NEWMARKET COURT FILE NO.: FC-10-36107-00

DATE: 20120911

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jeffrey Schill, Applicant

AND:

Christie Joy Schill, Respondent

BEFORE: McDermot J.

COUNSEL: Kevin D. Zaldin, for the Applicant
Charles Baker, for the Respondents

HEARD: By written submissions

ENDORSEMENT

[ 1 ] On May 24, 25 and 28, 2012, I heard a trial of the time sharing and support issues in this matter; on June 12, 2012 I issued my reasons for judgment. The major issue before me was determination of the custodial relationship between the parties and the Applicant’s access to his daughter, Jadyn; a secondary but important issue was the Applicant’s share of the past and ongoing section 7 expenses regarding Jadyn.

[ 2 ] During trial, the Applicant vigorously argued that he was entitled to joint custody and regular weekend access as set out in the separation agreement negotiated between the parties. Although there was some discussion of shared custody of the parties’ son, Austin, this request was not borne out by the pleadings filed by the Applicant, and that claim was dismissed. Ms. Schill argued that she was entitled to judgment in a substantial amount for reimbursement for s. 7 expenses incurred by her, largely in respect of Jadyn, as well as an ongoing allowance for those expenses. Equalization issues had been settled prior to trial, as was base child support.

[ 3 ] Contrary to Mr. Schill’s requests at trial, I ordered that Ms. Schill have sole custody of the children and that Mr. Schill educate himself about his daughter’s very serious condition prior to regularization of access and that Jadyn’s physicians confirm those consultations. I did decide that the Respondent was entitled to a lesser amount of retroactive s. 7 expenses than that claimed by her at trial [1] but she obtained a monthly allotment of $350 per month toward ongoing expenses on top of base child support.

[ 4 ] Offers to settle were exchanged. The Applicant’s offer to settle provided that access continue on a restricted basis as set out in the Graham J. interim order made in this proceeding. As can be seen by that alone, the Applicant’s offer to settle differed markedly from his position at the trial.

[ 5 ] The parties have now made submissions regarding costs.

[ 6 ] In considering costs, under Rule 24(1) of the Family Law Rules , [2] costs follow the event, and a successful party is presumed to be entitled to costs. I may take into account unreasonable conduct of either party (Rule 24(4)) and if success is divided, I may apportion costs as appropriate (Rule 24(6)). Under Rule 24(11), in fixing the amount of costs, I may take into account the “importance, complexity or difficulty of the issues” as well as “the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order”.

[ 7 ] I can also take into account the conduct of the parties to this proceeding: see Rule 24(8) of the Family Law Rules. Under that rule, I am obliged to order full indemnity costs payable forthwith if a party has acted in “bad faith.” Moreover, I may generally take into account under Rule 24(11) “the reasonableness or unreasonableness of a client’s behaviour” in assessing the amount of costs.

[ 8 ] In the event that a party is more successful than his or her offer, I am bound to order costs on a full indemnity basis: see Rule 18(14). Under Rule 18(16), when I am ordering costs, I may further take into account any offers to settle, even if they do not comply with Rule 18(14) as noted above.

[ 9 ] The costs issues between the parties concern their respective success at trial taking into account the offers to settle exchanged in this matter, as well as the claim by the Respondent that the Applicant acted unreasonably in this matter within the meaning of Rule 24(11).

[ 10 ] Outside of the offers to settle, it is apparent to me that, apart from the issue of lump sum section 7 arrears, the Respondent was ultimately successful at trial. She obtained an order as requested for sole custody and restricting access to Jadyn until the Applicant educated himself about his daughter’s condition. Although she did not obtain the arrears of section 7 expenses that she had requested, she did obtain an ongoing section 7 award of $350 per month. Mr. Schill claimed shared custody in respect of Austin, even though this issue was not pleaded by him and this claim was accordingly dismissed.

[ 11 ] However, outside of the trial process, the facts disclose a different story. Part of the Respondent’s claim was an equalization of net family property; once she obtained the disclosure that she needed, she abandoned that claim which may bring into play Rule 12(3) which requires costs to be paid in respect of an issue that is “withdrawn”. Moreover, the offers to settle make it clear that the parties were fairly close on the issue of access to Jadyn; the offers agreed on ongoing access to be four hours per week; the only issue was the requirement by Ms. Schill that Mr. Schill obtain some sort of education concerning his daughter’s condition prior to reviewing access. Success was divided on the issue of extraordinary expenses; Ms. Schill states that she is entitled to $12,500 while Mr. Schill’s offer is somewhat confusing as it states that the Respondent is entitled to one half of $15,341.94 ($7,670.97) but then states that Ms. Schill was to be paid $5,000 plus $75 per month. Certainly on the ongoing section 7 expenses, the result in favour of the Respondent was better than her offer. Neither offer spoke to the issue of whether custody should be sole or joint although this was an important issue at trial.

[ 12 ] Both parties acknowledged in their submissions that they did not better their respective offers to settle. Mr. Baker says that I do not need to take the offers into account as neither party is requesting full indemnity costs. However, pursuant to Rule 18(16), I can take into account any offers to settle even where Rule 18(14) is not complied with.

[ 13 ] This was essentially a trial about the parties’ inability to communicate with one another, largely related to the unfortunate and difficult circumstances surrounding Jadyn’s illness. Much of the testimony surrounded the issue of who was responsible for dealing with Mr. Schill’s inability to manage Jadyn’s illness while in his care. Mr. Schill stated that there should be little difficulty in his wife contacting him to tell him how to deal with the management of Jadyn’s illness and the medical interventions which make her life precarious at times. I found that this was not the case, and that there was evidence that Mr. Schill had not paid attention to the concerns expressed by Ms. Schill when she attempted to engage him on those issues. On the witness stand, Mr. Schill failed to acknowledge the serious nature of Jadyn’s illness and the fact that she cannot do things that a normal little girl could on an access visit; instead, he insisted that Jadyn could ride a bicycle or go on a swing, when this was clearly dangerous to her. His refusal to listen to Ms. Schill on the issue of Jadyn’s illness was echoed in his failure to engage Ms. Schill on the issue of claims to be made under his medical and dental plan, and his failure to reimburse Ms. Schill for those expenses.

[ 14 ] That being said, the issue of the willingness of Mr. Schill to be educated about his daughter’s illness therefore looms large, even though the offers to settle make it appear as a minor issue and easily resolvable. It is true that there was a mid trial conference with me where access was discussed and that after that, Ms. Schill became more flexible on the access that she was willing to give; however, Mr. Schill did not indicate any increased flexibility or a willingness to talk to the caregivers for Jadyn about her condition after that conference.

[ 15 ] This leads into my findings concerning the respective conduct of the parties. It is correct that I was critical of Mr. Schill’s conduct in my reasons for judgment. I agree with Mr. Baker when he stated that much of this was about control, and Mr. Schill’s inability to be reasonable in the midst of very tragic circumstances. The evidence was that Mr. Schill expected Ms. Schill to contact him about medical expenses when there was a clear inability to communicate which resulted in my order that communication be through the family wizard program, and that joint custody was inappropriate for these parties. I found at trial that the inability to communicate was largely the responsibility of Mr. Schill. I cannot determine Mr. Schill’s motivations; I can determine that, based upon the behaviour of the parties, that Mr. Schill’s behaviour lead to this trial and can be characterized as unreasonable within the meaning of Rule 24(11).

[ 16 ] In my view, the Applicant’s unreasonable conduct, as well as the Respondent’s success at trial overrides the withdrawal of the equalization issues, where there was a conflict in the submissions as to responsibility for the disclosure of certain material facts prior to settlement. I agree with Mr. Baker that the offers to settle are inconclusive. Apart from the offers to settle, the major test must be what occurred at the trial, success at trial and the conduct of the parties, and all of these factors lead me to the conclusion that that the Respondent should have her costs of this trial.

[ 17 ] Neither party took exception with the respective bills of costs which were filed which indicate that partial indemnity costs for this trial would be in the range of between $14,000 and $16,000; Mr. Zaldin sought costs of $10,000 while Mr. Baker asked for $14,000 in costs. I take into account, however, that success was divided to some extent and accordingly the Respondent should not have a full award of partial indemnity costs in this matter. In particular, I do take into account the fact that equalization was only settled at the last minute by a withdrawal of that claim by the Respondent as well as the mixed success on the issue of s. 7 expenses.

[ 18 ] I am accordingly fixing costs of this trial to the Respondent in the amount of $8,500 inclusive of disbursements and HST.

McDERMOT J.

Date: September 11, 2012

[1] Ms. Schill claimed the sum of $21,395.80; the sum of $8,377.54 was awarded.

[2] O. Reg 144/99