Erin Castro v. Alison Antonio Castro Garcia, 2016 ONSC 4771

Court File and Parties

Court File No.: FS-15-84629 Date: 2016 07 25

Superior Court of Justice – Ontario

Re: Erin Castro v. Alison Antonio Castro Garcia

Before: Tzimas, J.

Counsel: John G. Cox, Counsel for Applicant Jessica Gagne, Occasional Counsel for Respondent

Costs Endorsement

The Issue

1This endorsement responds to three separate costs submissions arising from various attendances before the court, both in person and by way of teleconferences on the following dates: October 15, 30, December 7 (morning attendance and later after teleconference), March 11, 2016, and June 13, 2016. All of the attendances concerned the custody and access arrangements for the two children Leanne and Erik. The Applicant had very significant concerns about the children’s safety when in their father’s care. The Respondent strenuously objected to those concerns.

2For the reasons that follow, a fair and just global costs award is fixed at $24,000, inclusive of disbursements and applicable taxes, payable by the Respondent to the Applicant.

Background

3The Applicant attended before the Court on an urgent basis, even before the issuing of her Application, on October 15, 2015, and obtained on a without prejudice basis a Restraining Order against the Respondent. On October 30, on the return of the motion, the Restraining Order was lifted. However, the Respondent was ordered to follow very strict and limited supervised access arrangements until further steps could be taken to assess the children’s safety and to decide on an appropriate access regime. In that vein, the Respondent was ordered to take a number of anger management and parenting courses and a request was made for the involvement of the Office of the Children’s Lawyer, (OCL). The parties were asked to re-attend before me on December 7, 2015 to report on the Respondent’s progress with his courses and to determine the next steps to be taken in relation to access arrangements between the Respondent and the children.

4In December, the Court was advised of the Respondent’s attendance at certain anger-management programs. The parties also confirmed the OCL’s agreement to investigate the matter and prepare a report. The Respondent sought to have access restored to the arrangements in place prior to October 15, 2015. That was rejected by the court and instead, the parties were asked to work out a supervised access arrangement.

5The parties were then scheduled to have a case management conference before me in March 2016, on the assumption that by then, the parties would have their report from the OCL. That date had to be postponed to June 13, 2016 because the OCL report was delayed. The Respondent opposed the postponement even though the court had previously made it clear that the access arrangements would not be varied until the OCL provided its report and recommendations.

6At the case management conference of June 13, 2016, the court was advised that the parties received the OCL Report, that they had a disclosure meeting with the OCL and that as a result the Respondent was prepared to accept the OCL’s recommendations. In light of that development, the parties agreed to certain final and interim orders concerning custody and access which are outlined in my endorsement of June 13, 2016.

7A number of other issues were raised before the court on June 13, 2016, in the hope of reaching a final resolution on all outstanding issues but those were adjourned to a future date. The focus of the case conference of June 13, 2016, as with all other attendances was on the subject of the Respondent’s custody and access arrangements for the children.

8With respect to the costs of the various attendances, the Court received 3 separate costs submissions as follows: a) Submissions for the October 15 and 30 attendances; b) Submissions for the December 2015 attendance; and c) Submissions for the Case Conference of June 13, 2016 and related activities.

9The parties were advised in March of 2016 that although the costs submissions for the October and December attendances were received, the Court would reserve its ruling until after the receipt of the OCL report. The Court explained at the time and reiterates here that given the highly charged attendances, the gravity of the children’s safety, especially in light of their serious health issues, the high conflict between the parties, and the extraordinary cost claims by the Applicant, the Court’s primary and overriding concern was to diffuse the conflict and to assist the parties with the restoration of arrangements that would respond to the children’s best interests. The Court was very concerned that a substantial costs award would distract the parties’ attention away from the primary tasks related to the steps the Respondent would need to take to address his anger management and parenting challenges. As I will elaborate below, the Court still has these concerns though at this point, given the agreement reached, the issue of costs have to be addressed.

Position of Parties

10The Applicant seeks her costs on a full indemnity basis as follows: $28,207.53 for the October 2015 attendances, $4,398.71 for the December attendance, and $28,458.20 for fees incurred following the second set of costs submissions after December 7, 2015 and up and including the attendance on June 13, 2016. The common foundation for the costs claims rests with the Applicant’s contention that the Respondent was abusive towards the children, those abuse allegations were validated by the OCL, the children needed the court’s protection, the Respondent was unreasonable throughout the proceedings, and that the Applicant had to do everything she could to protect the children.

11In response, the Respondent objects to the claims. Rather remarkably, the Respondent seeks costs of the October attendances in the sum of $8,000, on the basis that the restraining order was lifted on October 30, 2015. The Respondent then submits that there should be no costs ordered for the December attendance. For the June case management conference, the Respondent also asks that no costs be awarded and seeks to focus any such claim just to that attendance and not to any activities leading up to the attendance. Foundational to the Respondent’s opposition to costs was his view that the Applicant’s true motivation behind her motion was to push him out of his children’s lives.

Legal Principles

12The Family Law Rules provide the following with respect to an award of costs:

24. (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.

(11) 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;

(c) the lawyer’s rates;

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

(e) expenses properly paid or payable; and

(f) any other relevant matter.

13Costs rules are designed to foster three fundamental purposes:

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

(b) to encourage settlement; and

(c) to discourage and sanction inappropriate behaviour by litigants.

(See: Phuong v. Chan, 46 O.R. (3d) 330.)

14Costs 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 for the Province of Ontario, 71 O.R. (3d) 291, at para. 24.)

Analysis

15The awarding of costs in this case is not as straight forward as either the Applicant or the Respondent would have the court believe. Given my decision to reserve on costs until there was greater clarity over the appropriate approach to be taken on the subject of the Respondent’s access arrangements, I propose to make a global costs award for the preparation and the attendances before this court on the subject of the children’s custody and access.

16Having regard for Rule 24 of the Family Law Rules, the parties submissions, the applicable case law, and the particular facts of this case, I fix that global award, inclusive of disbursements and applicable taxes at $24,000. I consider this to be a just and fair result for the following reasons.

17Beginning with the importance and the complexity of the issues, child custody and access is a very important issue. Given the Respondent’s overall reaction and resistance to the Applicant’s very serious allegations, there can be no question that these issues required the court’s intervention. The children’s particular health issues and their fragility on the one had, and the Respondent’s mental health issues, as reflected in his anger management shortcomings, exacerbated the considerations for the court and reinforced the need for urgent intervention so as to secure the children’s welfare and safety.

18The most significant complicating factor in the determination of how to best address the appropriate access arrangements between the children and the Respondent, rested with the Respondent’s general denial of any problem. Although he eventually agreed to take certain courses for his anger management and for parenting, he did so because the court obliged him. I recognize the Respondent’s eventual consent to the custody and access arrangements that include continued counselling and I applaud that decision and encourage him to stay the course recommended in the OCL report. However, he only did so after he received the OCL’s report and its recommendations.

19I do find that over the course of the proceedings, the Respondent failed to appreciate the gravity of the situation. This was reflected in his resistance to the Applicant’s motion, the position he took, his denial of any difficulty, and in particular, his attempt to minimize or play down the instances when he hit and otherwise yelled at the children. It was also reflected in his repeated attempts to accelerate the progress from supervised access to unsupervised access even though the children’s therapist, Greg Gravelle recommended in his initial report that access be suspended until the children recovered from the September 27, 2015 incident and their general anxiety levels are lowered. The court made it clear that it would not be making any such order until it received a report from a third party that such a progression could be permitted. It is significant to note that the court’s concerns were validated by the OCL’s report and the gradual approach and steps it recommended be taken, before unsupervised access could occur.

20In terms of the outcome, the Applicant’s primary objective was to suspend access altogether. Although there was some recognition that some limited supervised access could be arranged, the overall thrust of her position was one that was exceptionally restricted with no apparent contemplation of any rehabilitation engagement following the appropriate counselling. At this stage, following the OCL’s report, the objective is to restore unsupervised access for the Respondent along the terms of the Order of June 13, 2016. That outcome is more favourable to the Respondent than the Applicant’s point of departure and favours partial indemnity over full indemnity.

21Insofar as the reasonableness of the parties’ conduct is concerned, I have concerns with the conduct of both parties such that full indemnity to the Applicant is problematic. The Respondent’s opposition and denial of the severity of the problem, as I discussed above, clearly complicated the issue significantly and made the court proceedings more costly. His repeated attempts to accelerate the transition from supervised access to unsupervised access was an unreasonable position to take, especially given the court’s indication that it would not run the risk of jeopardizing the children’s safety. However, I am unable to conclude that the Respondent sought to be unreasonable just for the sake of being unreasonable. Instead, I find that at least part of his behaviour was attributable to a bona fides sentiment that he loved his children and wanted to preserve a relationship with them. That finding coincides with the OCL’s observation of a father who was a loving parent and who made several efforts to engage with his children.

22Given the OCL’s recommendation that the Respondent participate in a minimum of six counselling with his children to address their issues and concerns prior to any unsupervised access, that the transition to unsupervised access be gradual, and that he undertake additional anger management and parent counselling, I also find that the Respondent’s opposition may have a clinical explanation. Although that would not diminish the severity of the issues before the court, it does go some way to explaining his disposition towards the Applicant’s motion. When I consider such a limitation against his eventual participation in the various parenting courses, I am unable to conclude that his conduct ought to attract costs on a full indemnity basis.

23Turning to my consideration of the reasonableness of the Applicant’s conduct, although I appreciate her reaction and her determination to obtain the court’s protection for the children, the aggressive thrust in her allegations legal and submissions was not constructive and likely exacerbated the conflict between the parties. The Applicant’s tendency to overstate aspects of the Respondent’s behaviour or to highlight certain facts about his background that were marginally relevant at best, were distracting and likely entrenched the Respondent in his resistance. It also fed into the Respondent’s suspicions over the Applicant’s real motivations to marginalize him from the children’s lives.

24In my view, there was no justification for the Applicant’s aggressive approach. Given the severity of the core allegations against the Respondent and the corresponding risk to the children’s safety and well-being, the Applicant would have obtained the same outcomes with submissions that were succinct and less prejudicial. Especially given the children’s health and fragility, as supported by the therapist’s evidence, the temporary suspension of unsupervised access was an inevitable outcome. Instead, the Applicant’s use of pronounced and provocative adjectives undermined any possible disposition towards resolution. The task was left to this court to diffuse the situation and to promote a gradual path towards a meaningful access arrangement between the Respondent and the children. My concern for this was all the more pronounced in that the Applicant was fully aware of the Respondent’s anger management issues. Some consideration should have been given to the question of whether the Respondent would have been more or less receptive to an aggressive approach on the children’s welfare or whether something more conciliatory (and less expensive) would work.

25Most illustrative of this attitude was the manner in which the Applicant summarized the situation in her overall assessment and summary of the costs submissions of June 28, 2016. In those submissions, the author submitted that the children were abused by the Respondent and then indicated that the OCL’s report “substantiated and the Respondent’s abuse” towards the children. In actual fact in my review of the OCL report, I note that the author of the OCL report selected her vocabulary very carefully. At no time did she describe the Respondent as abusive.

26There can be no question that her recommendations reflected profound concerns over the Respondent’s behaviour and the children’s safety. The author was firm in the way she addressed her specific concerns. For example, on the subject of the Respondent’s approach to discipline, she described it as both “questionable and concerning”. But she balanced that conclusion with her observations that the Respondent was loving in his interaction with his children. The author reinforced her measured but constructive approach in her observation that “neither child appeared fearful of their father nor hesitant in their interactions throughout their visit”.

27This reflection of the Respondent’s strength and weaknesses was both revealing and helpful to the court. Had I not had the benefit of reviewing the OCL report but were limited only to the Applicant’s submissions, I would have been left with a far more severe and compromised appreciation of the dynamics between the Respondent and his children. In the result, for the purposes of making a costs award, I am unable to conclude that the Applicant’s conduct costs on a full indemnity basis. Much as the Respondent contributed to the escalation of legal costs in his resistance to the Applicant’s motion, so did the Applicant.

28On the subject of the lawyer’s rates, there can be no doubt that counsel’s senior rates compounded the Applicant’s overall costs. While it was wise to eventually involve an articling student to reduce some costs, in my review of the cost submissions it would appear that this resulted in some duplication in effort. The Bill of Costs attached to the most recent submissions also captured work that did not relate to custody and access. These concerns put full indemnity costs into further question.

29In addition, while a party is free to retain the counsel they believe will represent them best in a dispute, at the end of the day, when it comes to costs, the Court must consider the overall outcome and the efforts that were involved to obtain that outcome. It must also evaluate those efforts against what would be a fair result as it relates to costs and consider the prospects that such an award can be paid. In this instance, setting aside the temporary fact of the Respondent’s unemployment since April of this year, on a reported income of approximately $75,000, a costs award of $62,000 is significantly out of step and disproportionate to a realistic costs award. Indeed, absent other financial support, such a sum is prohibitive even for the Applicant with her reported annual income in the range of $94,000.

30Insofar as the overall outcome and efforts are concerned, I particularize my findings on the specific attendances below. It is important to note that the initial efforts by the Applicant forced the Respondent to confront his difficulties with his anger management and his parenting abilities. But eventually, it was the Respondent’s acceptance of the OCL’s report that resulted in the current consent orders. That balance is a significant consideration in the awarding of costs and their quantum. While I am mindful of the need to discourage and sanction inappropriate behaviour by litigants, that imperative must be balanced against the risk of undermining a party’s overall disposition to work towards a resolution of a dispute, especially when it concerns a parent’s relationship with his children, and even if that comes at a late date. Having regard for the Respondent’s means and the efforts that were required to bring the Respondent to this stage, a cost award that is prohibitive may result in a setback in a situation that remains fragile and carries with it a number of uncertainties.

31Apart from these general findings and considerations, if I were to break down the costs submissions and consider them separately, I would come to the following conclusions. I find that the initial attempt to obtain a restraining order was not helpful. In keeping with my concerns over the Applicant’s aggressive approach, in these circumstances, the Applicant should have proceeded on an expedited basis to vary the access terms. The net outcome of exceptionally restricted access terms would have had the same effect as a restraining order, but much less acrimony and with prospects of a conciliatory resolution of a very difficult situation.

32Insofar as the motion of October 30 was concerned, having regard for the materials that were prepared, the urgency of the matter, the comprehensiveness of the evidence, and the outcome, a cost award of $16,000 would be a fair and just result as in its totality, it set the stage for the orders that followed. I disagree with the Respondent’s suggestion that he succeeded in having the restraining order lifted such that he should have his costs. I am concerned that the Respondent and his counsel failed to appreciate that the restrictions that were placed on the Respondent’s access amounted to a form of restraint. Although the lifting of the restraining order was designed to diffuse the high conflict between the parties, in practical terms, the court’s restrictions were designed to protect the children and limit the Respondent’s access until the parties could obtain third party opinion and guidance on how to approach the Respondent’s access arrangements with the children.

33The December attendance and costs claimed are high and out of step with the intended task at hand. Although the court required a report back, that should not have required nearly the time that was spent. The Respondent’s approach on this was not helpful and the request that he be permitted to return to unsupervised access was an aberration given the gravity of the allegations. However, the Applicant should have also been more co-operative. Her conduct did not reflect a bona fides interest to facilitate supervised access. Having regard for the need to promote resolution and urge both parties to work towards that goal, I decline to award any costs to either party.

34Finally, with respect to the costs for the June 2016 attendance, I disagree with the Respondent’s attempt to limit any costs award to the attendance at the case management conference. Significant efforts were expended in relation to the OCL reporting. However, it is also evident that the outcome reached on June 13, was driven primarily by the efforts and results of the OCL and the disclosure meeting that followed. Having regard for some duplication in time between the articling student and counsel, the inclusion of activities that relate to tasks other than the issue of custody and access, the proportionality and direction of the result, and the Respondent’s decision to take to heart the OCL recommendations and agree to them, a cost award of $8,000 for the case conference and the activities related to the OCL report are appropriate.

Result

35Taking all of the above into consideration and having regard for the outcome and the eventual prospect that the Respondent will be able to transition from supervised to unsupervised access if he complies with the access terms of the OCL, I find that a cost award fixed in the amount of $24,000, payable by the Respondent to the Applicant is a fair and reasonable amount that reflects the overall outcome.

36I make no order as to the payment terms for the said award. Insofar as the Applicant’s request that the costs award be enforced as child support, the costs do not relate to any efforts to obtain child support and therefore it would be wrong to treat them as such. The parties may speak to the issue of a payment plan if they are unable to reach agreement the next time they are before me. I strongly encourage them however to follow an approach that will not undermine the overriding efforts by the Respondent to succeed in his efforts to restore his relationship with his children to one that becomes viable and safe.

Tzimas, J.