ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: D1559/11

DATE: 2014-01-20

BETWEEN:

KELLY LYNN LUKE
Applicant

– and –

JOHN BAXTER LUKE
Respondent

Ms. Kirsten Hughes – Counsel for the Applicant

Mr. J. Cvetkovic – Counsel for the Respondent

costs judgment

THE HONOURABLE MR. JUSTICE PAZARATZ

1. On day 6 of a bitterly disputed custody trial – after all of the evidence had been received and counsel were about to make final submissions -- I received final minutes of settlement resolving all issues other than costs.

2. The family profile is straightforward:

a. The Applicant wife is 41 years old.
b. The Respondent husband is 42.
c. They were married August 8, 1998. Neither had been married before.
d. They have two boys ages 11 and 7. Neither party has other children.
e. They separated within the jointly owned matrimonial home in Ancaster on July 20, 2011.
f. At the end of October 2011 the Applicant relocated to a home in Binbrook, purchased for her by her parents.
g. The Respondent remained in the matrimonial home until it was sold on March 29, 2012. Since then he has been living with his parents in Binbrook – just a few blocks from the Applicant’s new home.

3. Custody and time sharing became the major issue following separation.

4. Since November 2011 the parties have been following a temporary consent order placing the boys with the father on weekends and with the mother weekdays.

5. By the time the trial commenced, most other issues were resolved.

6. Notably, the parties acknowledged one another’s strengths:

a. They were both actively involved parents prior to separation.
b. They were both involved in every aspect of the children’s lives.
c. They disagreed – at times significantly – about who did more, or who did most.
d. But they are both loving, competent, reliable parents.
e. They are both able to meet the children’s basic needs.
f. They both have a lot to offer.
g. The children love them both, equally.

7. In that context, much of the father’s evidence establishing that he is a good father or that the children love him was unnecessary – but the motive for presenting it was understandable.

8. The trial largely focussed on the concept of “primary caregiver”:

a. Who – if anyone -- was the primary caregiver prior to separation?
b. Who – if anyone – should be the primary caregiver in the future?
c. How had each party behaved since separation to become or portray themselves as the primary caregiver?
d. How had the parents’ behaviours affected the boys?
e. What did the two and a half years since separation tell us about the type and extent of structure this family needs, to safeguard the best interests of the children?

9. Predictably, the positions were diametrically opposed:

a. The Applicant mother said there absolutely has to be a primary caregiver and final decision maker – and it should be her.
b. Her position was supported by a custody/access assessment dated February 19, 2013 – and an update to the assessment dated November 26, 2013. Indeed, the update suggested recent events simply heightened the urgency of the original recommendation.
c. The Respondent father disagreed. He wanted equal time sharing and equal decision making. If one of the parents had to have final decision making authority, it should be him.

10. Michelle Hayes was retained jointly by the parties to conduct the custody/access assessment pursuant to section 30 of the Children’s Law Reform Act.

11. In December 2012 she outlined her findings and recommendations to the parties at a disclosure meeting. On February 13, 2013 she issued her 27 page report, which included 13 paragraphs of comprehensive recommendations.

12. When it became evident the matter was proceeding to trial, the parties again retained Hayes to prepare an update of her assessment.

13. On November 26, 2013 Hayes issued an 18 page updated report which included 14 paragraphs of recommendations – virtually identical to the first report, but with a heightened sense of urgency and alarm.

14. The update focussed on the assessor’s conclusion that:

a. Parenting dynamics and the children’s situations had deteriorated significantly during the approximately one year between the December 2012 disclosure meeting and November 2013 update.
b. Not only had the parents failed to correct serious problems identified in the first assessment – but particularly on the father’s side the problematic behaviour appeared to have made things worse.
c. Hayes’ original – and explicit – warnings that the children were being harmed by manipulation and negativity were being ignored.
d. Parental conflict had worsened. There was no sign of improvement, conciliation or cooperation.
e. With a few notable exceptions, communication problems remained unresolved, and each side had become entrenched in blaming the other.
f. The children – particularly the oldest – were suffering. They had gone from having a relatively balanced and favourable view of both parents, to conspicuously favouring the father and disfavouring the mother.
g. The inescapable conclusion was that the children were being profoundly influenced – and stressed – by adult information and influences, attributable primarily to the Respondent father and his family.

15. In her first report, Hayes warned of possible problems to be avoided. In her update, she outlined actual problems which now needed to be corrected.

16. At the commencement of trial, the Applicant confirmed that she was adopting all of the assessor’s recommendations in their entirety.

17. The Respondent’s position was quite the opposite. In his view the assessor got it wrong the first time. And she definitely got it wrong the second time.

18. Hayes was intensively cross-examined by both counsel for more than a day.

19. The additional witnesses were the parties themselves; a school principal; a daycare supervisor; and six relatives or friends called by the Respondent father.

20. As stated, fortunately the parties settled all issues (other than costs) toward the end of the trial. Costs still needed to be addressed because these are parties of modest means – the Applicant earning $49,246.00 and the Respondent earning $70,603.00.

21. At the end of the trial the Applicant sought more than $38,000.00 in costs and disbursements. The Respondent sought costs of $25,500.00.

22. The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395, [2009] O.J. 1905 (Ont. C.A.) stated that modern costs rules are designed to foster three fundamental purposes:

a. to partially indemnify successful litigants for the cost of litigation;
b. to encourage settlement;
c. and to discourage and sanction inappropriate behaviour by litigants bearing in mind that the awards should reflect what the court views is a fair and reasonable amount that should be paid by the unsuccessful party.

23. Subrule 24(1) of the Family Law Rules creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. (Sims-Howarth v. Bilcliffe 2000 22584 (ON SC), [2000] O.J. No. 330 (SCJ)). To determine whether a party has been successful, the court should take into account how the order compares to any settlement offers that were made. (Lawson v. Lawson 2008 23496 (ON SC), [2008] O.J. No. 1978 (SCJ)).

24. The Applicant filed a severable offer to settle on September 12, 2013. The Respondent filed a severable offer on November 26, 2013. I will focus on the “custody” section of each offer, presented as a non-severable subsection of terms related to the children.

25. The Applicant offered to settle on sole custody and primary residence in her favour. This was the result at the end of the trial. In contrast, the Respondent had offered joint or shared custody – a position which I might comment was unrealistic given the extremely high level of conflict between the parties, and the serious concerns raised by Ms. Hayes in her assessment.

26. Neither party matched their offer in relation to timesharing. The Applicant adopted the assessor’s recommendation which would have given the father 5 out of 14 overnights in a two week period. The Respondent sought a week about arrangement which would have given him 7 out of 14 nights. At the commencement of trial the Respondent identified an alternate position which ended up prevailing – six out of 14 nights, including alternate weekends. There was mixed success on this timesharing issue – which in my view was probably the second biggest area of dispute between the parties.

27. The Applicant was successful in matching her offer in that she was granted final decision making in relation to the children, in the primary areas of education, medical and religious issues. She was also successful in obtaining significantly more child support than the Respondent had proposed.

28. There were other, lesser areas where both parties submitted similar proposals.

29. But the largest – and certainly most time-consuming – area of dispute related to hockey. Both boys absolutely love hockey. It is enjoyable, and it is perhaps the single greatest source of happiness and stress-relief in their otherwise very disrupted lives.

30. Both parents were prepared to make a commitment to taking the children to hockey. The parents themselves each profess to love the sport and watching the activity.

31. But the assessor strongly adopted the mother’s view that each parent should take the children to hockey during their time with the children, and that the other parent should not be present because the children’s enjoyment of hockey was being jeopardized when both parents were present. In contrast, the Respondent vehemently argued that he should be entitled to attend all hockey activities even if they fell on the Applicant’s time. He said he enjoyed the activity; the children wanted him there; and he rejected warnings that having two high-conflict parents in the same hockey arena would have an adverse impact on the children.

32. The mother was completely successful on this issue. Given the voluminous evidence about the level of conflict between the parties; the Applicant’s emotional vulnerability to that conflict; and the impact on the children, I do not believe it can be said that the father’s position demonstrated much insight from the children’s perspective.

33. The Applicant’s offer was close compared to the overall final result, but insofar as the Respondent obtained more time with the children than the Applicant was offering, it does not trigger costs consequences pursuant to Rule 18(14). The offer is relevant under Rule 18(16) however.

34. Quantum of costs is largely discretionary. There are no strict formulas or percentages. I must consider all of the factors set out in Rule 24.

35. There is a presumption that a successful party is entitled to costs (Rule 24(1); Biant v. Sagoo (2001) 2001 28137 (ON SC), 20 R.F.L. (5th) 284 (SCJ). The Applicant was successful on more of the issues. The Respondent was successful on the time sharing issue.

36. There was divided success (Rule 24(6)), although as stated the Applicant was more successful – particularly in relation to the issues which took the most trial time.

37. The issues involved were extremely important to the parties, although not legally complex. Rule 24(11)(a).

38. I cannot help but comment on the “reasonableness or unreasonableness of each party’s behavior” as referred to in both Rule 24(4) and of more relevance Rule 24(11)(b).

39. This was a high conflict file. Both parties gave evidence of serious conflict between them. But from the moment of separation, the Respondent showed a distinct tendency toward unilateral, intimidating, and uncooperative behaviour:

a. On three occasions before the parties moved to separate residences, the Respondent called the police on the Applicant for reasons which had little merit.
b. On a fourth occasion the Applicant called police on the Respondent after he drew the older child into a dispute, trying to get the boy to agree that he had witnessed the Applicant assault the Respondent (the boy said he hadn’t, and the Applicant denied any misconduct).
c. I heard a great deal of evidence of the Respondent audio or video recording the Applicant, or having friends or family members join him for the obvious purpose of intimidating the Applicant and making her feel uncomfortable.
d. Since separation the Respondent has refused to allow the Applicant possession or control of the children’s hockey equipment – thereby interfering with her ability to share hockey with the children.
e. He prevented her from gaining access to the matrimonial home after she moved out, despite not having an order of exclusive possession.
f. In October 2013 the younger child ended up missing a dentist’s appointment for a chipped tooth because of the Respondent’s refusal to share scheduling information with the Applicant.

40. Undoubtedly, the Applicant also said or did things which might also have been perceived as provocative or uncooperative. But the evidence of the Respondent’s “hard ball” approach to this custody litigation was overwhelming – and most troubling.

41. I cannot overstate how strongly the court disapproves of such intimidating and unilateral actions. Audio and video taping your partner in the dying days of a relationship may seem like a good idea at the time, but such activities are entirely inconsistent with “joint custody” or “shared parenting” proposals at trial.

42. I am satisfied that both lawyers rates are reasonable, as are the amounts of time claimed.

43. I agree with Applicant’s counsel that the trial became needlessly protracted as a result of certain decisions or strategies by the Respondent:

a. About 90 minutes was wasted when the Respondent’s counsel challenged the expertise of the assessor, even though the parties had jointly retained Michelle Hayes on two separation occasions – and even though the evidence of the assessor’s qualifications was overwhelming. I found Ms. Hayes to be an expert in relation to conducting a custody/access assessment and making related recommendations; and also on the impact of parental conflict on children.
b. There were at least a dozen “Browne v. Dunn” objections with respect to evidence the Respondent’s counsel sought to lead from some of the later witnesses -- evidence which had never been addressed during cross-examination of either the Applicant or the assessor.
c. Several hours were spent on a motion brought by the Respondent’s counsel on day five of the trial, to either force the Applicant to be recalled so he could again cross-examine her; or for permission to ask questions of a subsequent witness despite violations of the rule in Browne v. Dunn.
d. As stated, the Respondent’s counsel spent an inordinate amount of time cross-examining the Applicant and the assessor on the hockey issue. The Applicant was completely successful on this issue.
e. Much of the evidence the Respondent presented from supporting witnesses was simply to establish that he is a good father – which was never disputed. This case was really never about respective parenting skills. It was primarily about how to protect the children from oppressive negativism, largely generated by the Respondent and his family.

44. The mother paid her proportionate share (based on their respective incomes) with respect to the original assessment and the update. She wants the Respondent to reimburse her for her share of the update. She also wants him to pay all of the $3,000.00 witness fee she has been charged as a result of calling Ms. Hayes to testify for more than a day.

45. Both parties retained the assessor. Both parties were responsible for the issues which had to be dealt with. The Respondent was successful in obtaining slightly more time than the assessor and the mother were proposing. The cost of the assessor’s witness fee should be shared by the parties in proportion to their incomes.

46. I have considered the fact that this trial was almost entirely in relation to parenting decisions. There is no doubt both parents love their children, and the love is reciprocated. But parents who love their children also have a responsibility to ensure that each parent’s household is not impoverished as a result of completely needless legal proceedings.

47. I have also considered both Boucher et al. v. Public Accountants Council for the Province of Ontario 2004 14579 (ON CA), [2004] O.J. No. 2634 (Ont. C.A.) and Delellis v Delellis and Delellis 2005 36447 (ON SC), [2005] O.J. No. 4345. These cases note that when assessing costs it is “not simply a mechanical exercise.” In Delellis, Aston J. wrote at paragraph 9:

However, recent cases under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended have begun to de-emphasize the traditional reliance upon “hours spent times hourly rates” when fixing costs....Costs must be proportional to the amount in issue and the outcome. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant.

48. I considered the Respondent’s ability to pay the costs order. (MacDonald v. Magel (2003) 2003 18880 (ON CA), 67 O.R. (3d) 181 (Ont.C.A.). A party’s limited financial circumstances will not be used as a shield against any liability for costs but will be taken into account regarding the quantum of costs. (Snih v. Snih, 2007 20774 (SCJ); Quinn v. Nicholson 2013 ONSC 1125 (SCJ)). The Applicant has more time with the children. The Respondent has more income. There will be monies distributed from the sale of the former matrimonial home. After adjusting for a modest equalization payment owing by the Respondent to the Applicant, the Respondent will still receive approximately $129,000.00 from which he could immediately satisfy a costs order.

49. I cannot help but note that this trial could easily have been avoided. It was common ground that the Applicant and the Respondent have always been excellent parents. They are simply terrible separated spouses. If they had simply cooperated and been civil with one another from the outset – and respected one another’s boundaries (in relation to hockey, for example), this would more likely have ended up in a joint custody/equal timesharing arrangement. I mention this simply to provide the court’s strongest possible warning to good parents: don’t destroy your case and your children by being vindictive and hardnosed with your former spouse.

50. This warning is not entirely historical commentary. I will remain seized of this file if any parenting issues arise during the next 24 months. I am hoping the parents will clearly understand that the time for “hard ball” antics is over.

51. I do not believe the Applicant’s request for “substantial indemnity” costs is appropriate. But on balance I find the following:

a. The Respondent shall pay his proportionate share of any outstanding bill to Ms. Hayes in relation to her witness fee, based on the parties’ incomes.
b. In addition, the Respondent shall pay to the Applicant costs fixed at $20,000.00.
c. All costs shall be paid from the Respondent’s share of the net proceeds of sale from the former matrimonial home.

Pazaratz, J.

Released: January 20, 2014

COURT FILE NO.: D1559/11

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

KELLY LYNN LUKE
Applicant

And

JOHN BAXTER LUKE

costs JUDGMENT

Pazaratz, J.

Released: January 20, 2014