Court File and Parties
COURT FILE NO.: FS-12-00375231
DATE: 20140107
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Victoria Fielding, Applicant
AND
John Craig Fielding, Respondent
BEFORE: J. Mackinnon J
COUNSEL: Gary S. Joseph and Christine Marchetti, for the Applicant
Ilana I. Zylberman and Michael Zalev, for the Respondent
HEARD: By Written Submissions
ENDORSEMENT regarding costs
[1] The respondent seeks costs in the all-inclusive amount of $493,000 for this 15-day custody and access trial. His claim is based on partial recovery costs to November 16, 2012 when his first Offer was delivered, and full costs thereafter. The applicant submits that there should be no award of costs to either party. In the alternative, she proposes that the respondent’s costs should be fixed at $100,000.
[2] Whether costs should be awarded to the respondent in this case will depend primarily upon whether he was the successful party at trial, a comparison of the parties’ offers between themselves and to the trial decision, whether the respondent’s conduct disentitles him from or diminishes his entitlement to costs, and whether there is an ability to pay issue with respect to the applicant.
Success at Trial
[3] The respondent was the more successful party at trial. The court accepted the theory of his case, namely that this was a case of mixed pathology, not one of pure alienation by him of the children in which the applicant was the targeted parent. The court rejected the appellant’s theory that this was a case of pure alienation by the respondent and that the solution lay in suspending his contact with all the children until recommended by a family therapist or further order of the court.
[4] Whereas the applicant sought sole custody of all three children, she was awarded sole custody of one child. Whereas the respondent sought sole custody of two children, and joint legal custody of the third, he was awarded sole custody of two children. Whereas the applicant sought to deny the respondent any contact with any of the children, he was awarded primary residential care of two of them, and supervised access to the third for a period of six months, when regular unsupervised access would commence.
[5] Both parents proposed family therapy. The final Order mirrored the respondent’s proposals in this regard, which were based on the recommendations contained in Dr. Sutton’s assessment report. The applicant proposed that one therapist be retained for the entire family, which was not a requirement of the final Order. Her proposal also directed the goals for the therapy, specifying parent-child reunification as the first goal. This was controversial between the parents especially having regard to the oldest child who was turning seventeen within the month the final decision was released. The applicant’s list of goals was not incorporated into the final Order.
[6] The final Order did incorporate some of the general provisions (parenting rules) proposed by the applicant.
[7] Accordingly, I find that the respondent was clearly and by far the more successful party at trial. The key area where he did not succeed was that sole custody of one child was awarded to the applicant, rather than joint custody to them both. The Order with respect to access to the younger children by the non-residential parent was neutral between the parents; in that both were awarded a term of supervised access, followed by a return to regular, unsupervised access.
The Offers
[8] The applicant made two Offers, dated February 6 and 15, 2013, to settle the custody issues on a final basis. She submits that the respondent should have accepted either Offer in its entirety because both provided sole custody to him of the two children, as did the final Order. However, the first Offer also provided that the applicant would have final say about the medical care of these two children. It provided for access between the mother and the oldest child to resume on a twice per week basis after one therapy session had been held. It afforded differing access provisions to the two younger children, terms which were more favourable to the applicant as an access parent than to the respondent as an access parent. The Offer also premised the family counselling on the basis that both parents are “normative parents but that there are issues to be and behavioural changes required on all parties, most particularly the children.” The Reasons for Decision specially rejected her position that the parties’ parenting was normative and identified her own inability to see her contributions to her relationship problems with two of the children as significant.
[9] The applicant’s second Offer modified some of these problematic areas, but carried forward the provision for mandatory access to the oldest child after one session of therapy and the differential access as between parents to the two other children. A new term was added that in the context of the current dynamic the children were not competent to refuse disclosure to a particular parent. This appears to have been included to facilitate the applicant’s access to information from a child’s physician or therapist without regard to the child’s instructions to the service provider. Having regard to the ages of the children (almost seventeen and fifteen year old twins) and in the context of some of the issues in the case, especially that the applicant was seen as overly intrusive by the seventeen year old, this was controversial.
[10] The respondent made three Offers dated November 16, 2012, February 11, 2013 and February 18, 2013. The February 18 Offer was in direct response to the applicant’s Offer dated February 15 and adopted the format and language of her Offer. Other than paragraph 54, it is my view that the few changes he made should have been acceptable to the applicant. His counter confirmed she would have sole custody of the one child, provided for access to the oldest child which was not ordered after trial, and adopted reciprocal access provisions for the two younger children.
[11] The applicant’s counsel did advise in a telephone call that one concern with the respondent’s counter was the inclusion of paragraph 54 providing that the parents’ obligation to disclose medical information about a child to the other parent is not required where it would constitute a breach of his or her professional or ethical obligations as a physician. Drafting suggestions were invited, but there were no further settlement communications between the parties. In my view, the respondent should have dropped this clause, but there is no indication that his counter would have been accepted or that the case would have settled on some other basis had he done so.
[12] In his November 16, 2012 Offer, the respondent offered sole custody of the younger daughter to the applicant but subject to joint decision-making with respect to her physical, mental and emotional health. The access he proposed for the oldest child mirrors the final Order. With respect to the twins, the access his Offer proposed did not contain a period of graduated or supervised access, but reflects the regular unsupervised access ordered by the court to commence after an initial six-month period of supervised access.
[13] The respondent’s February 11 Offer accepted the family therapist named in the applicant’s preceding Offer, and provided that the family therapy would be conducted in accordance with many of the principles that the applicant had included in her Offer.
[14] Other than the inclusion of joint decision making in relation to health issues of the younger daughter, these Offers both correspond well to the final Order.
[15] I am not persuaded that the terms of any of the respondent’s Offers entitle him to full indemnity costs. All of his Offers constitute serious and legitimate efforts to settle the issues in the case and compare very well to the trial outcome.
[16] The applicant’s second Offer improved on her first Offer, but still contained terms less favourable to the respondent and more favourable to herself than did the final Order. What is most striking about the applicant’s Offers is the distance between them and the position she took at trial. In my view, this distance is not explainable by the language or drafting differences between the Offers exchanged in February 2013. Had the trial been focussed on the issues outstanding between the parties as reflected in their Offers, it would have been a very different, shorter, and less costly endeavour than actually took place.
[17] Accordingly, I find the respondent’s Offers more conducive to settlement and closer to the trial outcome than those of the applicant. In relation to the Offers, I find the respondent the more successful party in the case.
The Respondent’s Conduct as a Factor
[18] Family Law Rules, O. Reg. 114/99, r. 24(4), (5) and (8) and (11)(b) all engage aspects of a party’s conduct in relation to an award of costs. They provide as follows:
24(4) Despite sub rule (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.
(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.
(8) If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.
(11) A person setting the amount of costs shall consider,
(b) the reasonableness or unreasonableness of each party’s behaviour in the case;
[19] I do not intend to reconsider or reiterate the findings made in my Reasons for Judgement with respect to parenting conduct by the parties. At paragraph 27 of my Reasons, I found that both parents had contributed to the children’s current predicament and neither had taken effective responsibility for his/her role or consistently put the children’s interests first and foremost. My Reasons did single out the respondent for his deplorable conduct in provoking an argument with the applicant in the presence of the children and secretly recording it. He recorded other events and I found at paragraph 112 that was an insidious involvement of the children in the parents’ dispute. This is a practise to be strongly discouraged. In my view, it is appropriate to use costs as a sanction and as a deterrent.
[20] The applicant directs the court to consider litigation conduct. She says the respondent was not prepared to follow the interim recommendations of Dr. Sutton. I disagree. These were made in June 2011. It was the applicant who would not agree to the parenting arrangements Dr. Sutton recommended at that time. The lack of a parenting regime contributed significantly to the failure of the interim therapeutic approach Dr. Sutton had recommended. The interim Offers she made in and after April 2012 came after the package of interim recommendations made by Dr. Sutton had failed and he was in the process of completing the assessment.
[21] Nor is it the case, as the applicant has asserted in her costs submissions, that the respondent’s conduct left her no option but to go to trial. Much of her submission on conduct as relevant to costs re-argues factual issues determined at trial. This is not helpful. Other of her submissions reflect a continued lack of insight into her contributions to the family dysfunction. For example, she states, “once the court found alienation [by the respondent] although not pure alienation, it validated [her] position”. This is hardly accurate as to her position at trial. She refers to a clause she included in her Offer that he deleted from his as confirming her “continued view that [the respondent] sees all issues related to the children as the alienator and confirms that [she] is the targeted parent.” She submits that had the respondent conceded she should have sole custody of the younger daughter at the beginning of trial instead of in his closing submissions, that the trial may not have taken place. This is not only unprovable; it also overlooks the fact that sole custody of this child had been offered to her by his February 18 Offer.
[22] My conclusion on the impact of conduct on the respondent’s entitlement to costs is that depriving him of part of his costs of the action is an appropriate sanction of his surreptitious recording of events.
Reasonable Award of Costs
[23] The applicant submits that the amount of costs claimed by the respondent is unreasonable. She notes her own counsel’s Bill of Costs is lower. She submits the time spent by respondent’s counsel was excessive and her hourly rate too high in relation to her experience. She alleges duplication between senior and junior counsel. She suggests that some of the time included may have been in relation to financial issues which were not part of this trial.
[24] The applicant’s Bill of Costs on a full indemnity basis totalled $445,395, including $326,823 for fees. The fees shown were incurred between January 2012 and June 2013. The respondent’s Bill of Costs commences in November 2010, and includes $415,636 on account of fees on a full indemnity basis. The fees the applicant incurred with her previous counsel and consulting counsel prior to January 2012 are not disclosed. However, the respondent’s counsel did docket significantly more hours than did the applicant’s for various steps in the case. For example, the applicant’s senior and junior counsel combine for 116.6 hours of trial preparation compared to 175.9 hours for the respondent’s. The applicant’s counsel combine for 303 hours during the trial compared to 535 hours for the respondent’s counsel. Opposing counsel are not expected or required to spend the same amount of time on a case. However comparing the time expended is part of an inquiry into the overall reasonableness of the amount claimed for costs.
[25] There is undoubtedly some duplication of effort between counsel reflected in the respondent’s Bill of Costs. The court is unable to determine with precision the extent of unnecessary duplication just as it cannot determine whether charging one half of time incurred on both custodial and financial issues is precisely the correct proportion. The overriding principle is reasonableness. As stated by the Court of Appeal in Davies v. Clarington (Municipality), 2009 ONCA 722, 100 O.R. (3d) 66 at para. 52, “Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant.”
[26] As the successful party, I find the respondent is entitled to costs on a partial recovery basis throughout. I have adjusted his Bill of Costs down to reflect partial recovery after November 16, 2012 rather than the full recovery claimed. I have considered the other submissions of the applicant noted above under the overall heading of “reasonableness”. I have also concluded that the respondent’s recovery should be reduced as a sanction against his conduct in surreptitiously recording the applicant for litigious purposes.
[27] In view of these considerations, in the context of this case, I award the respondent costs fixed in the all-inclusive amount of $345,000.
Applicant’s ability to pay; Timing of payment
[28] This not a case where the award of costs should be reduced by reason of inability to pay. The applicant’s income from all sources provides her with the equivalent to a gross annual employment income in a range in excess of $380,000 per annum. Her financial statement sworn in June 2013 shows a net family property of $1.9 million and a current net worth of about $2.4 million. It does appear the applicant will require a reasonable period of time to organize her financial affairs in order to pay the costs awarded against her.
[29] The applicant asks that payment be delayed until after the trial of the parties’ financial issues. The applicant does not submit that she may be entitled to an equalization payment from the respondent against which she could set-off the award of costs. Rather, she submits that she may become entitled to an award of costs after the financial trial against which she could off-set this costs award. In support of this submission, she relies on two cases where payment of costs of interlocutory motions was deferred to the conclusion of trial. This was done in JV Mechanical Ltd. v. Steelcase Construction Inc., 2009 CarswellOnt 3560 (Ont. Sup. Ct. Master). The motion costs against the defendant were in relation to a refusal of its application for security of costs from the plaintiff. The Court held at paras. 13, 14 and 15:
13 Generally costs of a motion are fixed and payable within 30 days unless circumstances justify some other disposition as to timing. This is one of those circumstances.
14 The only reason that JV, a corporation having insufficient assets in Ontario to pay costs, was relieved of the obligation to post security for costs is that it is impecunious. I find that it would be unfair to require Steelcase to pay costs of this motion within 30 days. If JV is successful at trial then it will recover these costs. If Steelcase is successful at trial and costs follow the event it is likely that by reason of its impecuniosity JV will not be able to pay costs. If that happens it would be appropriate to set off this costs award.
15 For that reason the costs fixed on this motion shall be payable to JV in any event of the cause and may be set off against any costs award in favour of Steelcase in either of these two actions.
[30] Similarly, in Gjeorgevski v. Stojkovski, 2006 CarswellOnt 2532 (Ont. Sup. Ct.) the plaintiff’s motion for summary judgement was dismissed with costs. The Court appears to have accepted the submissions outlined at para. 2:
2 It is the position of the plaintiff that no costs should be ordered to be paid at this time and that any costs should be reserved to the trial judge. It was also the position of the plaintiff that, should she be ordered to pay costs at this time and the defendant was found at trial to be liable for the $40,000, the defendant would have been able to profit from his own deceit. In taking that position, the plaintiff relied on the decision of Royal Bank v. Budavari, [2003] O.J. No. 5793 (Ont. S.C.J.). In that case the Bank brought a motion for summary judgment against the holders of a credit card that was in joint names. The motion was dismissed as the court found that there was a genuine issue for trial, based on credibility. The court found that the costs should be left to the trial judge.
[31] I was not provided with any authority for deferring payment of costs of one action until the conclusion of another action between the same parties, or of the first part of a bifurcated trial until the conclusion of the second part. The bifurcated issues are separate and distinct. Nor are there special circumstances to justify the deferral of payment of costs as existed in the two authorities provided by the applicant. The respondent is not impecunious. To the contrary, both parties are very well off. Requiring payment of the costs award now does not amount to an unfair advantage to the respondent. In my view, the potential for an award of costs in favour of the applicant at the conclusion of the second trial is too slim a basis upon which to defer payment of costs of the already completed custody trial. Such an award would depend upon trial outcome, offers to settle, and other potential factors which are unknown to this court and incapable of evaluation at this time.
[32] The applicant also asked that payment of costs be delayed until the disposition of her appeal from the custody decision. The respondent submits that the applicant has not moved the appeal forward in compliance with the applicable Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and that one can only say that she may be proceeding with an appeal in those circumstances. The Order for costs will automatically be stayed once the appellant files an Amended Notice of Appeal, assuming she also appeals the costs Order. The respondent has procedural rights, if she does so, to move to vary or set aside the automatic stay or to dismiss her appeal for delay should that become an appropriate remedy. Accordingly, I am not persuaded that I should stay payment of the costs award pending determination of the appeal.
Decision
[33] For reasons given, costs are awarded to the respondent payable by the applicant and fixed in the all-inclusive amount of $345,000, payable within 90 days.
J. Mackinnon J
Date: January 7, 2014
COURT FILE NO.: FS-12-00375231
DATE: 20140107
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Victoria Fielding, Applicant
AND
John Craig Fielding, Respondent
BEFORE: J. Mackinnon J
COUNSEL: Gary S. Joseph and Christine Marchetti, for the Applicant
Ilana I. Zylberman and Michael Zalev, for the Respondent
ENDORSEMENT regarding costs
J. Mackinnon J
Released: January 7, 2014