CITATION: Howard v. Barnes, 2017 ONSC 6761

COURT FILE NO.: FS-17-416645

DATE: 20171110

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN: MATTHEW HOWARD (Applicant)

AND: ANDREA BARNES (Respondent)

BEFORE: M. D. FAIETA, J.

COUNSEL: Ira S. Marcovitch, for the Applicant

Joan M. Irwin, for the Respondent

HEARD: Submissions in Writing

C O S T S E N D O R S E M E N T

BACKGROUND

[1] The parties have a four year old daughter. They have been separated since February, 2017. The parties continue to reside in the matrimonial home however the Applicant lives in the basement.

[2] On October 3, 2017 I heard and granted the Applicant’s motion for a temporary order for parenting time with his daughter on the terms that he sought subject to one caveat, namely, that the parenting arrangement be re-visited once the Applicant moves out of the matrimonial home in order to take account the best interests of the child in the new circumstances. This was not a limitation sought by the Respondent. For the sake of providing a fuller explanation of the background, my handwritten endorsement (now typewritten) is attached as Schedule “A”.

[3] The parties have been unable to agree on costs of the motion. The Applicant seeks costs of $10,771.37. The Respondent submits that there should be no costs on the basis that the Respondent was successful in opposing the Applicant’s future access schedule which would have had a much longer duration.

[4] For the reasons described below, I order that the Respondent shall pay costs of this motion to the Applicant in the amount of $5,500.00 within 60 days.

ANALYSIS

[5] In family law proceedings, the award of costs is governed by primarily by section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended (“CJA”), as well as by Rules 18 and 24 of the Family Law Rules, Ontario Regulation 114/99, as amended.

[6] Rule 24 of the Family Law Rules outlines the relevant considerations in awarding costs and ordering security for costs in family law proceedings. For purposes of this motion, the following provisions of Rule 24 are relevant:

(1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.

(2) The presumption does not apply in a child protection case or to a party that is a government agency.

(3) The court has discretion to award costs to or against a party that is a government agency, whether it is successful or unsuccessful.

(4) Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs.

(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

(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.

(6) If success in a step in a case is divided, the court may apportion costs as appropriate.

(7) 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.

(8) 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.

(9) If a party’s lawyer or agent has run up costs without reasonable cause or has wasted costs, the court may, on motion or on its own initiative, after giving the lawyer or agent an opportunity to be heard,

(a) order that the lawyer or agent shall not charge the client fees or disbursements for work specified in the order, and order the lawyer or agent to repay money that the client has already paid toward costs;

(b) order the lawyer or agent to repay the client any costs that the client has been ordered to pay another party;

(c) order the lawyer or agent personally to pay the costs of any party; and

(d) order that a copy of an order under this subrule be given to the client.

(10) Promptly after dealing with a step in the case, the court shall,

(a) make a decision on costs in relation to that step; or

(b) reserve the decision on costs for determination at a later stage in the case.

(10.1) In making a decision on costs in relation to a step in a case, the court shall decide in a summary manner whether anyone is entitled to costs and, if so, determine who is entitled and set the amount of the costs.

(11) In setting the amount of costs, the court 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.

(12) The court may make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including a lawyer’s fees.

[7] These costs rules are designed to foster four fundamental purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; (3) to discourage and sanction inappropriate behavior by litigants; (4) to ensure that cases are dealt with justly: Bridge v. Laurence, 2017 ONSC 1655, paras. 9-10 (Ontario Divisional Court).

[8] Although the broad discretion under section 131 of the CJA to award costs is circumscribed by the Family Law Rules, it is not completely removed. There may be circumstances, aside from a successful litigant’s unreasonableness under subrule 24(4), that may rebut the presumption that a successful party is entitled to costs under subrule 24(1): M.(C.A.) v. M.(D.), 2003 18880 (ON CA), [2003] O.J. No. 3707, paras. 40, 41.

[9] The requirement under subrule 24(11) for the court to consider “any other relevant matter” in setting the amount of costs permits the court to take into account the financial situation of the parties: M.(C.A.) v. M.(D.), para. 42.

[10] Unlike the Rules of Civil Procedure, the Family Law Rules does not provide for “partial indemnity costs” or “substantial indemnity costs”. A court must fix the amount of costs at some figure between a nominal sum and full indemnity: Costa v. Perkins, 2012 ONSC 3165, para. 50 (Ontario Divisional Court).

[11] Subrules 18(14)-18(16) of the Family Law Rules address the costs consequence of the failure to accept an offer to settle:

(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.

(15) The burden of proving that the order is as favourable as or more favourable than the offer to settle is on the party who claims the benefit of subrule (14).

(16) When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply.

[12] A party’s apparent entitlement under subrule 18(14) to costs on a full recovery if the requisite conditions are satisfied, may be denied in light of the financial condition of the parties or the reasonableness of the amount of costs claimed: M.(C.A.), para. 43.

[13] While an award of “no costs” might be perceived to encourage unmeritorious and expensive litigation, it may be appropriate to do so if a costs award would have a devastating effect on the unsuccessful party’s ability to achieve financial self-sufficiency: Murray v. Murray, 2005 46626 (ON CA), [2005] O.J. No. 5379, paras. 9-10.

[14] The overarching principle is that an award of costs “… should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties”: Serra v. Serra, 2009 ONCA 395, para. 12.

[15] The application of the above costs considerations to the circumstances on this motion are addressed below.

Result in the Proceeding

[16] Although the Applicant was granted the parenting schedule on the days that he sought but not for the length of time that he sought. It is clear from his affidavit sworn October 2, 2017 that he wanted an order that this schedule continue after he left the matrimonial home. He stated:

I am not just seeking this parenting schedule while we are living in the same house, but instead I am seeking this parenting schedule in order that we can cease living in the same house and move forward with this separation.

[17] Mom’s position at the hearing of the motion was that the Applicant’s motion should be dismissed as there was no need for a parenting schedule given that both parties live in the matrimonial home.

[18] The Applicant had partial success on the motion. The order sought by the Respondent (namely, no parenting schedule) was dismissed.

Offers to Settle

[19] By Offer to Settle dated September 11, 2017, the Applicant proposed a parenting schedule that would have provided parenting time for him on terms not as favourable as ordered in that he proposed five overnights every two weeks with his daughter rather than six nights as ordered.

[20] A similar schedule, also based on six overnights every two weeks had been proposed by the Applicant by letter dated March 29, 2017. This proposal was not an offer within the meaning of subrule 18 of the Family Law Rules as it was not signed by the Applicant.

[21] Throughout the Respondent has been steadfast in her position that a parenting schedule was unnecessary. The Respondent made only one offer - that the Applicant consent to the dismissal of his motion.

Reasonableness of the Parties’ Behaviour

[22] The Respondent’s unwillingness to adopt a reasonable position regarding a parenting plan for the period while both parents live in the matrimonial home was unreasonable and necessitated this motion. Although the offers to settle made by the Applicant do not engage the cost consequences provided for under subrule 18(14), they reflect the reasonableness of the Applicant’s behavior in trying to avoid a motion.

Importance, Complexity or Difficulty of the Issues

[23] Neither party made submissions related to the importance, complexity or difficulty of the issues. However, it is obvious that the parenting of their daughter is a matter of great importance for both of them. In my view the issue raised on the motion was neither difficult nor complex.

The Lawyer’s Rates

[24] The Respondent does not dispute the Applicant’s rates. I find that they are reasonable.

The Time Spent on the Case

[25] The Respondent claims fees of $10,640.50 on the Bill of Costs. The Respondent does not challenge the time spent by the Applicant’s lawyer on this motion.

Expenses Properly Paid or Payable

[26] There are no expenses claimed on the Bill of Costs.

Any Other Relevant Matter

[27] The Respondent submits that there was divided success on this motion and thus under subrule 24(6) of the Family Law Rules there should be no costs awarded. As previously noted, the Respondent had no success on this motion as the Order that she sought (namely, no parenting plan either now or after the Applicant moves out of the matrimonial home) was dismissed.

Conclusions

[28] Having considered the submissions of the parties and the factors described above, I find that the Respondent’s intransigence in her position on this motion resulted in both parties spending money on legal fees that they could have been better spent given their modest incomes. In my view it is fair and reasonable for the Respondent to pay costs of $5,500.00 in respect of the motion heard on October 3, 2017, inclusive of taxes and disbursements, to the Applicant within 60 days.

M. D. FAIETA, J.

Released: November 10, 2017

SCHEDULE “A”

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN: MATTHEW HOWARD (Applicant)

AND: ANDREA BARNES (Respondent)

BEFORE: M. D. FAIETA, J.

COUNSEL: Ira S. Marcovitch, for the Applicant

Joan M. Irwin, for the Respondent

HEARD: October 3, 2017

E N D O R S E M E N T

[1] The Applicant (‘Dad’) brings this motion for a temporary order that he shall have parenting time with his daughter, Ava, age 4, according to the following schedule:

1. Tuesday from after preschool or 6:00 p.m. until the start of preschool on Wednesday;

2. Thursday from after preschool or 6:00 p.m. until the start of preschool on Friday;

3. Alternating weekends form Friday after preschool until Monday at pre-school with a daytime visit for the Respondent (‘Mom’) on Saturday from Noon until 4:00 p.m. with dad having the same visit on her weekends.

[2] Dad’s evidence is as follows:

1. He brings this motion to seek “consistent and predictable parenting regime for our daughter, Ava”;

2. Ava is 4 years old;

3. Mom and Dad have been separated since February 2017, however, they continue to both reside in the matrimonial home;

4. Dad lives in the basement and Mom resides upstairs in the master bedroom next to Ava’s bedroom;

5. Mom has refused to discuss an interim parenting schedule with Dad on numerous occasions since their separation in February, 2017;

6. Mom has refused to commit to a regular parenting schedule;

7. Currently, Dad sees Ava two or three nights during the week and occasionally on weekends;

8. Mom adopts a “take it or leave it” approach to the parenting schedule and thus, Dad’s time with Ava is subject to Mom’s wishes;

9. Mom has repeatedly told Dad that when he leaves the matrimonial home, Mom’s new boyfriend will move in and Ava will have a “real father”;

10. Dad states that because Mom has a new boyfriend, Mom has spent more nights out of the house which has allowed Dad to spend 2-3 evenings per week with Ava, sometimes until the next morning;

11. Mom sent the following email to Dad on May 18, 2017 which is indicative of the fact that Mom believes that Dad should have an “insignificant” role in Ava’s life:

“...Ava has started asking me questions like why you sleep in her playroom. She doesn’t need details right now. Just the fact that you won’t be living with her anymore but still love her,” [Emphasis added]

12. Mom would only allow Ava to travel with Dad to British Columbia to visit her paternal grandparents if they attested to fact that they would not let Dad drive while drunk with Ava. Then letter July 7, 2017 states:

“... I have never known or heard of Matthew drinking and then operating a car. … I could never imagine Matthew doing something so reckless but given Andrea’s wishes, I will confirm that we will not allow Matthew to drink and drive with Ava in the car.”

13. Mom insists that Dad has a drinking problem. “She is trying to paint me as incapable of caring for Ava and as being drunk. This is completely untrue and she had nothing to suggest that it is true.”

14. A blood alcohol test from July, 2017 was negative.

15. Dad feels he may not see Ava if he moves out of the matrimonial home without an enforceable parenting schedule.

[3] Mom’s evidence is as follows:

1. Ava is a happy, well-adjusted child who loves both parents and she does not know that her parents are separated;

2. Dad is a bank manager. He is head coach of a teenage girls volleyball team that practices twice a week and attends tournaments on the weekends. [At the motion, Dad’s counsel advised that Dad is no longer coaching a girls’ volleyball team];

3. Mom co-owns a dance studio in Markham, Ontario. She does not teach dance lessons, however, she attends dance competitions in which her studio participates. These competitions usually start on a Thursday and end on Sunday;

4. Mom is not dating, nor does she have a boyfriend;

5. Mom is upset that Dad is challenging their marriage contract;

6. Mom was also very upset to learn in March 2017, that Dad had “been lying and unfaithful to me for an extended period of time”. She and Ava left the matrimonial home for two weeks and when she returned, Dad moved into their finished basement;

7. Mom denies making the statements alleged by Dad;

8. Mom believes that Ava’s primary residence should be with her and that the parents should have joint custody;

9. Mom states that there should be “a transitional and changing access schedule for Ava relative to her age and other considerations”;

10. Mom states that, since February 2017, Dad has taken a more active role with Ava;

11. Mom has been more available and involved with Ava’s parenting since birth;

12. Ava started full-time Junior Kindergarten in September 2017. Ava is doing well in school. She goes to bed no later than 8:30 p.m. and gets up around 7:30 a.m.;

13. Ava has asthma and care must be taken regarding her environment to prevent an asthma attack;

14. Mom does not agree with Dad’s view that she controls access with a “take it or leave it” attitude;

15. Dad sees Ava every day if only for a few minutes;

16. Mom refused to allow Dad to take Ava to an out of town volleyball tournament because she did not feel comfortable with his supervision arrangements;

17. Mom maintains that Dad “has a problem with alcohol” and though he does not drink every day, nor does he always drink to excess, on occasion in 2016 he has become intoxicated, fallen down, injured himself and/or become unaware of where he is or what he is doing;

18. Dad and Mom are able to communicate with each other;

19. Dad has a significant amount of time with Ava and “there needs to be flexibility to accommodate arrangements that occur”;

The Legislative Context

[4] The court may make an interim order for custody: Divorce Act, ss.16(2), (6), (7). In making such order the court shall take into account the considerations described in ss.16(8)-(10) of the Divorce Act.

[5] Further context to the phrase “best interest of the child” is provided by s.24(2) of the Children’s Law Report Act.

[6] Mom submits that when the parties are still living in the same home, there is no need, on an interim basis, to make any order as to access: S(NT) v. B(KJ), 20017 BCSC 1895. I am not satisfied that this principle has any application to these facts. The B.C. court did not explain why it came to that conclusion. In my view, the fact that the parties continue to reside in the same house, does not obviate the need for the analysis required by the Divorce Act.

[7] Based on the evidence adduced and in considering the best interest of the child (as opposed to the best interest of the spouses) I find:

That the love, affection and emotional ties between Ava and her Mom and dad are strong;

There are no views of the child adduced and given her tender age, such evidence would be inappropriate;

Each parent has the ability and willingness to provide Ava with guidance, education and the necessities of life and to attend to her special needs which includes her asthma condition;

I am not satisfied that Dad has a “problem with alcohol” that places Ava in any danger if Dad is awarded the access that he seeks; Mom has provided no evidence that Dad consumes alcohol while Ava is in his case or presence at any time during their marriage or that he, as a result, compromised her safety. Dad has advised that he is prepared to consent to an order that prohibits him from consuming alcohol while Ava is in his case and 24 hours prior to Ava being in his care, so long as Mom agrees to such terms. Mom did not object to these proposed terms. In any event, such order is unnecessary given the lack of any sufficient evidentiary basis;

There is no evidence of violence or abuse, and I am not satisfied that there is any past conduct on the part of Dad relevant to his ability to act as a parent that should weigh against his request for access;

The “maximum contact” principle dictates that a child should have as much contact with each spouse as is consistent with the best interest of the child.

[8] In my view, the access sought by Dad maintains Mom as the primary caregiver while also ensuring that Ava’s relationship with Dad is fostered. The access arrangement sought by Dad also promotes stability and predictability which are important for any child.

[9] Accordingly, I grant the Order sought by Dad. However, these access arrangements remain only for so long as Dad lives with Mom. Once Dad moves out (as is contemplated to eventually happen) of the matrimonial home, the access arrangements will have to be re-considered in order to take into account the now housing locution and related circumstances.

[10] I expect both parents to make best efforts to co-operate with one another in order to implement this news access arrangement and to communicate with one another in a respectful manner. Finally, given that Ava may suspect, but has not been told by either parent, I direct that the parents seek the appropriate professional assistance to ensure that the communication of such news to Ava is made in a manner that minimizes any resulting anxiety. I may be spoken to regarding costs if the parties cannot resolve this issue.

M. D. FAIETA, J.