Court File and Parties

Court File No.: FC-11-1816-1 Date: 2016/09/22 Ontario Superior Court of Justice

Between: G.T.G.D., Applicant – and – M.D., Respondent

Counsel: Susan E. Galarneau, for the Applicant Steve Duplain, for the Respondent

Heard: By written submissions

Before: Toscano Roccamo J.

Decision on Costs

[1] In Reasons released July 8, 2016 (G.T.G.D. v. M.D., 2016 ONSC 4463), I awarded the applicant Father sole custody on a motion to change the joint parenting arrangement, as ordered by McMunagle J., on February 13, 2013.

[2] This matter initially came before Beaudoin J. for a half day hearing on November 15, 2015. He reasonably determined that findings of credibility in this high conflict case were best made on the basis of oral evidence during a trial.

[3] Cooperation between counsel not only resulted in the settlement of numerous issues in advance of trial, including the variation of child support sought by the Father, and allegations with respect to the Mother’s contempt of prior court orders, but also resulted in a sharing of responsibilities for the assembly of joint document books, and the drafting of a consent order and prayer for outstanding relief (see Exhibits A and B to my Reasons of July 8, 2016). Nevertheless, the parties remained at an impasse with respect to the primary issues as to whether or not there was a material change in circumstances justifying a variation to the existing custody and access order, and what arrangement served the children’s best interests having regards to the factors enumerated by the Supreme Court of Canada in Gordon v. Goertz, [1996] 2 S.C.R. 27.

[4] After four days of trial, and after considering the documentary evidence which included: the transcripts from the questioning of both parties, and a third party as well as records from police; the CAS; the family doctor; and school records; all admitted for their truth, I found that the effects of the existing parenting arrangement had come to have such a deleterious effect on the children, that both children could now be considered to have special needs and were emotionally harmed. These effects were not reasonably foreseen at the time of the order. I further found that no manner of joint parenting could reasonably outweigh the fundamental lack of trust between the parties so long as the Mother maintains, as she did throughout to trial, that the Father is an abuser and a pedophile. She continues to hold this belief despite the fact that the CAS and police investigations have found her allegations to be unsubstantiated. Finally, I concluded that the Father was the parent best-equipped to meet the children’s best interests.

[5] Despite my encouragement, the parties were unable to agree to an order as to costs that considers both the compromise and resolution of issues achieved prior to and during the trial, the fact that my Order departs from the terms of both parties’ offer to settle exchanged in accordance with Rule 18 and finally, how any award for costs may affect the Mother’s ability to pay child support.

[6] The Father claims costs of $65,000, which represents 93.7% of full indemnity for fees and disbursements and related HST billed to him by his counsel on September 27, 2015, January 2, 2016, and June 5, 2016. In addition, there is a further $1,500 in unbilled time to review my Reasons and prepare the Costs Submission.

[7] The Father asserts that the final disposition of substantive issues is extremely close to the offer to settle he made on November 27, 2015, with a notable difference being that I awarded the Mother more time each Sunday. However, the Father’s submissions make no mention of the fact that his offer did not allow for more than one consecutive vacation week, as well as a more reasonable location for access exchange, issues in dispute which were resolved before the close of trial with my encouragement.

[8] The Father also takes the position that in exercising my discretion to award costs pursuant to s.131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, I should have regard to the following factors set out in Rule 24(11), as follows: (a) The importance, complexity or difficulty of the issues; (b) The reasonableness or unreasonableness of each party’s behaviour in the case; and (c) The lawyer’s rates.

[9] In addition to the obvious importance of the issues, the Father argues that this matter was complex due to the number of pre-trial proceedings including motions and questioning, attendance at a number of court conferences, preparation and attendance for the half day hearing as well as a four day trial.

[10] The Father posits, without offering further detail, that the Mother significantly increased the parties’ costs by failing to notify the City of Ottawa, the assignee of child support payable by the Father, that the final order sought to be changed imputed income to the Mother. The Father argues that this unduly complicated the issue of support. The Mother sought arrears in child support from the Father when the City of Ottawa was ultimately required to reimburse the Father for significant overpayment of support. Also, without explaining how, and to what degree the Order of Beaudoin J. adjourning the hearing affected matters, the Father claims the Mother added to his costs by failing to observe a strict timeline set out in June, 2015, and by only retaining new counsel on September 8, 2015.

[11] Although the Father acknowledges that the Mother is of modest means, he points out that, he too, is of modest means and has had to borrow from others to litigate this matter while the Mother has benefited from Legal Aid throughout. As such, he offers a negligible adjustment to his claim for costs, noting as well that there is no evidence to suggest that the Mother is not capable of being employed on a full-time basis.

[12] Finally, the Father asks that any costs be deemed additional support owing and as such enforceable by the Family Responsibility Office.

[13] The Mother accepts that, in accordance with Rule 24(1), there is a presumption of costs payable to the Father, as he was the most successful party in these proceedings. However, she emphasizes that the broad discretion of a court to fix costs under s. 131(1) of the Courts of Justice Act is to some extent circumscribed by the Family Law Rules, O. Reg. 114/99. She relies on the pronouncement of the Court of Appeal in C.A.M. v. D.M., 2003 CarswellOnt 3606 (C.A.) as echoed by the reasons of Shaw J. in Cawdrey v Cawdrey, 2011 ONSC 416, 92 R.F.L. (6th) 99, at paras. 6, 7, and 12 noting that the end goal in assessing costs under the Family Law Rules is to award an amount a court views as a fair and reasonable sum to be paid by an unsuccessful party, having regard to the factors in Rule 24, the bill of costs and the financial means of the party liable for costs. The overriding principle is one of reasonableness: Boucher v. Boucher Accountants Council for the Province of Ontario, (2004), 71 O.R. (3d) 291 (Ont. C.A.) at p. 302.

[14] Although 18(14) of the Family Law Rules deals with the cost consequences of failure to accept an Offer to Settle, a court is not directed to fix costs on the two traditional scales of partial indemnity and substantial indemnity costs. Having determined that one party is liable to pay costs, a court must fix an amount between a nominal sum and full recovery, having regard to the factors set out in Rule 24(11) without any assumption about the category of costs: See: Sims-Howarth v. Bilcliffe, (2000), R.F.L. (5th) 430 as approved in C.A.M. v. D.M., at para. 42.

[15] While acknowledging the importance of the issues tried by this Court, the Mother minimizes the complexity or difficulty of the issues as well as any conduct on her part that is said to have added to the costs incurred by the parties. She points out that the Father chose to retain counsel at a substantial private rate of $295.00 per hour, although the Mother concedes the hourly rate is not unreasonable having regard to counsel’s level of experience of 25 years at the bar.

[16] The Mother also points out that the Father has failed to divulge the terms of repayment for the loans he claims to have incurred for counsel’s fees.

[17] Although the Mother failed to attach the accounts of prior counsel representing her on the Legal Aid retainer, she still suggests that the time billed to the Father may be excessive, having regard to the Legal Aid account of her current counsel which reflects fees of approximately $16,800, based on a Legal Aid rate of $122.78 per hour, as compared to counsel’s private hourly rate of $225.00 per hour, a rate in keeping with his level of experience of 6 years at the bar. Making a modest allowance for the accounts billed to Legal Aid for services rendered by her previous counsel, the Mother compares her fees for services at approximately $20,000 and disbursements of $2,120 inclusive of GST, to the Father’s fees of almost three times as much at $69,363.31 inclusive of $6,200 in disbursements and taxes.

[18] Finally, the Mother stresses that the Father’s claim for costs at $65,000 represents more than three times the Mother’s imputed annual income of $18,000 per annum for purposes of child support. That is much higher than her actual year to date income of approximately $4,000 as of July 2016, as compared to the Father’s estimated income of $24,000 per annum.

[19] As such, the Mother asks that there be no order as to costs, given the impact an award of costs would have on her ability to pay support, adding that it would be inappropriate where the issue of support was resolved on consent in advance of the trial, to potentially add to her financial burden by having costs enforced by the Family Responsibility Office.

Conclusions

[20] I accept the Mother’s submissions that, although the Father is presumptively entitled to costs as the most successful party, his claim fails to appropriately reflect the noted differences in my Order and his Offer to Settle. His claim also fails to reflect the significant compromises achieved prior to and during trial as a result of the cooperation between counsel.

[21] On the other hand, I am unable to accede to the Mother’s request that no amount for costs be awarded, having regard to her modest means at present, and the potential effects of a costs award on her ability to pay child support based on her current means. I note that she requests a reasonable period of repayment, in the event an award of costs is made against her, to offset the effects of this financial burden over and above her responsibility to pay child support.

[22] In my opinion, the Mother must bear some responsibility for failing to anticipate, as her Offer to Settle makes plain, the finding that a material change in circumstances justified a variation in the parenting arrangement and a fresh inquiry into the parenting arrangement in keeping with the children’s best interests. As my Reasons suggest, no manner of joint parenting could repair the damage done to the relationship of trust between the parents while the Mother maintains the belief the Father is an abuser and a pedophile.

[23] As to the factors in the Rule 24(11), I make the following findings: (a) There is no question as to the importance of the issues of custody and access of the children. However, I accept the Mother’s submissions that the live issues in these proceedings were not particularly complex, although they necessitated protracted pre-trial proceedings and a trial. (b) As to the reasonableness or unreasonableness of each party’s behaviour in the case, I have already noted the cooperation between counsel before and during trial, which no doubt abbreviated the trial time.

[24] I decline to speculate to what degree, if any, the Mother delayed or otherwise took an unreasonable position on child support, particularly as the issue was resolved prior to trial. Similarly, I cannot know how the Mother’s failure to retain new counsel added to the costs of these proceedings, when Beaudoin J. concluded that a hearing could not go ahead without viva voce evidence. Moreover, it is unclear whether, by any want of diligence, the Mother could have retained other counsel prior to September 8, 2015.

(c) As to the lawyer’s rate, as the Mother appropriately concedes, the hourly rate of counsel for the Father was not unreasonable, based on her level of experience which was most apparent at trial.

[25] I also decline to accept the Mother’s unsubstantiated submission that the Father may have fallen within the range of incomes accepted by Legal Aid for a contribution towards his fees, and a corresponding reduction to his overall responsibility.

[26] On the other hand, it is reasonable to note that the terms of repayment of the loans assumed by the Father in order to pay his counsel would be of relevance, if the terms excuse repayment of all or a portion of the loans and /or related interest, and afford him a significant period to repay the loans, as might be the case if the loans were made by family members.

(d) As to 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, in my opinion, it is unhelpful to simply compare the Mother’s Legal Aid account and the Father’s solicitor-client account for fees based on the private rate of his counsel. It is even more unhelpful to compare the time spent by the Father’s counsel between September 25, 2013 and June 5, 2016 with the time spent by Mother’s counsel between a shorter period from July 28, 2015 until June 3, 2016.

[27] In my opinion, it is more helpful to compare what fees the Mother would have incurred at counsel’s private rate which is 1.83 times more per hour than his Legal Aid rate. Assuming the Mother’s counsel correctly estimated her total Legal Aid account, including the accounts of her prior counsel at the global amount of $20,000, billed at the private rate of her counsel, a true comparison should be between fees in excess of $63,000 versus fees of approximately $36,650.92.

[28] Over and above this, one cannot fail to consider that the Father’s greater fees would reflect the onus upon him to meet the burden of establishing a material change in circumstances, although as I previously noted, this was admittedly not a significant onus, on the facts of this case.

[29] On the other hand, having considered the accounts of the Father’s counsel dated September 27, 2015, January 2, 2016 and June 5, 2016, I could not help but notice that the bills of January 2 and June 5, 2016 included services docketed that fell within the timeframe of the prior accounts. In my opinion, this would only account in part for the large disparity of fees between the successful and unsuccessful parties in this matter.

(e) As to expenses properly paid or payable, I see no concerns with respect to the Father’s disbursements and none, apart from quantum, were raised by the Mother. The fact that they are approximately three times as great as the Mother’s disbursements may be simply explained by the onus of proof upon the Father, which would have included the incurring of fees for questioning, and third party records, and related interim proceedings.

(f) As to any other relevant matter, I accept that the Mother currently only holds part-time employment with TD Lansdowne. However, she previously held other employment at the “Life of Pie” which she chose to put an end to in March 2016. It is unclear what her annualized income would have been had she not left this employment or replaced this job with other employment.

[30] The Father correctly points out that there is no evidence the Mother is incapable of working at full-time employment, and that she is obliged to do so to meet her responsibility to pay child support.

[31] While I accept that the Mother will face a significant financial burden if she fails to look for and obtain suitable full-time employment, I assume she was aware of the impact of failing to do so, in the event of an unfavorable result in this matter when she chose to give up her other part-time job in March 2016.

[32] In any event, the impact of having to contribute to the legal costs of the Father will, to some degree, be offset by a reasonable period of time to pay.

[33] Having considered the parties’ submissions as to a fair and reasonable amount for the Mother to pay in the way of costs, and the application of the factors in Rule 24(11), having regard in particular to the cooperation between counsel before and during trial resulting in the resolution of a number of issues, I fix the costs payable, inclusive of fees and disbursements and HST at the global sum of $30,000, payable over six years. I find that this sum, inclusive of disbursements and HST, falls within an amount that the Mother, as the unsuccessful party, should reasonably have expected to pay in relation to these proceedings.

[34] I add that the monthly sum of $416.67 towards costs, coupled with monthly child support of $277.00 will result in an annualized payment of $8,324, a sum which may be managed by the Mother when she finds and maintains full-time employment. Of course, the parties are free to negotiate a payment plan with a lengthier or shorter payment period if they choose to do so.

[35] I decline to deem the costs award as additional support enforceable by the Family Responsibility Office, particularly as the parties arrived at a settlement of the issue of child support in advance of trial. To do so could potentially result in the additional costs of future enforcement proceedings in the event that the Mother is unable to make her monthly payments as they fall due.

[36] The parties shall bear their own costs of preparation of submissions on costs.

Toscano Roccamo J. Released: September 22, 2016