PP v. DD, 2016 ONSC 814

Citation: PP v. DD, 2016 ONSC 814

COURT FILE NO.: CV-15-532796

DATE: 2016-02-01

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

PP

Plaintiff

– and –

DD

Defendant

William A. Chalmers for the Plaintiff

Morris Cooper for the Defendant

HEARD: In writing

PERELL, J.

REASONS FOR DECISION – COSTS

What Shall We Do with the Child

(Holmes/Horsey, additional lyrics by Carly Simon)

I know I'm not what you wanted

Not what you had in mind

And I didn't come close

To the mark you'd set

For the girl you'd planned to find

Although we often laughed together

You've never seen me cry

We shared but idle words

And a casual goodbye

And what shall we do with the child

Who's got your eyes

My hair

And your smile

Reminding me that we fell in love

But just for a little while

You never asked about the girl you never knew

And while she was sleeping in my arms

She never asked about you

Without you seems the only way

But time has passed and now

She'll soon be asking questions

And she'll ask about you

And how

Shall I say to the child

Who's got your eyes, my hair, and your smile

Reminding me that we fell in love

But just for a little while

What shall we do with the child

Who's got your eyes, my hair, and your smile.

1In a Rule 21 motion reported as PP v. DD, 2016 ONSC 258, I granted DD’s motion. In the result, I struck out PP’s Statement of Claim without leave to amend, and I dismissed his action against DD. I concluded my Reasons for Decision by stating:

If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with DD’s submissions within 20 days of the release of these Reasons for Decision followed by PP’s submissions within a further 20 days. I advise that parties that my present view is that given the novelty of the matter and so as to not complicate the proceedings in the Family Court and to not make this sad story worse for the child whose birth has become a source of emotional grief, there should be no order as to costs.

2DD seeks partial indemnity costs of $6,507.08, all inclusive.

3As the successful party on the motion and the action, DD submits that there is no principled basis to deny her costs. She submits, further that it would be against public policy to refuse to order costs because it effectively punishes the child by depriving the mother of the funds to properly care for the child and forces her to use the child support payments, not for the child, but to pay her significant legal costs. She submits that to not award costs would be to condone PP’s efforts to engage a litigation battle on two fronts. She submits “there has never been a case in Canada where a successful primary parent, otherwise entitled is deprived of costs because of the potential impact upon the child.” She criticizes PP’s conduct of: initially seeking an order not to pay child support; serving a jury notice; objecting to the transfer of the action to the Family Law Division in Toronto; and serving an offer to settle as a means of possibly securing substantial indemnity costs.

4Largely for the reasons set out in PP’s costs submissions, with which I mostly agree, and for my own reasons, I see no merit in DD’s submissions.

5PP submits that this is an appropriate case for no order as to costs. The legal issues raised in PP’s action were novel and not the subject of any prior jurisprudence and were of the sort that would justify the court in ordering no costs against the unsuccessful party. See Frank v. Farlie Turner & Co. LLC, 2012 ONSC 6715 at para. 8.

6PP rejects the notion that it would be against public policy to deny a successful custodial parent costs because he or she would be forced to use support payments for legal fees. PP notes that if forced to pay costs then he is being deprived of funds that he could use to support the child that to date he has been denied access to. He disputes that it was he who contrived litigation on two fronts, noting that it was his civil action that was followed by DD’s action in the Family Law Division. He says that he did nothing wrong in exercising his legal rights: to commence an action asserting causes of action that but for their novelty about the nature of damages, were technically adequate; to serve a jury notice; and to deliver an offer to settle. He says that “if there is any conduct that is relevant to an award of costs in this proceeding, it is that DD, who, in an extraordinary move, has refused to even allow PP to see the child.”

7It is an inevitable incident of litigation between parents that money is being spent on lawyers that might be better spent on children, but that by itself is not a reason to make the unsuccessful party pay costs to the successful party. It may be the case that a successful custodial parent is rarely denied costs, but that is because a principled application of a judge’s discretion usually results in the successful party recovering partial indemnity costs.

8In my opinion, in the case at bar, there are principled reasons to order no costs because the issues were novel and important, it would require the making of new law to accept or to reject PP’s causes of action, and neither party was wrong in seeking access to justice.

9Moreover, awarding costs would likely increase the acrimony between the parties and thus complicate the proceedings in the Family Court and make this sad story worse for the child whose birth has become a source of emotional grief.

10This last comment brings me to a personal comment that explains how it is that the lyrics of a Carly Simon song appear at the outset of these Reasons for Decision. The lyrics, in a poignant, non-legal way, provide a justification for making both sides bear their own legal costs for this very sad state of affairs.

11In my Reasons for Decision for the Rule 21 motion, I mentioned Justice McLachlin’s observation at para. 26 of Norberg v. Wynrib, 1992 CanLII 65 (SCC), [1992] 2 S.C.R. 226 that: “Thus far in the history of civilization, these deceptions, however sad, have been left to the domain of song, verse and social censure.” A few weeks after the Decision was released, I was working on another judgment and listening to music streaming on Apple Music when I heard, for the first time, “What Shall We Do with the Child.”

12As is the case for the child in the song, someday the child that is at the centre of this case is going to ask about the circumstances of (his or her) coming into this world. It will not assist the parties in finding the answer to the child’s questions to rub the salt of costs into the wounds they have already inflicted on their relationship with that child by litigating about the circumstances of the child’s birth.

13Better, the parents should, whether apart or together, leave this all to the realm of song, preferably a lullaby.

14No order as to costs.

Perell, J.