Court File and Parties

COURT FILE NO.: F1237/11 DATE: 2016/10/13 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: James Melville Deacon, Applicant AND: Stephanie Michelle Haggith, Respondent

BEFORE: Aston J.

COUNSEL: Monique Bennett, for the Applicant William Clayton, for the Respondent

HEARD: Written and Oral Submissions September 29, 2016

Costs Endorsement

[1] This high conflict custody trial was scheduled for a 20 day hearing in September 2016. Except for the issue of costs the parties settled all their issues on the seventh day of the trial. They entered into comprehensive minutes of settlement, subsequently incorporated into a final order.

[2] The respondent mother claims costs against the father of about $144,000 on a full indemnity basis or alternatively $100,000 on a partial indemnity basis. There are no “qualifying offers” that would attract a costs award under Family Law Rule 18, but there are several provisions under Family Law Rule 24 that need to be addressed, starting with a determination of “success”.

[3] In this case, because the substantive issues were settled before all the evidence was heard, there is a presumption that success was mixed and constituted a compromise by both sides. Family Law Rule 24(6) provides:

If success in a step in a case is divided, the court may apportion costs as appropriate.

[4] Divided or mixed success does not mean the parties were equally successful. See Johanns v. Fulford, 2011 ONSC 5268 at paras. 7-8.

[5] For the reasons following I have concluded the mother was more successful than the father when the outcome is compared to the pleadings and the various offers to settle. She is entitled to something on account of costs and the question is one of quantum. In determining a fair and reasonable amount the three purposes identified in Fong v. Chan, 46 O.R. (3d) 330 (Ont. C.A.) at para. 22 and reaffirmed in Serra v. Serra, 2009 ONCA 395 at para. 8 are at the fore:

1. to partially indemnify successful litigants for the cost of litigation;
2. to encourage settlement; and
3. to discourage and sanction inappropriate behaviour by litigants.

[6] There were many issues raised in the pleadings and many issues within issues:

1. Should the formal parenting regime be defined by “sole custody” or a shared custody or parallel parenting order?
2. Which parent ought to have ultimate authority on medical, educational, counselling or other decisions? What about registration of the child in extracurricular activities?
3. What rights should each parent have to information about the child from third parties?
4. What residential schedule should the child have with each parent? Within that schedule what specific provisions, if any, ought to apply for Christmas, March Break, Easter, Thanksgiving, Father’s Day, Mother’s Day, birthdays, summer vacations, other statutory holidays and special family celebrations and events.
5. Should the child or the parents be required to engage in counselling?
6. How will third parties be engaged in the access exchanges which have proven problematic in the past?
7. Should a parenting coach be engaged?
8. Who will control the child’s passport and health card and on what terms?
9. What telephone or electronic communications are permissible between the child and the other parent who does not have the child in his or her care at any particular time?
10. Will the child’s name be changed formally or informally to allow for the addition of the mother’s surname?
11. What is the father’s income, historically and prospectively, for the purposes of the table amount of child support?
12. Will the residential schedule of the child after the trial necessitate a consideration of the shared parenting provisions in s. 9 of the Child Support Guidelines?
13. What are the child support responsibilities of the parents for extraordinary expenses under s. 7 of the Child Support Guidelines?
14. Does the father owe any amount for a retroactive or retrospective child support obligation?
15. Do the parents have any obligation to provide life insurance for the benefit of the child? In what amount?
16. Is the mother liable in damages for making “unfounded allegations” that the father sexually abused the child, with resulting harm to his personal reputation and to his business?
17. Should the mother be found in contempt for non-compliance with the prior access order, and if so with what consequence?

[7] Obviously these issues are not all equal in determining success and some may have been more important to one parent than the other. In assessing the relative importance of the issues, the key question is ultimately “why did this case go to trial?” In a case managed system, with rules designed to promote the resolution of disputes without the necessity of adjudication, why were these parents unable to come to an agreement without spending almost half a million dollars between them on costs?

[8] The pleadings and the offers to settle are the best clues, but in this case, I also have the benefit of having heard six days of evidence. Though I cannot say what the outcome would have been had the trial continued to the end, I do have some insight into why it went as far as it did.

[9] This case did not go to trial because of a disagreement over the child’s name, access to information about the child, possession of a passport or a health card, the amount of life insurance or whether the father’s two weeks in the summer should be consecutive or non-consecutive weeks. On these and other peripheral matters Mr. Deacon can claim some success because the end result reflects many of the things for which he was asking. However it is clear that on most of these Ms. Haggith was flexible. More importantly it is clear that she was substantially more successful on the more weighty issues.

[10] The final order grants her sole custody and with it the right to make all educational, medical and other decisions with respect to the child. The primary residence of the child remains with her notwithstanding the “week about” residential schedule recommended by the Office of the Children’s lawyer and resolutely pursued by the father at trial. In fact the residential schedule is not much different from the interim order of May 21, 2014. The mother is not required to personally attend for any psychological treatment or counselling either for educational or therapeutic purposes. Mr. Deacon’s claim for $250,000 in damages was abandoned. Mr. Deacon’s motion to find Ms. Haggith in contempt, a live issue at trial, was abandoned.

[11] I am unable to conclude that either party was more successful than the other on the child support issue. Ms. Haggith will receive an immediate increase in the table amount of child support to reflect her claim that Mr. Deacon’s Line 150 income only reflects part of his income. Instead of $89,774 per annum his income in the minutes of settlement is “deemed” to be $115,300. This adjustment to his income carries forward to the agreement to divide s. 7 expenses on a 70/30 ratio. On the other hand, there is to be no retroactive child support payable for the 5 years claimed by Ms. Haggith. The ongoing child support is frozen for the next 5 years whether Mr. Deacon’s income is higher or lower than $115,300. It is apparent that the resolution of the child support issue reflected a true compromise and a practical recognition that the costs of pursuing a “best case scenario” for either side would exceed the amount in issue.

[12] According to Mr. Deacon’s counsel the child support issue was almost insignificant in relation to the custody and access issues. Ms. Bennett estimates that only about 5 percent of her time was spent on the child support issue. A review of the docket entries by Ms. Haggith’s counsel suggest that the child support issue was more significant than that. Mr. Deacon’s business is his alter ego and both sides ended up retaining experts on the question of determining his income under s. 19 of the Child Support Guidelines. The amount of time spent by the lawyers on financial issues was not insignificant, but by far the main issues were custody and access arrangements.

[13] Mr. Deacon has maintained since 2014 or earlier that Ms. Haggith falsely accused him of sexually abusing his daughter and that she did so maliciously, to hurt his reputation and to interfere with his relationship with P.J. For him this trial was as much about the resurrection of his good reputation as anything else. The animosity he feels towards Ms. Haggith was palpable when he testified. However he failed utterly in proving malicious intent or parental alienation on the part of Ms. Haggith.

[14] It was evident from Mr. Deacon’s own testimony and the references to documents made exhibits that Ms. Haggith reported her reasonable suspicion that P.J. had been sexually abused, or at the least exposed to something inappropriate. Her reports were to the child’s physician and to a counsellor at the London Abused Women’s Centre (LAWC). Those individuals reported the matter to the Children’s Aid Society, as required by law, and in turn the police were involved. Mr. Deacon was interviewed as a consequence but never charged with any offence and the Children’s Aid Society did not intervene. Ms. Haggith only identified Mr. Deacon as one person who might be responsible. Given his own evidence (which includes an admission of watching “girl-on-girl” pornography, something he denied in his interview with the OCL reporter) Ms. Haggith’s inclusion of Mr. Deacon as a person possibly responsible was not unreasonable. She did not fabricate her concerns about her daughter’s inappropriate acts and words. Mr. Deacon’s own family made their own similar observations about P.J. Though there were many difficulties with P.J. resisting, even “refusing”, access visits with her father, Ms. Haggith always made the child available except when the child was ill. The allegations of parental alienation are inconsistent with numerous emails between the parents, particularly those sent by Ms. Haggith in which she took the initiative in promoting opportunities for co-operation. Mr. Deacon’s allegation of parental alienation ignores his own contribution to the intense pressure this child has been under because of her loyalty conflict. P.J. is well aware that her parents hate one another. Mr. Deacon and his family have made their animosity to Ms. Haggith plain.

[15] The parents separated when P.J. was about 2 months old. She is now 8. She has struggled all her life to cope with a situation where her parents have been more or less continuously fighting over her. Thankfully she is now getting professional help in addressing that issue. In every other respect she is thriving. Her school report card could hardly be any better, both as to academic achievement and in her attitude and social skills. It is also clear she enjoys her time with her father and his family once she is with them. She has not been alienated from him in the least. The only difficulty has been in transitioning from her mother to her father. By itself that does not constitute an “alienation”.

[16] Unfortunately the clinical report of the Office of the Children’s Lawyer under s. 112 of the Courts of Justice Act, released about two months before the trial, had the effect of closing the door on any out of court settlement by the parents. The recommendation of a week about residential schedule offered Mr. Deacon more time with his daughter than he had even been asking for and it gave him false hope that the recommendation might be accepted by the court. The author of that report accepted the veracity and reliability of the father’s theory and his version of events. She concluded Ms. Haggith was falsely accusing Mr. Deacon and was travelling down the road of parental alienation.

[17] Ms. Haggith has raised P.J. since birth and the child has thrived in her care. With one exception P.J. has never been away from her more than a week. It is ridiculous to think that Ms. Haggith would ever accept the “parallel parenting” regime recommended by the report of the Office of the Children’s Lawyer. At the same time it gave Mr. Deacon all the ammunition he needed to pursue his claims, not only for custody but for vindication and revenge. The author of the report testified at trial. It was abundantly obvious that her report rested on a fundamentally flawed factual foundation. The chances of the court adopting her recommendations were slim to none.

[18] Within hours of the completion of the OCL’s reporter’s trial evidence the case was settled.

[19] When a parent brings a case to trial proposing a disposition that is sincerely put forward as a good faith reflection of his or her child’s best interests there ought to be some flexibility when it comes to costs. This is particularly true when that parent is proposing an order recommended in a report under s. 112 of the Courts of Justice Act. It is hard to criticize that parent for taking the matter to trial even if the parent is ultimately unsuccessful. Moreover, in this case Mr. Deacon took the initiative in cutting the trial short rather than fighting to the end. His initiative in reopening the settlement discussions mid-trial saved the parties the cost of 5 or 10 additional days of trial and is litigation conduct that ought to be positively reflected in the quantification of the costs he is responsible to pay.

[20] On the other hand, before the OCL report this past summer, Mr. Deacon conducted himself in the litigation in a manner that reflected his antipathy to the mother fuelled by a need for vindication and revenge, not merely more time with his daughter. The trial was not just about P.J.’s best interests or his time with her. It was about Mr. Deacon’s reputation and about his need for retribution or revenge for “unfounded” allegations against him. The so-called “allegations” against Mr. Deacon were unproven but Ms. Haggith’s suspicions were not unfounded. Moreover, Ms. Haggith had to respond with a vigorous defence to his accusations against her. Mr. Deacon’s allegations of parent alienation and of contempt of court on the part of Ms. Haggith were not merely unproven, they were truly “unfounded”. For the time spent on the motion for contempt, effectively withdrawn by the minutes of settlement but pursued at trial, Ms. Haggith is entitled to pretrial and trial costs approaching a full indemnity scale.

[21] Taking into account the specific provisions of Family Law Rule 24 and the principles in Serra v. Serra, 2009 ONCA 395, Boucher v. Public Accountants Council (Ontario), 71 O.R. (3d) 291 (Ont. C.A.) and the other cases cited by counsel, Mr. Deacon is ordered to pay Ms. Haggith costs fixed at $50,000 inclusive of H.S.T. and disbursements.

[22] The minutes of settlement provide that Dr. Sass or any other therapist who sees the child is to receive a copy of the two reports from the Office of the Children’s Lawyer. It might be a good idea to provide Dr. Sass with a copy of these reasons as well.

“Justice D. R. Aston” Justice D. R. Aston Date: October 13, 2016