J.M.G. v. L.D.G., 2016 ONSC 7990

CITATION: J.M.G. v. L.D.G., 2016 ONSC 7990

OSHAWA COURT FILE NO.: 11-38759-00

DATE: 2016-12-19

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

J.M.G.

Applicant

– and –

L.D.G.

Respondent

COUNSEL:

Heather Hansen & Shannon Beddoe, for the Applicant

Jeffrey Wilson & Sandra Meyrick, for the Respondent

Written Submissions Received: May 27, June 17, June 22, 2016

DECISION

FRYER, J.

1. Introduction

[1] I heard a trial of this matter over 12 days between November 16, 2015 and December 1, 2015. Following written submissions, my decision was released on May 6, 2016.

[2] The majority of the trial – at least 11 out of the 12 days if not more - was devoted to the parenting issues being the children’s estrangement from the Applicant (Father), the remedy for the estrangement and the Respondent (Mother)’s mobility claim.

[3] At the time of the trial the Applicant (Father)’s relationship with the two children was almost non-existent despite a number of therapeutic interventions.

[4] Both parties made significant changes to their positions on the issue of parenting as the trial approached: in the case of the Father roughly two months prior to the trial and in the case of the Mother on the second day of the trial.

[5] As noted in my decision at paragraph 78, for much of the five years of litigation the Father had been content that the children reside primarily with the Mother; he simply sought regular parenting time. However the Father’s relationship with the children had deteriorated so badly that by September 2015 he decided to seek a custody reversal to allow him and the children to participate in the Family Bridges Program. The Father did not amend his pleadings but transmitted his intention to seek this relief around the time of the Trial Management Conference.

[6] Leading into the trial, the Mother sought to move to Mesa, Arizona with the children so that they could commence school there in January 2016. She proposed that the children spend blocks of time with the Father in Ontario each month including extended holiday time.

[7] On the second day of trial, the Mother submitted a draft order that changed key aspects of her position regarding parenting. She proposed that the decision regarding her move to Arizona be adjourned to the trial sittings scheduled for May 2016 and in the meantime that the parties engage various therapeutic supports to assist with the repair of the Father’s relationship with the children.

[8] The parties resolved many of the financial issues on their own. The issues that were dealt with during the trial included the value of the Father’s professional building, retroactive support and prospective spousal support.

[9] The Father submits that he had success on the main, parenting issues. His position is that the Mother took an unreasonable position throughout the preceding five years of litigation and her actions amounted to bad faith. Although he concedes that the final order reflects aspects of her proposed parenting plan, her conduct leading up to the trial and during the trial should outweigh this last minute change of heart. The Father acknowledges that he did not have relative success with respect to the financial issues but states that those were of a much more minor nature and are reflected in the reduced amount of costs sought by him.

[10] The Father seeks partial recovery costs of $237,926.

[11] The Mother submits that she enjoyed almost complete success on the parenting issues. She asks the court not to consider the positions leading up to the trial but rather the position taken at trial and in this case the relief granted, she states, is very close to the draft parenting plan that she submitted.

[12] The Mother denies that she acted in bad faith; her position regarding the Father’s relationship with the children and her litigation behaviour were both reasonable in light of the domestic violence that occurred during the marriage. Her behaviour in no way mirrors the conscious wrong doing that is required for a finding of bad faith.

[13] The Mother states that she enjoyed complete success on all of the financial issues.

[14] The Mother seeks costs on a full recovery basis in the amount of $530,770.59.

[15] Not surprisingly both parties emphasize that the lengthy litigation has left them in a seriously compromised financial position and ask the court to consider this when determining costs.

2. General Principles re Costs

[16] In Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, the Court of Appeal confirmed that modern costs rules are designed to foster three fundamental purposes: (i) partial indemnification of the cost of litigation for successful litigants, (ii) encouragement of settlement between parties, and (iii) deterrence and sanctioning of inappropriate behaviour by litigants. Ultimately, costs should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful party.

[17] The “preferable approach in family law cases is to have costs recovery generally approach full recovery, so long as the successful party has behaved reasonably and the costs claimed are proportional to the issues and the result”: Forrester v. Dennis, 2016 ONCA 214, 78 R.F.L. (7th) 114 at para. 22 citing Berta v. Berta, 2015 ONCA 918, 128 O.R. (3d) 730 at paras. 92-93 in turn citing Biant v. Sagoo, 2001, 28137 (ON SC) at para 20.

[18] The assessment of costs is not just a mechanical exercise. Costs must be proportional to the amount in issue and the outcome. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case rather than an amount fixed by the actual costs incurred by the successful litigant: Boucher et al. v. Public Accountants Council for the Province of Ontario, 2004 14579 (ONCA); Selznick v. Selznick, 2013 ONCA 35, [2013] W.D.F.L. 1013; Murray v. Murray, 2005 46626 (ON CA); and Delellis v. Delellis and Delellis, 2005 36447 (ON SC).

3. Determination of Success

[19] These general principles with respect to costs hinge on an assessment of relative success and reasonable behaviour.

[20] The starting point in any costs analysis is the presumption that a successful party is entitled to costs: Rule 24(1) of the Family Law Rules: O. Reg. 114/99; Sims-Howarth v. Bilcliffe, 2000 22584 (ON SC).

(a) Relief Sought versus the Order Made

(i) Parenting

[21] In his Application, the Father sought to have an equal shared parenting regime or in the alternative an order for joint custody with the children residing primarily with the Mother. Throughout most of the litigation he pursued the latter claim. It was only when the last therapeutic intervention with Dr. Barbara Fidler failed to repair his relationship with the children that the Father opted to pursue custody reversal and the Family Bridges Program.

[22] In her Answer & Claim dated September 15, 2011, the Mother sought sole custody of the children with access to be determined by agreement or by the court “in the children’s best interests”. She did not specify what form of access she thought was appropriate. She also sought an order permitting her to move to Arizona with the children.

[23] In her Answer, the Mother made the following allegations:

• The Applicant is a volatile and abusive individual with a history of emotional instability and mental health issues which he has yet to satisfactorily address.
• The parties’ relationship was characterized by abusive conduct by the Applicant toward the Respondent, often witnessed by the children, as well as abusive treatment of the children by the Applicant.
• The Applicant’s conduct has resulted in the children being afraid of their Father, a fear that is real and rational having regard to the Applicant’s conduct towards them and the abuse that they saw their Mother endure at his hands.

The Mother amended her Answer the week before trial but the only change was to include further details of the children’s visits to Arizona and the quality of schools in Arizona. The Mother sought to prove these allegations throughout the litigation including the trial.

[24] The Mother retained trial counsel, Jeffrey Wilson. It was only after her motion to adjourn the trial was dismissed and the trial commenced, that she delivered a draft order proposing that her request for the move to Arizona instead be reserved to the May 2016 trial sittings. She put forward a detailed plan for the intervening period that included therapeutic supports to assist the children in repairing their relationship with the Father. Her draft order also included a proposal for regular parenting time with the Father.

[25] The Mother submits that it is not the party’s position in the pleadings that is relevant but rather their position at the time of trial. She relies upon the decision of Wildman J. in Hamdy v. Hamdy, 2015 ONSC 5605, [2015] W.D.F.L. 5948, which in turn follows Imineo v. Price, 2012 ONCJ 55, 14 R.F.L. (7th) 235. In Imineo v. Price, the Applicant who was the successful party at trial had modified his position after receiving the recommendations of Dr. Morris. Although he had not amended his Application, the court ruled in his favour and found that he enjoyed success relative to his altered position. In Hamdy, the Father made a mid-trial offer to settle that was not accepted and this was a consideration with respect to costs in his favour. In many cases, the position of a party morphs and changes through the litigation and the pleadings may not accurately reflect the party’s position at trial. However, it cannot be said that the parties’ pre-trial positions are irrelevant, rather the court must look at how, when, and why a party’s position changed during the course of the litigation in order to assess relative success as well as the reasonableness of a party’s behaviour.

[26] On a review of the parties’ positions in the years of litigation leading up to the trial, my order is more closely aligned to what the Father sought in his original Application and the relief that he sought throughout much of the litigation up to September 2015: joint custody of the children, primary residence with the Mother and liberal parenting time with the Father. The Mother had sought as early as 2011 to move to Arizona with the children and despite the serious concerns about the children’s relationship with the Father she did not alter her position until after the commencement of the trial. Her draft order submitted on the second day of trial was the first time that the Mother formally put the issue of the repair of the Father’s relationship before a determination of her move.

[27] Upon examination of the parties’ positions between September 2015 and the commencement of the trial, success was mixed. The Father changed his position in September 2015 to seek a custody reversal which relief I did not grant. The Mother continued to seek to move to Arizona with the children by a fixed date which relief I did not grant. However, I permitted a review of both issues after October 2016.

[28] When comparing the parties’ most recent draft orders regarding parenting to the final decision, the Mother had somewhat greater success. In her draft order submitted on the second day of the trial, the Mother proposed that the mobility issue be reserved to May 2016 to allow for certain therapeutic supports to be implemented. My order adopted many of her proposed terms but, again, rather than reserving on the issue of mobility until the May sittings, I declined to order the move but permitted a review after October 2016. I also permitted the Father to raise the issue of the custody reversal if circumstances warranted.

(ii) Financial Issues

[29] The Mother was the more successful party with respect to the larger dollar value financial issues being prospective spousal support and the value of the Father’s professional building.

[30] The Mother sought ongoing spousal support in the amount of $9,000 per month. The Father, who had been paying spousal support pursuant to an interim without prejudice order, stated that there should be no further spousal support payable. I awarded the Mother $7,120 per month in spousal support and permitted a review of spousal support to take place when the issue of her move to Arizona is reviewed.

[31] The Mother sought retroactive spousal support in the amount of $100,169; it was unclear as to whether this was pre-tax or post-tax. The Father’s position was that there should be no retroactive spousal support. I ordered the Father to pay lump sum spousal support of $20,186.

[32] With respect to the Father’s professional building, the Father took the position that it should be valued at $440,000. The Mother’s position was that this property was valued at $600,000 on the date of separation. Both parties called appraisers to provide expert evidence on this issue. I found in favour of the Mother on this issue.

[33] The remaining disputed financial issues were relatively minor and do not impact the overall assessment of costs.

(b) Offers to Settle

[34] Relative success is also evaluated with regard to the offers to settle delivered by each party: J.S. v. M.M., 2016 ONSC 3072, 80 R.F.L. (7th) 399 at para. 12 and Sims-Howarth at para. 13.

(i) Offers re Parenting

[35] The Father served a number of offers to settle. The Father’s offer to settle dated October 22, 2015 proposed simply that the Mother would withdraw her claim for relocation. The Father served a second offer to settle with respect to parenting dated November 10, 2015. In this offer he proposed that the children would continue to reside in the Town of M., he would have sole decision-making authority, and the children would have limited contact with the Mother as part of the implementation of the Family Bridges Program.

[36] The Mother delivered a comprehensive and non-severable offer to settle dealing with the parenting issues dated October 31, 2015. In summary, the offer to settle provided:

(a) No reference to custody.

(b) She would be permitted to move with the children to Arizona after June 30, 2016.

(c) The Father would visit with the children in Arizona once per month at his own expense and the Mother would bring the children back for visits four times per year.

(d) In the intervening period (i) Each party shall engage a psychiatrist to ‘attend to their ongoing issues’; (ii) Irwin Butkowsky would be retained to act as Parenting Coordinator; (iii) The children shall continue to receive counselling with Diane Moody; and (iv) At all times the parties shall follow the recommendations of the associated professionals.

(e) The Father would pay child support up until the move after which time it would terminate. If the Father failed to exercise access, child support would reviewed.

(f) The Father would pay $9,000 in spousal support per month prior to the re-location after which time spousal support would cease forever.

(g) There would be no equalization payment owing.

[37] Rule 18(14) of the Family Law Rules does not apply to the costs analysis as neither party beat their offer to settle with respect to the parenting issues.

[38] I have considered the offers to settle in terms of relative success pursuant to rr. 18(16) and 24(5) of the Family Law Rules.

[39] In his offer to settle dated October 26, 2015, the Father offered to forgo costs if the Mother withdrew her mobility claim and accepted the offer prior to October 30, 2015. In this respect the relief sought is close to my order with respect to mobility wherein I declined to grant it but left it open for review. However, the primary focus in this litigation was the unjustified estrangement of the children from the Father, the reasons for it, and how to address it. The issue of the Mother’s request to move to Arizona was important but it did not occupy as much time.

[40] The Father did not beat his offer to settle the parenting issues dated November 10, 2015 as I did not order the ‘custody reversal’ although it was left open to be raised on a review.

[41] The underpinning of the Mother’s comprehensive offer was that she would be permitted to move after June 30, 2016. She was not successful in achieving that relief although it was left open for review. My order did include some of the Mother’s other proposed terms including the appointment of a parenting coordinator albeit one to be selected by the Father and therapy for the children but not with Diane Moody.

[42] The offers to settle the parenting issues do not tip the balance in terms of success in favour of either party having regard to the focus of the litigation leading up to the trial and the trial itself.

(ii) Offers re Financial Issues

[43] The Mother delivered an offer to settle the financial issues dated October 31, 2015. The Father delivered an offer to settle the financial issues dated October 26, 2015 and a separate offer to settle the issue of the value of his professional building dated November 10, 2015. I have not considered the financial issues set out in the Mother’s global offer to settle dated October 21, 2015 as the financial issues were inextricably linked to her being permitted to move to Arizona.

[44] The following is a brief summary of the relative success on the more significant financial issues:

(a) Retroactive Child Support: the Father offered $91,107. The Mother offered to accept $118,327. I ordered $129,525.

(b) Retroactive Spousal Support: the Father offered to pay $14,926. The Mother offered to accept $48,557 although she did not specify whether it was net of tax. I ordered lump sum support of $20,186 for the retroactive period. The Father acknowledges that the ultimate result is closer to the Mother’s position than his.

(c) Table Child Support: The Father offered $4,600 per month fixed and non-variable for four years and two months. The Mother offered $4,700 per month fixed and non-variable for four years and two months. I ordered $4,737 per month without any stipulation as to variability.

(d) Prospective Spousal Support: The Father offered $6,500 per month to be reviewed in the event of a material change, on or after January 1, 2020, upon the Mother residing with her husband among other events. The Mother offered $9,000 per month for four years and two months with support to be reviewed earlier than December 1, 2019 if she cohabits with her husband. I ordered that the Father pay spousal support of $7,120 per month without a fixed end date but with a review after October 1, 2016.

(e) Value of Professional Building: In their offers to settle, both parties incorporated the value of the building into the overall equalization payment. The Father’s position in both offers to settle was that the building was valued at $440,000 and the ultimate equalization payment due was roughly $6,000. The Mother had offered to settle for an equalization payment of $109,992.77. I found that the value of the professional building was $600,000 and when this was considered along with the other values for equalization already agreed upon by the parties, this produced an equalization payment owing to the Mother of $81,292.48.

[45] The Mother did not beat her offer to settle the financial issues in all respects but the overall result was closer to her offer than to the Father’s.

(c) Divided Success

[46] Rule 24(6) of the Family Law Rules requires the court to consider whether there was divided success.

[47] At paras. 66 and 67 of Jackson v. Mayerle, 2016 ONSC 1556, 130 O.R. (3d) 683, Pazaratz J. states that:

[66] “Divided success” does not necessarily mean “equal success”. And “some success” may not be enough to impact on costs.

a. Rule 24(6) requires a contextual analysis.

b. Most family court cases involve multiple issues.

c. Not all issues are equally important, equally time-consuming or equally expensive to determine.

d. Comparative success can be assessed in relation to specific issues: i. Did a mid-point number prevail on a financial issue? ii. Did a compromise result on a parenting issue?

e. Comparative success can also be assessed globally in relation to the whole of the case: i. How many issues were there? ii. How did the issues compare in terms of importance, complexity and time expended? iii. Was either party predominantly successful on more of the issues? iv. Was either party more responsible for unnecessary legal costs being incurred?

[67] Where success in a step in a case is divided, the court may exercise its discretion to apportion costs as appropriate (Rule 24(6)). The court may also in those circumstances award costs to the party who was more successful on an overall global basis. Boland v. Boland 2012 ONCJ 239, [2012] O.J. No. 1830 (OCJ).

[48] The most important issue in this trial was the children’s estrangement from the Father and how to remedy it. This issue was the most complex and time-consuming to determine and was inextricably tied to the Mother’s mobility claim. The Father paid experts’ fees in relation to this issue in the amount of $29,452.52. The Father failed to persuade the court with respect to his desired remedy but he was successful in that my decision prioritized the repair of his relationship with children over the consideration of the Mother’s move. Furthermore, many of my findings were more closely aligned to his submitted factual matrix than to the Mother’s.

[49] The Mother did not achieve her primary goal which, until the commencement of trial, was an order permitting her to move to Arizona with the children as early as January 2016 and, after the commencement of trial, that the move should be reserved to May 2016 trial sittings. However in my final order I adopted many aspects of her draft order.

[50] On balance, the success in the parenting issues was divided and this impacts the overall costs analysis.

4. Factors in Setting the Amount of Costs

[51] Rule 24(11) of the Family Law Rules sets out a number of factors to be considered in determining the quantum of costs.

(a) Importance and Complexity of Issues

(i) Parenting

[52] As stated above the parenting issues in this case were very important. At the time of trial the Father had little or no relationship with his children. Both parties acknowledged that the children were in crisis. The interrelated issue of the Mother’s move to Arizona was also important. The Mother married her husband in 2014 and she seeks to make a life with him in Arizona where he is currently living.

[53] The parenting issues in this case were also complex. There were four different experts called to give evidence with respect to the children’s issues and in particular the children’s estrangement from their Father. A voir dire was held with respect to Dr. Barbara Fidler’s expert qualifications in connection with the issues of unjustified estrangement as well as the proposed remedy of the Family Bridges Program. Although the Father failed to qualify Dr. Fidler as an expert with respect to the custody reversal remedy, she provided helpful expert evidence with respect to the issue of unjustified estrangement.

[54] The case with respect to parenting involved significant documentary evidence that was presented by both parties in an efficient and organized manner. Where there is an allegation of unjustified estrangement, it is difficult to truly understand the dynamic between each parent and the children without receiving a detailed chronological history and without reviewing evidence such as e-mails and text exchanges. This case required significant advance preparation of the evidence and required time to present during the trial.

(ii) Financial Issues

[55] The parties resolved many of the financial issues between them including the Father’s income from self-employment. The financial issues that were live at trial were much less complex than the parenting issues and this is reflected in the amount of time devoted to them.

[56] The issue of the value of the Father’s professional building and its zoning status was somewhat complex and required an assessment of the evidence from the appraisers and real estate agent.

(b) Reasonableness or Unreasonableness of Each Party’s Behaviour

(i) Parenting

[57] Rule 24(5)(a) of the Family Law Rules requires the court to consider the reasonableness of a party's behaviour in relation to the issues from the time they arose.

[58] The Father’s position is that the Mother’s behaviour throughout this litigation and during the trial with respect to parenting was unreasonable and contributed to the overall expense. The Father specifically asks the court to consider r. 24(4) of the Family Law Rules in which a court can sanction unreasonable conduct through an award of costs.

[59] The Father points to a number of different factors in support of his position:

• The Mother deliberately contributed to the deterioration in his relationship with the children.
• The Mother rejected the advice of experts involved with the family whereas the Father was prepared to implement their recommendations.
• The Mother attempted to delay the resolution of this matter by changing counsel numerous times and seeking adjournments including an adjournment of the trial.
• The Mother wasted time challenging the credentials of the expert, Dr. Fidler.
• The Mother inflated her witness list in an attempt to intimidate the Father.
• The Mother undermined the trial process through flagrant violations of the rule in Browne v. Dunn.

[60] The Mother states that she was the more reasonable party for the following reasons:

• The final order was more closely aligned with her draft order presented at trial.
• Her approach to the children’s relationship with their Father was impacted by her experience of domestic violence during the relationship.
• The Father was responsible for delays in the early part of the litigation as he was not cooperative with financial disclosure. The other trial adjournments were made on consent in the hopes of reaching a settlement. There was no delay occasioned by her choice to retain trial counsel.
• Her objections to the evidence of Dr. Fidler with respect to the custody reversal were warranted given the ‘potentially catastrophic consequences to the children’s emotional wellbeing’ should that relief have been granted.
• The witnesses that were dropped were ‘minor’ witnesses.
• Despite the alleged contraventions of the rule in Browne v. Dunn the Father did not avail himself of the opportunity to provide additional evidence.

[61] As set out in my original decision, there is support for the Father’s assertion that the Mother contributed to the poor state of his relationship with the children leading into the trial.

[62] Dr. Morris, an experienced custody and access assessor, had recommended that the move to Arizona not take place until the Father’s relationship had improved. This view was expressed by Dr. Morris in his initial assessment and in a follow up assessment requested by the Mother. However, the Mother did not accept this recommendation until commencement of the trial.

[63] The parties engaged in a whole family intervention with Dr. Fidler in the summer prior to the trial. Despite her ostensible support for this process, the Mother failed to commit to the crucial ‘after-care’ component of the program such that at the time of the trial the Father had almost no relationship with the children. It was this sad status quo that led the Father to pursue the custody reversal in the months leading up to the trial.

[64] Prior to trial, the Mother was requesting an order that permitted her to move to Arizona by a fixed date. In her offer to settle dated October 31, 2015, she proposed to delay the move until June 30, 2016 but was still seeking an order that would permit the move regardless of the state of the Father’s relationship with the children. Under the circumstances, the Father and his counsel would have been required to put in significant trial preparation based on that position.

[65] The draft order submitted by the Mother at trial reflected a more reasonable and nuanced approach to the issues. However as I noted in my decision, the Mother conducted the trial as though she was seeking the original relief. She spent considerable time adducing detailed evidence in support of the same allegations raised in her pleadings and set out herein. Again, on whole my factual findings on the parenting issues were more aligned with the Father’s ‘theory of the case’.

[66] The Father suggested that the Mother’s conduct during the litigation approached bad faith pursuant to r. 24(8) of the Family Law Rules. For a finding of bad faith the:

[b]ehaviour must be shown to be carried out with intent to inflict financial or emotional harm on the other party or other persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court. A misguided but genuine intent to achieve the ostensible goal of the activity, without proof of intent to inflict harm…saves the activity from being found to be in bad faith. The requisite intent to harm, conceal or deceive does not have to be the person’s sole or primary intent, but rather only a significant part of the person’s intent: C.S. v. M.S., 2007 20279 (ON SC) at para. 17.

[67] For reasons detailed in my decision, the Mother’s behaviour in terms of failing to facilitate and support the children’s relationship with the Father and her associated litigation decisions were of concern. For example, the Mother disseminated the Father’s private therapeutic diary something that could be characterized as faith. However, her overall motivation, even though at times misguided, was to do what she believed was in the children’s best interests rather than deliberately inflict harm on the Father. The Mother’s behaviour does not meet the necessary threshold for a finding of bad faith.

[68] The Father’s position leading up to the trial management conference with respect to the parenting issues was on whole reasonable. He was prepared to abide by the recommendations of professionals such as Dr. Morris and Dr. Fidler. As noted in my decision, the Father’s request for a custody reversal and placement in the Family Bridges program was, in my view, a mark of desperation. Given his non-existent relationship with the children and the Mother’s apparent lack of commitment to repairing it, his modified position was not unreasonable. In addition, the Father presented his case in a way that was focussed on fixing his broken relationship with the children rather than vilifying the Mother.

[69] The Mother – to her credit – put forward a reasonable solution by way of her draft order but she did so very late in the day and without materially altering the conduct of her case. Throughout the litigation and leading into the trial, her position, with respect to the parenting issues and recommendations of the professionals engaged with her family, was less reasonable and this diminished the impact of her altered position.

(ii) Financial Issues

[70] The parties were able to resolve many of the financial issues themselves. Having regard to the offers to settle, I do not find that either party was markedly reasonable or unreasonable with respect to the financial issues with one exception.

[71] With respect to the value of the Father’s professional building, each party relied upon well-qualified experts who differed in their opinion as to the value of the building. The Father had valued his professional building at $700,000 in a Financial Statement sworn in 2011 and yet he took the position that in 2015 it was only worth $440,000. I found the Father’s position with respect to this issue less reasonable.

(c) Lawyers Rates

[72] The rates of the lawyers and clerks engaged by both parties are reasonable based on their years of experience and focus on the practice of family law.

(d) Time and Effort Expended

[73] Each party divided the Bill of Costs into three phases: (i) the pre-trial preparation phase from September 8, 2015 to the commencement of trial on November 15, 2015, (ii) the trial phase from November 15, 2015 to December 1, 2015, and (iii) the preparation of written submissions.

[74] According to his Bill of Costs, the Father expended $300,362.75 in fees broken down as follows:

Pre-Trial Phase: $158,897.58

Trial Phase: $112,825.12

Written Submissions: $28,639.85

The Father paid $37,343.32 in experts’ fees primarily related to the parenting issues.

[75] The Mother expended $488,784 in fees broken down as follows:

Pre-Trial Phase: $229,979.86

Trial Phase: $190,749.65

Written Submissions: $68,055.38

The Mother paid $30,737.38 in experts’ fees primarily related to the financial issues.

[76] I find the Father’s fees on whole reasonable and appropriate.

[77] I find the Mother’s fees somewhat on the high side. This is in part attributable to having two senior counsel involved in the preparation and conduct of the trial although Ms. Meyrick did not charge for her time during the second week. In addition, the amount of $68,055 expended for the preparation of written closing submissions is excessive.

(e) Parties’ Financial Positions

[78] Both parties raised the issue of their financial position as a factor for the court to consider with respect to costs. The means of these parties are such that the cost of this trial would be devastating for both of them. At the time of the trial, the Father was in a better financial position than the Mother however the Mother has the continuing financial support of her husband.

[79] Each party’s financial position and/or ability to pay is a neutral factor with respect to my overall assessment.

5. Summary and Conclusion

[80] The parenting issues were the primary focus of this litigation and occupied the majority of the time leading up to the trial and at trial.

[81] The success with respect to parenting was divided in that the Father did not achieve the custody reversal and the Mother did not obtain an order permitting her to move to Arizona with the children.

[82] While the Mother may have had more success relative to her draft order submitted at trial, this position was taken late in the day after much of the trial preparation had been completed. Furthermore, she conducted her case in support of her previous position and her altered position did not shorten or expedite the trial.

[83] The Father had success relative to his offer to settle on the discrete issue of mobility; however the emphasis in the evidence at trial was on the issue of the unjustified estrangement and the appropriate remedy. Neither party enjoyed success relative to their offers to settle on the remaining parenting issues.

[84] Overall success with respect to the issue of parenting was reasonably evenly divided.

[85] Similarly each party adopted different positions with respect to the parenting issues at different stages in the litigation and for this reason I cannot say that one party was more reasonable than the other with respect to the parenting issues.

[86] Having regard to the factors set out above, it would not be fair or reasonable to require either party to pay costs to the other with respect to the parenting issues.

[87] The Mother had more success with respect to the financial issues. She served a separate offer to settle with respect to the financial claims and the ultimate result was closer to her offer to settle. Her position on the financial issues particularly the value of the professional building was more reasonable.

[88] The Mother is entitled to costs with respect to the financial issues. The quantum of costs reflects the relatively small percentage of time associated with these financial issues as applied to the overall costs incurred.

[89] While, the Mother incurred disbursements for experts’ fees, the larger expert’s fee was paid to Alla Levitt to determine the Father’s income from self-employment and this issue was settled without calling evidence. The Mother’s disbursements for experts’ fees for the disputed issues were low being $2,450 plus HST for her appraiser.

[90] Have regard to the principles set out above the Father shall pay costs of $20,000 inclusive of disbursements and HST. Costs to paid within 60 days.

JUSTICE L.E. FRYER

Released: December 19, 2016