NEWMARKET COURT FILE NO.: FC-13-043603-00
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Joanna Davids, Applicant
AND:
Samuel David, Respondent
BEFORE: THE HON. MADAM JUSTICE R.A. WILDMAN
COUNSEL: E. Moaveni, Counsel for the Applicant Samuel David, Self-Represented
HEARD: By written submissions of the Applicant
COSTS ENDORSEMENT
OVERVIEW
1This endorsement relates to the costs of a lengthy custody and mobility trial, which began on September 30, 2015. The trial originally ended January 15, 2016 but Mr. David was subsequently allowed to reopen his case to call evidence about further issues that came up after the trial was completed. The evidence for the second part of the trial was heard on November 14 and 15, 2016.
2I released my Reasons for Decision on March 29, 2017. I granted Ms. Davids sole custody of the four children;1 authority to move them to England, once certain conditions were met; retroactive and ongoing child support; a contribution towards section 7 expenses; arrears of $11,125 (to January 15, 2016); and a continued restraining order. I made an order that Mr. David’s access was to continue to be supervised until he met certain conditions, after which there was to be a graduated access schedule to progress towards unsupervised overnight access. I did not grant Ms. Davids’ requested order for retroactive spousal support.2
3Ms. Davids claims $276,850 in costs for the trial and midtrial motions. Mr. David has not filed any costs submissions.
Preliminary Issue – Should a decision be made about costs without submissions from Mr. David?
4Mr. David has now had four different lawyers in the last year. Each change of counsel has delayed the next step of the proceedings.
5Mr. David’s deadline for filing costs submissions has now been extended three times. The first was as a result of Ms. Moaveni being granted a three-week extension, as the original filing deadlines set by the court were not possible for the parties to meet. This meant Mr. David’s costs submissions deadline was changed from April 10 to May 24, 2017.
6On May 25, 2017, the day after Mr. David’s submissions were due, the court received an email from Ms. A. Dennis, advising that she had just been retained by Mr. David. She had contacted Ms. Moaveni, who had agreed to an extension to June 12, 2017 for Ms. Dennis to file Mr. David’s cost submissions. I approved the June 12 date but noted that the new deadline was peremptory on Mr. David.
7The next day, Ms. Dennis sent an email saying that she was no longer acting for Mr. David. Mr. David was advised that the June 12 date remained peremptory on him.
8On June 7, 2017, Mr. David wrote to my assistant and asked for “30-40 days at least” to retain a lawyer to complete his costs submissions. On Ms. Davids’ behalf, Ms. Moaveni objected, noting:
(Ms. Davids’) costs continue to increase as Mr. David shops around for counsel, whilst at the same time, he threatens motions against Mrs. Davids, etc.
We take the position that Mr. David has caused significant unnecessary delays in the hearing and finalization of this matter, and the matter should be closed as soon as possible.
9The court asked Mr. David how he could retain new counsel who would be able to get costs submissions completed in the requested timeframe. It was pointed out that his new counsel would know nothing about the trial, other than what was contained in the Reasons for Decision, and it seemed unrealistic to expect that Mr. David would be able to find counsel who could get submissions done in 30 to 40 days.
10In his response to the court, Mr. David did not address any issues relating to filing his costs submissions, focusing instead on various complaints about Ms. Davids and his plans to file an emergency motion for access.
11On June 16, 2017, I issued an endorsement extending the deadline for Mr. David to file his costs submissions to July 4, 2017. This date was peremptory, with or without counsel. Mr. David was advised that, having made the decisions he did about multiple changes of counsel, he was now a self-represented litigant and would have to complete his own costs submissions, if he was unable to find counsel. The court provided an outline of the general approach to be followed to respond to Ms. Davids’ submissions, as well as some resources to try to obtain assistance to have them reviewed by a lawyer on an “Unbundled Services” or “Limited Scope” retainer.
12Mr. David was told that, if he did not file submissions, the court would make a decision about costs based on Ms. Moaveni’s submissions, the Offers to Settle that she was to provide, and my own knowledge of what transpired during the trial.
13It has now been more than 40 days since Mr. David made his request for another extension. He has not filed any costs submissions, nor has the court heard further from him or anyone acting on his behalf.
14I agree with Ms. Moaveni. It is time to finalize this matter, which has now been before the courts for almost two years, since the trial first began in September 2015. Mr. David should not be permitted to continue to ignore scheduling deadlines, and unilaterally impose his own timetable and agenda on everyone else, as he did throughout this trial. Particularly given Mr. David’s threats of further litigation, it is appropriate to make a decision about costs of the trial now, despite the lack of submissions from Mr. David.
STEP ONE – Who was the successful party?
15A successful party is presumed entitled to costs.3
16There is no question that Ms. Davids was the more successful party. Most of the time spent on this trial related to the parenting issues and Ms. Davids’ mobility request. Not only was Ms. Davids successful in obtaining an order for sole custody for all four children, she was given authority to move them once three conditions were met.4 She received an order limiting Mr. David’s access to, and contact with, the children because of his problematic behaviour.
17Ms. Davids also received an order for retroactive and ongoing support, including substantial arrears. She received an order that Mr. David pay for one-half of the children’s private school costs until they move to England.
18Finally, she received a permanent restraining order to keep Mr. David from contacting her or the children, or attending at their home or school.
STEP TWO – Has there been divided success?
19If success is divided, the court may apportion costs as appropriate.5
20Ms. Davids was not completely successful. There were some conditions imposed that must be met before she can relocate with the children. She did not obtain her requested order regarding Mr. David’s access after the children move to England. She was not successful in obtaining an order that Mr. David have an income of $60,000 per year imputed to him for support purposes. She was not successful in obtaining retroactive spousal support.
21I will consider the divided success in deciding how much of Ms. Davids’ requested costs should be awarded to her. However, as her success overwhelmingly outweighed Mr. David’s, Ms. Davids is clearly the more successful party and is entitled to claim reimbursement for the majority of her costs.
STEP THREE – Were there any offers that impact costs?
22If a party does as well or better than an offer made at least seven days before a trial and one day before a motion, he or she is entitled to partial recovery costs up to the date the offer is served, and full recovery costs thereafter.6
23Ms. Davids made several offers that must be considered in determining costs. I have not been referred to any offers made by Mr. David at any point in this litigation.
Ms. Davids’ first offer – February 25, 2015
24On February 25, 2015, Ms. Davids made a Rule 18 offer to settle this matter.
25Ms. Davids’ February 25 offer provided:
(a) Ms. Davids would have custody and make all major decisions. She would keep Mr. David informed of major decisions and he could obtain information directly from service providers.
(b) Ms. Davids would be permitted to move to England with the three younger children. The oldest child, Jacob, would reside with Mr. David in Canada during the school year, and spend summers with his mother.
(c) The next eldest child, Laila, would spend the month of August each year with Mr. David in Canada.
(d) The younger two children would have access with their father in the summer, once they reached the age of six, at the discretion of Ms. Davids.
(e) Ms. Davids and Mr. David would share the travel costs for all children equally.
(f) Mr. David would ensure that the children attended camps during their summer holidays in Toronto, which would be paid for solely by Mr. David.
(g) Ms. Davids would bring the children to Toronto in even number years for Passover. Mr. David would be responsible for returning the children to England at the end of Passover.
(h) The children would have nightly video or telephone contact with their father, except on Fridays and Saturdays, due to Orthodox Jewish restrictions.
(i) There were other general clauses designed to encourage appropriate behaviour and communication.
(j) Mr. David would pay $1,168 per month in child support for three children on an imputed income of $60,000. There would be no retroactive child support.
26In the trial decision, Mr. David received an order for more access (after the children move to England) than had been offered. The trial order did not require him to enrol and pay for the children to attend summer camp during the time they were with him. He was not ordered to pay $1,168 per month in support.
27As the terms of this offer were not severable, Ms. Davids is not entitled to full recovery costs under Rule 18, as she did not do “as well or better” than the offer, in its entirety.
28However, this offer may be considered by the court in deciding how to exercise its discretion about the amount of costs to award to Ms. Davids.7 I am impressed that she tried to avoid this costly trial by making a proposal to Mr. David that Jacob, at least, would be able to stay in Canada. As the reasonableness of a party’s behaviour in the litigation is one of the important factors for the court to consider, the fact that Ms. Davids made an offer and Mr. David did not will be an important consideration in determining costs.
29Mr. David’s evidence at trial was that he walked out of the mediation session that Ms. Davids arranged with a Rabbi, in which Ms. Davids tried to talk to him about options regarding the children’s living arrangements. The fact that Mr. David refused to even discuss alternatives, or make any offers of his own, was not reasonable.
30As the trial began to lengthen well beyond the six-day estimate that had originally been scheduled by the parties, they were repeatedly cautioned about costs exposure for the increased trial time. However, the warnings appeared to have no effect, particularly on Mr. David. At one point, after four-and-a-half days of his evidence-in-chief (which his counsel had originally estimated would take a half-day), the court asked his counsel for an updated estimate of how much longer Mr. David’s examination would be. Mr. David responded from the witness box with an emotional outburst about “not getting a fair trial” because he was being hurried and given inadequate time to “tell his story”.
31Mr. David was represented by very capable counsel. Mr. David attended several court conferences to attempt to resolve this matter. He should have been well aware of his exposure to costs. By insisting on litigating all issues rather than attempt negotiation or make any proposals, Mr. David was running the risk that he might lose. Part of the consequence of losing is a requirement that some costs must be paid to the other side.
Ms. Davids’ second offer – November 18, 2015 – The first midtrial access motion
32During the course of the trial, Laila told the Office of the Children’s Lawyer (OCL) social worker that Mr. David had hit her. This was reported to the JFCS. Mr. David was terribly upset and denied that he had ever hit Laila, or any of the children, but he voluntarily suspended his access for one visit to allow the children to be interviewed. Laila did not confirm her statement about her father hitting her to the JFCS, so the “abuse” was not verified.
33At this point in the trial, Mr. David had been exercising the same access for about a year: each Wednesday from after school until 7 p.m. and each Sunday from 9 a.m. to 7 p.m. (the December 23, 2014 “McDermot J. order”). For a few months previous to the McDermot J order, the parties had agreed to overnight access: Mr. David was entitled to see the children each Wednesday from after school to 7 p.m. and every other weekend from Friday after school to Sunday at 6 p.m. (the September 12, 2014 “Ferguson J. order”). However, the overnight access that had been permitted between September and December was suspended in December 2014 by McDermot J., after an incident at the girls’ school.
34As Justice McDermot’s access order was suspended during the JFCS investigation, there was no longer an access order in place. When the JFCS did not confirm any protection concern relating to physical “abuse”, Mr. David refused to simply reinstate the visitation schedule that had been in place for almost a year under McDermot J’s order. Mr. David wanted to return to the overnight access to which he had previously been entitled under the Ferguson J. order. As the parties could not agree, his counsel advised that she had been instructed to bring a midtrial motion to reinstitute overnight access.
35While the court would not normally entertain such a motion during a trial, the parties were having another access issue, which had to be addressed immediately.
36Ms. Davids’ lease had expired in September, so she and the children had moved to a new residence during the break in the trial between October and November 2015. The existing access order had provided for access exchanges to take place in the lobby of her old residence, which was an apartment building. The order required Mr. David to stay near his car and Ms. Davids to come down to the lobby to receive the children.
37Once Ms. Davids moved, the parties could no longer use her former apartment building lobby for access exchanges, as they did not have access to the secure building. However, Mr. David refused to return the children anywhere else.
38All this happened during a break in the trial, between October 9 and November 16, leaving Ms. Davids in a difficult position. She did not want to refuse access, particularly during a trial. She could not continue the exchanges at her old building. Mr. David would not agree to any of her suggestions for neutral exchange locations. If access was going to continue until the trial resumed, Ms. Davids was left with no alternative other than to drive to Mr. David’s home to get the children at the end of each access visit. However, when Mr. David brought motion for overnight access, Ms. Davids’ lawyer responded with her own motion to ask the court to establish a new access exchange location.
39Ms. Davids made efforts to resolve these motions, so that trial time would not be consumed sorting out these issues. She served an offer the day before the motion. She offered to resume the Wednesday and Sunday access visits but change the return spot to one of three locations (Mr. David’s choice). She offered to extend the return time by one-half hour on Wednesdays and one hour on Sundays, to compensate Mr. David for any increased time he might spend transporting the children. However, Mr. David made no offers and insisted that the motions proceed.
40Ultimately, the motions settled during the course of testimony and argument. There was no increase in Mr. David’s access times. The Wednesday returns were at a location closer to his home (the Metro grocery store at Bathurst and Sheppard) and the Sunday returns were near Ms. Davids’ residence (the lobby of Baycrest Health Centre on Bathurst). Costs were reserved to the trial judge.
41Mr. David would have been better off taking the offer that Ms. Davids made to him. He would have received extra access time each week, which would more than make up for any additional driving time.
42Mr. David’s motion to resume overnight access should never have been brought and the issue of the exchange location should have been easily resolved between counsel. Mr. David’s behaviour did not help him, as it clearly demonstrated how impossible any joint custodial arrangement would be. Mr. David was completely unbending and unwilling to compromise about something as simple as an exchange location. His insistence on bringing a motion to increase his access to overnights, during the course of a trial that was already running far over the estimated time that had been provided by counsel, was inexcusable.
43As mentioned, Ms. Davids tried to offer proposals to resolve the matter. Mr. David did not.
44Mr. David’s behaviour was so unreasonable that it warrants a significant costs sanction. Ms. Davids did as well or better than her offer. The offer complies with the requirements of Rule 18. She is entitled to full recovery costs for that motion.
45Ms. Moaveni asks for costs of $3,000 plus HST, which I find is reasonable for preparation and argument of the motions. An order will issue that Mr. David is to pay Ms. Davids’ costs for the November 19, 2015 motion, fixed at $3,390 (including HST).
Ms. Davids’ third offer – August 26, 2016 – The motion to change the girls’ school
46The “first part” of the trial ended in January 2016, after 25 days of evidence and submissions. As the summer of 2016 approached, the court was getting ready to release its reasons and inquired of Ms. Moaveni about what was thought to be a “housekeeping matter”.
47Ms. Davids had not served Jacob’s biological father, Derek Pyne, with her custody and mobility application, as required by the Rule 7(4) of the Family Law Rules. At the end of the trial in January, Ms. Moaveni had undertaken to either find Mr. Pyne and serve him with the application or bring a motion to dispense with service.
48Ms. Davids had not heard from Mr. Pyne in years. She had started divorce proceedings against Mr. Pyne in September 2014, before she retained counsel. However, Ms. Davids did not serve Mr. Pyne with the divorce application because the search company she had retained to find him had been unsuccessful in locating him. When Ms. Davids and Mr. David finished their trial before me in January 2016, the expectation was that the “search” for Mr. Pyne would be updated and Ms. Moaveni would obtain an order dispensing with service on him, so that I could deal with Ms. Davids’ custody claim for Jacob.
49In June 2016, when Ms. Moaveni was contacted by the court to inquire about this “housekeeping” issue, she disclosed that Mr. Pyne had been located. He had been served with both the divorce and custody applications in May 2016. Although he had not filed any proper responding material, Mr. Pyne (or someone acting on his behalf) had sent back “paperwork” and a letter, which appeared to say that Mr. Pyne wanted to make a claim for custody of Jacob. The material suggested that Ms. Davids had “disappeared” with Jacob, leaving Mr. Pyne heartbroken and unable to find his son.
50At this point, there were several telephone case conferences between counsel and the court for procedural directions. Ultimately, Ms. Davids agreed to Mr. David reopening his case to call Mr. Pyne as a witness. Mr. David felt strongly that this was critical evidence that would undermine Ms. Davids’ credibility, and call into question her reassurance that she would foster a relationship between the children and Mr. David, if she moved them to England.
51The “reopened trial” was originally scheduled to be completed on September 14 and 15, 2016. However, after the agreement to reopen had been obtained, Mr. David’s counsel, Ms. Bhardwaj, startled everyone with the news that she was no longer retained by Mr. David. This delayed the completion of the trial until November.
52Due to these delays, Ms. Davids needed to move the girls to a school closer to her home. Mr. David was also breaching the order about return times for his access. It was also discovered that Mr. David had been circumventing my order curtailing his daily disruptive contact with the children, as he had bought Jacob and Laila iPads to communicate with him secretly.
53Ms. Davids had to bring a motion to sort out the children’s school registration because Mr. David would not agree to any change, unless he got approval to take the children on a vacation. Mr. David ignored my direction to try to sort this out through the Children’s Lawyer, as he refused to speak to Mr. Codas. The girls were out of school for a week, until I was able to attend in Newmarket on the previously booked September 14 date to hear the motion. I allowed Ms. Davids to move the girls to the new school.
54On August 26, 2016, Ms. Davids had served a Rule 18 offer to try to avoid the motion about the children’s school registration. The offer did not address the other issues that were argued in the motion, as Ms. Davids appeared prepared to put up with Mr. David’s “breaches”, rather than resuming further litigation to deal with them.
55Once again, Mr. David did not make any proposal or serve any offer.
56Ms. Davids succeeded in getting the order she had requested about the school registration. She also succeeded on all other requested orders. She was granted sole decision-making authority. Significantly, Mr. David’s access was reduced to five hours a week, to be exercised at a Supervised Access Centre or in the presence of a professional supervisor. Costs were reserved to me as part of the trial decision.
57Ms. Davids should receive full recovery costs for arguing the issue relating to the school registration, as she did as well or better than her Rule 18 offer. She was successful on the other issues and Mr. David was behaving unreasonably by breaching a court order. I find that his actions were so egregious that they need to be condemned in the strongest possible terms.
58Ms. Davids requests $3,500 plus HST for the September 14, 2016 motion. The costs are reasonable for a one-day motion. I am satisfied that the combination of Ms. Davids’ Rule 18 offer and Mr. David’s unreasonable behaviour relating to the issues that were argued, as well as his behaviour at that point, entitle Ms. Davids to full recovery of her costs of $3,955 for that day.
STEP FOUR – What would full recovery costs be for the trial?
59In order to determine the quantum of costs, it is helpful to first examine what a reasonable figure would be for full recovery costs, then adjust that figure to take into account the various factors sought out in the Family Law Rules.
60On behalf of Ms. Davids, Ms. Moaveni asks for $230,000 plus HST for “27 days and preparation for trial”, plus the costs of the two motions discussed above, plus $8,500 in disbursements.
61Unfortunately, there is no Bill of Costs provided, so it is difficult to understand how this figure was calculated.
62Ms. Moaveni is requesting an hourly rate of $350 per hour, which I find is reasonable for a lawyer who was called to the Bar in 2002.
63$230,000 divided by 27 days is $8,518.52 per day. $8,518 divided by $350 per hour is 24.34. This means that Ms. Moaveni is charging for 24 hours of time for each day of trial, which is not reasonable, particularly with no Bill of Costs or explanation.
64Counsel was at court on most trial days by approximately 9:30 a.m. and finished between 4:30 and 5 p.m. We recessed early on most Fridays due to the parties’ religious observances. To account for the breaks on Friday, I will consider an average trial day to be seven hours.
65Parking and travel time at 9:30 a.m. and 5 p.m. to and from Newmarket would add up to approximately two hours each day. I am also prepared to allow three hours of preparation per day of trial, including time spent before and during the trial. I note that Ms. Davids was not represented by counsel when this matter began, and there does not appear to be any request for costs for drafting pleadings or attendance at matters other than the trial.
66Bearing in mind that I am fixing costs, rather than assessing them, I am prepared to allow a total of 12 hours per day for attendance, preparation (both before and during the trial) and travel for this trial at $350 per hour.
67As the November 18, 2015 motion has already been accounted for, there are 26 remaining days of trial for which Ms. Davids may claim costs. Full recovery for 26 days, at 12 hours per day, at $350 per hour totals $109,200 plus HST. Adding an additional day for the costs submissions, brings the total to $113,400 plus HST. This would be the maximum costs award that Ms. Davids would be eligible to receive for the trial, exclusive of the motions that I have dealt with separately.
STEP FIVE – What portion of her costs should Ms. Davids receive?
68Modern costs rules are intended to foster three fundamental purposes:
(a) Indemnify successful litigants for the cost of litigation;
(b) Encourage settlements; and
(c) Discourage and sanction inappropriate behaviour by litigants.8
69Rule 24(11) sets out a number of factors to be considered in setting costs:
(a) The importance, complexity or difficulty of the issues;
(b) The reasonableness or unreasonableness of each party’s behaviour in the case;9
(c) The lawyer’s rates;
(d) The time properly spent on the case;
(e) Expenses properly paid or payable; and
(f) Any other relevant matter.
Rule 24(11)(a) - The importance, complexity or difficulty of the issues
70This case was very important to both parties. The stakes were high, as Ms. Davids wanted to move the children to England, which would radically affect their childhood and their relationship with their father. It was a difficult decision for this family, particularly given their high conflict dynamics, and it is understandable that they required a judicial determination about whether or not the move was in the best interests of the children.
The custody claims
71The custodial claim was not complex or difficult. Clearly, Ms. Davids was the primary caregiver for these children and had been the sole provider and consistent presence in their lives since separation. Mr. David had no hope of being successful in his custody claim, as he had little to offer the children, financially, materially or emotionally. He admitted that he had been depressed for most of the time since separation, to the point where he was unable to work or maintain his own residence. The issue of custody should never have been an issue for this trial, as it should have been obvious from the outset that Ms. Davids would be successful in this claim.
72Similarly, Mr. David should not have persisted with his joint custody claim. As already mentioned, his life since separation was chaotic and dysfunctional. He made a joint custodial arrangement impossible because of his abusive and threatening behaviour towards Ms. Davids. His emails and texts to her were appalling. Given Mr. David’s lack of evidence that he had any ability to co-parent or make reasonable decisions jointly with Ms. Davids, this issue should not have proceeded to trial.
The access claim
73The issue of Mr. David’s access was very important, complex and difficult. There is no doubt that he loves his children and they love him. The court heard a great deal of evidence to try to understand the dynamics of this family. This was critical to assessing how each party might be contributing to the high level of conflict, so that the court could try to minimize the damage to these children and craft the order that would most likely to be in their best interests.
The mobility claim
74This was the most challenging and time consuming aspect of this case. The complexity of the mobility claim arose, in part, because of the uncertainty of the plan for the children in England. Ms. Davids had recently married Rabbi Sack, whom the children had only been introduced to, briefly, once before. They had no idea that their mother was considering marrying him and they had no relationship with him.
75Understandably, the children’s relationship with Rabbi Sack was just developing and had hit some roadblocks. Many of the problems seemed to be related to Mr. David’s campaign to have JFCS and the children treat Rabbi Sack as a “child abuser”. However, Rabbi Sack did not help the matter much by failing to attend outings with Jacob that had been set up by the JFCS.
76The allegations of abuse (relating to both Mr. David and Rabbi Sack) needed to be investigated by the JFCS before the court could make an informed decision about the appropriate living arrangements for the children. Multiple interviews by Ms. Gardner, the social worker from the OCL, were necessary to present a full picture of these children’s lives to the court, particularly regarding their perspective about their relationships with Ms. Davids, Rabbi Sack and Mr. David.
The claim for a restraining order
77Ms. Davids’ claim for a continuation of the existing restraining order was intertwined with the time-consuming evidence about whether or not Mr. David had breached the existing restraining order by attending at Shira’s Kindergarten play. This took hours, if not days, to sort out and revealed evidence that was unfavourable to both parties. Ms. Davids had provided an incomplete order to the police, which resulted in Mr. David being arrested for breaching a restraining order. Mr. David attended at Shira’s school, despite not having provided the 48 hours’ notice required by the restraining order exception. Both parents allowed their power struggle to intrude into the girls’ school life, which was inexcusable.
78The impression I had was that there may have been a strategic element to the request for a continuing restraining order. Ms. Davids seemed more concerned with keeping Mr. David away from her, to avoid his unpleasantness and verbal abuse in front of the children, than she was with her physical safety. She had legitimate grounds for concern, as Mr. David treated her deplorably. However, there were probably solutions short of a restraining order that would have accomplished her goal and shortened the trial considerably.
The financial claims
79Ms. Davids needed some child support, so this was an important issue. Determining Mr. David’s income was impossible because of his evasive testimony, lack of disclosure, and his outright lies.
80I do not fault Ms. Davids for pursuing an order to impute an income of $60,000 per year to Mr. David, given the lifestyle that the family enjoyed prior to separation. She was understandably suspicious, given Mr. David’s secrecy about his finances and his failure to produce the financial information that was required by court order and the Family Law Rules. If Mr. David had been more forthright with disclosure about his finances and work situation, and made more of an effort to provide a reasonable level of support for his children, this issue could probably have been resolved relatively easily. His failure to do so was inexcusable and should attract significant costs consequences.
The length of the trial
81Given Mr. David’s high level of distress and emotion, it was understandable that the trial could not be completed in the six days originally estimated by counsel. I note that Ms. Davids completed her own case in less time than the 3.5 days she had estimated. On the other hand, Mr. David spent over 4.5 days on his evidence-in-chief alone, despite having scheduled only one-half day in the Trial Management Conference endorsement.
82We were also sidetracked by the midtrial issues of the JFCS investigations, Ms. Davids’ moves and access disputes. All of this added to the complexity of this case and the increased time. Each time the case needed to be adjourned to a future date, events intervened that the parties insisted the court needed to hear evidence about. The longer the case went on, the more complex it became.
83It would have been reasonable for this case to be scheduled for about double the estimated time, or 12 days. It was not reasonable for it to extend to 27 days.
84If I were deciding costs primarily with a view to this first factor under Rule 24(11), a reasonable result would be for Ms. Davids to be reimbursed for approximately one-half of her costs for 12 days of trial, as that would have been a reasonable length, given the complexity and importance of the mobility and access issues. Ms. Davids’ decision to marry a man from another country, who was a stranger to her children, contributed to the need for so much trial time, so she should not receive full recovery costs for the first 12 days of trial. There was also some success on Mr. David’s part, as he received more access than had been offered (after the move to England) and Ms. Davids did not have $60,000 of income imputed to him.
85Using this approach, Ms. Davids would be entitled to 12 days x 12 hours per day x $350 per hour divided by 2 = $25,200 for the first 12 days of trial.
86As will be discussed below, Ms. Davids should pay Mr. David some costs for the last two days of trial, as that evidence resulted from complications arising from her failure to serve Jacob’s father with her custody claim, as required by the Family Law Rules.
87Deducting the first 12 days of trial, the November 19, 2015 motion (which has already been dealt with separately) and the last two days of trial, there are 12 days of trial remaining. This excess time was almost entirely due to Mr. David’s unproductive approach to this litigation and his cavalier attitude towards the time limits to which he had committed. Ms. Davids should receive full recovery costs, or close to it, for these 12 days of trial. That would amount to an additional $50,400.
88Adding $4,200 for 12 hours for costs submissions, the total is $79,800 plus HST (minus Ms. Davids’ contribution to Mr. David’s costs for the last two days, as will be dealt with below). This seems to be a good ‘ballpark’ figure to consider as I turn to a more detailed analysis of the behaviour of the parties in the next section, and the bearing it will have on Ms. Davids’ costs.
89I now turn to the other factors in Rule 24(11), which will have a bearing on the final figure I fix for costs.
Rule 24(11)(b) - The reasonableness or unreasonableness of each party’s behaviour in the case
90Reasonableness looms large in the costs approach mandated by the Family Law Rules. It is mentioned in Rules 24 (4), (5) and (11).
91Despite their differences, people are expected to behave reasonably towards each other in trying to resolve their issues. They are expected to try to exchange proposals, to identify areas of agreement and disagreement, and to focus the issues for which they require judicial input or decision. They are also expected to adopt a reasonable approach to their litigation and use their, and the court’s resources, reasonably. Counsel and the parties should structure their trials proportionately to the parties’ resources and the issues to be decided. Should they fail to do so, they will risk costs consequences.
92It was reasonable for Ms. Davids to proceed to trial on both the custody and mobility claims, given the unwillingness of Mr. David to compromise or negotiate with her. Although I have commented above about the unreasonableness of her marrying someone who lived in another country, without a clearly thought out plan, I also understand her reasons for doing so. Mr. David was giving her little or no money for the children, and she was trying to support them on her own minimal earnings and charity from the Jewish community. Mr. David was behaving abusively towards her and making both her and the children’s lives extremely stressful. She met Rabbi Sack, her “perfect match”, through a Jewish matchmaking service, and he promised to look after her and the children, financially and emotionally. After the chaos of dealing with Mr. David, it is understandable how she would pursue an order for the children to move to another country to enjoy some peace and stability.
93I do not fault either party for their decision to proceed to trial. The mobility issues, in particular, were complex and difficult. It is understandable that they required a judicial decision.
94I have previously commented in paragraphs 28 to 31 about Ms. Davids’ reasonableness in serving an offer to settle and attempting to explore alternatives with Mr. David in mediation with their Rabbi. I have also commented that it was not reasonable for Mr. David to fail to serve any offers to settle and insist on litigating all issues, at great length, without making any proposals to Ms. Davids to try to find a solution. In the final result, he would have been better off to accept Ms. Davids’ offer rather than proceed to trial, as her offer contained a proposal to have Jacob live with him during the school year. This would have allowed him to become the primary parent to Jacob, with whom he is particularly close. It would also have saved thousands of dollars in legal fees, which could have been better directed towards funding access visits for the other children.
95However, Mr. David’s unreasonable approach to both Ms. Davids and this litigation is the primary reason that so much was expended in legal fees on both sides. His “scorched earth” litigation tactics turned this trial into an unnecessary costly, prolonged battle. Having been unsuccessful, he is the party who has to be responsible for the majority of the costs.
96It was reasonable for Mr. David to resist Ms. Davids’ attempt to move, although it was not reasonable for him to oppose her custody claim. It was reasonable for him to persist with his access claim, although he would have been much more successful if he had focused his efforts on controlling his behaviour, rather than fighting with Ms. Davids and trying to cause trouble for her husband. It was also reasonable for him to oppose the order that Ms. Davids requested for child and spousal support, as he was not making $60,000 per year, but it was not reasonable for him to make no effort to pay a reasonable amount of support for his four children. It was also extremely unreasonable for him to fail to produce court-ordered disclosure, as this made it impossible for Ms. Davids to consider a reasonable settlement on the financial issues.
97Mr. David was unbending and inconsistent regarding access after separation. He persisted in an ill-founded claim for custody or joint custody, despite providing no support for the children following separation, having no job or housing available, and asserting that he would not even be feeding the children during their time with him (despite a court order requiring him to do so).
98Mr. David failed to demonstrate even a minimal ability to co-parent, barraging Ms. Davids with abusive, unrelenting and threatening emails and texts. He ignored court orders about access times and refused to compromise on such simple issues as the location for access exchanges.
99I have previously commented on Mr. David’s unproductive use of trial time, which was consumed with his long and rambling attacks on Ms. Davids, her husband or her friends. He refused to listen to any recommendations of the OCL, twice accusing Mr. Codas in open court of being paid by Ms. Davids.
100I am sympathetic to Mr. David’s limited financial circumstances and am reluctant to impose a costs award that will adversely affect the children by compromising Mr. David’s ability to pay for the children’s transportation from England for access. However, I agree with Mr. Codas that Mr. David cannot use the children’s affection for him as a shield against any consequences for unreasonable behaviour. Particularly given Mr. David’s current threats to cause Ms. Davids to incur more legal expenses by bringing further motions against her, I am satisfied that Mr. David’s behaviour is so extreme and inexcusable that the court must impose a significant costs sanction against him, even if that affects his ability to exercise access to his children.
101Mr. David’s unreasonable behaviour pushes the level of costs towards the higher end of the range.
102However, Ms. Davids also exhibited some unreasonable behaviour that has an impact on costs.
103Rule 24(4) provides that a successful party who has behaved unreasonably may be deprived of all or part of their costs, or ordered to pay some costs to the other side. I find that Ms. Davids generally behaved reasonably throughout this litigation with a few notable exceptions.
104First, although perhaps understandable, it was not reasonable for Ms. Davids to “marry” someone who lived in England, without having thought out the effect that this would have on her children. She should have anticipated that this would be likely to lead to a bitter and expensive court battle with Mr. David.
105I have already commented on why Ms. Davids should have to bear some of her own litigation costs in paragraph 84. She and Rabbi Sack did not seem to have a well thought out plan for how the children’s physical and psychological needs would be addressed after Rabbi Sack was introduced into their family. She did not prepare the children at all for her marriage; she arrived home and announced to them, after the fact, that the man they had met briefly in the park was now their stepfather.
106She and Rabbi Sack did not even seem to have agreed what would happen if the court did not allow the children to move to England. Rabbi Sack seemed to be under the impression that Ms. Davids would move to England to live with him, whether the children could come or not. Ms. Davids vaguely suggested that they would “figure it out”, which showed an appalling lack of planning. Perhaps most concerning was her dismissive attitude towards the effect on the children of being separated from Mr. David, as she said something to the effect of “Children move all the time, they will adjust?”
107It was also concerning that Rabbi Sack refused to disclose any details of his financial situation. Although he assured the court that he was well able to provide for the children, if they moved to England, he was not prepared to disclose the particulars of his bank accounts, remuneration or any other financial resources, unless he could provide the information to the court and OCL privately. While his concerns about what Mr. David might do to disrupt his business were understandable, his insistence that the court accept his financial stability without proof was concerning.
108Secondly, Ms. Davids displayed a similarly cavalier attitude to the rights of Jacob’s biological father, Mr. Pyne. She, or her counsel, should have exercised more diligence in trying to serve him with this custody application in the first place. Her failure to do so impeded the court’s ability to release its decision in June 2016 and caused the need to reopen the trial to hear two more days of evidence in November 2016.
109Ms. Davids should not receive her costs for those two days, which were only necessary because of her failure to make better efforts to serve Mr. Pyne earlier. I am going to deduct two days of costs, amounting to $8,400, from the total in paragraph 67, which reduces the maximum that Ms. Davids would receive for full recovery costs to $105,000 plus HST.
110Ms. Davids should also contribute towards Mr. David’s costs for those two days. Given the lack of evidence about what Mr. David’s costs might be, I am prepared to fix them at the same rate as has been granted for Ms. Moaveni: 12 hours per day, for two days, at $350 per hour. This equates to $8,400 plus HST.
111However, Mr. David is not entitled to full recovery costs for those two days. His surprise change of counsel, first from Ms. Bhardwaj to Mr. MacLennan, and then to Mr. Caspersz and Mr. Smith, caused a further delay in having this matter completed. Mr. David was not successful in establishing that Mr. Pyne’s evidence was critical to my decision. As I mentioned in my trial decision, the additional two days of evidence did little to assist Mr. David. It reinforced that he had made no progress in addressing his reprehensible behaviour towards Ms. Davids or gaining insight into his responsibility for the need to have his contact with his children supervised.
112I am prepared to compensate Mr. David for those two days of trial by requiring Ms. Davids to reimburse him for 50% of his presumed costs of $8,400. This means $4,200 plus HST will be deducted from Ms. Davids’ total costs for her contribution to Mr. David’s costs for the two days of trial in November 2016. If this were offset against the $105,000 total in paragraph 109, the maximum amount for full recovery costs for the balance of the trial would be $100,800 plus HST.
113Finally, I am satisfied that Ms. Davids should receive a costs sanction for her conduct relating to the “breach” of the restraining order at Shira’s school play. Mr. David should not have been at the school, as he did not provide the required 48 hours’ notice. However, Ms. Davids should never have provided the school and/or the police with an incomplete restraining order, which was the genesis of Mr. David being arrested. She should also not have brought an urgent without notice motion the next day, supported by misleading and dramatic material that attempted to exaggerate the level of risk she was experiencing.
114As the events relating to the school play and urgent motion were rehashed in great detail during the trial, Ms. Davids should bear some responsibility for this. I estimate that, between the parties and the school principal, we spent at least two days on this issue. Ms. Davids should bear her own costs for at least one of these days, which would reduce the amount of full recovery costs to which she would be entitled by another $4,200. The remaining balance would be $96,600 plus HST.
Rule 24(11)(c) and (d) - The lawyer’s rates and the time properly spent on the case
115I have already dealt with this in paragraphs 62 and 63. Ms. Moaveni’s hourly rate of $350 per hour is reasonable but the number of hours for which she was charging was not, particularly absent an itemized Bill of Costs for the court to examine the breakdown. I am prepared to allow 12 hours for each day of trial, including preparation and travel, as well as an additional 12 hours for costs submissions.
Rule 24(11)(e) - Expenses
116Ms. Davids has requested disbursements of $8,500. However, there is no explanation of what this figure represents.
117This leaves the court in a difficult position. I cannot “rubberstamp” $8,500 in disbursements without any evidence to satisfy me that this figure is appropriate. However, I also recognize that there would be many legitimate disbursements for such a lengthy trial, such as mileage, service fees, witness fees and photocopies.
118In the circumstances, I am prepared to fix appropriate disbursements at $5,000 plus HST.
DECISION
119Taking all of the above into account, I am satisfied that Ms. Davids should receive costs at the mid to high end of partial recovery. She did not “beat” a Rule 18 offer or establish that Mr. David acted in bad faith under Rule 24(8), either of which would have entitled her to full recovery costs. She has been successful on the primary issues of custody and mobility, which occupied most of the trial, but she was not successful in having $60,000 per year of income imputed to Mr. David for support purposes. Ms. Davids behaved far more reasonably than Mr. David, both prior to and during the trial.
120Using the approach in paragraph 88, Ms. Davids would be entitled to $79,800 plus disbursements and HST minus $4,200 for her contribution to Mr. David’s costs of the last two days, as set out in paragraph 112. The balance would be $75,600 plus HST and disbursements. This would have her receive 50% of her costs for the first 12 days of trial; she would pay Mr. David 50% of his costs for the last two days of trial; and Mr. David would be responsible for the all of Ms. Davids’ costs for the remaining 12 days of trial and her costs submissions.
121The more detailed analysis ending at paragraph 114, adjusts full recovery costs to $96,600 plus HST. As Ms. Davids was the successful party on the primary issues, served an offer to settle, and approached the litigation and issues far more reasonably than did Mr. David, she should be entitled to recover her costs at the mid to high range of partial recovery. Recovery of 75% of her costs would result in an award of $72,450 plus HST and disbursements.
122Having considered all the relevant factors and recognizing that I am fixing costs, rather than assessing them, I am satisfied that Ms. Davids should receive $75,000 in costs for this trial.
123I am prepared to fix costs payable to Ms. Davids as follows:
(a) $75,000 plus HST = $84,750;
(b) Costs of the November 19, 2015 motion as set out in paragraph 45 = $3,390;
(c) Costs of the September 14, 2016 motion as set out in paragraph 58 = $3,955; and
(d) Disbursements of $5,000 plus HST as set out in paragraph 118 = $5,650.
124This results in a final amount owing to Ms. Davids for costs, inclusive of disbursements and HST, of $97,745.
No more motions without leave
125In paragraph 26 of my June 16, 2017 endorsement dealing with Mr. David’s request for a further extension to prepare his cost submissions, I indicated that Mr. David was not to bring any further motions until his costs submissions had been filed and, thereafter, he would require leave of the court for any motions he wished to bring.
126As Mr. David did not file cost submissions, that paragraph needs to be clarified. I remain concerned that he will continue to drive up Ms. Davids’ legal costs without attempting to deal with the outstanding costs that he owes. While Mr. David probably should not be denied access to the court to deal with, or respond to, legitimate access issues, he should also not be able to continue to bring baseless claims without attending to the outstanding costs owed.
127I recognize that Mr. David has financial constraints that will make it difficult for him to pay the full amount of the costs award at any time soon, if at all. However, Ms. Davids also has financial concerns, as she is trying to support four children with nominal income and minimal child support. Although Rabbi Sack is prepared to assist with living expenses, he admits that he is not a wealthy man. He should not be expected to fund any of this litigation.
128I am, therefore, ordering that Mr. David may not bring any motions without leave of the court. Should Mr. David wish to seek leave for further litigation, he should bring a 14B motion, addressed to any judge in Newmarket, on at least 10 business days’ notice to Ms. Davids. In his motion for leave, Mr. David should include the evidence I referred to in my trial decision, relating to his progress in therapy and his behaviour when he is with the children. If the motion relates to access, he should include a proposal regarding the requested access and indicate what payments he has made towards his outstanding costs order. If the costs order has not been paid, he should address whether he should provide security for costs before the motion is allowed to proceed.
ORDER
129Order to go as follows:
(1) Mr. David is to pay Ms. Davids her costs for this trial and all related motions, fixed at $97,745, inclusive of HST and disbursements.
(2) As the issues in the trial were inextricably bound with the child support issues, the costs are to be enforceable by the Family Responsibility Office through a Support Deduction Order.
(3) Mr. David is not to bring any further motions without leave of the court, to be obtained by 14B motion on at least 10 business days’ notice to Ms. Davids. The motion should include the evidence required by paragraph 11 of my trial order, as well as a proposal for access. He should also indicate what payments he has made towards the outstanding costs and, if it has not been paid in full, address whether he should be required to provide security for costs before proceeding with his motion.
WILDMAN J.
Date: August 2, 2017
(a) The party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
(b) The reasonableness of any offer the party made; and
(c) Any offer the party withdrew or failed to accept.
Footnotes
- Jacob Aaron Pyne, born August 4, 2005; Laila Atara David, born October 16, 2008; Shira Bracha David, born March 18, 2010; Hadassah Atara David, born March 22, 2011. Ms. Davids is the mother of all four children. Mr. David is the biological father of the three girls and the stepfather of Jacob.
- As Ms. Davids has a new partner, she did not wish to claim ongoing spousal support from Mr. David.
- Family Law Rules, O. Reg. 114/99, r. 24.
- The three conditions were: (i) obtain a custody order in another ongoing file (between her and the biological father of the eldest child, Jacob) permitting her to move; (ii) obtain proof that she and the four children are approved by immigration officials to move permanently to England; and (iii) obtain confirmation from Jewish Family and Children’s Services (JFCS) that there was no longer any protection concern relating to the relationship between her new husband, Rabbi Sack, and the four children.
- Rule 24(6).
- Rule 18 also includes some formal requirements about signing, irrevocability and timing of the offer.
- Rules 18(16) and 24(5).
- Fong v. Chan (1999), 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330 (C.A.).
- Rule 24(5) sets out factors to be examined in deciding whether a party behaved reasonably or unreasonably: