CITATION: Fisher v. Fisher, 2015 ONSC 2020
COURT FILE NO.: 752/11
DATE: 20150327
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: James Andrew Fisher, Applicant
AND
Hollie Anne Fisher, Respondent
BEFORE: Madam Justice A. Trousdale
COUNSEL:
Steven Leitman, for the Applicant
G. Edward Lloyd, for the Respondent
Constance Baran-Gerez, for the Office of the Children’s Lawyer
HEARD: In Chambers (Written Submissions)
COSTS ENDORSEMENT
Trousdale J.
[1] This is a matter regarding costs arising from an eighteen day trial, which was originally set for five days of trial. One and a half of those days were taken up with settlement discussions with another judge plus an unexpected half day adjournment unconnected to the trial.
[2] I have received and reviewed submissions as to costs.
[3] The trial concerned the issues arising from the separation and divorce of the parties. The issues which took the most time at trial were custody and access regarding the two children of the marriage, being two sons ages 13 and 7. As Mr. Fisher had moved to Petawawa a year after the separation, the main issue was whether the children should reside primarily with their mother in Kingston or primarily with their father in Petawawa. There were also issues of child support and spousal support, and equalization of net family property, although these took up much less time at trial. The parties resolved almost all of the issues regarding equalization of net family property prior to or during the trial.
[4] The Applicant, Mr. Fisher seeks costs from the Respondent, Ms. Fisher in the sum of $73, 687.00, (fees of $65,000.00 plus HST, plus disbursements of $210.00 plus HST), which is a partial contribution to Mr. Fisher’s total bill of costs of $102,276.30 inclusive of disbursements and HST (fees of $90,300.00 plus disbursements plus HST). If costs are awarded to Mr. Fisher, he also seeks an order for set-off of these costs as follows:
a) That any costs owing by Ms. Fisher to Mr. Fisher be set off against the net arrears/accounting, which amount totals $7,770.91. As this has already been ordered on consent in my order of August 25, 2014, no new order would be required in this regard.
b) Any unpaid costs owing when equalization is finished shall be set off against any equalization payment owing by Mr. Fisher to Ms. Fisher, if any.
c) There should be a set-off against ongoing spousal support payments payable by Mr. Fisher to Ms. Fisher up to a maximum of $240.00 per month. If support is being collected by the Office of Family Responsibility (FRO), FRO shall be directed to enforce accordingly until costs are satisfied.
d) Any unpaid costs owing when Ms. Fisher’s civil litigation claim is resolved should be secured against the proceeds of her civil litigation, with Ms. Fisher to execute an assignment regarding same.
[5] Mr. Fisher’s position is that although success was theoretically divided, any success by Ms. Fisher was partial, and was for lesser terms than in her offers to settle. He further argues that any issues in which Ms. Fisher achieved a measure of success were issues that consumed a very small amount of trial time and trial preparation, whereas the majority of the trial related to where the children would reside, on which issue Mr. Fisher was successful.
[6] Mr. Fisher also argues that Ms. Fisher needlessly extended preparation for trial and the time of the trial itself by spending excessive time cross-examining Mr. Fisher and his current partner, by spending too much time on the stand herself giving her evidence in chief (3.5 to 4 days), by calling too many professional witnesses on her behalf, some of whom had not produced reports prior to trial, and by bringing a motion with virtually no notice for a mistrial which was dismissed.
[7] Ms. Fisher seeks that there should be no costs awarded or alternatively that if Mr. Fisher is to be awarded costs, such costs should be drastically reduced from the amount claimed to take into account all of the circumstances, but especially Mr. Fisher’s unreasonable conduct and the factor of mixed success of the parties on issues determined at the trial.
[8] Ms. Fisher claims that there was divided success on the issues and that she was successful on the issue of retaining joint custody which was an extremely important issue to her, on the issue of having Mr. Fisher be responsible for transporting the children to Kingston for her time with the children, on the issue of spousal support, and on the issue of section 7 expenses including arrears.
[9] Ms. Fisher’s position is that the conduct of Mr. Fisher and his partner after separation, including getting the police involved in the custody /access situation on numerous occasions after separation, and fostering discontent in Ms. Fisher’s home, constituted a campaign of harassment against Ms. Fisher and that this improper conduct should be taken into account in considering the matter of costs.
[10] Ms. Fisher argues that although Mr. Fisher and OCL Counsel took the position that Ms. Fisher’s capacity to parent was not in issue, they spent a considerable amount of time on cross-examining Ms. Fisher and other witnesses on this very issue which took up considerable trial time.
[11] Finally, it is argued by Ms. Fisher that she has no resources to pay a substantial costs award as she is unable to work as a result of her very serious car accident in 2009. She argues that a costs order would prejudice her ability to parent and provide for the children while she is exercising access, and that it would reduce the children’s quality of life and impact their ongoing relationship with Ms. Fisher and her family.
[12] Neither party has claimed costs against the Office of the Children’s Lawyer. Counsel for the Office of the Children’s Lawyer has filed submissions regarding costs which state that the Office of the Children’s Lawyer takes no position on the issue of costs as between the Applicant and the Respondent.
Analysis
[13] Subrule 24(1) of the Family Law Rules provides that there is a presumption that a successful party is entitled to costs.
[14] I find that a substantial part of the trial was taken up with the primary issue of whether the children should continue to reside with Ms. Fisher in Kingston, or whether the children should reside with Mr. Fisher in Petawawa. Neither of the parents nor the Office of the Children’s Lawyer were in support of the children being separated from each other. The position of the Office of the Children’s Lawyer on behalf of the children both before and at the end of trial was that the children should reside with Mr. Fisher. Mr. Fisher was ultimately successful at trial on the issue of where the children would reside. Ms. Fisher did obtain an order for joint custody of the children although Mr. Fisher has the final say in the event of any dispute.
[15] I find that overall Mr. Fisher was more successful at trial than Ms. Fisher and that there is a presumption that he should be entitled to some of his costs.
[16] Rule 24(11) sets out further factors that I am to consider when determining costs.
The importance, complexity or difficulty of the issues
[17] The case was very important to the parties as it involved where their two children would primarily reside. The geographic distance between the parties made the case more difficult. This definitely was a high conflict custody and access case.
The reasonableness or unreasonableness of each party’s behaviour in the case
[18] Both parties allege that the other has acted unreasonably in the case, both in terms of behaviour, and also in terms of the manner in which each conducted the case at trial.
[19] In my decision, I did find that both parties had at times made poor parental decisions and acted badly towards each other and regarding the children at various times since the separation. I do not find, however, that their conduct constituted bad faith, nor behaviour that was so unreasonable that it should deprive Mr. Fisher of a contribution towards his costs.
[20] In terms of the conduct of the case, Ms. Fisher did call a number of witnesses regarding her position that her motor vehicle accident had no present effect on her capacity to care for the children. Considerable time was spent in cross-examination of these professional witnesses called by Ms. Fisher but a greater proportion of that cross-examination was by OCL Counsel rather than by Mr. Fisher’s Counsel.
[21] Ms. Fisher’s examination-in-chief was much longer than was necessary and there was a fair bit of repetition. Some of that I attribute to the emotional nature of the subject matter for Ms. Fisher, but it did increase the length and cost of the trial.
[22] In looking at reasonableness or unreasonableness, it is necessary to consider any offers to settle which either party has or has not made.
[23] Mr. Fisher made seven written offers to settle during the course of this matter. I find that none of the offers to settle would qualify for the costs consequences set out in Rule 18(14) of the Family Law Rules as a number of the offers left open the issues of custody and access or other matters to be determined at trial, and none of the offers was as favourable or more favourable to Mr. Fisher than the order obtained at trial. One of the offers was made near the very end of the trial outside the timelines of Rule 18. Nevertheless, these offers may be taken into account pursuant to Rule 18(16) and Rule 24(5) in the consideration of the issue of costs.
[24] Ms. Fisher made two written offers to settle during these proceedings. I find that neither of these offers would qualify for the costs consequences set out in Rule 18(14) of the Family Law Rules as none of the offers was as favourable or more favourable to Ms. Fisher than the order obtained at trial as both offers provided for the children to continue to reside with her in Kingston. However, these offers may be taken into account pursuant to Rule 18(16) and Rule 24(5) in the court’s consideration of the issue of costs.
[25] Both parties had strongly held beliefs about where it would be best for the children to reside. Unfortunately, this was a case where there could be no middle ground because of the geographic separation of the parties.
The expenses properly paid or payable
[26] Mr. Fisher claims disbursements of $210.00 being service costs and two summons to witnesses. I find these costs to be very reasonable.
Lawyer’s rates and time properly spent on the case
[27] As this was a high conflict case which greatly exceeded the time originally estimated for the trial, and which took place in staggered weeks over a period of 6 months, I find the bill of costs submitted by Mr. Fisher’s counsel to be reasonable both in time spent and lawyer’s rates, taking into account his experience. Ms. Fisher has not contested the rates of Mr. Fisher’s lawyer, although she contests the amount of time spent at trial in cross-examining certain witnesses.
[28] Ms. Fisher has not provided any indication of the costs that she has incurred in this matter so no comparison can be made.
Any other relevant matter
[29] On the basis of what I understand the financial circumstances of each of the parties to be, neither of these parties could really afford the substantial costs of this lengthy trial. Although Ms. Fisher has not disclosed the cost of her legal fees and disbursements of this trial, I think it reasonable to assume that they are at least similar to those incurred by Mr. Fisher.
[30] Ms. Fisher has not worked since 2009 as a result of the injuries suffered in her motor vehicle accident. She has an income of $7,316.00 per year plus spousal support of $480.00 per month. A costs award will be very difficult for her.
[31] Nevertheless, given the success of Mr. Fisher on the main issue at this trial which took up a great deal of the trial time, and in light of the other considerations that I have previously discussed, it would be unjust that Mr. Fisher not be awarded some costs.
[32] In the case of Sera v. Sera, 2009 ONCA 395, 66 R.F.L. (6th) 40, the Ontario Court of Appeal stated at paragraph 8:
Modern costs rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants: Fong v. Chan (1999), 1999 2052 (ON CA), 46 O.R. (3d) 330 (Ont. C.A.), at para. 22.
[33] In Sera, the Court of Appeal went on to state in paragraph 12:
As this Court has observed, costs awards, at the end of the day should reflect “what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties”: see Boucher v. Public Accountants Council (Ontario) (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (Ont. C.A.) at para. 24.
[34] The parties were aware by October, 2013 of the position being taken by the Office of the Children’s Lawyer on behalf of the children that it was in the children’s best interests to reside with their father in Petawawa. In light of the older child’s consistently expressed wish over a sustained period of time to reside with his father, and the position of all the parties that the two children should not be separated, Ms. Fisher would have known that she was at risk in terms of costs in proceeding to trial on the issue of where the children should reside if she were unsuccessful at trial.
Decision
[35] Taking into consideration the written submissions of the parties regarding costs, the offers to settle, Mr. Fisher’s success on the main issue at trial which took up much of the trial time, Ms. Fisher’s success on joint custody, spousal support and some child support issues, and the provisions of Rule 24 of the Family Law Rules as outlined above, and in the exercise of my discretion, I fix Mr. Fisher’s costs in the sum of $52,000.00, inclusive of fees, disbursements and HST.
[36] Mr. Fisher seeks any unpaid costs owing by Ms. Fisher to Mr. Fisher after implementing the set-off already made on consent of the parties in paragraph 62 of my Order dated August 25, 2014, be set off against any equalization payment found owing by Mr. Fisher to Ms. Fisher, if any. I find it reasonable that this order be made.
[37] Mr. Fisher seeks that there shall be a set-off against on-going spousal support payments payable by Mr. Fisher to Ms. Fisher up to a maximum of $240.00 per month against any unpaid costs owing by Ms. Fisher to Mr. Fisher after the aforesaid set-offs, if any. Given Ms. Fisher’s very modest income and her need for the monthly spousal support payments of $480.00 per month, I find that this would detrimentally impact Ms. Fisher’s ability to provide for herself and to provide for the children when they are in her care. That request is not granted.
[38] Mr. Fisher seeks an order that any unpaid costs owing when Ms. Fisher’s civil litigation claim is resolved shall be secured against the proceeds of her civil litigation, with Ms. Fisher to execute an assignment regarding same. I have no knowledge of what, if any, proceeds will be received by Ms. Fisher in her civil litigation claim against third parties who are not involved in this proceeding. This request is not granted.
Order
[39] Order to go that Ms. Fisher shall pay costs to Mr. Fisher fixed in the sum of $52,000.00 inclusive of HST and disbursements.
[40] Order to go that any unpaid costs owing when equalization is finished shall be set off against any equalization payment owing by Mr. Fisher to Ms. Fisher, if any.
Madam Justice A. Trousdale
Date: March 27, 2015
CITATION: Fisher v. Fisher, 2015 ONSC 2020
COURT FILE NO.: 752/11
DATE: 20150327
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
James Andrew Fisher
Applicant
– and –
Hollie Anne Fisher
Respondent
BEFORE: Madam Justice A. Trousdale
COUNSEL:
Steven Leitman, for the Applicant
G. Edward Lloyd, for the Respondent
Constance Baran-Gerez, for the Office of the Children’s Lawyer
COSTS ENDORSEMENT
Madam Justice A. Trousdale
Released: March 27, 2015