SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

COURT FILE NO.: C1259/13-01
DATE: April 3, 2014

RE: Children’s Aid Society of London and Middlesex, applicant

AND:

T.F. and W.W.F., respondents

BEFORE: MITROW J.

COUNSEL:
Michael Cormier for the Society

Norm Aitken for T.F.

Hamoody Hassan for W.W.F.

HEARD: written submissions filed

ENDORSEMENT ON COSTS

[1] Pursuant to my order dated January 23, 2014, Mr. F. was awarded unsupervised access to the children. The order invited costs submissions. I have received and reviewed written submissions from both respondent parents: Mr. F.’s submissions dated February 20, 2014 (filed February 24, 2014), and Ms. F.’s submissions dated February 21, 2014 and received that day.

[2] The Society, not surprisingly, filed no costs submissions. As indicated in the endorsement, this is an on-going, high conflict custody/access case “that has now shifted into the child protection arena” (see para. 12, Endorsement).

[3] Both parents are of modest means. Mr. F. seeks costs in the amount of $22,000 all-inclusive from Ms. F. on a substantial indemnity basis. Ms. F. submits that success was divided so each party should bear their own costs; alternatively, Ms. F. submits that costs should be reserved to the trial judge.

[4] No costs were sought by or against the Society (and quite properly so).

[5] In the present case, context is important in dealing with costs. The matter before the court was a temporary care and custody motion. The Society became involved because of the high conflict between the parents. In December 2013, a temporary without prejudice order was made in the protection proceeding placing the children in the care and custody of Ms. F. subject to the Society’s supervision, with access to Mr. F. supervised at the discretion of the Society.

[6] Approximately four days prior to the special appointment date set for the temporary care and custody hearing, an agreement was reached between the Society and Mr. F. that the Society would be dropping the term in the order requiring supervision of access. This agreement was confirmed in a letter from Mr. F.’s counsel to Society counsel. The letter also confirmed that the special appointment would not be going ahead.

[7] Unfortunately Ms. F. was not part of this “agreement”. Given the Society’s understanding that temporary care and custody was not to be argued (and the Society would have filed additional material had that issue been argued), the issues that were argued dealt with Mr. F.’s access and whether the access should be supervised. The argument on the motion was primarily an access dispute between the parents with the Society standing by.

[8] The legal fees incurred by Mr. F. in this protection case, and this included the temporary care and custody motion, began to accrue in December of 2013.

[9] I have considered factors in rule 24(11). I find as follows: the issues were not complex, but they were important; Mr. Hassan’s hourly rate is reasonable; no time dockets or hourly rates were provided by Mr. Aitken; the disbursements shown by Mr. Hassan are reasonable.

[10] Since the commencement of the protection proceeding, I find that neither party has engaged in unreasonable conduct. The fact that Ms. F. wanted access to continue to be supervised does not, per se, constitute unreasonable conduct; however, Ms. F.’s potential exposure to costs still continues depending on the outcome of the motion.

[11] A decision on the reasonableness or unreasonableness of a party’s conduct can include behaviour “in relation to the issues from the time they arose”: see rule 24(5)(a).

[12] As discussed in the endorsement, Ms. F. has a past history of obstructing access; Mr. F. relies on this conduct in his costs submissions. However, Mr. F.’s history includes three criminal convictions where Ms. F. was the victim in each case, and further, Mr. F. has some history of engaging in vulgar name-calling directed at Ms. F. and/or the children. The order on the motion includes access conditions requiring Mr. F. to refrain from engaging in vulgar and verbally aggressive language during access.

[13] Both parents should be quite ill-at-ease dredging up the other’s past behaviour: they each share culpability in subjecting their children to a toxic environment emanating from their conflict. I find the past conduct of both parents to be unreasonable. I am not prepared, at this early stage in this court case, to characterize the past conduct of either parent as constituting “bad faith” within the meaning of rule 24(8). I adopt the definition of “bad faith” as discussed by C. Perkins J in S.(C.) v. S.(M.), 2007 20279 (ON SC), 2007 CarswellOnt. 3485 (S.C.J) at paragraphs 16,17; affirmed 2010 ONCA 196, 2010 CarswellOnt. 1493 (C.A.).

[14] In considering the time properly spent on the case it is clear that Mr. Hassan expended substantial and considerable effort on his client’s behalf. However, the motion material prepared for Mr. F. was also in support of his position for temporary care and custody of the children. That issue did not proceed. In fact, the order was stated to be without prejudice to the right of either party to bring a further motion for temporary care and custody. None of the time spent on that issue should form part of the costs on the access issue.

[15] Although neither parent served a formal offer to settle, I find that Ms. F.’s position on the access issue was not well founded. The Society and Mr. F. reached a reasonable compromise. They each acted reasonably in attempting to resolve a temporary care and custody hearing.

[16] As this is a protection case, the presumption in rule 24(1) does not apply: rule 24(2). The fact that costs are not sought by or against the Society does not change this case from a protection to a non-protection case.

[17] I do find that Mr. F. achieved some success and is entitled to some costs that include the special appointment hearing. The Society`s agreement that supervision of access was no longer necessary should have been a signal to Ms. F. to resolve the motion. Considering that temporary care and custody was not argued, considering the unreasonable conduct of both parties as discussed above, taking into account that this is a protection case, and considering the means of both parties, I find that a modest costs award is appropriate and reasonable in the circumstances.

[18] I fix the costs at $3500 inclusive of HST and disbursements. Given Mr. F.’s participation in unreasonable conduct as discussed earlier, the payment of costs is deferred until the conclusion of this protection application.

[19] I order that Ms. F. shall pay to Mr. F. his costs of the temporary care and custody motion fixed in the amount of $3500 inclusive of assessable disbursements and HST, and that this amount shall be payable at the conclusion of this protection case.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: April 3, 2014