P.W. v. P.T.W., 2017 ONSC 5593
CITATION: P.W. v. P.T.W., 2017 ONSC 5593
NEWMARKET COURT FILE NO.: FC-16-51915-00
DATE: 20170921
SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
RE: P.W., Applicant and B.T.W., Respondent
BEFORE: The Honourable Madam. Justice H. McGee
COUNSEL: Elissa H. Gamus, for the Applicant Lyna Perelman, for the Respondent
COSTS decision
McGEE J.
[1] This costs decision flows from two urgent motions decided on September 1, 2017. What made them urgent was the need to decide school placement for two young girls. By the hearing date only placement for the oldest daughter was at issue.
[2] What makes this cost decision worth writing about is the amount sought by the successful parent: $28,035, and the amount spent by the unsuccessful parent: $37,509.
[3] $65,544 in after tax dollars on a motion to determine where their daughter would start school on September 5, 2017.
Background
[4] In the ordinary course, children continue at the school in September in which they were enrolled in June, unless their parents agree otherwise. Courts only intervene in unusual circumstances, or when there was no prior enrolment.
[5] Was this an unusual circumstance? Not really. The oldest daughter’s school had closed at the end of June and its student population had been consolidated into a facility within her current school district. What made this motion different was the mother’s desire to enroll their daughter not in the local school, but into a similar school in another jurisdiction. It was a school that the mother had carefully researched, in a geographic area into which she hoped to relocate were the order granted.
[6] The parents had separated a year earlier, on August 27, 2016 but they continued to reside together in the jointly owned matrimonial home. By all accounts, continued joint occupancy had brought out the worst in each. Each parent was jockeying for position, and absolutely fixed[^1] in his or her view of the best outcome. The father wanted nothing less than “50/50” parenting and the mother was determined to have sole custody with a traditional access schedule to the father.
[7] School placement as a strategy to anchor claims for custody, or primary residence is not new.
[8] The scale of these efforts, by these parents, particularly the mother is new. And it must be discouraged. Leaving aside the question of costs, can one even imagine the stress on a young child who doesn’t know where she will be going to school, let alone where she will be living and whether she will have enough time with each of her adored parents?
[9] Relying heavily on Justice Pazaratz’s decision in Cosentino v. Cosentino[^2], I ordered that the oldest daughter would attend the school in her local district. Reasons were handwritten and delivered orally on a Friday afternoon in order to give the father enough time to confirm enrolment for their daughter at the local school.
[10] In the same reasons, I declined the mother’s request for exclusive possession of the home in the months remaining before its sale. The father’s preferred parenting schedule was ordered to begin after its sale. The parents were encouraged to consider a form of nesting agreement for the remaining period.
[11] Costs were then argued. Only then did I learn of the breath-taking amount of costs that had been spent on the motion. Never have I received Bills of Costs on a school placement motion reaching these levels.
[12] Mr. and Mrs. W. are capable, engaged parents with community and professional profiles. If there were clinical issues, the $65,544 spent on this motion could have been directed towards an assessor and therapeutic interventions. If affordability of relocating was an issue, the money would have significantly eased cash flow and/or credit capacity. One can easily go on imaging better uses of the funds. It is simply not responsible litigation conduct to incur this level of fees at so early a stage.
Determination of Costs
[13] I began this decision by trying to understand how such costs had been incurred. Summarizing the litigation conduct to date proved a daunting task. The continuing record in a box of 11 thick volumes. Following is my best effort to understand the materials before the court.
(a) The mother’s Application was issued October 5, 2016. The father’s Answer and Claim are dated November 8, 2016. The case conference was heard January 27, 2017. The parties entered into a consent for financial disclosure. The next event was to be a settlement conference. So far, so normal.
(b) On April 13, 2017 the mother served an omnibus motion for sole custody and 18 other heads of substantive corollary relief. She set it to be heard on the May trial sittings. This was a step entirely uncontemplated by the case management judge. It was not scheduled as a long motion.
(c) The motion was not called during the sittings, but it was scheduled for a one hour motion on July 26, 2017. In my view, there is no prospect that the mother’s motion could be properly heard in one hour. Much of the relief sought – such as sole custody - ought to be determined at trial.
(d) In a consent dated July 16, 2017 the parties agreed that the April 13, 2017 motion would proceed August 16, 2017.
(e) This is where the timeline breaks down. August 16, 2017 is a regular one-hour motions day. For some reason, the terms of the consent were not communicated to the trial coordinator (or erroneously communicated?) In fact, no date was scheduled.
(f) Meanwhile, on August 10, 2017 the father served his own Notice of Motion dated August 9, 2017 (Volume 5.) He set it to be heard on August 16, 2017. It was not placed on the docket for August 16, but instead, it was placed on August 17th, a child protection day for the Newmarket Family Court.
(g) The father’s motion sought orders preventing the mother from moving the children outside of York Region, for the girls to continue in their present school placements and for a 2-2-5-5- parenting schedule. At that time the mother was discussing moving a considerable distance away. His motion was supported by an affidavit of his mother, his step-father, and a personal affidavit of August 9, 2017 consisting of 73 paragraphs and 15 exhibits.
(h) On August 11, 2017 the mother served three affidavits, one from her brother, one from her long-time friend and an August 10th, 2017 personal affidavit of 209 paragraphs with 58 exhibits taking up two volumes: (3 and 4). She also filed a Form 35.1 Parenting Affidavit.
(i) On August 14, 2017 the mother served a fresh Notice of Motion dated August 10, 2017 to be heard August 16, 2017. The August 10, 2017 motion was framed as urgent. It sought ten parenting orders and exclusive possession of the home. It was not scheduled through the trial coordinator.
(j) The April 13, 2017 was never withdrawn and not brought to the court’s attention. I deem it to have been amended by the August 10, 2017 Notice of Motion.
(k) On August 15 the mother served an affidavit from her employer.
(l) On August 16th father’s counsel attended court to argue both motions, knowing by this time that no motions were on the docket. (Had they been, it is unlikely that they could have even been heard in under a half day.)
(m) Mother’s counsel then scrambled to arrange for a counsel from her firm to be present. They also knew that no motion was scheduled for the 16th. They had been asking father’s counsel to confirm that the matter would proceed on the 17th. Father’s counsel stated in court on the 16th that he was not available on the 17th and that it was urgent the motion proceed that day.
(n) It was a most unbecoming presentation, heightened by limited scheduling within the Family Court summer schedule, and compounded errors in scheduling.
(o) Ultimately, I agree to create a special appointment on September 1, 2017 so that the girls’ school enrolment could be determined in time for the start of school.
(p) But the parties weren’t finished ramping up the litigation.
(q) On August 24 the father served an affidavit from his business partner and a second personal affidavit deposed August 23, 2017.
(r) In reply, the mother refiled her August 10, 2017 Notice of Motion (Volume 7, tab 1) and on August 30, 2017 filed an earlier served August 15, 2017 personal affidavit with 155 paragraphs and 56 exhibits spanning Volumes 7 and 8 of the continuing record; and a second affidavit from her long term friend, this one deposed August 29, 2017.
(s) She also filed the affidavit of her counsel’s law clerk setting out scheduling errors leading to the April 16th attendance.
(t) At Volume 8, Tab 4 the mother filed her August 10th Notice of Motion for the third time. She then filed her magnum opus: three volumes of supporting materials: an August 30, 2017 personal affidavit of 334 paragraphs and 50 exhibits, with exhibit K being an entire Volume (10) of surveillance photographs of their garage. [^3]
[14] In assembling this chronology, it appears that this motion was never about the best interim school placement for a young girl whose parents had separated and whose mother might be relocating to a different area of the GTA.
[15] This motion was about the mother’s pretrial incursion for primary residence and decision making within a motion format; and the father’s determination to maintain a status quo that had him equally involved in his daughters’ day to day lives.
[16] Motions have very real limitations. Temporary orders are holding orders determined on incomplete and evolving evidence. They are not trials. But for limited circumstances, such as a motion for summary judgment, a motions judge cannot assess credibility. At best, temporary orders create or maintain interim stability and fairness as a one home family goes through the painful process of transitioning into a two home family. Not every allegation needs be answered threefold.
[17] In reviewing the chronology to date, I find that the expansive litigation undertaken by the mother since April 13, 2017 is disproportionate and unreasonable within the meaning of rule 24(5.)
[18] The necessary response by the father, including bringing his own motion has caused him to incur disproportionate legal fees. He was successful on the motions. That view of success is reinforced by a comparison of the respective Offers to Settle.
[19] The mother served an Offer to Settle on August 10, 2017. Her result on the motion was not as favourable as the terms therein. The father served two offers: May 24, 2017 and August 8, 2017. But for paragraph 6 of the latter offer which purported to govern the residence of the mother, each of his offers was as more than or as favourable as the result on motion.
[20] By operation of Rule 18(14) of the Family Law Rules the father is entitled to seek a full recovery of costs from the date of his offer.
[21] At the same time, some of the father’s litigation conduct has also been unreasonable. Each counsel attached extensive correspondence demonstrating a lack of cooperation, untimely responses and inflexibility between counsels and between the parents. Father’s counsel must take responsibility for some of the breakdown in communication and scheduling that led to walking in, effectively, a long motion on August 16th 2-17. A breakdown in communication between counsels or the court is a mutual obligation to correct.
[22] In family law, success does not relieve a litigant from the obligation to act reasonably. Family law litigants are responsible and accountable for the positions they take during litigation.[^4] The end does not justify the means.
[23] Unreasonable litigation conduct is a factor in assessing costs[^5] and a successful party cannot just demand a blank cheque for their costs.[^6] The court retains a residual discretion to make costs awards which are proportional, fair and reasonable in all the circumstances.[^7]
[24] One of the measures of what is a fair and reasonable recovery of costs - whether a partial or full recovery - is often arrived at by looking at what the unsuccessful party has paid for his or her own legal fees. In that regard, the father claim for costs for $28,035 is unburdened. It compares most favourably to the mother’s Bill of Costs for $37,509. [^8]
Decision on Costs
[25] High conflict family law litigation must be sanctioned early and sanctioned often. Parent education, family counselling, clinical and therapeutic interventions and mediation must come first in the life of a separating family. Families in transition crumble under the costs of high conflict litigation. Few ever fully recover from its emotional toll. High conflict must be a last resort. And when used, used sparingly.
[26] Discouraging and sanctioning unreasonable litigation conduct is the second of three fundamental purposes of a costs award as described by the Ontario Court of Appeal in Serra v. Serra.[^9] Relieving successful litigants of some or all of their costs and incentivizing settlement are the two remaining and equally important purposes.
[27] I award the father his costs in amount approaching a full recovery from the date of his first Offer to Settle, but for a reduction for costs appertain to the August 16, 2017 attendance and the lack of cooperation leading to that attendance.
[28] Order to go that the applicant mother shall pay $22,500 in costs to the respondent father, inclusive of disbursements, plus HST.
Justice H. McGee
Date: September 21, 2017
[^1]: In my reasons I referred to this as “concrete thinking.” [^2]: 2016 ONSC 5621 [^3]: Just to prove that the father was not at home when he said that he was. Really. [^4]: Hackett v. Leung, (2005) 2005 CanLII 42254 (ON SC), 22 R.F.L. (6th) 314 (Ont. S.C.J.); Katarzynski v. Katarzynski, 2012 ONCJ 393 (Ont. C.J.); Toscano v. Toscano, 2015 ONSC 5499 (Ont. S.C.J.) [^5]: Rule 24(5) Family Law Rules [^6]: Slongo v. Slongo, 2015 ONSC 3327 (Ont. S.C.J.) [^7]: M. (C.A.) v. M. (D.), (2003) 2003 CanLII 18880 (ON CA), 67 O.R. (3d) 181 (Ont. C.A.) [^8]: The Bill was presented in two parts. For July 24, 2017 to August 16, 2017 a full recovery is shown as $22,478; and for the period of August 16, 2017 to August 31, 2017 it totals $15,031. Together they total $37,509. [^9]: 2009 ONCA 395