CITATION: Proulx v. Proulx, 2017 ONSC 5134

COURT FILE NO.: D-1990/13

DATE: 2017/09/06

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Raymond Daniel Proulx

Applicant

– and –

Larissa Karen Proulx

Respondent

Joel Kerr, for the Applicant

Patricia P. Novomestsky, for the Respondent

Robert Murdoch, for the children

HEARD: July 20, 2017

The Honourable Madam Justice D.L. Chappel

REASONS FOR JUDGMENT RESPECTING COSTS

PART I: INTRODUCTION AND POSITIONS OF THE PARTIES

[1] These are my Reasons for Judgment on the issue of costs of the application herein and the trial that I presided over from December 14, 2016 until April 21, 2017. The trial was 10 days in duration. The only issues that proceeded to trial were custody and time-sharing respecting the two children of the parties’ relationship, namely Ella May Proulx, born September 14, 2003 (“Ella”) and Carlin Kennedy Proulx, born May 27, 2008 (“Carlin”). Mr. Robert Murdoch represented the children at trial. He was appointed as counsel for the children through the Office of the Children’s Lawyer (the “OCL”) pursuant to an order of Pazaratz, J. dated February 18, 2014. An OCL Clinical Investigator, Ms. Michelle Hayes, was appointed to assist him in his role as counsel for the children.

[2] The course of this litigation was protracted and arduous, to put it mildly. The Applicant issued the application on December 10, 2013, and there were numerous motions from that time until the conclusion of the trial. Throughout the proceedings, the Applicant’s position respecting the children was that they should reside primarily with him. However, as I will discuss in further detail below, the Applicant altered his position on the eve of trial, following a third disclosure meeting with Mr. Murdoch and Ms. Hayes on November 23, 2016. During that meeting, Mr. Murdoch advised the parties that the OCL’s position at trial would be to support the Respondent having sole custody and primary residence of Ella and Carlin. At trial, the Applicant ultimately requested an order for joint custody and equal time-sharing respecting the children on a week-about basis.

[3] By contrast, throughout the protracted course of these proceedings, the Respondent consistently advanced a claim for joint custody and equal time-sharing respecting the children. Following the November 23, 2016 OCL disclosure meeting, she changed her position and requested an order for sole custody and primary residence of the children. Similarly, Mr. Murdoch’s position on behalf of the children until November 2016 was to support an order for joint custody and equal time-sharing. Mr. Murdoch advised in his Opening Submissions at trial that the change in the OCL’s position in November 2016 was based on serious concerns that the Applicant had engaged in conduct that had undermined the relationship between the children and their mother.

[4] After hearing several days of evidence at trial, I suggested that the parties participate in a mid-trial settlement conference with Pazaratz, J., who had case managed the file. They agreed to do so, and with the assistance of the court, they were able to resolve all of the outstanding custody and access issues. On April 21, 2017, I made a final order pursuant to Minutes of Settlement executed by the parties granting them joint custody and equal time-sharing of the children on a week-about schedule. The order also set out specified holiday time-sharing periods, and provided that the children and the Respondent would engage in family counselling with a counsellor of the Respondent’s choice. Although this settlement did not reflect the OCL’s position, Mr. Murdoch did not oppose the order in the face of the parties’ negotiated resolution of the custody and access issues.

[5] The Applicant does not seek costs in relation to the period prior to trial. However, he seeks total costs in the amount of $15,000.00 in connection with the trial, with this costs liability to be divided equally between the Respondent and the OCL. His request for costs against the Respondent is based primarily on the fact that his request at trial for joint custody and equal time-sharing ultimately prevailed. He relies on the presumption set out in Rule 24(1) of the Family Law Rules, O. Reg. 114/99, as amended that the successful party is entitled to costs of the case. He acknowledges that he changed his position on the eve of trial, but states that he acted reasonably following the final OCL disclosure meeting by adopting the position that the Respondent had taken throughout the proceedings. His view is that the custody and access issues should have been resolved at that point. He submitted that it was unreasonable for the Respondent to alter her position on the eve of trial solely in reliance on the OCL’s change in position, given that there had been an equal time-sharing regime in effect from the time of the parties’ separation.

[6] With respect to his claim for costs against the OCL, the Respondent advanced the following points:

a. He submitted that the OCL dramatically changed its position on the eve of trial without sufficient grounds, and that this was the primary force that drove the Respondent to dramatically change her trial position as well. Accordingly, in his view, the OCL was the major force that drove the parties to trial in December 2016;

b. He relied on case-law that has established that the OCL can be held liable for costs where its position lacks common sense, is internally self-contradictory and cannot be reconciled with the evidence. He submitted that the OCL’s position at trial did not reflect the children’s views and preferences, was not supported by the evidence and would have been a “recipe for disaster” in relation to the child Ella;

c. He suggested that the OCL was also unreasonable in failing to provide a written outline of the underpinnings for the change in its position. He noted that his new counsel, Mr. Kerr, asked Mr. Murdoch to provide either a report or an affidavit after the November 23, 2016 disclosure meeting outlining the evidence and reasons in support of the OCL’s decision to alter its position at trial, and that Mr. Murdoch refused to do so.

d. He further argued that the OCL should be sanctioned through costs for the position that it took at trial regarding disclosure of Ms. Hayes’ notes of the interviews that she and Mr. Murdoch conducted with the children. He noted that the trial had to be adjourned to allow the parties to obtain case-law and prepare submissions on this issue, and that this resulted in a further delay in the proceedings. Counsel for the Applicant argued that the OCL’s position on this issue was legally unsustainable;

e. In addition, counsel for the Applicant suggested that the change in the OCL’s position was based largely on Ms. Hayes’ view that the Applicant had attempted to alienate the children from the Respondent. He argued that this type of evidence fell within the realm of opinion evidence, and that Ms. Hayes had not provided an expert report or been accepted as an expert for the purposes of advancing opinions regarding parental alienation; and

f. Finally, the Applicant argued that the OCL had neglected to re-evaluate its position at critical junctures around the time of the trial. He submitted that the first such juncture was when he backed down from his initial position and agreed to the order that the Respondent had been pursuing up until the third disclosure meeting. In his view, the second important turning point was when Ella ran away from her mother’s care in January 2017 following a major dispute with her mother. He argued that the OCL should have recognized at that point that its position in favour of primary residence with the Respondent was clearly unrealistic, and that it should have re-evaluated his position at that time.

[7] On the issue of quantum of costs, the Respondent filed a Bill of Costs showing that he incurred total costs and disbursements in the amount of $27,417.76. He submits that this amount is very reasonable having regard for the length of the trial, his counsel’s year of call to the Ontario bar and Family Law experience and the complexity of the issues. He also submitted that his position in limiting his costs claim to $15,000.00 is reasonable.

[8] The Respondent denies any liability to the Applicant for costs, and counter-claims for costs against the Applicant in the amount of $15,000.00. She acknowledges that the Respondent’s position ultimately prevailed after mid-trial negotiations, and that he is therefore presumptively entitled to costs by virtue of Rule 24(1) of the Family Law Rules. However, counsel for the Respondent argued that this presumption is rebutted on the facts of this case based on the Applicant’s unreasonable conduct and position that he took throughout the litigation until just shortly before the commencement of trial. She also relies on her fair and reasonable attitude, conduct and position taken throughout the proceedings. She emphasized that the final outcome respecting the custody and access issues was reflective of the relief that she had requested throughout the lengthy course of the litigation, and that the Applicant only changed his position on the eve of trial in the face of the OCL’s new position and the concerns that Mr. Murdoch and Ms. Hayes had raised about his conduct in relation to the children. The Respondent also argued that the Applicant had initiated numerous unnecessary and unreasonable interim proceedings, including a contempt motion against her, and that she had incurred significant fees in responding to those proceedings. The Respondent’s position is that all of these considerations support an order for costs of $15,000.00 against the Applicant in her favour in relation to the period prior to the commencement of trial. With respect to the period starting from the commencement of trial, she argues that any costs award should be against the OCL rather than her. Her reasoning regarding the OCL’s liability is that she changed her position following the November 23, 2016 disclosure meeting based on the serious concerns that the OCL raised, that a joint custody and shared parenting arrangement would result in her parental role and involvement with the children being significantly marginalized.

[9] Mr. Murdoch argued that the OCL should not be held liable for costs. He relied in part on Rule 24(2) of the Family Law Rules, which stipulates that the presumption under Rule 24(1) that a successful party is entitled to costs does not apply against a government agency in Family Law proceedings. He submitted that although costs can be ordered against the OCL, such an order should only be made in exceptional cases where the OCL has acted in bad faith or unreasonably in a manner that deleteriously impacted the proceedings. Mr. Murdoch emphasized that there are no exceptional circumstances in this case that justify an award of costs against the OCL. In response to the arguments of the Applicant respecting costs against the OCL, he countered with the following points:

a. He denied that the OCL took an unreasonable position at trial. He emphasized that Ms. Hayes had not yet testified when the parties resolved the custody and access issues, and that she would have led very compelling evidence in support of the OCL’s position if she had done so;

b. He denied that the OCL failed to re-evaluate its position throughout the proceedings;

c. He also denied that the change in the OCL’s position was the force that propelled the parties to trial in December 2016. He emphasized that the Applicant had persisted in his request for primary residence of Ella and Carlin, and that it was only after the third OCL disclosure meeting that he backed down from this claim and adopted the position that ultimately prevailed at trial. Furthermore, he noted that the Respondent was not compelled to adopt the OCL’s position as her own, and that she did so of her free will after hearing the information that the OCL relayed during its final disclosure meeting. He also emphasized the OCL’s policy, as relayed to the parties, that it does not typically stand in the way of a settlement between the parties in custody and access cases;

d. He noted that counsel for the child is not required to provide a written report outlining how they reach their position on behalf of the child, and that it is not appropriate for either the parties or the court to “second guess” the process through which the OCL determines its position for trial; and

e. He emphasized that the parties were not required to litigate the issue of whether Ms. Hayes’ notes of the OCL’s interviews with the children were covered by solicitor client privilege, since the OCL and the parties reached a practical resolution of this issue at trial. He submitted that it is not appropriate to litigate this issue “after the fact” in the context of costs submissions, and that in any event, the position that the OCL took on the issue is fully supported by the case-law.

[10] I have carefully considered the submissions of counsel respecting costs, and for the reasons that follow I conclude that there shall be no costs payable by either party or the OCL.

PART II: BACKGROUND

[11] By way of background, the parties were married on May 8, 2004 and separated on October 15, 2013. Ella and Carlin are the only children of their relationship. The parties initially both remained in the matrimonial home following the separation. The Applicant commenced these proceedings on December 10, 2013, seeking inter alia exclusive possession of the matrimonial home, joint custody of the children (see p. 7, paragraph 19 of the application) and an order that the children reside primarily with him. In her Answer and Claim dated December 13, 2013, the Respondent sought an order for joint custody and equal time-sharing with the children.

[12] The case conference in this matter proceeded before Pazaratz, J. on February 18, 2014. On that date, Pazaratz, J. referred the matter to the Office of the Children’s Lawyer. Mr. Murdoch and a Clinical Investigator, Ms. Hayes, were subsequently assigned to the file. However, before they could complete their work, the Applicant initiated a motion on March 7, 2014, seeking exclusive possession of the matrimonial home and primary residence of the children. The Respondent continued to seek an order for equal time-sharing of the children at that time. On the first appearance of the motion, I made a temporary without prejudice order on consent of the parties which essentially established an equal time-sharing arrangement, with the children remaining in the family home and each party vacating the premises during the other party’s time. The motion was adjourned to March 14, 2014, at which point the Respondent brought a cross motion seeking temporary joint custody and equal time-sharing. Gordon, J. made a temporary order on consent on March 14, 2014 which provided for joint custody of the children, continued the nesting arrangement that was in effect and gave the parties equal time with the children. Neither the Applicant nor the Respondent requested costs of the motions, and the March 14, 2014 order was silent respecting costs.

[13] On June 20, 2014, the Applicant brought a motion for an order finding the Respondent in contempt of the temporary order dated March 14, 2014. In total, he alleged that the Respondent had committed 12 distinct acts of contempt. At that time, the parties were in the process of attempting to sell the matrimonial home, and the issue of time-sharing following the sale had to be addressed. On June 20, 2014, the Applicant brought a second motion in which he again sought exclusive possession of the matrimonial home and persisted in his claim for primary residence of the children. In addition, he requested an order granting him sole carriage of the sale of the home, relief relating to household contents and a non-harassment order. These two motions were scheduled for a one day hearing in August 2014. The Applicant ultimately abandoned his motion for contempt.

[14] Mr. Murdoch and Ms. Hayes held their first disclosure meeting with the parties and their counsel on July 30, 2014. At that time, Mr. Murdoch indicated that both children had expressed that they wished to spend equal amounts of time with each parent. Based on all of the information that he and Ms. Hayes had compiled, he supported the Respondent’s position that an order for joint custody and equal time-sharing between the parties was in the children’s best interests. However, the Applicant maintained his position at that time that Ella and Carlin should reside primarily with him.

[15] The Applicant’s motions returned to court on August 19, 2014. Although the Applicant continued to advance a claim for primary residence, he consented to a temporary order on this date providing for a continuation of joint custody of the children and equal time-sharing on a week-about basis. This was the relief that the Respondent had requested. The order also required the parties to retain the services of a parenting coordinator, Ms. Geraldo. Neither of the parties requested costs in connection with the motions, and the order dated August 19, 2014 was silent regarding costs.

[16] The case proceeded to a settlement conference before Pazaratz, J. on October 15, 2014. On that date, the parties resolved all outstanding property issues, and Pazaratz, J. made a final order that incorporated their settlement. However, they were unable to reach a final resolution on the custody and access issues. The Applicant continued to advance his position for primary residence of the children, whereas the Respondent continued to request an order for joint custody and equal time-sharing. The parties maintained these positions when the matter returned to court before Gordon, J. on December 14, 2014. On that date, an order was made on a consent basis addressing Christmas time-sharing.

[17] Mr. Murdoch and Ms. Hayes conducted a second disclosure meeting with the parties and their counsel on June 24, 2015. They relayed that at that point, Ella wished to reside primarily with the Applicant, but Carlin continued to express a desire to reside equally with both parents. Notwithstanding Ella’s expressed wishes, Mr. Murdoch continued to support an order for joint custody and equal time-sharing respecting both children. Again, the Respondent supported this position, but the Applicant persisted in his claim for primary residence of both children.

[18] Following the OCL disclosure meeting on June 24, 2015, the Respondent and her counsel continued to engage in efforts to resolve the custody and access issues on the basis of a final order for joint custody and equal time-sharing of the children. On July 3, 2015, counsel for the Respondent sent correspondence to the Applicant’s former counsel, Mr. Vamos, in which she proposed that counsel draft Minutes of Settlement on the custody and access issues providing for joint custody and a week-about parenting schedule. The Applicant rejected this settlement overture. Counsel for the Respondent persisted in attempting to resolve the custody and access issues in early 2016. On January 11, 2016, she sent another letter to the Applicant’s former counsel in which she reiterated her client’s position, emphasized that the OCL was also supportive of that position, and suggested that the custody and access terms of the temporary order of August 19, 2014 be converted into a final order. The Applicant again refused to resolve the custody and access issues on that basis. Instead, he subsequently initiated a further interim motion on April 8, 2016 in which he again sought primary residence of the children. The Applicant based his renewed claim for primary residence of Ella and Carlin on alleged concerns that the Respondent had been physically abusive towards Carlin. The Children’s Aid Society of Hamilton investigated the Applicant’s allegations and did not verify any protection concerns respecting the Respondent. The Society completed its investigation prior to the first return of motion, and therefore the Applicant ultimately abandoned the April 8, 2016 motion. The Respondent did not pursue costs in connection with the motion. Notwithstanding these highly disturbing events, the Respondent maintained her position that an order for joint custody and shared parenting time would be in the children’s best interests.

[19] This case proceeded to a settlement conference before Pazaratz, J. on April 28, 2016. At that point, the Applicant remained firm in pursuing his claim for primary residence of the children, whereas the Respondent continued to claim joint custody and an equal time-sharing regime. The parties remained at an impasse regarding the time-sharing issue and therefore Pazaratz, J. scheduled the matter for trial. Pazaratz, J. identified potential concerns regarding changes in legal representation. He emphasized the importance of the matter proceeding to trial for a final resolution of the custody and access issues, given the protracted course of the litigation and the need for the children to have certainty regarding their residential situation. In order to safeguard against requests for an adjournment of the trial due to representation issues, he ordered that any Notices of Change in Representation or motions by counsel to be removed from the record had to be filed by no later than September 1, 2016. The parties both filed Notices of Change in Representation on August 31, 2016, indicating that they intended to act in person.

[20] Mr. Murdoch and Ms. Hayes had a third disclosure meeting with the parties and their counsel on November 23, 2016. At that time, they indicated that both Ella and Carlin were indicating that they wished to reside primarily with their father. However, Mr. Murdoch and Ms. Hayes advised that the OCL had changed its position and that it now supported an order granting the Respondent mother sole custody and primary residence of the children. In his Opening Submissions at trial, Mr. Murdoch relayed that this change in his position on behalf of the children was based on significant concerns regarding the children’s exposure to parental conflict throughout the proceedings, the importance of the children maintaining a meaningful relationship with both parties, inconsistency in the children’s views and preferences over time and evidence suggesting that the children’s views and preferences had been influenced by the Applicant’s inability to support their relationship with their mother.

[21] The trial in this matter commenced before me on December 14, 2016. Despite Pazaratz, J.’s direction that the trial must proceed, the Applicant retained Mr. Kerr just days before the commencement of trial and then requested an adjournment of the trial to allow Mr. Kerr time to prepare. A portion of the morning session on December 14, 2016 was spent dealing with this adjournment request, which I denied. I allowed the Applicant’s counsel the remainder of the morning to prepare, and I heard Opening Submissions in the afternoon.

[22] For various reasons, the trial did not resume again until February 28, 2017. Unfortunately, there was further interim litigation in January 2017, prior to the resumption of the trial. The Respondent and Ella had an argument during the Applicant’s time with the children, and Ella reached out to the Applicant’s girlfriend to pick her up and take her to the Applicant’s home. The Applicant did not respond to initial attempts by the Respondent to determine Ella’s whereabouts, and kept Ella in his care without the Respondent’s consent. He testified that he did so because Ella was extremely upset and required a cooling off period. He did not return Ella when the Respondent requested that she be returned. Accordingly, the Respondent brought a motion on January 27, 2017, requesting an order for the return of Ella to her care, for the Applicant to cooperate in engaging the children in counselling and that the Applicant contribute to the cost of such counselling. The parties were able to resolve the issues on the return of the motion, and an order was made on January 27, 2017 granting the Respondent make-up time with Ella. The parties also agreed to cooperate in arranging for counselling for the children. Lafrenière, J. made an order on January 27, 2017 reserving costs of the motion to the trial judge. During the trial, I heard evidence from the Respondent that following this motion, the Applicant proceeded to arrange a counsellor of his own choice for the children through his Employee Assistance Program, without the Respondent’s consent or input.

[23] As I have already noted, the parties were finally able to resolve the custody and time-sharing issues relating to Ella and Carlin following a mid-trial settlement conference. The Respondent backed down from her position for sole custody and primary residence and consented to an order for joint custody and week-about time-sharing.

PART III: THE LAW RESPECTING COSTS

I. General Principles

[24] The starting point in addressing the issue of costs is section 131 of the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended, which provides that subject to the provisions of an Act or Rules of court, costs are in the discretion of the court, which may determine by whom and to what extent the costs shall be paid. Rule 24 of the Family Law Rules, O. Reg. 114/99, as amended, sets out a number of principles to guide the court in the exercise of its discretion.

[25] The Ontario Court of Appeal established in Serra v. Serra, 2009 ONCA 395, [2009] O.J. No. 1905, 2009 CarswellOnt 2475 (C.A.) that modern rules respecting costs aim to foster the following three fundamental purposes:

a. To partially indemnify successful litigants for the cost of litigation;

b. To encourage settlement; and

c. To discourage and sanction inappropriate behaviour by litigants.

[26] In seeking to advance these objectives, the court must balance the goal of indemnifying the successful litigant for their costs with the importance of not unduly deterring potential litigants from pursuing legitimate claims for fear of overly burdensome cost consequences (Cassidy v. Cassidy, 2011 CarswellOnt 1541 (S.C.J.)).

[27] The Court of Appeal has highlighted the discretionary nature of costs awards, and the importance of the court considering all relevant factors (Andrews v. Andrews, 1980 CanLII 3619 (ON CA), [1980] O.J. No. 1503 (C.A.)). It has emphasized that although court rules respecting costs have circumscribed the broad discretion which section 131 of the Courts of Justice Act grants the court in regard to costs, they have not completely negated this discretion (M. (C.A.) v. M. (D.), 2003 CanLII 18880 (ON CA), [2003] O.J. No. 3707, 67 O.R. (3d) 181; 2003 CarswellOnt 3606 (C.A.); Fielding v. Fielding, 2015 ONCA 901 (C.A.)).

II. Liability for Costs

1. Costs Liability to be Determined After Each Step in the Case

[28] As noted above, Rule 24 of the Family Law Rules sets out additional principles and guidelines that apply in determining costs in Family Law proceedings. The Rule sets out a number of factors relevant to the preliminary issue of liability for costs. Rule 24(10) establishes the general principle that the court should determine the issue of costs promptly after each step in the case. If a specific order for costs is not made at the end of a step in the case, including a conference or motion, or costs are not reserved, a judge dealing with a subsequent step or the trial judge should not generally consider the costs associated with that step when determining costs (Islam v. Rahman, 2007 ONCA 622, 2007 CarswellOnt 5718 (C.A.); Bortnikov v. Rakitova, 2016 ONCA 427 (C.A.)).

2. Success in the Case

[29] Rule 24(1) establishes a presumption that a successful party to a motion, enforcement, case or appeal is entitled to costs. The court may also award costs to the party who was more successful on an overall global basis or on the primary issue, subject to adjustments that the court may consider appropriate having regard for the lack of success on secondary issues and any other factors relating to the litigation history of the case (Gomez-Pound v. Pound, [2009] O.J. No. 4161 (O.C.J.); Boland v. Boland, 2012 ONCJ 239, [2012] O.J. No. 1830 (O.C.J.)). If the parties have reached a negotiated resolution of the issues in their case, costs can nonetheless be ordered if the court determines that one party was more successful overall than the other party (Johanns v. Fulford, [2011] O.J. No. 4071 (S.C.J.)).

[30] Rule 24(6) provides that where success in a step in a case is divided, the court may exercise its discretion to order and apportion costs as appropriate. However, the determination of whether success was truly “divided” requires a contextual analysis that takes into consideration the importance of the issues that were litigated and the amount of time and expense that were devoted to the issues that required adjudication (Jackson v. Mayerle, 2016 ONSC 1556 (S.C.J.)).

3. Successful Party May Nonetheless Be Liable for Costs

[31] Rule 24(4) provides that the presumption that a successful party is entitled to costs does not apply where that party has acted unreasonably, in which case that party may be deprived of all or part of their costs or may be ordered to pay the unsuccessful party’s costs. Rule 24(5) sets out factors that the court must examine when deciding whether a party has acted reasonably or unreasonably. These factors include the party’s behaviour in relation to the issues from the time they arose, whether the party made an Offer to Settle, the reasonableness of any Offer to Settle that the party made, and any Offer to Settle the party withdrew or failed to accept. It is not any type of unreasonable conduct that will disentitle a successful party to costs. In the context of a custody and access dispute, a pattern of conduct which shows lack of respect for the letter and spirit of court orders or the relationship between a parent and child is the type of behaviour which should cause the court to seriously question the appropriateness of a costs award in favour of the successful party in a proceeding involving the child (Horne v.Crowder, 2015 ONSC 1041 (S.C.J)).

[32] Since costs are ultimately in the discretion of the court, a successful party may be denied costs for reasons other than unreasonable conduct (M. (C.A.)). In this regard, Rule 24 establishes additional presumptions regarding entitlement to costs that apply regardless of success. Rule 24(7) stipulates that if a party does not appear at a step in the case, or appears but is not properly prepared to deal with the issues at that step or otherwise contributes to that step being unproductive, the court shall award costs against the party “unless the court orders otherwise in the interests of justice.” A finding that a party has acted in bad faith will also result in liability for costs as against the offending party, regardless of that party’s success. Rule 24(8) provides that if a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately. This costs provision is subject to the general principle that costs claimed must be reasonable. Perkins, J. described the concept of “bad faith” within the meaning of this Rule in S.(C.) v. S. (M.), 2007 CanLII 20279 (ON SC), [2007] O.J. No. 2164 (S.C.J.), aff’d 2010 ONCA 196, [2010] O.J. No. 1064 (C.A.) as follows:

In order to come within the meaning of bad faith in rule 24(8), behaviour 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… 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. At some point a party could be found to be acting in bad faith when their litigation conduct has run the costs up so high that they must be taken to know their behaviour is causing the other party major financial harm without justification.

(See also Scalia v. Scalia, 2015 ONCA 492 (C.A.)).

[33] In Children’s Aid Society of the Region of Peel v. K.J.F. and K.P.F., 2009 ONCJ 252 (O.C.J.), at para. 25, Clark, J. further explained that the concept of bad faith within the meaning of Rule 24(8) is not synonymous with bad judgment or negligence. Rather, as he stated, “it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. What this means is that bad faith involves intentional duplicity, obstruction or obfuscation.”

4. Liability of the OCL for Costs

[34] A review of the law regarding liability of government agencies is necessary in this case, since the Applicant seeks costs against the OCL. Rules 24(2) and 24(3) of the Family Law Rules are typically referenced as the starting point for the analysis for whether costs should be ordered against the OCL. Rule 24(2) establishes that the presumption that a successful party in the case is entitled to costs does not apply in a child protection case or to a party that is a government agency. Rule 24(3) provides that the court has discretion to award costs to or against a party that is a government agency, whether it is successful or not. These Rules are not actually applicable to the analysis of costs against the OCL in custody and access cases, since they clearly refer to government agencies that are parties to the proceeding in question. The OCL is not a party to custody and access cases, regardless of the type of services that it decides to provide.

[35] The Family Law Rules do not confer authority on the court to order costs against non-parties. Nonetheless, the court has the discretion to award costs against a non-party, including the OCL, in appropriate circumstances pursuant to its common law jurisdiction to control its own process (Takis v. Takis, 2003 CanLII 2354 (ON SC), [2003] O.J. No. 2658 (S.C.J.); Children’s Aid Society of Peel Region v. K.J.F. and K.P.F.). Typically, a costs award will only be made against a non-party in exceptional cases to prevent an abuse of process, where the non-party had status to bring the litigation but put forward the plaintiff as a “man of straw” to shield the non-party from costs (Television Real Estate Ltd. v. Rogers Cable T.V. Ltd. (1997), 1997 CanLII 999 (ON CA), 34 O.R. (3d) 291 (C.A.)). However, the courts have applied a less stringent test for ordering “non-party” costs awards against the OCL in Family Law litigation, given the tremendous influence it typically has on the proceedings and the parties, the major role that it usually plays in custody and access litigation that the fact that it derives its authority from legislation (Takis, at para. 43). By contrast, the courts have established a higher threshold for ordering costs against the OCL than that which applies as between Family Law litigants. The decisions that have addressed the issue of costs against the OCL have drawn from the law respecting costs awards against Children’s Aid Societies, since both entities are government agencies that are mandated to protect children. Based on the case-law relating to both child protection agencies and the OCL, I conclude that the following general principles and considerations should guide the court’s decision regarding the liability of the OCL for costs in custody and access cases:

a. As with other Family Law litigants, costs should be ordered against the OCL if its representatives have acted in bad faith in carrying out their role in the litigation;

b. However, the OCL’s liability for costs is not limited to situations where it has demonstrated bad faith. Costs can also be ordered against the OCL in exceptional circumstances where its actions fall short of bad faith, but it engaged in patently unreasonable, unfair or indefensible conduct that exceeded its statutory mandate or had a significantly deleterious impact on the litigation (Children’s Aid Society of St. Thomas (City) & Elgin (County) v. S.(L.), 2004 CanLII 19361 (ON CJ), [2004] O.J. No. 289 (O.C.J.); Children’s Aid Society of Simcoe County v. J.R. et al, 2004 CarswellOnt 3492 (Ont. Fam. Ct.); Children’s Aid Society of Peel Region v K.J.F., 2009 ONCJ 252 (O.C.J.), at para. 24; Children’s Aid Society of London and Middlesex v. C.D.B. and L.D.B. [2014] O.J. No. 17022 (S.C.J.)); Children’s Aid Society of Hamilton v. K.L. and T.M., 2014 ONSC 3679 (S.C.J.); Eustace v. Eustace, 2017 ONSC 8191 (S.C.J.); Children’s Aid Society of Toronto v. C.J.W., 2017 ONCJ 341 (O.C.J.));

c. The fact that the OCL actively pursued a position on the custody and access issues at trial that the court did not ultimately accept does not in and of itself attract liability for costs (Eustace, at para. 54). However, costs may be ordered against the OCL in these circumstances if its advocacy strategies and conduct were ineffective, unproductive and time-consuming and resulted in a significant waste of resources. For instance, in Children’s Aid Society of St. Thomas (City) and Elgin (County) v. S.L., Schnall, J. ordered costs against the OCL where the Children’s Aid Society and the Respondent parents had settled the case, but the OCL did not agree on the proposed disposition, forced the matter on to trial, failed to call any witnesses, engaged in unproductive cross examination of witnesses and required additional witnesses to be called whose evidence did not assist the court in determining the issues. In Corrine R. et al. v. Children’s Aid Society of Hamilton and The Squamish Nation of British Columbia (No. 2), 2004 CanLII 34407 (ON SC), 2004 CarswellOnt 1414 (Ont. Fam. Ct.), at para. 51, Czutrin, J. held that the OCL could be held liable for costs if its conduct “flies in the face” of the primary objectives of the Family Law Rules;

d. The OCL may be held liable for costs if its position lacked common sense, was internally self-contradictory and could not be reconciled with the evidence. The risk of a costs award in these circumstances is heightened if the other parties settle the issues but the matter nonetheless proceeds to trial due to the OCL’s position (Children’s Aid Society of St. Thomas (City) and Elgin (County) v. S.L.);

e. The OCL will not necessarily be held liable for costs if it adopts a position that is not entirely consistent with their child client’s expressed wishes and that does not prevail at trial. The process of formulating a position on behalf of a child in a custody and access case does not simply involve parroting the child’s stated wishes. It involves acquiring a sound appreciation of the overall context surrounding the child’s expressed views and preferences. Accordingly, in deciding upon a position, the OCL must consider important factors such as the competence and level of maturity of the child, the independence, strength and consistency of the child’s expressed views and preferences and the general circumstances surrounding those views and preferences (Catholic Children’s Aid Society of Toronto v. S.S.B., 2013 ONSC 4560 (S.C.J.)). Formulating a position after balancing all of these considerations is not an exact science, but rather a complex exercise of discretion informed by specialized training and experience as an OCL representative. Ultimately, a consideration of all of these factors may lead counsel for the child to advance a position that deviates from the precise views and preferences that their client has expressed. To sanction child’s counsel simply for doing so through a costs award would seriously undermine the role and value of child representation in custody and access cases; and

f. Another factor that is relevant in determining whether the OCL’s conduct should attract costs liability is whether the OCL re-evaluated its position in response to changed circumstances and/or new evidence which should have prompted a reconsideration of the approach that it was taking in the case. This factor will be particularly important if the position that the OCL took was a significant factor in perpetuating the litigation (Children’s Aid Society of Brant v. K.N., 2017 ONCJ 202 (O.C.J.)).

[36] The court’s protective stance towards the OCL in regard to costs is based on a number of special factors that are relevant to the OCL’s involvement in Family Law proceedings. One consideration is that the OCL does not proactively seek to participate in custody and access cases. Rather, its involvement derives from a court order specifically seeking its participation. Given that its involvement is prompted by the court’s request for assistance, it is appropriate that it be accorded some degree of shelter from costs liability. Another factor that supports a higher threshold for costs liability against the OCL is that it represents the needs and interests of minor children. Representation of children involves many unique challenges, including special difficulties in ascertaining the client’s capacity, their level of maturity, their wishes and whether there are contextual factors and dynamics that have improperly influenced their expressed views and preferences. Reaching a position on behalf of a child in custody and access cases often involves a delicate balancing of numerous factors. Adopting the usual approach to costs in Family Law cases to claims for costs against the OCL would have a chilling effect on genuine attempts by OCL representatives to carry out this demanding role in a vigilant manner. Furthermore, given that children typically do not have their own financial resources, an award of costs against the OCL is essentially an award of costs against counsel, which is only appropriate in rare and exceptional circumstances (Re M.M., [1993] O.J. NO. 636 (O.C.J.), at p. 11; V.F. v. J. F. and A.T.F., 2016 ONCJ 759 (O.C.J.)).

5. The Importance of Offers to Settle in Determining Liability for Costs

[37] Another important consideration in determining both entitlement to and the quantum of costs is whether or not any party has served an Offer to Settle. Rule 18(14) establishes costs consequences for failing to accept an Offer to Settle that complies with the requirements of that Rule. In order for these costs consequences to come into play, the Offer to Settle must be signed by the party making the offer and their lawyer. Failure to comply with this requirement may result in the offer not being a valid formal offer that attracts the consequences outlined in Rule 18(14) (Riss v. Greenhough, 2003 CarswellOnt 1450 (S.C.J.); Jakubowski v. Kopacz-Jakubowski, 2008 CarswellOnt 2149 (S.C.J.)). The costs consequences, and conditions precedent to these consequences, are set out in Rule 18(14) as follows:

COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER

Rule 18(14)

A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:

1. If the offer relates to a motion, it is made at least one day before the motion date.

2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.

3. The offer does not expire and is not withdrawn before the hearing starts.

4. The offer is not accepted.

5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer.

[38] With respect to the requirement that the order obtained be as or more favourable than the Offer to Settle, the court is not required to examine each term of the offer as compared to the terms of the order and weigh with microscopic precision the equivalence of the terms. Rather, what is required is a general assessment of the overall comparability of the offer as contrasted with the order that was ultimately made (Sepiashvili v. Sepiashvili, 2001 CanLII 25708 (ON SC), 2001 CarswellOnt 3459 (S.C.J.), additional reasons to 2001 CarswellOnt 3316 (S.C.J.); Wilson v. Kovalev, 2016 ONSC 163 (S.C.J.); Jackson). Where the Offer to Settle is not severable, however, the costs consequences set out in Rule 18(14) should only be applied if the judgment is on a general, overall comparison as or more favourable on all issues (Heon v. Heon, 1989 CarswellOnt 318 (Ont. H.C.); Coscarella v. Coscarella, 2000 CarswellOnt 146 (S.C.J.)).

[39] In deciding both liability for and quantum of costs, the court may also take into consideration as a favourable factor any written Offer to Settle, the date it was made and its terms, even if the conditions and presumptive consequences set out in Rule 18(14) do not apply (Rule 18(16)). In this regard, the court may in the exercise of its discretion compare portions of the Offer to Settle dealing with discrete issues to the terms of the order. A party’s failure to serve an Offer to Settle is also a highly relevant factor in determining both liability for costs and the appropriate amount of a costs award (M. (J.V.) v. P. (F.D.), 2011 CarswellOnt 13510 (O.C.J.); Menchella v. Menchella, 2013 ONSC 367 (S.C.J.); Potter v. DaSilva, 2014 ONCJ 443 (O.C.J.)). As Zisman, J. stated in Potter, at para. 22:

Offers to settle play an integral role in saving time and expense by promoting settlements, focusing parties and often narrowing the issues in dispute. Offers to settle are therefore important in any consideration of the issue of costs. In my view, it is unreasonable behaviour for a party not to make an offer to settle.

[40] The fact that the parties have settled all or some of the issues in the case will also be relevant to the determination of costs liability and the quantum of any costs ordered. Settlement is often a by-product of reasonable behaviour and litigation expectations. Accordingly, the court should be hesitant to order costs when the parties have reached a resolution of their dispute, unless there are compelling reasons to do so (Talbot v. Talbot, 2016 ONSC 1351 (S.C.J.)).

[41] The circumstances discussed above are not the only ones which may give rise to costs liability. The decision respecting liability is ultimately a discretionary one that must take into consideration the overall conduct of the parties and all of the circumstances and dynamics of the case.

III. Quantum of Costs

[42] Once liability for costs has been established, the court must determine the appropriate quantum of costs. In Serra, Boucher v. Public Accountants Council (Ontario), 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634 (C.A.) and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC, 2005 CanLII 1042 (ON CA), 2005 CarswellOnt 189 (C.A.), the court set out the additional general principles relating to the quantum issue:

a. Ultimately, costs decisions should reflect what the court considers to be a fair and reasonable amount that the unsuccessful party should pay;

b. Costs need to be proportional to the issues and amounts in question and the outcome of the case;

c. Amounts actually incurred by the successful litigant are not determinative; and

d. In assessing what is fair and reasonable, the expectation of the parties concerning the amount of a costs award is a relevant consideration.

(See also Selznick v. Selznick, 2013 ONCA 35 (C.A.); Delellis v. Delellis, 2005 CanLII 36447 (ON SC), [2005] O.J. No. 4345 (S.C.J.); Hackett v. Leung, 2005 CanLII 42254 (ON SC), [2005] O.J. no. 4888 (S.C.J.)).

[43] Polowin, J. commented on these general principles respecting the quantification of costs in Sommerard v. I.B.M. Canada Ltd., 2005 CanLII 40140 (ON CA), [2005] O.J. No. 4733 (S.C.J.). She succinctly captured the essence of the quantification exercise based on the principles outlined above as follows, at paras. 53-59:

The fixing of costs is not a mechanical exercise of calculating hours times hourly rates. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding. In doing so, I must stand back from the fee produced by the raw calculation of hours spent times hourly rate and assess the reasonableness of the counsel fee from the perspective of the reasonable expectation of the losing party.

[44] Rule 24(11) prescribes some of the factors which the court should consider in deciding the appropriate quantum of costs. These factors include the following:

FACTORS IN COSTS

24 (11) A person setting the amount of costs shall consider,

(a) the importance, complexity or difficulty of the issues;

(b) the reasonableness or unreasonableness of each party’s behaviour in the case;

(c) the lawyer’s rates;

(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;

(e) expenses properly paid or payable; and

(f) any other relevant matter.

[45] In considering the quantum of costs, the court should also consider Rule 1(8), which provides that the court may respond to a failure to follow the Rules or abide by an order by making an order for costs.

[46] In determining the appropriate quantum of costs, the court has an obligation to review the specifics of the costs claim to assess the reasonableness of the amounts requested and whether items claimed are properly the subject of a costs award (Donnelly v. Donnelly, 2004 CarswellOnt 2076 (S.C.J.)). The court must also consider whether the hours spent can be reasonably justified (Pagnotta v. Brown, [2002] O.J. No. 3033 (S.C.J.); Murphy v. Murphy, 2010 ONSC 7204 (S.C.J.); Jackson). However, this analysis should be undertaken in a global fashion. The court is not required to embark upon a painstaking, line-by-line analysis of Bills of Costs and second guess every hour and item claimed, unless there are clear concerns about excessive claims and overreaching (Docherty v. Catherwood, 2016 ONSC 2140 (S.C.J.), at para. 50).

[47] In deciding the quantum of costs, the court should consider Rule 24 in conjunction with Rule 2(2), which provides that one of the primary objectives of the Rules is to ensure that cases are dealt with justly (Mooney v. Fast, 2013 CarswellOnt 15659 (O.C.J.)). In addition, the principle of proportionality must be brought into the fold of the costs analysis. As Pazaratz, J. stated in Jackson, the Supreme Court of Canada recognized in Hryniak v. Mauldin, [2014] 1 S.C.R. 87, 2014 SCC 7 (S.C.C.) that timeliness, affordability and proportionality are essential components of a legal system that ensures true access to justice. In the context of the costs analysis, these factors require the court to ensure that expenses claimed make sense having regard for the importance and complexity of the issues that were litigated.

[48] As I have already noted in my discussion respecting liability for costs, Rule 24(8) directs the court to order costs against a party who has acted in bad faith. This Rule is also critical to the issue of quantum of costs, since it specifically requires that costs be awarded on a full recovery basis and payable immediately. The full recovery portion of the award should relate to the issues affected by the bad faith. Once the full recovery analysis is complete with respect to those issues, the court should assess costs in relation to the other issues by considering the overall circumstances of the case in light of the factors outlined in Rule 24(11), and should use the discretion permitted by that section to reach a correct overall result (Hunt v. Hunt, 2001 CarswellOnt 4548 (S.C.J.); Likins v. MacKenzie, 2003 CarswellOnt 3007 (S.C.J.); additional reasons at 2004 CarswellOnt 2157 (S.C.J.))

[49] As previously noted, Rule 18(14) relating to formal Offers to Settle is also relevant to quantum of costs. If an Offer to Settle does not meet the formal requirements of Rule 18(14), the court may nonetheless take into consideration as a favourable factor any written Offer to Settle, the date it was made and its terms (Rule 18(16)). A party’s failure to serve an Offer to Settle may also be viewed as an adverse factor in determining the quantum of costs (M. (J.V.)). This is so even if the party was the successful litigant (Smith v. Smith, 2007 CarswellOnt 1538 (S.C.J.)).

[50] The costs consequences set out in Rule 18(14) do not automatically apply when the requirements set out in the Rule are satisfied. The Rule simply establishes a rebuttable presumption regarding costs, and the court ultimately maintains the discretion to determine whether the costs consequences are appropriate having regard for all of the circumstances of the case (M.(C.A.); Cole v. Freiwald, 2011 CarswellOnt 10517 (O.C.J.)).

[51] Although not specified in Rules 24 and 18 as factors in deciding costs, the financial means of the parties, their ability to pay costs and the effect of any costs ruling on the parties and any children are also relevant to the adjudication of liability for costs and the appropriate quantum of a costs award (Tauber v. Tauber, 2000 CanLII 5747 (ON CA), [2000] O.J. No. 2133; additional reasons at 2000 CanLII 22280 (ON CA), [2000] O.J. No. 3355 (C.A.); Biant v. Sagoo, 2001 CanLII 28137 (ON SC), [2001] O.J. No. 3693 (S.C.J.); Van Rassel v. Van Rassel, 2008 CanLII 56939 (ON SC), [2008] O.J. No. 4410 (S.C.J.); M.(C.A.); Murray v. Murray, 2005 CanLII 46626 (ON CA), [2005] O.J. No. 5379 (C.A.); Clark v. Clark, 2014 ONCA 175 (C.A.)). The financial means of a custodial parent may be particularly relevant in assessing costs if a costs award would indirectly impact a child in a negative fashion. As the Ontario Court of Appeal stated in M. (C.A.), at para. 42, “[i]n fixing costs, the courts cannot ignore the best interests of the child and thus cannot ignore the impact of a costs award against a custodial parent that would seriously affect the interests of the child.” However, ability to pay will usually only be relevant to the appropriate quantum of costs and how payment should be effected, and not to the issue of liability for costs (Izyuk v. Bilousov, 2011 ONSC 7476, 2011 CarswellOnt 14392 (S.C.J.)). In addition, a litigant’s limited financial means will be given less weight in the costs analysis than the court’s determination regarding overall success in the litigation (Biant; Gobin v. Gobin, 2009 CarswellOnt 3452 (O.C.J.)). Furthermore, ability to pay alone cannot override the other factors set out in Rule 24(11) (Peers v. Poupore, 2008 ONCJ 615 (O.C.J.)). A party’s limited financial means will also be accorded less weight if the court finds that the party acted unreasonably. As Curtis, J. stated in Mooney, “[i]t must be made clear to family law litigants that there is no right to a day in court, or at least, that the right to a day in court is tempered by the requirement that the parties take a clear-headed look at their case before insisting on their day in court.”

[52] One of the measures that the courts use in determining whether costs claimed are fair, reasonable and proportional is to consider the amount that the other party has paid for their own legal fees with respect to a matter (Durbin v. Medina, 2012 ONSC 640 (S.C.J.)). A significant discrepancy in the amount of fees that the parties have incurred may prompt the court to embark upon a more detailed scrutiny of the costs claimed to ensure that the amount meets the overall objectives of a costs order (Jackson, at para. 99).

[53] In cases involving custody and access claims, a more tempered approach to costs may be appropriate depending on the circumstances of the case. The rationale for this is that parties should not be discouraged from advancing bona fide custody or access claims that are meritorious out of fear of possible deleterious financial consequences (Weaver v. Tate, 1989 CarswellOnt 330 (H.C.)).

PART IV: ANALYSIS

I. The Parties’ Claims for Costs Against Each Other

[54] As I have indicated, the Applicant and the Respondent both seek costs against each other in the amount of $15,000.00. For the reasons set out below, I conclude that neither of them is entitled to costs.

[55] Dealing first with the Applicant’s claim for costs, the mid-trial settlement that the parties reached was in accordance with the position that the Applicant took at trial. Accordingly, the Applicant was the successful party at trial and is presumptively entitled to costs by virtue of Rule 24(1). However, I conclude this presumption of entitlement is rebutted in this case having regard for the Applicant’s unreasonable position and conduct throughout the litigation until the time of trial. In reaching this decision, I have taken into consideration the positions that the Applicant and the Respondent took from the time the Respondent commenced this litigation in December 2013 until trial. As I have already highlighted, the final resolution that the parties reached respecting the custody and access issues on April 21, 2017 actually reflected the position that the Respondent took from the time of the parties’ separation until shortly before trial. By contrast, the Applicant stood steadfast for three years, from December 2013 until December 2016, in his position that Ella and Carlin should reside primarily with him. Although the parties resolved the custody and access issues mid-trial before I had heard all of the evidence, including the evidence of Ms. Hayes, the evidence that I did hear strongly supported an equal time-sharing arrangement. I am confident based on the evidence that I heard and the position that the Respondent advanced until late November 2016 that the custody and access issues could have been resolved in accordance with the terms of the April 21, 2017 order by early 2014 if the Applicant had agreed to this outcome. However, the Applicant was unable to see the value in the Respondent having an equal role in the children’s lives, and his pursuit for primary residence thrust the litigation onward for three years. Although the Respondent consented to a temporary order for equal time-sharing on March 14, 2014, he refused to consent to this arrangement on a permanent basis. Furthermore, although the Respondent supported the appointment of the OCL to assist the court in determining the children’s best interests, he rejected the OCL’s recommendations for joint custody and equal time-sharing outright following the first OCL disclosure meeting on July 30, 2014. He persisted in seeking primary residence of the children even after the second OCL disclosure meeting on June 24, 2015, when Mr. Murdoch and Ms. Hayes again supported an order for joint custody and equal time-sharing and explained in detail the reasons in support of this position. The other Family Law issues had been resolved in October 2014, and therefore the Applicant’s refusal to agree on the custody and access terms that the OCL recommended again in June 24, 2015 was the sole reason for the continuation of litigation after that point. It was only after the third OCL disclosure almost 1.5 years later, when the OCL supported the Respondent having primary residence that the Applicant backed down and finally agreed to joint custody and equal time-sharing. However, it is important to note that the Applicant continued to struggle greatly with this position at trial. It was clear from his evidence that he had changed his position very begrudgingly, based on the evidence regarding the overall strength of his case.

[56] The Applicant also took a number of unreasonable steps in the litigation that involved a great deal of time and expense for both parties. With the exception of the motion that Lafrenière heard on January 27, 2017, the Respondent did not pursue costs or request that costs be reserved in connection with the various interim proceedings that the Applicant initiated. The Applicant’s unreasonable litigation conduct over the course of this case is nonetheless relevant to his entitlement to costs. I have outlined the litigation history in detail above. The particulars of the Applicant’s conduct that I find were unreasonable are as follows:

a. The first motion that the Applicant brought in early March 2014 seeking exclusive possession of the matrimonial home and primary residence of the children was ill-advised and unnecessary. Pazaratz, J. had just referred the case to the OCL for assistance on February 18, 2014, and the parties had been enjoying equal time with the children since the separation. Based on the evidence that I heard at trial, there was no evidence to support an order for exclusive possession of the home. The claim for primary residence of the children was premature given the status quo that had developed and the recent referral to the OCL. Ultimately, the parties were able to resolve the issues of temporary custody and time-sharing in accordance with the Respondent’s claims for joint custody and equal parenting time;

b. The Applicant’s motion which he brought on June 20 2014 seeking an order finding the Respondent in contempt of the March 14, 2014 order was also unreasonable and highly unproductive. I conclude that this motion simply added fuel to the fire at a time of high stress for the family, when the parties were trying to manage a nesting arrangement in the family home and address the steps required to sell the home and move forward with their lives. Ultimately, the Applicant simply abandoned this motion;

c. The Applicant’s other motion returnable on June 20, 2014, seeking exclusive possession of the matrimonial home and primary residence of the children, was redundant and further heightened the conflict between the parties. These issues had already been addressed in March 2014, and the OCL was nearing the completion of its work. The reasonable course would have been for the Applicant to wait until the OCL disclosure meeting before deciding upon his position and next steps in the case;

d. The Applicant failed to engage in meaningful ongoing settlement discussions with the Respondent and her counsel following the second OCL disclosure meeting in June 2015, despite the ongoing efforts by the Respondent’s counsel to resolve the custody and access issues in 2016;

e. The Applicant acted prematurely in bringing his motion on April 8, 2016 in which he reiterated his claims for sole custody and primary residence of Ella and Carlin. As I have stated, the Children’s Aid Society of Hamilton did not verify the concerns that he relied on in bringing this motion; and

f. Although the Applicant filed a Notice of Change in Representation on August 31, 2016, he did not retain Mr. Kerr until shortly before the commencement of the trial, and then requested an adjournment when the case was called in for trial so that Mr. Kerr could properly prepare. As I have already indicated, I declined to adjourn to the trial. The Applicant’s last-minute request for an adjournment was unreasonable and resulted in the Respondent incurring additional legal fees.

[57] I turn next to the Respondent’s claim for costs against the Applicant. I am satisfied that on the whole, the Respondent’s position and litigation conduct throughout the course of these proceedings until shortly before trial were reasonable. As I have stated, she supported an order for joint custody and shared parenting time from the outset of this case, and that was the ultimate outcome of the trial. She did not initiate any unreasonable proceedings, and her responses to the Applicant’s various motions were in my view fair and even-handed. However, I conclude that she acted unreasonably by proceeding to trial in December 2016 when the Applicant changed his position, rather than settling the custody and access issues on the basis of the position that she had taken throughout the course of the litigation. While I appreciate that she had concerns about the feasibility of a joint custody and shared parenting regime based on the position and information that the OCL relayed to the parties during its third disclosure meeting on November 23, 2016, she ultimately resolved the case on the basis of such an arrangement on April 21, 2017. By that time, the parties had been operating under this type of regime for over three years. The Respondent had an obligation to formulate her own position, independent of that taken by the OCL, before heading into trial, based on her own assessment of Ella’s and Carlin’s needs and best interests. I did not hear evidence from Ms. Hayes about the OCL’s concerns regarding a joint custody and equal time-sharing arrangement. However, the evidence that I did hear at trial strongly supported the terms of the settlement that the parties finally reached as being in the children’s best interests. While there may have been concerns about the extent to which the Applicant was supporting the Respondent’s relationship with the children, there was also evidence of considerable conflict between Ella and her mother’s new partner, and of concerns regarding the Respondent’s ability to manage Ella’s behaviour in an appropriate manner. By way of example, the evidence relating to the events that prompted Ella to leave her mother’s home in January 2017 raised concerns about the relationship between Ella and the Respondent and the Respondent’s need to develop alternative child management skills that would allow her to navigate difficult situations with Ella more effectively. As I have stated, Lafrenière, J. reserved the issue of costs in connection with the Applicant’s emergency motion that was returnable on January 27, 2017. The Respondent was successful in obtaining make-up time with Ella and ensuring that the shared parenting regime was re-implemented. However, I decline to award her costs in connection with that motion because I find that she was partly responsible for the events that rendered this motion necessary. Furthermore, I agree with the position that the Applicant relayed at trial that it was in Ella’s best interests to have a “cooling off” period after the dispute with her mother before returning to her mother’s care.

[58] My decision to dismiss the parties’ respective claims for costs against each other was based on two additional factors. First, neither party served any formal Offers to Settle. If they had done so, this could have provided an added incentive for the other party to take a hard look at the evidence and engage in meaningful settlement negotiations. Second, the parties were able to resolve all of the other issues between them prior to the commencement of trial. Their reasonable approach to the other issues is a factor that supports both of them being shielded from liability for costs of the application and the trial.

II. The Claims for Costs Against the OCL

[59] I have also concluded for a number of reasons that costs should not be awarded against the OCL in this case. The Applicant’s claim for costs against the OCL is based largely on the argument that the OCL took a highly unreasonable position just prior to trial that could not be defended on the evidence. However, I am unable to determine whether this argument has any merit. Mr. Murdoch clearly indicated in his Opening Submissions that the OCL Clinical Investigator, Ms. Hayes, would be adducing evidence that supported the OCL’s concerns that the Applicant’s conduct had undermined the Respondent’s relationship and parental authority in relation to the children. He was relying largely on that evidence in support of the position that he took at trial. However, the parties resolved the custody and access issues before Ms. Hayes testified about the OCL’s findings and concerns. To saddle the OCL with a significant costs award in the context of such an evidentiary vacuum created by the parties’ decision to settle would be highly unfair and prejudicial to the OCL.

[60] The parties have also suggested that the OCL’s decision to change its position in November 2016 was the main factor that pushed them to trial in December 2016. I disagree. As I have stated, the Respondent was obliged to assess and weigh all of the evidence and reach her own position for trial. There was nothing compelling her to simply follow the OCL’s position. Moreover, the OCL’s clear policy in custody and access cases is that it does not stand in the way of a settlement between the parents, even if the settlement does not accord with its position on behalf of the child, unless there are exceptional circumstances. I am satisfied that the parties were aware of this position as they approached trial, and the OCL in fact complied with this policy when the parties ultimately resolved the custody and access issues on the basis of an order for joint custody and shared parenting time in April 2017.

[61] In further response to the proposition that the OCL was the propelling force for the continuation of the litigation in this matter, I emphasize again the evidence indicating that the custody and access issues remained unresolved for more than three years after the OCL was appointed due to the position that the Applicant took. It is clear that the Applicant only backed down from his position after the OCL changed its position to support the Respondent having sole custody and primary care of the children. Rather than being the fire that fuelled ongoing litigation, the OCL’s change in position was the main catalyst for the Applicant’s decision to finally move to a more reasonable position, which in turn eventually opened the door to a resolution of the parenting issues.

[62] The Applicant argued that the OCL should also be sanctioned through a costs award for failing to re-evaluate its position appropriately as events unfolded in the case. The facts do not support this assertion. I conclude that the OCL worked consistently on this file from the time Mr. Murdoch was appointed and met with the children several times at critical junctures in the case. I also find that Mr. Murdoch and Ms. Hayes kept the parties apprised of the status of their work on the file, their current position and the reasons for same. As I have indicated, the OCL had three separate disclosure meetings throughout its involvement with this family. The fact that Mr. Murdoch changed his position on behalf of the children in November 2016 on the eve of trial demonstrates that the OCL in fact regularly reassessed the evidence and adapted its approach based on changes in circumstances and the dynamics within the family. Counsel for the Applicant argued that the OCL should have re-evaluated its trial position after Ella ran from her mother’s care in January 2017 and indicated again that she wished to remain with her father. While this was a major event for the family, I am not satisfied based on the evidence that I heard at trial and Mr. Murdoch’s submissions regarding the anticipated evidence of Ms. Hayes that it should have necessarily in and of itself prompted a complete reversal of Mr. Murdoch’s position. It was apparent from the evidence adduced at trial that the children’s views and preferences had changed over time, that they had been exposed to their parents’ intense conflict and that they had struggled in attempting to adjust to the many changes in their family circumstances following the parties’ separation. I was able to conclude even without the benefit of hearing from Ms. Hayes that there were numerous contextual factors in this case that would impact the weight that I could give to the children’s expressed views and preferences.

[63] With respect to counsel for the Applicant’s submission that Mr. Murdoch and Ms. Hayes should have provided a written report respecting their change in position and the reasons supporting this change, I agree with Mr. Murdoch that the OCL had no obligation either by policy or in law to provide such a report. The OCL’s intervention in this case did not involve the preparation of an assessment pursuant to section 112 of the Courts of Justice Act. Rather, the OCL appointed legal counsel for the children, and assigned a Clinical Investigator to assist counsel in working through the clinical challenges in the case and to provide evidence regarding the children’s views and preferences. Moreover, although Mr. Murdoch and Ms. Hayes did not provide a written report after the third OCL disclosure meeting, they conducted a third disclosure meeting in November 2016 during which they outlined in detail the evidence and reasons in support of the change in the OCL’s position.

[64] Mr. Kerr also raised concerns that the OCL’s position was based on alleged alienating behaviour by the Applicant. He argued that Ms. Hayes intended to adduce evidence regarding the concerns that supported the OCL’s alienation theory, and that this type of evidence would have constituted inadmissible opinion evidence. The difficulty with this argument as a basis for a costs award is that it amounts to speculation on an issue that never came up and was therefore never addressed at trial. Mr. Murdoch did not give any indication that he intended to adduce opinion evidence from Ms. Hayes regarding parental alienation. At most, he indicated that Ms. Hayes would talk about evidence that would raise concerns that the Applicant did not support the relationship between the children and their mother.

[65] Finally, I address the Applicant’s argument that costs against the OCL are warranted due to the position that Mr. Murdoch took respecting the privileged status of Ms. Hayes’ notes of her contacts with the children. I am not satisfied that the OCL’s position on this issue should attract costs liability. As I have indicated, the parties were able to reach a fair and reasonable compromise regarding the production and use of these notes at trial, and therefore I did not hear legal argument on the issue. Given these circumstances, it is unfair and unduly prejudicial to the OCL to raise this issue again through the back door as part of the costs argument. In any event, I have reviewed the cases that the OCL submitted in response to this argument, and I am satisfied that there is case-law to support the position that the OCL took on this issue.

V. TERMS OF ORDER TO ISSUE

[66] Based on the foregoing, an order shall issue as follows:

1. There shall be no costs payable by the Applicant, the Respondent or the Office of the Children’s Lawyer in connection with the application and the trial of this case.

The Honourable Madam Justice Deborah L. Chappel

Released: September 6, 2017

CITATION: Proulx v. Proulx, 2017 ONSC 5134

COURT FILE NO.: D-1990/13

DATE: 2017/09/06

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Raymond Daniel Proulx

Applicant

– and –

Larissa Karen Proulx

Respondent

REASONS FOR JUDGMENT

Chappel, J.

Released: September 6, 2017