Court File and Parties

COURT FILE NO.: FS-12-375799-0001 FS-12-375799-0002 DATE: May 10, 2016

ONTARIO SUPERIOR COURT OF JUSTICE

APPLICANT: N. L. RESPONDENT: R.R. M.

COUNSEL: S. Lawrence Liquornik, for the applicant mother Brian Ludmer, for the respondent father

HEARD: by written submissions

Perkins J.

Issues in the case

[1] This is the decision of the issue of costs of several motions in this case that I heard on October 30, 2015. Though there were other parties to the motions, only the applicant mother and respondent father are involved in the costs issue.

[2] The motions involved a final consent order of this court resulting from an arbitration award. The order granted custody of the parties’ two sons to the father, prevented the sons from having access with the mother and other members of her family, and provided for police enforcement of the custody order. The sons were 17½ and almost 16 when the final consent order was made, and were 18 and 16½ when the motions came before me.

[3] The Chief of Police moved to delete the police enforcement clause from the final order.

[4] The mother moved to change the final order so that she would have custody of the sons. In the alternative, she asked that there be no custody order.

[5] The father opposed both the Chief’s and the mother’s motions. He moved to require the police to enforce the final custody order and to disclose all efforts they had made to enforce it. He also moved to require the mother to disclose any contact she had had with the sons and all information she had about their location and contact information.

[6] My decision was released on December 19, 2015, with reasons to follow. The reasons were released on February 3, 2016. I granted the Chief of Police’s motion to strike out the police enforcement clause. I then went on to rescind the final order in its entirety and made a declaratory order that no person has rights respecting the custody of or access to either of the children under any statute or any non statutory jurisdiction of the court.

[7] The reasons provided for costs submissions in writing. Only the mother has claimed costs. No party has asked for an oral costs hearing.

[8] The mother has asked for full recovery from the father of her costs in the amount of $17,124. She said she was “highly successful in the outcome of the motions” and the father was unsuccessful. She did not serve an offer to settle any of the motions. The only argument she advanced for full recovery costs was that “the realistic outcome of the motions could have been reasonably predicted, thus making the positions taken by the respondent father unreasonable.” I do not agree that the outcome was so evident from the start that the father should be found to have been unreasonable in resisting the mother’s or the Chief’s motion, or in pursuing his own.

[9] The father submitted there should be no costs of the motions. He said he acted reasonably in making a last attempt to reconcile with his sons in the face of proven alienation by the mother and in light of the emotional harm to the sons from remaining alienated. I agree he was reasonable in making the attempt. The issue was also of fundamental importance.

[10] He also submitted that success was divided because the mother “was not awarded the relief that she sought”, but I find that the mother was successful as the term is used in the rules. She got the final custody order set aside and she successfully resisted the father’s enforcement of it. It was not 100% success on paper, but on the ground, the result is that the sons are free to live with her and associate with her family, and are also free not to associate with the father.

[11] The father made an offer to settle the mother’s motion, but the offer was effectively to leave the final custody order in place, or else to adopt a joint parenting plan. While the father’s position was reasonable, it did not come close to the result.

[12] The father would have me deprive the mother of costs because she was found by the arbitrator to have waged a campaign of alienation, she had worked to frustrate the arbitration award and resulting order, and she should not be rewarded for it. He submits that this is a proper case to deprive the successful party of all her costs. In the alternative, he submits that “a fair and reasonable contribution by the unsuccessful party to the successful party” would be zero here.

[13] The arbitrator, whose findings have never been challenged, could not have been clearer that the mother systematically alienated the sons from the father while claiming to be interested in rebuilding the father and son relationship. I could not find on the evidence before me that the mother had continued to alienate the sons from the father after the final consent custody order. There was evidence that she brought the sons in to hear the arbitrator’s decision and cooperated with the police in the initial days after the order was made. There was also evidence that after the final order, she knew how to get in touch with the sons, she was in touch with them at least indirectly if not directly, and she was providing accommodations for the younger son to live in while he was in defiance of the custody order. There was also little or no evidence that she tried to promote compliance with the custody order at any time after the initial few days.

[14] Custody and access orders do not reward or punish a parent for good or bad behaviour. They are made exclusively in the children’s best interests. Costs orders are discretionary and do take into consideration a party’s behaviour in relation to both the process and the substance of the case. Here I think the lack of evidence showing the mother’s attempt to secure compliance by the sons with the order over a period longer than a couple of weeks tells against her.

[15] Though I have not had a bill from the father’s lawyer to compare with the mother’s legal bill, I know that his materials were much more extensive and his arguments were much more developed than hers. His lawyer is also a senior and experienced specialist. I am confident that his legal bill greatly exceeds the mother’s. While he may be in a better position to absorb costs than she is, she is not without means.

[16] I think in all the circumstances this is a case for me to exercise my discretion to make an order for no costs.

[17] I know that the order I made on December 19 is on its way to appeal. No doubt my costs award will be reviewed as well.

[18] In the event I am wrong in the exercise of my discretion to award no costs, I will indicate that the time spent and the hourly rates of the mother’s lawyers are reasonable. If I were awarding costs to the mother at the normal partial recovery rate in a family law case, I would award an all inclusive sum of $12,500 for these motions.

May 10, 2016

Perkins J.