Court File and Parties

Court File No.: FC-15-671 Date: 2016/04/19 Superior Court of Justice - Ontario

Re: Mario Laflamme, Applicant And: Sandra Judge, Respondent

Before: Shelston J.

Counsel: Diana Carr, counsel for the Applicant Christian Pilon, counsel for the Respondent

Heard: By Written Submissions

Cost Endorsement

Overview

[1] Both parties brought motions dealing with custody and access to their daughter, Amelie Laflamme, born July 25, 2003, currently 12 years old, child support and costs.

[2] The applicant’s motion sought the following relief:

(a) Amelie will continue to have meetings with her therapist as agreed between them and involving the applicant and/or the respondent from time to time as the therapist recommends;

(b) Beginning on the first Saturday after this order is granted and on every Saturday for the next four Saturdays, Amelie will be with the applicant from 10 a.m. until 4 p.m.;

(c) After the first four Saturdays, and every week for the next eight weeks, Amelie will be with the applicant on Fridays after school until Saturdays at 4 p.m.;

(d) Thereafter Amelie will be with the applicant in alternate weeks, commencing on Friday after school until the following Friday;

(e) The applicant shall also have make-up time for the withholding by the respondent for the past 12 months;

(f) The applicant shall also care for the child on Christmas Eve from 10 a.m. until 8 p.m. and on December 26 from 10 a.m. until 8 p.m.; and

(g) The respondent shall pay costs for this motion to the applicant, in an amount to be fixed by this honourable Court after submissions on costs are made.

[3] The respondent filed a notice of motion returnable on February 16, 2016, seeking the following relief:

(a) An interim order that Amelie shall have access to the applicant as she wishes;

(b) An interim order confirming that the respondent shall make all the important decisions regarding Amelie’s well-being (i.e. health, school, etc.);

(d) An order confirming that the applicant shall pay retroactive child support for the benefit of Amelie for the period of November 1, 2014 until July 1, 2015 based on his 2013 income of $60,502 and his 2014 income of $62,362 ($551 per month x 2 months + $568/month x 7 months equals $5,078.00). The applicant shall pay the sum of $5,078 to the respondent;

(e) An order confirming that the applicant’s child support shall be readjusted as of August 1, 2015 to reflect his 2014 income of $62,362 ($568/month - $511/month = $57 x 7 months = $399). The applicant shall pay the sum of $399 to the respondent;

(f) An order directing the applicant to pay ongoing child support in the amount of $568 per month based on his 2014 income of $62,362 starting March 1, 2016 and on the first of every month thereafter for the benefit of the child;

(g) An order directing the applicant to pay his proportional share (44%) of the child’s special and extraordinary expenses in accordance with s. 7(1) of the Child Support Guidelines;

(h) An order directing the applicant to pay $150.48 to the respondent for his share of the child’s piano lessons; and

(i) An order for costs.

[4] I adjourned the respondent’s motion on the financial issues as no time had been set aside to deal with those issues when this motion was originally scheduled. The motion proceeded on determining the best interests of the child with respect to decision making and access to the child.

My Order

[5] My endorsement dated February 25, 2016 dealt with the following issues:

(a) The appointment of the Office of the Children’s Lawyer;

(b) Declined to grant the respondent the sole right to make all important decisions regarding the child;

(c) Ordered the child to continue to see all her current healthcare providers, attend her current school and to remain in whatever activity she is currently registered for;

(d) Granted the applicant access to the child on a graduated basis with conditions including the non-consumption of alcohol and the obligation to submit hair follicle test results every two weeks;

(e) Adjourned the issue of summer access until after the disclosure of the findings of the Office of the Children’s Lawyer or May 30, 2016, whichever came first;

(f) Placed the matter on the September 2016 trial list; and

(g) Ordered that a settlement conference be set by March 4, 2016, to be held in June 2016.

Parties' Position on Costs

[6] The applicant submits that he was completely successful on the motion because he obtained an order for regular access to the child and the respondent’s motion was adjourned. Consequently, the applicant seeks full indemnity of his costs in the amount of $17,000 plus HST.

[7] The respondent replies that both parties were partially successful at the motion and that each party should pay their own costs.

The Family Law Rules

[8] Under Rule 24(1) of the Family Law Rules, O. Reg. 114/99 there is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.

[9] Rule 24(5) states that in deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

(a) The parties’ behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

(b) The reasonableness of any offer the party made; and

[10] Rule 24(10) indicates that promptly after each step in the case, the judge or other person who dealt with that step shall decide any summary manner, who, if anyone, is entitled to costs, and set the amount of costs.

[11] Rule 24(11) states that a person setting the amount of costs shall consider:

(a) The importance, complexity or difficulty of the issues;

(b) The reasonableness or unreasonableness of each party’s behaviour in the case;

(d) The time properly spent on the case, including conversations between the lawyer and the party or witness, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of order;

(e) Expenses properly paid or payable; and

(f) Any other relevant matter.

Analysis

Successful Party

[12] I find that the applicant was the more successful party as my decision grants the applicant gradually increasing access to his child. However, it does not grant the applicant the right to have the child in alternating weeks within 12 weeks of my decision as he had requested in his notice of motion.

[13] Further, I do not give the child the right to decide when she has access to her father nor do I give the respondent the right to make major decisions regarding the child as requested by the respondent in her notice of motion.

[14] Neither party sought the appointment of the Office of the Children’s Lawyer nor proposed that access be subject to complete alcohol abstention by the applicant and a requirement of bi-monthly hair follicle testing.

[15] The main issue was whether or not the applicant would have a resumption of access to his daughter or whether the daughter would have the right to determine her access to her father.

[16] In my view, this was not a case of divided success. The applicant was ultimately successful in establishing a right to resume frequent and meaningful access to his daughter however I did not grant the applicant all of his relief.

[17] None of the respondent’s claim for relief in subparagraph (a), (b) and (c) of the notice of motion were granted.

The Importance, Complexity or Difficulty of the Issues

[18] The motion was important to both parties. For the applicant, the respondent had unilaterally varied the terms of the separation agreement and fundamentally affected the relationship between the applicant and his daughter.

[19] It was equally important to the respondent as she wished to minimize the impact of the applicant’s use of alcohol on his relationship with his daughter and that her wish to honour the child’s decision not to have access with her father.

[20] The issue of the resumption of access was not complex or difficult but required the intervention of the court.

The Reasonableness or Unreasonableness of Each Party’s Behaviour

[21] The applicant submits that the respondent was unreasonable in refusing to engage in negotiations, failing to implement clear instructions from the case conference judge on the resumption of access, implicating the daughter in the decision-making process regarding access, failing to respond to the letter of September 1, 2015, unilaterally varied the separation agreement and attempting to delay the proceedings by not being cooperative with setting the date for the initial case conference and eventually the motion.

[22] The respondent submits that the applicant has been unreasonable regarding failing to provide test results for alcohol and refusing to agree to the appointment of the Office of the Children’s Lawyer. Further, the respondent indicates that she was reasonable as she attempted to minimize the problems that the applicant had with alcohol and on his relationship with his daughter.

[23] In my view, this matter should have been settled with the resumption of gradual access after the case conference without the necessity of a motion as recommended by the Case Conference judge. The 12-year-old child in this case should not have been put in the position of having the ultimate decision as to whether or not she has access to the applicant.

[24] I find that the applicant acted reasonably and undertook a course of conduct starting in November 2014 indicating profound and serious attempts to deal with his binge drinking.

[25] I do not find any bad faith on behalf of the respondent but I find that the respondent’s conduct was unreasonable behavior. While the respondent followed the advice of the child’s therapist, a party in the litigation must be responsible for the actions undertaken. In this case the respondent unilaterally varied the terms of a separation agreement without applying to court for judicial relief; made no offer to settle and failed to respond to the September 1, 2015 letter submitted by counsel for the applicant.

The Lawyer’s Rates and Disbursements

[26] I find that the applicant’s counsel hourly rate of $350 to be reasonable based on her experience.

[27] With respect to the disbursements, I agree with the submissions of the respondent that the applicant appears to have made a claim for all disbursements and not those associated with the motion heard February 16, 2016. Since the applicant has not properly identified which disbursements relate to the motion of February 16, 2016, I will not allow any of the disbursements.

The Time Properly Spent on the Case

[28] In considering the time spent by the applicant with respect to this motion, I am directed not to undertake a mechanical calculation. Justice Aston in Delellis v. Delellis stated at paragraph 95:

It is important to reiterate that when the court is fixing costs, it is not undertaking a simple mechanical exercise. Such an exercise would be inappropriate and in fact undesirable …

[29] The bill of costs prepared by the applicant’s counsel provides a partial breakdown of the time spent on the various stages of this litigation. I agree with the respondent that the applicant failed to provide details regarding the time spent for the preparation and attendance at the motion on February 16, 2016.

[30] I also note that there is time billed for the applicant’s counsel’s legal assistant. I do not consider that as a valid legal expense as that expense is included in the hourly rate of the lawyer.

[31] In addition, there is time charged for the first appearance and case conference in addition to the actual motion. The Court of Appeal in Islam v. Rahman, 2007 ONCA 622 has stated that costs are to be assessed at each step of the litigation. Further, Rule 24(12) of the Family Law Rules requires an adjudication of costs at each step.

[32] In this case, it appears that part of the applicant’s bill of costs includes time spent for the first appearance as well as for the case conference. The issue of the costs for the first appearance will be dealt with in the final proceeding.

[33] The issue of costs at the case conference is more problematic as they should have been dealt with at the case conference as required by the Family Law Rules. The endorsement of the case conference judge being Justice Doyle dated July 17, 2015 is silent with respect to costs. There is no indication the costs were reserved to the judge hearing the motion. Consequently, I will not consider any costs related to the case conference in my decision.

[34] The time properly spent by the applicant preparing for and attending on the motion is not to be reimbursed dollar for dollar. In Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), the court held that the court’s role in assessing costs is not necessarily to reimburse the litigant for every dollar spent on legal fees but the award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings.

Offers Made

[35] Offers to settle are the yardstick with which to measure success and are significant both in considering liability and quantum as set out in Osmar v. Osmar (2000), 8 R.F.L. (5th) 387 (Ont. S.C.).

[36] There were no formal offers exchanged between the parties. There was one letter dated September 1, 2015 submitted by the applicant which is very close to the relief sought in the notice of motion. The respondent never made an offer.

Any Other Relevant Matter

[37] On October 26, 2015, the applicant served the motion returnable on February 4, 2016. The first response from the respondent was January 28, 2016, after the motion had been adjourned to February 16, 2016.

[38] In my view, the respondent has not been cooperative in setting dates for the case conference or the motion. It appears to me that the respondent undertook delay tactics since the commencement of this proceeding.

[39] In Serra v. Serra, 2009 ONCA 395, the court held that family law costs rules are designed to foster three important principles:

(a) To partially indemnify successful litigants for the cost of litigation;

(b) To encourage settlement; and

Disposition

[40] Taking all the factors set out herein into consideration, I order the respondent to pay to the applicant the sum of $10,500 inclusive of disbursements and HST within 60 days of the date of this endorsement.

Shelston J. Released: April 19, 2016

Laflamme v. Judge, 2016 ONSC 2526

Case Summary