SUPERIOR COURT OF JUSTICE - ONTARIO

Court File No.: FS-11-371063
Date: 20130814

RE: JASON VI AU TRAN, Applicant

• and -

JIE LING “MAY” CHEN, Respondent

Before: Justice S. M. Stevenson

Counsel:
Jenna Beaton, for the Applicant

Gary E. Shortliffe, for the Respondent

Dates Heard: May 13 to 17, 21 and 22; June 3 to 7, 2013

ENDORSEMENT AS TO COSTS

[1] In my Reasons for Decision dated June 28, 2013, I urged the parties to agree on costs, but asked that if they were unable to do so they provide me with their written submissions. I have now had an opportunity to review the costs submissions of both parties.

[2] The applicant seeks costs in the amount of $30,000 to recover disbursements, expenses and a portion of legal fees. The respondent seeks costs in the amount of $39,720.58, inclusive of HST and disbursements.

[3] The issue of costs in a family law proceeding is determined by Rules 18 and 24 of the Family Law Rules, O. Reg. 114/99 (the “FLRs”).

Success

[4] Under Rule 24(1) of the FLRs, the successful party is presumed to be entitled to recover costs. The applicant submits that on the child related issues the parties had mixed success. He contends that the Court did not grant his request for a suspension of the respondent's access; however, the Court granted a remedy aimed at achieving the same goal as case management was ordered, the parties were to attend a reunification program and a conditional custody order was granted to the respondent.

[5] With respect to the financial issues, the applicant submits that he was successful in that he was able to beat his offers which included the waiving of the equalization payment owed by the respondent and an adjustment, the payment of full table child support for two children and the waiving of the costs owed by the respondent from a previous court order. In addition, the applicant submits that the spousal support he offered was higher than ordered at trial.

[6] The applicant further contends that he has been successful in that with respect to access he made numerous offers in the months prior to trial that proposed equivalent time to the schedule ordered.

[7] The respondent submits that virtually all of the time at trial was devoted to the custody issue. It is her position that she was substantially successful with respect to this issue and that coupled with the offers made by her, she should be granted costs.

[8] I find that there was divided success. The majority of the time spent at trial focused on the issues of custody and access and, more particularly, on whether the respondent had alienated the child Madelyn from the applicant.

[9] The respondent was granted sole custody, but I agree with the submissions of the applicant, that even though the applicant was not granted sole custody and there was not a suspension of access to the respondent, I found that there were serious concerns regarding the respondent's behaviour. This resulted in a custody order to the respondent that was conditional and an order that the Court remain seized of the matter given the concern for the children.

[10] With respect to the access schedule sought by the parties, the applicant had requested a suspension of the respondent's time with the children while the respondent was prepared to follow the recommendations of the Office of the Children's Lawyer (the "OCL"). Neither of the access schedules sought by the parties was granted at trial while some of the recommendations of the OCL were ordered.

[11] The child support ordered took into consideration the week about access schedule of the child Ethan granted at trial and the fact that the respondent has primary care of Madelyn. This resulted in a child support order of $863 per month. The support ordered was not an amount sought by the parties given their differing positions on custody and time-sharing. The applicant disputed that there was an entitlement to spousal support while the respondent sought spousal support in a greater amount than that which was ordered and for a longer duration. However, the respondent was successful in obtaining child and spousal support orders.

Offers to Settle

[12] The applicant made several offers to settle. Offers dated July 22, 2011, November 24, 2011 and March 21, 2012 were withdrawn on June 11, 2012. Subsequent offers were made dated December 3, 2012, March 20, 2013 and May 12, 2013.

[13] As indicated, the applicant contends that with respect to the financial issues, he beat his offers as he offered to waive any equalization payment or adjustment owing by the respondent to him, to pay full table child support for two children, to waive costs owed to him with respect to the order of Greer J. dated November 6, 2012 in the amount of $12,488.60 and he offered an amount of spousal support that was higher than ordered. He further contends that with respect to access, he made numerous offers in the months before trial that proposed equivalent time to that which was ordered.

[14] The respondent contends that she made three separate offers to settle and that her first offer dated September 20, 2011 was reasonable. This offer was for joint custody of the children with generous and liberal access to the applicant, including every second weekend and every Wednesday evening plus one-half of the Christmas and March break vacations with summers to be agreed upon. The offer also provided for table child support and spousal support of $600 per month for three years and no equalization payment. At the time, the respondent and the children were to continue to occupy the matrimonial home.

[15] A subsequent offer was made on February 11, 2013 while she was self-represented, that provided for sole custody of the children to the respondent and a different proposal for access, similar child and spousal support and no equalization payment. On the day the trial commenced, the respondent made a further offer providing for sole custody to her, access to Madelyn to include overnights as recommended by Ms. Parker and Dr. Hui and with Madelyn to have the same access schedule as Ethan in September 2013. There was to be table child support, spousal support of $900 per month for three years and no equalization payment.

[16] The respondent contends that her first offer was more favourable to the applicant than the result obtained at trial; in particular with respect to the issue of custody, and that the offer remained available for more than 16 months. She contends that this offer remained available even after the OCL report was made recommending sole custody to her. She further submits that at no time did the applicant make an offer that provided for sole custody of the children to the respondent.

[17] Rule 18 of the FLRs deals with Offers to Settle. Rule 18(14) describes the cost consequences of failing to accept an offer as follows:

COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER

(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. O. Reg. 114/99, r. 18 (14).

[18] I find that the full recovery provisions under Rule 18(14) of the FLRs are not applicable as neither party's offers fulfilled the criteria set out in Rule 18(14)5. I do not find that either party obtained an order that was as favourable as or more favourable than the offers. While the respondent did obtain an order for sole custody of the children, as indicated there were many concerns regarding the respondent's behaviour and the order of sole custody was made with certain conditions. The fact that she made an offer for joint custody several months prior to trial that was not accepted by the applicant, does not mean that the order obtained was more favourable to her than her offers. In reviewing the respondent's offers in their entirety, there were many provisions within her offers that were not granted and conditions were placed on the order of sole custody. In addition, the respondent's last offer was not made at least seven days before the trial.

[19] Similarly, even though the order on some financial aspects may have been more favourable to the applicant than his offers, the order was not as favourable with respect to all of the issues and in particular, the issue of custody. The applicant's last offer was also not made at least seven days before the trial. However, both parties' offers are still a relevant consideration under Rule 18(16) which states: "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."

[20] I must also consider the factors set out in s. 24(11) of the FLRs in setting the amount of costs as follows:

The Importance, Complexity or Difficulty of the Issues

[21] The most significant issues at trial were the issues of custody and access and whether the respondent was alienating the children, in particular Madelyn, from the applicant. These issues took up the majority of time at trial, but there was also time spent on the financial issues, in particular by the applicant, as he was making a claim for equalization of net family property. Child support and spousal support also had to be determined.

[22] All issues involving the children were extremely important to both parties. As there was an allegation of parental alienation, the determination of custody and access became more complex. Madelyn's estrangement from her father and her refusal to speak to him for over two years was certainly important and concerning. Expert evidence was required from Ms. Parker and the OCL needed to testify along with other counsellors who were involved with the parties.

The Reasonableness or Unreasonableness of Each Party's Behaviour in the Case

[23] The applicant submits that the respondent's conduct, including her "unreasonable behaviour throughout the litigation" and her concerning behaviour with respect to the children necessitated a trial. It is the applicant's position that the Court highlighted the respondent's inappropriate conduct and her failure to appreciate the importance of Madelyn's relationship with the applicant. The applicant contends that the respondent's refusal to assist in the repair of the relationship between the applicant and Madelyn is a contributing factor to Madelyn's estrangement from the applicant. He contends that this behaviour of the respondent led to the requirement of a trial.

[24] The applicant also contends that the respondent was found in contempt; she failed to pay any amount towards the outstanding costs order as a result of the finding of contempt, she failed to cooperate with simple procedural matters which forced unnecessary motions and she sought relief at trial for issues that she had previously declined to consent to including the Overcoming Barriers Camp, participation in counselling and the sharing of documents. The applicant also submits that there were negative credibility findings regarding the respondent and that all of these factors should be taken into consideration in ordering costs to the applicant and in denying any costs to the respondent.

[25] The respondent's costs submissions do not point to any examples of the applicant acting unreasonably. The only claim made by the respondent is that she contends an offer of joint custody was made by her and remained in place for more than 16 months, but was not accepted by the applicant. The thrust of the respondent's submissions is that given custody was the primary focus of trial, the applicant should have considered and accepted her offer of joint custody along with the other provisions of her offer so that a trial could be avoided.

[26] I did find as stated in my Reasons for Decision, that the behaviour of the respondent was at times concerning and as such, the granting of custody to the respondent was made with certain conditions. I cannot conclude that the behaviour of the respondent was the sole cause for a lengthy trial; however, a majority of the time spent at trial did focus on the respondent's role in the estrangement of Madelyn from the applicant. In my Reasons I did not conclude that the respondent was solely responsible for the estrangement even though her behaviour was troubling.

[27] I also do not find that the applicant's refusal to accept the respondent's offer of joint custody along with other provisions of her offer, implies that he was being unreasonable. The parties were having great difficulties in communicating and cooperating with one another prior to and after the date of separation and both parties were clear at trial that joint custody was not workable.

The Lawyer's Rates

[28] I consider the rates of both counsel to be entirely reasonable in particular with respect to counsel for the respondent given he has more than 30 years of experience and was only charging $150 per hour while seeking costs at $125 per hour.

The Time Properly Spent on the Case

[29] I do not find the time spent by either party to be unreasonable although I agree with the submissions of counsel for the applicant, that the respondent should not be seeking costs for the motion where she was found in contempt and for costs on the motion heard on the first day of trial where the applicant was successful.

Expenses Properly Paid or Payable

[30] I have reviewed the expenses claimed by the parties and find them reasonable.

Any Other Relevant Matter

[31] Rule 24(11)(f) of the FLRs states that a person setting the amount of costs shall consider any other relevant matter. As noted by Justice Rosenberg in C.A.M. v. D.M. (2003), 2003 18880 (ON CA), 176 O.A.C. 201, 67 OR (3d) 181; 231 DLR (4th) 479; 43 RFL (5th) 149; at para. 42, in setting the amount of costs, the financial positions of the parties and the impact on the best interests of the children may be taken into consideration which I have also considered in reaching my decision.

Conclusion

[32] As indicated, there was divided success at trial. Under Rule 24(6) of the FLRs, if success is divided, the court may apportion costs as appropriate; however, taking into consideration the submissions of the parties, Rule 24(1), the factors outlined above that I have considered under Rule 24(11) and Rule 18 including the offers served by the parties, I decline to order costs to either party.

[33] Even though the respondent was successful in obtaining an order for sole custody and custody and access took up the majority of time at trial, the granting of sole custody was conditional. I have many concerns with respect to the respondent's behaviour and its effect upon Madelyn and her relationship with the applicant as outlined in my Reasons. I do not find that an order for costs to the respondent would be justified as she was not successful on all of her claims, the applicant made reasonable offers to settle with respect to equalization, child and spousal support, and I do find that the Respondent has behaved unreasonably at times. I also decline to order costs to the applicant given that he was unsuccessful in having sole custody granted to him and in obtaining a suspension of the respondent's access to the children. The applicant also disputed the respondent's entitlement to spousal support at trial and a time-limited spousal support order was made.

[34] Based on all of these factors, there shall be no order as to costs.

Stevenson J.

DATE: August 14, 2013