Court File and Parties

COURT FILE NO.: FC-15-674 DATE: 2016/08/31 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Hugo E. Aguirre, Applicant AND Christine Elizabeth Aguirre, Respondent

BEFORE: Justice A. Doyle

COUNSEL: Ceilidh Joan Henderson, for the Applicant Lisa Sharp, for the Respondent

HEARD: In writing

Costs Endorsement

[1] On July 18, 2016, following a 16 day trial, the Court ordered the following (among other things):

(a) the respondent mother will have sole custody of Lucas. She will consult the applicant father before a final major decision is made by sending him a communication through Family Wizard and allow reasonable time for him to provide his opinion; (b) the father will have a right to obtain direct information from all professionals dealing with Lucas, including but not limited to Lucas’ school, counsellors, doctors, dentists, and activity leaders; (c) the mother will make the final decision regarding major decisions dealing with Lucas; (d) either party may travel with the child outside the country provided that they first obtain a written consent to travel in advance, and this consent must not be unreasonably withheld. Notice must be provided at least 60 days prior to departure in advance. The parent travelling with the child will obtain the passport of the child. The passport, which will be held by the mother, must be immediately returned to her when the father drops off the child after the travel; (e) sixty days before the departure date, the parent travelling with the child will provide all details including but not limited to the following: − travel arrangements, including flight itineraries and local train transportation; − accommodation; and − contact information; (f) commencing September 2, 2016, the child’s time with his parents will be on a week-on/week-off schedule. The mother’s time will commence after school or daycare on Friday until September 9, 2016, at which time the father will pick up the child from school or daycare; (g) the parent who does not have the child will have Lucas overnight from Wednesday after school until Thursday morning and the pick-up and drop off will take place at the school or daycare; (h) the parties also agreed that they would not attend each other’s home or workplaces and they would not communicate directly or indirectly except in the case of an emergency with respect to Lucas’ health and well-being. Arrangements regarding access are to be through Family Wizard; (i) each party will immediately advise the other parent in the event of an emergency when Lucas is in their care; (j) there will be no communication between the parties save and except as it relates to Lucas. The parties are to utilize Family Wizard and other electronic means to communicate. The parties are not to contact each other at their place of work or residence unless it relates specifically to an urgent matter for Lucas; (k) the father will continue to pay child support in the amount of $200 per month until the parenting time is equal on September 2, 2016. For greater certainty, his last payment will be on August 1, 2016; (l) there will be no retroactive child support; (m) commencing June 1, 2017, the parties will exchange their previous tax returns and Notices of Assessment. Child support will be reviewed at that time; (n) the costs of $4,000 owed by the father pursuant to Justice Shelston’s Order remain due and owing (unless they have been paid since the completion of the trial).

[2] The parties have now provided their written submissions on costs. For reasons set out below, the Court orders no costs.

Legal Principles

[3] As stated in Serra v. Serra, 2009 ONCA 395, the cost rules are designed for the following fundamental purposes:

(1) to indemnify successful litigants for the cost of litigation (2) to promote and encourage settlement, and (3) to control behaviour by discouraging frivolous suits if the defenses that lack merit.

Rule 24 of the Family Law Rules, O. Reg. 114/99 (the “Family Law Rules”) creates a presumption of costs in favour of the successful party. In addition, Rule 18 sets out factors the Court should consider in exercising its discretion when awarding costs if there are offers to settle.

Father’s position

[4] The father is requesting costs in the amount of $32,744.50 based on a substantial indemnity basis. This claim for costs includes expenses incurred from the date of the issuance of the application on March 31, 2015.

[5] He states that he was successful on all issues except the issue of custody.

[6] He alleges that the respondent acted in bad faith during the litigation by making false malicious allegations against him and he had to defend himself from allegations of sexually and physically abusing his son.

[7] These allegations caused delays due to investigations by the Ottawa Police Service and the Children’s Aid Society resulting in numerous records before the Court.

[8] In addition, he had no choice but to commence an application as the mother was withholding access to his son.

Mother’s position

[9] The mother submits that costs up to the date of Justice Shelston’s Order dated January 2016, were determined by him and the applicant cannot request costs predating his order.

[10] Justice Shelston considered the costs of the four motion dates held between June and November 2015 and his order required the father to pay costs of $4,000 to the mother. Those costs have not been paid by the father.

[11] She also indicates that the father inordinately delayed the trial which was originally scheduled for 8 days. His lack of preparedness, unfamiliarity with the process and lack of organization caused the trial time to be doubled.

Analysis

[12] In determining costs, the Court must consider the factors set out in Family Law Rule 24 (11), as follows:

(a) the importance, complexity and difficulty of the issues: − These issues were important to the parties as they dealt with custody of a four year old boy. The matter was further complicated by the involvement of the Ottawa Police Services, the Children’s Aid Society and various community members. The parties also had children from their previous marriages and the Court heard evidence on the effect of previous relationships impacted on the child’s best interests. There was ample evidence regarding the communication problems between the parties, including numerous texts, emails, correspondence between the parties and third parties. (b) the reasonableness or unreasonableness of each party’s behaviour in the case: − The Court notes that in the father’s original position he was seeking custody of the child and that the child should live with him. However, his position changed at the time of his final submissions where he asked for a schedule that would mean equal sharing and he would have the child every weekend. − The father continued to breach an interim Court order prohibiting him from communicating with the mother unless it pertained to the child. − The Court notes that the mother’s proposed schedule did not permit the development of a meaningful relationship between the father and Lucas. In addition, her position that the child should not leave the country was unreasonable, especially in light of a possible all expenses paid trip to Disney World with the father and his daughter through the Make A Wish Foundation. − In addition, due to the father’s lack of counsel the matter took longer than needed. Although the father is entitled to represent himself, his lack of knowledge of the process required explanation by the Court and delays and constant instruction. The mother’s counsel also assisted him in organizing his evidence. The Court had to explain that summons to witnesses had to be personally served. The father was not focused on the issues. During cross-examination of witnesses, the father had to be redirected on a number of occasions to ask questions rather than make self-serving statements. The Court was assisted by the assistance of his counsel when he conducted part of the cross-examination of the mother. Counsel’s examination was focused and concise. (c) the lawyer’s rates: − The father provided a breakdown of fees from each law firm who assisted him, but did not provide any rates. − The mother’s bill of costs deals in flat rates as opposed to hourly 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: − The Court finds that the time spent on this 13 day trial by the mother’s counsel and the lawyers who assisted the father are within the appropriate range. (e) expenses properly paid or payable: − The expenses paid by both parties appear reasonable.

Offers to settle

[13] The father did not attach offers to settle to his costs submissions. He has not provided proof that he obtained a more favorable result than the Court order. The mother’s offer to settle January 19, 2016 on the eve of trial provided for her to have sole custody with access to the father every second weekend and every Wednesday access to the father, prohibition to travel, child support of $300 per month, and a restraining order. Clearly, she did not obtain an order more favourable than her offer to settle.

[14] Costs must be decided each step of the way. The Court must determine costs from the date of Justice Shelston’s order dated January 5, 2016 to the completion of the trial.

[15] The Court finds that there has been mixed success. The mother was successful in obtaining sole custody of Lucas and the father obtained equal time sharing but not the time sharing he was requesting. The Court did not grant him primary residence of Lucas as he was originally requesting in his opening submissions. The father was successful in the dismissal of mother’s request for a restraining order.

[16] Given the factors set out in Rule 24, the behaviour of the parents and the above facts, the Court orders no costs.

Madam Justice A. Doyle Date: August 31, 2016