ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-08-00007251

DATE: 20131017

BETWEEN

A.F.

Applicant

– and –

J.W.

Respondent

Zane Handysides, for the Applicant

Brian Ludmer, for the Respondent

HEARD: Written Submissions Received August 1, 2013

Costs

Harper j.

[1] This matter was a review of my order on June 27, 2011. The trial resulted in my decision dated June 2, 2013. In both trials I dealt with the custody and access of the children namely: J.L.W., born […], 2001, A.C.W., born […], 2002, and C.L.W. born […], 2003.

[2] The original application in this matter was issued in July, 2008. In the first proceeding there was a custody and access assessment done by a psychologist, Dr. R. Schnayer dated May 8, 2009. Dr. Schnayer completed a second update assessment and his second report was dated October 8, 2010. In his second report he confirmed the recommendations of his initial report.

[3] Subsequent to the second report being released the parties entered into minutes of settlement dated October 19, 2010 with respect to custody and access. That settlement broke down in December, 2010 and the parties proceeded to the first trial before me on the issues of custody, access and contempt.

[4] My decision of June 27, 2011 found A.F. in contempt of the interim order for access of Justice Quinn dated March 5, 2010. I placed A.F. on probation for six months. The terms of her probation were that she was to abide by all of the terms of my order that was multi- directional and fashioned in such a manner so as to allow her to not only purge her contempt but also to achieve a number of objectives that were clearly spelled out in the order for counselling for the children and the parents. The intention of that order was to provide the maximum opportunity for the children to rid themselves of the distorted reality of the father that the children had. I found in my decision of June 27, 2010 that the mother was the cause of the children’s distorted reality and her conduct was emotionally abusive to the children.

[5] I ordered the review of that custody and access arrangement in order to see if the goals set out in my decision were being achieved. I reserved the costs of the first trial to the review in order to preserve the consideration of costs for that trial. I also wanted to allow the opportunity for the counselling and therapies to be effective in achieving the goal of returning the children to a maximum relationship with both parents in the children’s best interests. It was my view that ordering costs at that time would have been an impediment to the chance of therapeutic success.

[6] On June 28, 2013 I issued my review decision. That hearing lasted longer than the first trial. It seemed that the factual sands were constantly shifting even as the trial progressed. Developments in the course of the trial required scrutiny by evidence and cross examination. My decision in both trials made findings of fact against A.F. that can only be placed at the far end of the spectrum of unreasonable conduct and bad faith.

[7] I find that A.F. did not cooperate with all of the professionals in the proper sense of the word “cooperate”. In my reasons of June 28, 2013, I pointed out that A.F. articulated cooperation while at the same time she continued her actions that sabotaged the scheme of the decision and order of June 27, 2011. She continued to distort the children’s reality of their father as a person to be feared and disrespected. She caused the children to feel that they could be abusive to their father and his new wife. She also promoted by her own conduct the children’s sense of entitlement to disrespect anyone who disagreed with her or them. This included the court.

[8] I agree with the submissions of W.F. that all of the costs of the professionals in the proceedings leading up to the first trial and the second trial were needed as a result of the conduct of the mother A.F. W.F. paid for the costs of those professionals and he should be fully compensated for those costs.

[9] In my June 27, 2011 reasons for judgment, I made certain findings of fact that were to form the baseline from which to measure gains for this review. At the core, I found that the mother had distorted the children’s reality to such a degree that they feared and disrespected their father for no valid reason. In para. 147 of that judgment, I stated the following:

From her proclamation to J. shortly after separation, that “the children don’t want to see you and they are better off without you” until her testimony in this court room, A. has actively set about to excise J. out of the children’s life. The children started out a few weeks after separation protesting that they did not want to go with their father. They all transformed into children who feared and professed to have an intense dislike of their father. I find that transformation of the children was primarily caused by A.’s role in helping to create a distorted reality of their father within the children.

[10] One of my most significant concerns about the mother’s behaviour was the lengths to which she appeared to be willing to go in order to transfer her own feelings about J.W. onto the children’s feelings about J.W. As I stated at para. 146:

The mother’s own testimony is very instructive of her intentions relative to obeying the court ordered terms of access. She stated that she “has been to hell and back trying to get someone to listen to the children’s feelings and to validate those feelings about their father.” Incredibly, in response to counsel in cross-examination when asked whether she would comply with a judge’s order, were the judge to find her in contempt and order fines per each future missed access, A. responded, “if I had to go into further debt in order to get my children’s feelings heard and validated I will.”

[11] I also stated that I was not willing to give up on the children having a positive relationship with both of their parents. In order to achieve this goal, which I found to be in the best interests of these children, I constructed a multi-directional order that included positive duties on both parents to promote the other parent to the children. My order also prohibited all conduct that would give the children a perception that J.W. was someone to be feared or somehow implied that it was okay for them to be disrespectful and, in many ways abusive, to their father.

[12] Importantly, I also found that the mother had emotionally abused the children and her conduct had placed all three in need of protection in accordance with the meaning of that term as set out in the Child and Family Services Act, R.S.O. 1990, c. C. 11, s. 37(2)(f) and (g) which states:

A child is in need of protection where,

(f) the child has suffered emotional harm, demonstrated by serious,

(i) anxiety,

(ii) depression,

(iii) withdrawal,

(iv) self-destructive or aggressive behaviour, or

(v) delayed development,

and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child;

(g) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child;

[13] In order to protect the children, I placed them in A.F.’s care and custody, but under the supervision of the Children’s Aid Society (CAS) with very specific terms. I granted this supervision order pursuant to s. 34 of Children’s Law Reform Act, R.S.O. 1990, c. C. 12 which permits the court to “give such directions as it considers appropriate for the supervision of the custody or access by a person, a children’s aid society or other body” as well as my inherent parens patriae jurisdiction to act in the best interests of the children and for their protection.

[14] Unfortunately, the review was delayed. It could not be reached by the projected date, of January 2012, and was then scheduled to start in April 2012. Shortly before the matter was to be brought back to court, however, the children’s maternal grandfather was involved in a fatal accident. The matter was adjourned and the trial finally started on July 3, 2012.

[15] In my reasons of June 28, 2013 I stated:

a. I find that the children can no longer be in the custody of the mother. She has not been able to remove the children from the harm and future risk of harm of emotional abuse. This case goes far beyond merely not being supportive of the children’s relationship with the other parent. I echo the assessments of Dr. Lee and Dr. Ricciardi that this is the worst case of emotional abuse I have seen. As a result of their mother’s emotional manipulation, the children feel entitled to disrespect and be abusive to anyone who does not agree with them, which impedes their continued healthy development.

b. The mother was given the opportunity to achieve expectations that were spelled out for her in my judgment of June 27, 2011. She admitted in her testimony on this review that she never read that judgment and only relied on her memory of what was said orally, which is telling of her commitment to adhere to the order.

The Law and Analysis

[16] I will set out the applicable portions of the Family Law Rules for my consideration of costs in this mater. The starting point in setting costs in family law matters is Rule 24(1) of the Family Law Rules O. Reg 114/99:

24(1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.”

Rule 24(8) provides that “If a party has acted in bad faith, the court shall decide costs in a full recovery basis and shall order the other party to pay them immediately.”

Rule 18(14) provides that a party who makes an offer is, unless the court order otherwise, entitled to costs to the date the offer was served and full recovery costs from that date, if certain conditions are met. One of the conditions is:

5. The party who made the offer obtains an order that is as favorable as or more favorable than the offer.

Rule 24(10) provides that promptly after each step in the case the court should decide who, if anyone, is entitled to costs and set the amount of costs.

Rule 24(11) sets out the factors which must be considered in awarding costs:

a) the importance, complexity or difficulty of the issues;

b) the reasonableness or unreasonableness of each party’s behaviour in the case;

c) the lawyer’s rates;

d) 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 signatures of the order;

e) expenses properly paid or payable; and

f) any other relevant matter.

An award of costs is a matter in the discretion of the court by virtue of s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C43 which provides:

Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in the proceeding are in the discretion of the court, and the court may determine by whom and to what extent costs shall be paid.

Presumption

[17] In both the decision of June 27, 2011 and June 28, 2013, J.W. was successful and he is presumed to be entitled to his costs.

[18] I have found that A.F. acted in bad faith throughout the conduct of the proceedings since they were initiated in 2008. Some of the particulars of her bad faith are:

a. She was in contempt of the interim access order of Justice Quinn and as a result the children were deprived of contact with their father in any meaningful and healthy way.

b. She gave outward lip service to my detailed order of June 27, 2011 in order to attempt to avoid being in breach of the terms of her probation.

c. She was ordered not to communicate with anyone about the father in a negative way. I found that she sent an errant text that was intended for her sister-in-law that stated that “he is becoming an animal”. She tried to lead the court to believe that that communication was merely her confiding in someone like in therapy.

d. She constantly challenged J.W. in front of the children. I found in my reasons in the decision of June 28, 2013 that the audio recordings of her conduct were evidence that she was not only disobeying my previous order but she was demonstrating that her continued conduct was emotionally abusing the children.

[19] I find that J.W. acted reasonably throughout these proceedings. I found at both trials that he was a father who was merely attempting to have a relationship with his children. He was a normative father who was vilified by A.F. at a great cost to J.W. both emotionally and financially. As a result of these findings, J.W. is entitled to full recovery costs from the commencement of the proceedings in 2008.

[20] The only limitation on those costs is:

a. Whether offers were served and filed in accordance with the rules that would cause me to adjust my award of costs;

b. Whether the considerations of Rule 24(11) should cause a reduction in the amounts claimed in the bill of costs;

c. The impact of a cost award given potential hardship and the impact on the custody and access ordered by the court.

[21] There are no offers for the court to consider other than the father’s willingness to comply with the minutes of settlement the parties entered into on October 19, 2010. As stated above that agreement was not followed as the mother, A.F. claimed that the children feared the father and would not participate in seeing him. I found in both cases that this was caused by the conduct of the mother. The only other offer was that was sent by the mother provided that the mother have custody and there was no provision for access to the father.

[22] The mother, A.F. did not provide the court with any financial information that would allow me to consider the nature of any hardship that she might have with an order for costs. I find that A.F. litigated with impunity. She engaged her lawyer in 2008 with one goal in mind and that was to get a court to order no access to a father. She falsely represented to her children and anyone who would listen as a man to be feared and one who is incompetent as a father. I found none of her allegations to be true. This type of litigation driven by a false obsession cannot be condoned.

[23] The only evidence with respect to her financial ability is that she is a physiotherapist who runs her own successful therapy clinic. She armed herself with a senior lawyer throughout and she must have had the expectation that J.W. would be reasonably expected to defend himself and seek a normal relationship with her child.

The Bill of Costs

[24] I find that Mr. Ludmer’s billing rates of $300 per hour for 2009 – 2012 and $350 per hour for 2013 forward are reasonable given his 26 years at the bar. The rates of J.W.’s previous counsel are equally reasonable at $325 per hour for Deborah Severs (27 years at the bar) and Amy Lavoie $180 per hour (9 years at the bar).

[25] Upon review of the bill of costs related to counsel previous to Mr. Ludmer, the accounts do not always distinguish between the time allotted for review of financial matters and the parenting issues. The bill of costs also contains numerous accounts for preparing for and attending at case conferences and settlement conferences. Some of the latter two items are adjusted for in the bill of costs that was submitted. There are numerous notations for consultations with Mr. Ludmer and previous counsel. These entries have also been adjusted by 50 percent for the most part but not all entries. However, additional consultations with Mr. Ludmer without a reduction in the bill of costs should be reduced.

[26] The adjusted amount claimed for previous counsel inclusive of disbursements and tax is $55,412.98. This spans the time period from April 24, 2008 until June 16, 2011. I have reviewed the bill of costs and make a further reduction of the amount to reflect additional charges where Mr. Ludmer consults prior to his involvement as counsel. The total that I will allow for the pre Mr. Ludmer period is $50,000 in inclusive of fees disbursements and taxes.

Bill of Costs from December 19, 2009 – July 29, 2013

[27] The bill of costs for the two trials set out fees in the amount of $398,840. These trials were complex in the manner in which they had to be presented. A.F. was not credible and this had to be unravelled during the course of the trial by extensive cross examination and by the necessity of calling the many witnesses including many of the professionals who touched this case. As I set out in my decision of June 27, 2011, one of the professionals stated in evidence that Windsor had given all of the professional resources to this case and that professionals could not think of anything else that could be done. All of those professional resources had to be called as witnesses.

[28] The total for fees claimed by J.W. from April 24, 2008 to July 29, 2013 is $448,840.

[29] A.F.’s counsel’s bill of costs start at December 14, 2011. This is compared to J.W.’s bill of costs that start April 24, 2008. If you add in a similar amount that I allowed for previous counsel as set out above of $50,000, counsel for A.F.’s fees would be $281,775. That represents a difference of approximately $167,065. One of the considerations I must address my mind to is what the reasonable expectations of costs would be of the payor. A comparison of the amounts paid or payable by the payor is one factor to consider in this part of the exercise. It is not the only factor.

[30] In this case, J.W. had to climb a very large hill in order to present the case he needed to present. In find that under the circumstances it is fair and reasonable to order A.F. to pay costs to J.W. in the total amount of $400,000, inclusive of fees, disbursements and taxes in the amount that I set out above for counsel previous to Mr. Ludmer.

R. John Harper

Justice

Released: October 17, 2013