BARRIE
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Brian James Leggatt, Applicant
AND:
Frances Dianna Leggatt, Respondent
BEFORE: THE HON. MADAM JUSTICE E.A. QUINLAN
COUNSEL: B.M. Hayes, Counsel for the Applicant
S. Powell, Counsel for the Respondent
HEARD: By written submissions
COSTS ENDORSEMENT
1After a six-day Motion to Change, I awarded sole custody of Nichole, age 14, to the applicant father, Mr. Leggatt. In view of the respondent mother, Ms. Leggatt’s alienating behaviour with respect to the parties’ son, Josh, and again with respect to Nichole, no access was granted to Ms. Leggatt until Ms. Leggatt completes a therapeutic program for her alienating behaviour. Child support for Josh was terminated and a child support overpayment was determined. The parties were directed to provide written submissions on costs in the event they could not agree.
2Mr. Leggatt seeks costs on a full indemnity basis in the amount of $61,862.30, mainly in view of his Offer to Settle and Ms. Leggatt’s unreasonable actions in hiding Nichole from him. Mr. Leggatt’s position is that Ms. Leggatt’s impecuniosity may be relevant to the quantum or scale of costs, but not to his entitlement.
3Ms. Leggatt does not take a position with respect to Mr. Leggatt’s lawyer’s rates, the time spent on the case or the expenses payable. She denies acting unreasonably in view of my finding that she is unable to fully understand the impact of her behaviour on her children or the help she needs and considering the evidence of professionals with respect to her probable diagnosis of histrionic or narcissistic personality disorder. Ms. Leggatt argues that to award full recovery would punish her for her mental health disorder and would not result in any modification in her behaviour. Even if the court finds she acted unreasonably, she argues that her impecuniosity is relevant to the quantum or scale of costs. Ms. Leggatt takes the position that Mr. Leggatt was not successful with respect to all issues in his Offer to Settle.
4Although my decision on custody equalled Mr. Leggatt’s offer with respect to same, and my decision on access exceeded his offer, my decision on child support and a determination of amounts outstanding was not more favourable to Mr. Leggatt than his offer. Accordingly, on the whole, despite the importance of the issues concerning Nichole, considering the time spent at trial on support issues, it cannot be said that the result at trial was more favourable to Mr. Leggatt than his Offer to Settle.
5I find that Ms. Leggatt’s actions were unreasonable. Despite a histrionic or narcissistic personality disorder, Ms. Leggatt bears responsibility for her actions. She has done nothing to gain insight into her alienating behaviours. Rogers J. denounced her conduct in 2011, yet the conduct persisted and even worsened to the point Ms. Leggatt hid Nichole from her father, resulting in the need for police intervention to apprehend Nichole.
6The rates set out for Mr. Leggatt’s lawyer are reasonable. Although the law clerk’s rates are somewhat high, this is offset by the reduction in fees charged by counsel. The time spent and expenses incurred on the case were proper and necessary. I find that the amount sought is reasonable. There is a presumption that a successful party is entitled to its costs in a family law proceeding. However, as Mr. Leggatt has fairly noted in his Costs Submissions, a litigant’s limited financial health may be relevant to the issue of the quantum or scale of costs: Parsons v. Parsons, 2002 CarswellOnt 2536 at para. 12 (SCJ); LeVan v. LeVan, 2006 63733 (ON SC), 2006 CarswellOnt 7334 at para. 36.
The respondent’s meagre financial resources do not limit liability, but possibly quantum. However, in the case at bar, the behaviour of the respondent should trump concerns about her finances. The court cannot allow a parent to imperil the other parent’s relationship with the children without comment, and without the losing party facing up to the costs expended by the other party in dealing with extensive and lengthy litigation. Full recovery in spite of poor financial health of the respondent is warranted.
7I have considered the factors set out in Rule 24 of the Family Law Rules. Ms. Leggatt’s difficulty in paying a costs award due to her impecuniosity, her persistent and increasingly alienating behaviour and her unwillingness to obtain treatment are such that substantial recovery of costs is warranted.
8Accordingly, Ms. Leggatt shall pay to Mr. Leggatt his costs in the amount of $45,817.89.
QUINLAN J.
Date: August 10, 2015