ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 2839/14
DATE: 2014-08-14
BETWEEN:
CANDACE JUNE COE
Applicant
– and –
DEREK ROBERT TOPE
Respondent
Catherine Haber, Counsel for the Applicant
Michael Clarke – Counsel for the Respondent
THE HONOURABLE mR. JUSTICE PAZARATZ
[1] I have reviewed written submissions by counsel following my lengthy motion endorsement dated July 3, 2014.
[2] The Respondent father seeks costs in relation to a series of court attendances over a brief period.
a. A June 20, 2014 “urgent” Motion brought by the Applicant mother. Justice Chappel determined that the matter was not urgent and adjourned the motion to June 27, 2014, with a Case Conference to be held on June 24, 2014. Costs were reserved to be dealt with on the return of the motion.
b. The June 24, 2014 Case Conference before Justice Lafreniere. Again, costs were reserved.
c. The June 27, 2014 hearing of the contested motion, before me.
d. A brief attendance on July 3, 2014 to receive the court’s Judgment.
[3] I believe it is appropriate for me to deal with costs in relation to all four events, given that they occurred over a short time span and all focussed on the same issue: Temporary parenting/timesharing arrangements for two children ages five and three.
[4] The parties’ respective positions:
a. The Respondent father seeks full-indemnity in relation to a Bill of Costs totalling $11,836.75.
b. The Applicant mother disputes that any costs should be payable. In any event, the Applicant submits this is not a case for full-indemnity or elevated costs.
c. The Respondent counters that a corresponding partial indemnity Bill of Costs submitted by Applicant’s counsel totals $11,507.95 – almost the same as the Respondent’s full indemnity claim. The Respondent’s counsel submits this comparison of legal bills supports a costs order in the range of $12,000.00.
[5] 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. To discourage and sanction inappropriate behaviour by litigants.
[6] Rule 24(1) of the Family Law Rules (the “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).
[7] There can be little doubt the Respondent was entirely successful.
a. The court agreed with the Respondent that the initial motion was not urgent and that a case conference was required.
b. The Applicant sought a temporary custody designation in her favour, with the father to have four overnights within a two week cycle, including alternate weekends.
c. The Respondent proposed no custody designation, and equal time-sharing.
d. The father was successful in securing equal time and equal residency.
[8] The Applicant’s counsel has suggested that it is premature to determine “success” because the Applicant’s position may still prevail at trial. I do not find this submission to be of assistance in addressing costs in relation to a recently argued motion for temporary relief:
a. Rule 24(10) requires that costs are to be decided promptly after each step in the case.
b. The determination entails a retrospective analysis, applying Rules 18 and 24 to steps which have already been completed.
c. Costs determinations with respect to past steps should not be affected (or delayed) by speculation as to the possible outcome of future steps.
d. Indeed, the fundamental purposes of a costs order – rewarding success; encouraging settlement; discouraging inappropriate litigation – are best served if parties in high conflict family cases get early (and frequent) reminders of their potential costs exposure.
[9] When considering success, 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).
[10] The Respondent filed two formal offers to settle.
a. A June 16, 2014 offer gave the Applicant the options of either a straight adjournment of the June 20, 2014 urgent motion to June 27; or some specified time sharing while the parties attend (and jointly pay for) a specific mediation service. The issues of child support, custody and access would be adjourned to a case conference. Neither option precisely accords with the eventual result, so the cost consequences of Rule 18(14) are not triggered by this offer.
b. A June 26, 2014 offer proposed adjourning the issues of temporary custody and child support to a further case conference on July 31, 2014, with equal time-sharing identical to the terms of my July 3, 2014 order. I find this offer triggers Rule 18(14) cost consequences for the period between June 26 when the offer was signed, and June 27 when the motion was argued.
[11] The Respondent’s June 16, 2014 offer and a series of letters sent by his counsel are cumulatively relevant under Rule 18(16). It is clear that the Respondent was consistently taking the position that no urgent motion was necessary; a case conference should be arranged; and the temporary parenting arrangement should be equal time-sharing without any custody designation. Those positions prevailed.
[12] There was no justification for the Applicant’s emergency motion on June 20, 2014. Not only did Justice Chappel determine that the matter was not “urgent”, but the Applicant’s claim for sole custody/primary residence was dismissed when the motion was argued a week later.
[13] The Applicant’s counsel submits at one point the Respondent also threatened to bring an emergency motion. The difference of course is that the Respondent didn’t proceed with such an ill-advised motion; the Applicant did.
[14] Consideration of the reasonableness of each parties’ behavior permeates the cost analysis in family law matters, and is specifically dealt with in Rules 24(4); 24(5) and 24(11)(b). I find that the Respondent acted reasonably throughout the litigation; the Applicant did not.
a. The Applicant took a needlessly confrontational and aggressive approach, not justified by the facts of this particular case. In contrast, the Respondent’s position appeared more conciliatory and balanced.
b. The Respondent took a more child-focussed approach in acknowledging the equal importance of both parents in the children’s lives. The Applicant attempted to marginalize and vilify the Respondent without good reason.
c. The Respondent took a more realistic approach with respect to status quo considerations.
d. The Respondent’s proposal that the parties utilize alternative dispute resolution mechanisms such as mediation was reasonable in the circumstances. The Applicant’s evidence failed to justify her steadfast rejection of a less litigious approach to this family’s emerging problems. The court cannot force parties to attend mediation. But a party’s willingness to consider less litigious and more therapeutic options in custody cases is often a persuasive indicator in assessing reasonableness.
e. Immediately before the motion was argued, the Applicant denied the Respondent brief periods of access specifically ordered by Justice Chappel. While I accept that this may have been a mistake, nonetheless when parties insist that everything has to be done through court orders, they have an obligation to clearly understand their obligations under the court order they obtained. This complication resulted in the Respondent having to prepare an additional last minute affidavit, which in turn lengthened the court hearing on June 27, 2014 while the Applicant prepared an affidavit in reply. Rather than challenging the Respondent’s right to advise the court that access had been denied, it would have been more efficient – and more reasonable – for the Applicant to simply admit the inadvertent non-compliance, apologize, and move on.
[15] The Applicant attempted to focus on conduct – or more precisely, allegations of misconduct by the Respondent father. I agree with the Applicant’s counsel that pursuant to section 24 of the Children’s Law Reform Act a person’s past conduct is relevant to a custody or access determination if the court is satisfied that the conduct is relevant to the person’s ability to act as a parent. But section 24(3) should not be misinterpreted as affording litigants an unfettered right to indiscriminately raise weak, historical or vague allegations which provide the court with little assistance with respect to a current best interests analysis. At the June 27, 2014 motion the Applicant was unsuccessful in persuading me that the allegations of misconduct supported the relief she sought.
[16] Additional Rule 24 considerations:
a. The Respondent was completely successful. There was no element of “divided success”. Rule 24(6).
b. The subject matter of the motion was extremely important: The Applicant was seeking a temporary order which would have had the immediate consequence of significantly reducing the Respondent’s involvement with his children; and the long-term (and likely intended) consequence of creating an important status quo. Voluminous materials and multiple allegations were presented by the Applicant – and had to be comprehensively addressed by the Respondent. As well, each side referred to considerable caselaw. Rule 24(11).
c. The lawyer’s rate - $400.00 per hour for Mr. Clarke – is quite reasonable, given his experience and the skill and efficiency with which the matter was presented. To add perspective, Ms. Haber’s hourly rate is $550.00 per hour. Rule 24(11)(c).
d. The amount of time claimed by the Respondent’s counsel also appears to be reasonable. Rule 24(11)(d).
e. Neither party acted in bad faith. Rule 24(8).
[17] I acknowledge the Applicant’s position that costs are discretionary and that just because a parent is unsuccessful on a custody or access issue, that lack of success does not automatically equate to “unreasonableness.” Green v. Cook 2012 ONSC 3731 (SCJ). But in this case, as noted in my July 3, 2014 judgment, I could not help but conclude that the Applicant’s aggressive and adversarial approach was more strategic than child-focussed.
[18] Similarly, her counsel submits the Applicant should not be penalized by way of a costs order because she aggressively sought a custody arrangement that she believed was in the best interests of the children. Ms. Haber referred to the following commentary in de la Sablonniere v Catangner 2012 ONSC 1565 (SCJ):
35 The court commented in its decision upon the aggressive manner in which the respondent participated in this litigation. The applicant relies upon that aggressive approach in support of her claim for costs. I have several concerns regarding this argument.
36 Litigation and a trial are adversarial in nature. Depending upon the facts, the court must be cautious to not punish a litigant in costs for being adversarial in the litigation.
[19] I particularly agree with the “depending upon the facts” portion of that statement.
[20] Thorough and even aggressive advocacy may at times be appropriate – even appreciated by the court – where there are serious factual disputes about the safety and best interests of children.
[21] But conversely, not every family law case justifies an immediate declaration of war.
[22] Recently separated parents are typically angry, frightened and resentful. Their aggressive and perhaps vindictive emotional stance may be understandable. They are at a painful turning point in their lives and in their children’s lives. It is all the more reason why our family law system should – wherever possible -- promote sensitivity and healing, rather than allow impaired judgment and hostility to prevail.
[23] In this case, the Applicant mother fought hard for her children because she thought she was right. The Respondent father was equally sure he was right. Except for those very few “bad faith” cases, all litigants in family court are convinced they are “right”. Judges have very little prospect of changing attitudes. All we can do is focus on behaviours. And the determination of costs – at each stage in the process – is a vital judicial tool to influence and control litigation behaviours.
[24] In this case, I have made certain important determinations about the Applicant’s behaviours – both as a parent and as a litigant. My findings were summarized in paragraph 43 of my July 3, 2014 judgment: “It didn’t have to be this way.” It is somewhat disappointing that the Applicant’s response has been to predict she will be more successful at trial. Speaking plainly, I was trying to convey the faint hope that these parties will find a way to avoid going to trial.
[25] Costs awards should reflect what the court views as a fair and reasonable amount to be paid by the unsuccessful party, rather than an exact measure of the actual cost to the successful litigant. The expectation of the parties concerning the quantum of costs is a relevant factor in deciding what is fair and reasonable. Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291; Serra (supra).
[26] The Respondent should be entitled to significant reimbursement for costs in relation to the Applicant’s unsuccessful urgent motion on June 20, 2014. The Respondent consistently took the position that there was no emergency, and that a case conference was required. There is a very high onus on parties seeking to invoke the Rule 14(4.2) “urgency or hardship” category. Meaningful costs orders are the only way to discourage unwarranted “urgent” motions.
[27] I am not however prepared to order costs in relation to the June 24, 2014 case conference. As Sheffield J. noted recently in Supple v. Cashman 2014 ONSC 4323 (SCJ) at paragraph 10:
…Attendance at case conferences does not, in the normal course of events, warrant an award of costs. Case conferences comprise a mandatory step in the litigation process for which attendance is compulsory. These case conferences provide litigants with an opportunity to identify, and often times resolve, key outstanding issues between them. It is also at case conferences that the parties can set out the preliminary steps required to litigate any remaining issues.
[28] Ms. Haber correctly objected to the fact that the Respondent’s costs submissions included a letter exchanged between counsel which revealed some of Justice Lafreniere’s recommendations at the Case Conference. Mr. Clarke immediately admitted this was a mistake, and the letter should not have been filed without the discussion about the case conference being redacted. I have no difficulty disregarding the offending information.
[29] With respect to the June 27, 2014 hearing of the motion:
a. Full-indemnity costs are appropriate for the brief period following the Respondent’s presentation of his offer to settle signed June 26.
b. The hearing on June 27 became protracted because of the need for updated evidence concerning the Applicant’s breach of access terms on June 26 and the morning of June 27.
c. The motion was vigorously argued late into the afternoon.
[30] In assessing fairness, I have also considered the financial circumstances of both parties; the equal child-related responsibilities and expenses which both parties face; and proportionality.
[31] The order: The Applicant shall pay to the Respondent costs fixed in the sum of $8,000.00 inclusive of H.S.T. and disbursements.
Pazaratz, J.
Released: August 14, 2014
COURT FILE NO.: 2839/14
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CANDACE JUNE COE
Applicant
-and-
DEREK ROBERT TOPE
Respondent
REASONS FOR JUDGMENT
The Honourable Mr. Justice A. Pazaratz
Released: August 14, 2014