommended that child and family therapy should continue with both parents and that Rachel would benefit from individual psychotherapy. She was available to provide counselling for both parents and Rachel.

[30] On April 2, 2020, the father sought leave to bring an urgent motion, in accordance with the Covid-19 protocol of the Ontario Court of Justice that existed at the time as all regular court operations had been temporarily suspended. Leave was granted and the motion was scheduled for April 20, 2020.

[31] On April 20, 2020, the parties resolved the motion prior to a contested hearing on the following basis:

1. The parties will immediately “attend” (virtual or otherwise) for counselling with Claire Watson.
2. The father will bear the costs of sessions pending further court order or agreement. The parties agree and acknowledge that counselling taking place is not a condition precedent for parenting time to immediately resume.
3. The parties shall agree to immediately resume the existing parenting schedule as set out in Justice O’Connell’s Final Orders dated September 10, 2018 and November 14, 2018 with the father’s next access visit commencing after school (online programming) on April 22 2020.
4. The parties shall agree that until school resumes following the COVID-19 extended school closures, access exchanges shall be as follows: a. All exchanges shall occur at the parking lot behind Tim Horton’s at Christie Street and Bloor Street. b. All drop-offs that were scheduled to occur at school shall be at 9:00 a.m. at the above location to the other parent’s care and all pick-ups that were scheduled to occur at school shall be at 4:00p.m. at the above location to the other parent’s care.
5. For as long as the Covid-19 safety measures are in place, both parties shall abide by any and all city health rules, by laws and regulations.
6. Neither party is to involve or question Rachel, either directly or indirectly, with respect to adult conflict, scheduling issues or any other issues that would not be considered in her best interests.
7. The parties do not agree on the issue of costs. The father seeks that costs be determined by written submissions. The mother asks that costs be reserved. They will seek directions on this issue today from Justice O’Connell.
8. The parties acknowledge that the foregoing agreement is without prejudice to the father’s proposed motion for contempt, make up time, police enforcement and motion to change or any other relief he may seek and the mother’s proposed motion to change or any other relief she may seek. The parties will seek directions from Justice O’Connell regarding the foregoing acknowledgment.
9. The parties agree that this consent may be accepted and agreed upon by exchange of emails between counsel. A temporary order shall issue incorporating the terms of this consent.

[32] The parties were unable to resolve the issue of whether costs should be reserved until once the counselling referenced above has started or had been addressed. They were also seeking directions regarding paragraph 8 above. On April 23, 2020, the court released a separate endorsement which addressed those two issues as follows:

(1) Regarding the issue of costs, if either party is seeking costs, then written submissions not to exceed three pages, excluding any offers to settle or a bill of costs, shall be served and filed no later than April 29, 2020. Any response shall be served and filed no later than May 4, 2020, again, not to exceed three pages, excluding any offers to settle or bill of costs. (2) Regarding paragraph 8 of the Consent reached, I find that although the father’s urgent motion has been resolved, with the exception of the issue of costs, this certainly does not prohibit the father from subsequently bringing a motion for contempt, make up time, police enforcement and motion to change or any other relief he may seek or the mother from bringing a motion to change or any other relief that she may seek. I did not find the language in paragraph 8 problematic.

[33] Both counsel filed written submissions, bills of costs and offers to settle. The father also submitted a written reply to the mother’s responding submissions. Counsel for the mother objected to the filing of the written reply as my Ruling on April 23rd did not provide for a reply. I agree that I did not specifically order that a reply could be filed, however, my endorsement may have been unclear in that respect, so I have reviewed the father’s reply as well.

The Law and Governing Principles regarding Costs in Family Law Proceedings

[34] Costs in family law proceedings are governed by Rule 24 and 18 of the Family Law Rules. Subrule 24 (1) of the Rules creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs.

[35] 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 ONSC 23496, [2008] O.J. No. 1978 (S.C.J.); Gordon v. Wilkins, 2020 ONCJ 199 (O.C.J.) per Justice Stanley Sherr, paragraphs 1 to 7.

[36] The sections of Rule 24 that are relevant to the circumstances of this case are as follows:

SUCCESSFUL PARTY PRESUMED ENTITLED TO COSTS

24. (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. O. Reg. 114/99, r. 24 (1) …

SUCCESSFUL PARTY WHO HAS BEHAVED UNREASONABLY

(4) 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. O. Reg. 114/99, r. 24 (4).

DECISION ON REASONABLENESS

(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

(a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle; (b) the reasonableness of any offer the party made; and (c) any offer the party withdrew or failed to accept. O. Reg. 114/99, r. 24 (5).

DIVIDED SUCCESS

(6) If success in a step in a case is divided, the court may apportion costs as appropriate. O. Reg. 114/99, r. 24 (6) ....

SETTING COSTS AMOUNTS

(12) 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. O. Reg. 298/18, s. 14.

[37] In Mattina v. Mattina, 2018 ONCA 867, the Ontario Court of Appeal confirmed that modern costs rules are designed to foster four fundamental purposes:

1. to partially indemnify successful litigants for the cost of litigation;
2. to encourage settlement;
3. to discourage and sanction inappropriate behaviour by litigants bearing in mind that the award should reflect what the court views is a fair and reasonable amount that should be paid by the unsuccessful party;
4. to ensure that cases are dealt with justly under subrule 2 (2) of the Family Law Rules.

[38] Costs awards are discretionary. In Beaver v. Hill, 2018 ONCA 840, the Ontario Court of Appeal clarified a number of aspects of the costs’ rule, in particular that there is no provision in the Family Law Rules that provides for the general approach of fixing costs at “close to full recovery”. The Court held that “proportionality and reasonableness are the touchstone considerations” to be applied in fixing the amount of costs.

[39] When determining whether a party has been successful, the court should take into account how any temporary or final order compares to any settlement offers that were made. See Lawson v. Lawson, supra.

[40] Rule 18 of the Family Law Rules governs Offers to Settle. Subrules 18 (1), 18 (14) and 18(16) are relevant to this case and read as follows:

OFFER TO BE SIGNED BY PARTY AND LAWYER

18 (4) An offer shall be signed personally by the party making it and also by the party’s lawyer, if any. O. Reg. 114/99, r. 18 (4).

COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER 18(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:

1. If the offer relates to a motion, it is made at least one day before the motion date.
2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
3. The offer does not expire and is not withdrawn before the hearing starts.
4. The offer is not accepted.
5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer.

COSTS — DISCRETION OF COURT (16) When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply. O. Reg. 114/99, r. 18 (16).

[41] The onus of proving that the offer is as or more favourable than the final result is on the person making the offer. See: Neilipovitz v. Neilipovitz, 2014 ONSC 4709.

[42] The technical requirements of subrules 18(4) and 18(14) must be met to attract the costs consequences in subrule 18 (14). Nevertheless, the court retains a discretion under subrule 18(16) to take into account any written Offer to Settle, the date it was made, and its terms, even if subrule (14) does not apply. See: Clancy v. Hansman, 2013 ONCJ 702; Reid v. Thomas, 2017 ONCJ 122; T.M.B.-P. v. B.P.G., 2018 ONCJ 517.

[43] The court's role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees. As was pointed out in Boucher et al. v. Public Accountants Council for the Province of Ontario, 2004 ONCA 14579, 71 O.R. (3d) 291, 188 O.A.C. 201, 48 C.P.C. (5th) 56, [2004] O.J. No. 2634, 2004 CarswellOnt 2521 (Ont. C.A.), the award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings rather than an exact measure of actual costs to the successful litigant.

[44] A party’s ability to pay costs is a relevant consideration. However, a party’s limited financial circumstances should not be used as a shield against any liability for costs but will be taken into consideration regarding the amount of the costs, particularly when that party has acted unreasonably and is the author of her/his own misfortune. See Macdonald v. Magel, 2003 ONCA 18880 (2003), 67 O.R. (3d) 181 (Ont. C.A.); Snih v. Snih, 2007 ONSC 20774 (Ont. S.C.) at paras. 7-13.

Analysis

[45] I find that the father was the more successful party, although he is not entitled to his full recovery of costs.

[46] In finding that the father was more successful, a careful review of the parties’ Offers to Settle is necessary.

[47] The father’s first Offer to Settle, dated March 31, 2020, met the technical requirements of subrules 18(4) and 18(14) in order to attract full recovery of costs. It provided three options to settle his urgent motion, all of which were severable from each other, and can be summarized as follows:

c. Option 1: On a temporary basis, the parties shall have a “week-about” shared parenting arrangement until in-person school resumes following the extended Covid-19 school closures. New exchange time is specified. d. Option 2: The parties shall immediately reinstate the parenting schedule under the Final Orders. The pick-up and drop arrangements arrangement are changed and specified until in-person school resumes following the extended Covid-19 school closures. The specifics are set out in Option 2. e. Option 3: The parties shall immediately reinstate the parenting schedule under the Final Orders. The parties “shall agree to determine the logistics of access exchanges on an ongoing basis until school resumes.”

[48] The father’s first Offer to Settle above does not address the issue of counselling for Rachel, a contested issue between the parties based on the correspondence between counsel attached to the parties’ written submissions. This offer was not more favourable than the final result.

[49] In response to the father’s first Offer to Settle dated March 31, 2020, the mother’s Offer to Settle, dated April 1, 2020 was sent the next day. It was set out in correspondence sent by mother’s counsel to the father’s counsel on that date. It did not meet the technical requirements of subrule 18(4) because it was not personally signed by the mother [^1], although it did meet the technical requirements of Rule 18(14). This Offer to Settle, made on a temporary without prejudice basis, can be summarized as follows:

1. Both parties agree that Rachel obtain counselling through Andrea Del Vecchio of the Etobicoke Children’s Centre to commence forthwith.
2. Both parties will engage in family counselling as needed and requested by the therapist.
3. Once Rachel has at least one session with the therapist, the father’s parenting time shall resume as per the following schedule, unless otherwise recommended by the therapist: a. Every Wednesday from 6:00 p.m. until 9:00 a.m. b. Alternating weekends from Friday at 6 p.m. to 9:00 a.m. Monday morning. c. Easter weekend. d. Specified parenting exchanges. e. Specified telephone contact while the child is with the other parent.
4. Until and unless otherwise agreed by the therapist, Rachel shall not be left cared for by a third party. If one parent is not available to look after Rachel, then the other parent shall be notified and have the option to care for Rachel.
5. For as long as Covid-19 safety measures are in place, Rachel is to remain at home except for access exchanges.
6. Neither party to involve the other or question Rachel directly or indirectly, with respect to adult conflict, scheduling issues or any other issues that would not be considered in her best interests.
7. Both parties are to follow the recommendations of the therapist, including but not limited to “access” expansion or reduction in “access” as deemed necessary in her professional opinion.

[50] Following the mother’s Offer to Settle, father’s counsel provided mother’s counsel with a report dated April 2, 2020 from Ms Claire Watson. The report states that the father took Rachel to a counselling session with Ms Watson on January 15, 2020, following Rachel’s hospital stay in December of 2019 and the father’s meeting with the Society worker. As previously indicated, this was the first time that the mother became aware that the father had engaged the services of Ms Watson and that he had taken Rachel to see a counsellor.

[51] On April 8, 2020, in response to the mother’s Offer to Settle, the father delivered a second offer to settle in an email by the father’s counsel to the mother’s counsel. Counsel’s email included other comments as well.

[52] This Offer did not meet the technical requirement of subrule 18(4) because it was not personally signed by either the father or counsel, although it did meet the technical requirements of subrule18(14). It can be summarized as follows:

1. The parties will immediately “attend” (virtual or otherwise) for counselling with Claire Watson. The father will bear “the upfront costs of same.”
2. If deemed necessary by Ms Watson, both parties will agree to Rachel obtaining additional counselling through Andrea Del Vecchio of the Etobicoke Children’s Centre to commence forthwith.
3. The father’s parenting time shall immediately resume as per the options made in his March 31 Offer to Settle, including a sharing of Easter holidays as per the Final Order.
4. For so long as Covid-19 safety measures are in place, both parties shall abide by any and all city health rules, by laws and regulations.
5. Neither party to involve the other or question Rachel directly or indirectly, with respect to adult conflict, scheduling issues or any other issues that would not be considered in her best interests.

[53] Mother’s counsel submits that she was unaware of the settlement proposal sent on April 8, 2020 by email until shortly before the return of the father’s urgent motion. She states that she was away for the religious holidays during that time. The parties did not resolve the issues between them until the morning of the motion.

[54] Nevertheless, the consent reached on the motion was more favorable to the father’s offers to settle than the mother’s offer to settle.

[55] The mother’s offer to settle provided that the father’s parenting time should not be reinstated until Rachel has at least one counselling session with Ms Andrea Del Vecchio, the counsellor preferred by the mother, and that once the father’s parenting time resumed, it would be significantly reduced. Rachel’s attendance at counselling was a condition precedent to the reinstatement of the father’s parenting on a reduced basis.

[56] The mother’s settlement offer that the reinstatement of the father’s parenting time was conditional on Rachel attending counselling with a counsellor of the mother’s choice (not Ms Watson) was not reasonable. It did not prevail in the resolution of the father’s urgent motion.

[57] Although the parties reached a consent on the morning that the motion was to be heard, I find that the father’s parenting time under the Final Order would not have been voluntarily reinstated by the mother otherwise. As a result of bringing the urgent motion, his parenting with Rachel was reinstated under the Final Order.

[58] The mother admits that she unilaterally suspended the father’s parenting for approximately forty days. This was a breach of the Final Order. The mother’s decision to do this was unreasonable.

[59] Notwithstanding the concerns raised in the mother’s Affidavit dated April 3, 2020, she did not bring an immediate motion to change the parenting arrangements in the Final Order after the first alleged incident in July of 2019 at the grandparents’ home or Rachel’s overnight stay at the hospital in December of 2019, nor did she even raise these concerns until March of 2020, several months later, when she was given notice of the father’s motion after terminated the father’s parenting time [^2].

[60] The mother’s attested that she “begged” the father to agree to take Rachel to counselling and that he refused. If the mother asserts that the father was refusing to agree to counseling for the child, then it is unclear why she did not bring an urgent motion to the court for such relief.

[61] However, the father was not entirely successful on his motion. The consent that was ultimately reached between the parties provided that the father shall bear the costs of the sessions with Ms Watson “pending further court order or agreement.” The father’s offer to settle in counsel’s email dated April 8, 2020 provides that the father would only pay “the upfront costs” for Ms Watson.

[62] The father’s offer to settle was not more favourable than the result achieved on the motion.

[63] Further, the father’s second offer to settle contained in counsel’s email dated April also did not meet the requirements of Rule 18 to trigger the full recovery of his costs.

[64] The father also behaved unreasonably. The father did not inform the mother that he had taken Rachel to a counselling session with Ms Watson on January 15, 2020 until April 2, 2020, four months later when he brought his urgent motion. He failed to immediately inform the mother of the counselling session or give her an opportunity to participate in the session. This is a direct breach of paragraphs 2 and 3 of the Final Order of November 14, 2018 and paragraph 15 of the Final Order dated September 10, 2018.

[65] The father clearly did not follow Ms Watson’s recommendations until the parties reached the temporary consent order on April 20, 2020, nor did he notify the mother of those recommendations until he brought his urgent motion.

[66] Had the father notified the mother immediately that he had arranged an appointment for Rachel with Ms Watson in January of 2020, and both parents’ had participated in that session and followed through with the recommendations of Ms Watson, the events that followed may have been very different. Indeed, the motion may not have occurred, although it is impossible to speculate.

[67] Nevertheless, the mother should not have unilaterally suspended the father’s parenting time. The mother cannot engage in self-help remedies and unilaterally withhold the child from her father for a period of approximately 40 days in direct breach of a court order when there is no evidence that the child is at harm in the father’s care. This is very concerning.

[68] The court carefully reviewed the bills of costs prepared by both counsel. For a motion of this kind, the legal costs seem excessive and disproportionate. The court recognizes the high stakes and the important interests involved, but it should not cost approximately $20,000.00 for an urgent motion that contained two affidavits and $15,000.00 for a response that contained one affidavit.

Conclusion

[69] In my view, in exercising my discretion and considering all of the circumstances above, including the resolution reached on the eve of the motion, the mother should pay a portion of the father’s legal costs given her unilateral suspension of the father’s parenting time and her unreasonable offer to settle. I have also considered the father’s unreasonable behaviour and his offers to settle in my analysis.

[70] I determine that a fair, reasonable and proportionate cost award to be payable by the mother to the father for his legal costs should be $3,500.00 inclusive of HST and disbursements.

[71] The report by Ms Watson following her counselling session with Rachel and the father in January of 2020, demonstrates that this very high conflict separation has continued unabated for several years now and this is deeply affecting Rachel.

[72] Ms Watson describes a relationship between Rachel and her father that is generally “loving and stable”. She describes a child who is experiencing a confusion of loyalty, increased anxiety around going back and forth between two homes and being very aware of the conflict between her parents. She describes a child who has difficulty opening up about her feelings to either parent for fear of being disloyal and/or not wanting to hurt her parents. She recommends continued psychotherapy for Rachel.

[73] There is clear evidence that Rachel is suffering as a result of the conflict between her parents and the loyalty bind that she is being placed. This high conflict separation must end for Rachel’s emotional health and safety. Both parents have spent a great deal of money in this litigation. This money could have been much better spent on counselling for Rachel, for which the father has now agreed to pay for.

[74] I very much hope that Rachel is getting the counselling that she needs at this time, and that the parents are participating in counselling as well.

[75] In conclusion, the court orders that the mother shall pay costs to the father in the amount of $3,500.00, inclusive of HST and disbursements.

[76] The parties are returning before me on June 14, 2021 for a settlement conference. I will hear submissions then regarding the payment arrangement to be made by the mother for the cost award ordered against her.

Released: June 11, 2021 Signed: Justice Sheilagh O’Connell

[^1]: In her letter, mother’s counsel starts off by writing, “Please consider this letter as an Offer to Settle fully signed by my client” even though the letter was not signed by her client. This statement by counsel in correspondence cannot get around the very clear requirements of subrule 18(14). [^2]: The mother has now brought her second motion to change, following the father’s urgent motion to reinstate his parenting time. In her second motion to change, the mother seeks sole decision making and a restriction of the father’s parenting time.