Court File and Parties

CITATION: Basley v. Basley, 2017 ONSC 886 COURT FILE NO.: FD311/16 DATE: February 6, 2017

SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: (MICHAEL) BRETT BASLEY, applicant AND: AMY BASLEY, respondent

BEFORE: VOGELSANG J.

COUNSEL: Erin L. Reid and Alice Van Deven for the applicant Sharon E. Hassan for the respondent

HEARD: written submissions filed

ENDORSEMENT on costs

[1] I delivered some written reasons in this lengthy contested interim custody proceeding. It concerned the best interests of two children, a boy aged ten and his sister aged nine.

[2] The issues were not without difficulty. The affidavit evidence was conflicting. A preliminary ruling was required after lengthy argument on a motion by Ms. Basley to strike the production of transcripts and audio recordings made by Mr. Basley. Later, both those recordings and a video recording (audio only) made by Ms. Basley were introduced in evidence. Some discussion became necessary about the effect of parental conflict on young children. There was no easy agreement about the status quo before physical separation, and findings had to be made. I eventually found that making an interim custody order would neither assist the parties nor be consistent with the best interests of the children. After a review of the legislation and the recent case law, I found that the maximum contact principle set out in s. 16(10) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) c.3 [as am. by S.C. 1997, c.1] and the circumstances of the two children and the parents dictated that equal sharing of residential time on a week-about basis should be ordered.

[3] Mr. Basley sought the week-about residence schedule, while Ms. Basley argued for a sole custody interim disposition with Mr. Basley having alternate weekend access, mid-week time and shared holidays. Mr. Basley now seeks full recovery costs of $28,421, inclusive of recoverable disbursements and HST. I was not advised of the fees and disbursements charged to Ms. Basley – and there appears no requirement to do so: Smith Estate v. Rotstein, 2011 ONCA 491 (C.A.) – but I have no reason to think that her legal bill was substantially less than his.

[4] In reviewing my reasons, some unusual factual aspects of this case stand out.

[5] For long periods of time between their separation and the motion, the parties lived in the former matrimonial home with the children. I described the “predictable conflict” from that “powder keg” environment. Unfortunately, there was some physical fighting and Mr. Basley was charged with assault on two occasions. While any form of domestic violence is reprehensible, there were no allegations of real injury. Ms. Basley indulged as well in vicious verbal assaults on Mr. Basley who, at times, responded in kind. That being said, I described both of the parents as highly intelligent, capable and concerned. I was impressed by their love for their children who return that love to both of them, and also impressed by the resilience the children have displayed.

[6] I found that both parties shared equivalent roles as psychological parents and hoped that an interim equally shared residential arrangement for the children would afford them the maximum opportunity to continue and develop their relationship with their father and mother and also allow Mr. Basley and Ms. Basley to get on with their lives and get over their past problems.

[7] I have a real hesitation, in now considering the costs claim, about placing either parent at a terrible disadvantage or jeopardizing the delicate residential arrangement in which the children are living.

[8] In M.(A.C.) v. M.(D.) (2003), 2003 18880 (ON CA), 67 O.R. (3d) 181 (C.A.), Rosenberg J.A. said:

[40] Reference should also be made to s. 131(1) of the Courts of Justice Act, which provides that subject to the provisions of an Act "or rules of court, the costs of and incidental to a proceeding . . . are in the discretion of the court". It is apparent that the Family Law Rules have circumscribed the broad discretion granted by s. 131(1). See Biant v. Sagoo [(2001), 2001 28137 (ON SC), 20 R.F.L. (5th) 284 (Ont. Sup. Ct.)], at para. 15. They have not, however, completely removed the trial judge's discretion. Thus, the general provision, Rule 24(1), enacts a "presumption" that the successful party is entitled to costs of the case but does not require that the successful party is always entitled to costs.

[41] While it is not necessary to decide the issue in this case, I think it is arguable that a successful party may not obtain a costs award in his or her favour even in circumstances not falling within subrule 24(4). There may be circumstances aside from the unreasonableness of the successful party's conduct that rebut the presumption. See Ramsay v. Ramsay [1999 15027 (ON SC), [1999] O.J. No. 4835 (Sup. Ct.)] at para. 10.

[42] I am also of the view that the financial situation of the parties can be taken into account in setting the amount of the costs award either under Rule 24 or Rule 18. Thus, while subrule 24(11) enumerates a number of factors that must be taken into account, the person setting the amount of the costs is directed to take into account "any other relevant matter". I agree with Aston J. in Sims-Howarth v. Bilcliffe, [2000 CarswellOnt 299 (Sup. Ct.)] at para. 4, that the "Family Law Rules demand flexibility in examining the list of factors in subrule 24(11) without any assumptions about categories of costs". In my view, a consideration of particular relevance may be the financial position of the parties, especially of an unsuccessful custodial parent. See Biant, at para. 17 and Brennan v. Brennan, [2002] O.J. No. 4743 (QL) (S.C.J.), at para. 11. In 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. …

[9] Interestingly, Ramsay v. Ramsay, supra, again a decision of Aston J., expressly approves the notion that costs may not be routinely awarded in family law matters involving custody and access disputes where the parties have acted in good faith and made their focus the best interests of the children, as enunciated by Katarynych J. in Beaumont v. Frandsen (1995), 1995 3845 (ON CJ), 14 R.F.L. (4th) 298 (Ont. Prov. Div.).

[10] The need for a good reason to deprive a successful custody litigant of presumptive costs was underlined by Pazaratz J. in Tomlinson v. Hornick, [2008] O.J. No. 1193 (Sup. Ct.):

10 Costs are intended to indemnify successful litigants, encourage settlement, and discourage or sanction inappropriate behaviour in the conduct of litigation. Those priorities are (at least) equally important where children's issues are involved, and Rules 18 and 24 of the Family Law Rules specifically apply to all family litigation - including custody and access cases. While the successful party in child custody cases will not always get an award of costs, some good reason should exist to rebut the presumption in favour of the successful party under Rule 24. In the case before me, I see no reason why the Respondent's liability for costs should be significantly reduced in relation to the non-monetary issues relating to now 13 year old Ashlyn.

[11] In Reid v. Mulder (2006), 2006 9981 (ON SC), 29 R.F.L. (6th) 120 (Ont. Sup. Ct.), Reilly J. found that both parties had litigated their custody issue in good faith as a result of their genuine love for their daughter and a mutual desire to play a significant role in her life. Costs were not awarded, as recognizing one party as the “winner” and designating the other as the “loser” by an award of costs was unjust and unconscionable in the special circumstances of that case.

[12] In the matter before me, I was absolutely convinced of the sincerity of each of the parties and their strong belief that the children who they love so much would be better served by the proposal each put before the court. In the result, however, I decided that the children are to be with them on an equally-shared rotation, which will require a very significant financial and parental contribution from each of them. I doubt that Ms. Basley could maintain that contribution if a costs award were imposed on her, as her economic circumstances are far less than those enjoyed by Mr. Basley. At that point, the children would, in all probability, suffer. I have compared the circumstances of the parties and, as a principle, costs should sometimes not be awarded where a delicate balance sought to be achieved by an order with respect to ancillary relief would be upset: Tysoe v. Huxley (2006), 2006 BCCA 149, 25 R.F.L. (6th) 280 (B.C.C.A.).

[13] The words of Humphries J. at para. 2 of Hansen v. Mantei-Hansen, 2013 CarswellBC 1463 (B.C.S.C.) are entirely on point. She said:

In general, costs in family matters follow the event. However, this is a case where each parent has a legitimate and well-founded case to put forward. It would not be in the interests of justice to pronounce one parent successful in this action and one not. The only consideration is the best interests of the children, and as I have made clear, the children would be well served living primarily with either parent. Given the parents' determination to live apart, and their equal devotion to their children, a decision had to be made for the children by a court. In these circumstances it is appropriate that the parties bear their own costs.

[14] Both Mr. Basley and Ms. Basley will bear their own costs of the motions.

“Justice Henry Vogelsang”

Justice Henry Vogelsang

Date: February 6, 2017