SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FC-10-0653-00

DATE: 20130130

RE: BRADLEY DALE OTTEWELL, Applicant

AND:

CHRISTINE OTTEWELL, Respondent

BEFORE: THE HONOURABLE MR. JUSTICE J.R. McCARTHY

COUNSEL: M.A. Cummings, for the Applicant

Respondent, self-represented

HEARD: January 14, 2013

COSTS ENDORSEMENT

[1] The trial of this matter took place before me at Barrie over a period of eleven days between August 7 and 22, 2012. Submissions on costs were made before me on January 14, 2013. The Respondent Mother (RM) was self-represented.

[2] The Applicant Father (AF) was entirely successful in the first part of the bifurcated trial. He was awarded primary care of the two children of the marriage. The parenting proposal and plan put forward by him was adopted by the court, (with some minor variations) as being reasonable and in the best interest of the children.

[3] The AF put forth an offer to settle on April 12, 2012. It proposed joint custody and went into great detail about parenting schedules and responsibilities. The parenting plan adopted by the court was somewhat different than that contained in the offer to settle. However, the essence of the offer to settle was a shared joint custody proposal with week about access. The AF was awarded primary care of the children by this court. He therefore bettered his offer. The RM did not make a counter-offer. She failed to accept the offer of the AF. Nor did she make any kind of an offer of her own for the purposes of Rule 24 (5).

[4] The issues were custody and access only. They were of moderate complexity. The law of parental alienation needed to be canvassed. The issues were important and difficult. The evidence was weighty and challenging. There were numerous documents introduced into evidence.

[5] I found that the AF had been the victim of parental alienation and had suffered deprivation of his parenting rights as a result of the actions of the RM.

[6] The RM made this litigation necessary. Her conduct created the alienation and made the status quo unworkable and intolerable for the AF. Her actions and behaviour were clearly unreasonable. The behaviour of the AF was entirely reasonable and understandable. During the hearing itself, the RM unnecessarily lengthened the duration of the hearing by being ill prepared and unfamiliar with the procedures and rules of the court. The court acknowledges that self-represented litigants often face special challenges; however, the costs associated with the delays engendered by these challenges should not be visited upon another litigant, especially when that litigant (in this case the AF) is entirely successful in the result and reasonable in his conduct.

[7] The findings of the court as to the conduct of the RM are relevant to a consideration of bad faith. A determination that a party has acted in bad faith requires a court to decide costs on a full recovery basis [Rule 24 (8)]. Bad faith can be established if it is found that there has been either an intentional failure to fulfill an agreement in an order to achieve an ulterior motive or an intentional breach of a court order with a view to achieving another purpose (see Piskor v. Piskor, 2004 5023 (ON SC), [2004] O.J. No. 796 (Ont. S.C.J.). In my endorsement of August 7, 2012 which preceded the hearing of evidence on the substantive issues, I found that the RM was in noncompliance with certain court orders and that the noncompliance was wanton. However, I am not prepared to find that she acted in bad faith as it pertains to the issues of custody and access. She certainly acted unreasonably. Her conduct caused parental alienation. She certainly had a misplaced belief that she was acting in the best interests of the children. I am unable to find, however, that she had some ulterior motive for her actions which is a necessary component of bad faith.

[8] I accept counsel for the AF was obliged to spend an inordinate amount of time dealing with crises which arose as the case unfolded including denied access by the RM, parenting co-ordinator issues and failure by the RM to provide information pursuant to court orders. In my view, the lawyer’s time in dealing with these crises was time properly spent on the case for the purposes of subparagraph 11 (d) of the Rules. This time spent was made necessary by the intransigence and unreasonableness of the RM in failing to abide by court orders, follow protocols or lend her cooperation to the process.

[9] Ms. Cummings rates as charged appear entirely in line with her level of experience. They are certainly justified in light of her excellent advocacy, her preparedness and demonstrated level of expertise in the law. I am also satisfied that Ms. Cummings has painstakingly extracted from her claim for costs items and services for which costs were awarded by other judges at the various steps of the proceeding pursuant to Rule 24 (10) as well as any legal costs related to the property issues, which were not adjudicated before me.

[10] The claimed disbursements and expenses are entirely reasonable. There is nothing about them that is inappropriate or excessive.

[11] The Ontario Court of Appeal held, in the case of M. (A.C.) v. M. (D.), 2003 18880 (ON CA), [2003] O.J. No. 3707, 67 O.R. (3d) 181 , that the financial situation of the parties can be taken into account in setting the amount of the costs award either Rule 18 or Rule 24. In the absence of an up to date financial statement from the RM, it is difficult to know exactly what her financial status is. The evidence at trial disclosed that she was residing in a home owned by her mother and was working as a server on a part time basis only. The RM’s submissions at the cost hearing before me focused on her inability to pay any substantial costs award. She did not file any kind of updated financial statement. I have no way of determining the extent of any interest she may have in the assets of the marriage, or the value of that interest. The court is unable to make a finding pertaining to the RM’s financial situation.

[12] The phrase “any other relevant matter” in Rule 24 (11) (f) may include the questions of the affordability and enforceability of a cost order. To ensure that the party against whom costs are awarded has an outside chance of paying the costs, the court may consider the income and assets of the party, the relative means of each party to bear his or her own costs, and the effect of the award on the ability of a party to meet the obligation imposed on her by the judgment. [see the case of J.F. v. V.C., [2002] O.J. No. 430 (Ont S.C.J.). Again, the court was furnished with little to no evidence as to whether a costs award against the RM would be affordable or enforceable. I am unable to make a finding in that regard.

[13] In any event and regardless of my ability to make a finding in this regard, any consideration of affordability and enforceability must be balanced against the above stated unreasonableness of the RM’s conduct, the unquestionable success of the AF at trial, his bettering of the offer to settle and the court’s desire to discourage unnecessary litigation. I was furnished with no evidence that a costs award would interfere with the RM’s ability to meet the needs of the children or otherwise undermine the integrity of a custody order. The legal fees expended by the AF are a fait accompli. Those monies are no longer available for the care and maintenance of the children. In performing this balancing analysis, I am led inexorably to the conclusion that the AF is entitled to his costs throughout on a full recovery basis.

[14] In addition, I find that the RM remains responsible for half of the fees of the Parenting Co-ordinator. She agreed to pay her share but ultimately failed to do so. This is a separate expense from the amounts claimed as costs and disbursements related to the litigation process. Nevertheless, the amount of $3,065 should have been borne by the RM and is therefore properly added to the costs award in favour of the AF.

[15] In all of the circumstances and having balanced the factors set in the Rules including other relevant matters, this court exercises its discretion and orders costs payable by the RM to the AF in the amount of $110,000 for fees inclusive of GST/HST plus total disbursements of $7,191.76 inclusive of GST/HST plus the RM’s proper share of the fees of the Parenting Co-ordinator ($3,065) for a total of $120,256.76.

McCARTHY J.

Date: January 30, 2013