Superior Court of Justice – Ontario (Family Court)

Citation: Smith v. Moulder, 2017 ONSC 901 Court File No.: F784/13 Date: February 6, 2017

Re: Meghan Louise Smith, Applicant And: James Lawrence Moulder, Respondent

Before: Vogelsang J.

Counsel: Jennifer K. Howard for the applicant B. Thomas Granger Q.C. for the respondent

Heard: written submissions filed

ENDORSEMENT on costs

[1] In the recent proceedings before the court, I was concerned by the applicant’s insistence that the respondent’s access to Evan, their six-year-old daughter, should be curtailed or, at a minimum, subject to continuing restrictive terms and ongoing scrutiny.

[2] To give a sense of the backdrop to the latest litigation, the applicant first sought relief after the parties’ separation in February, 2013. The respondent then enjoyed alternate weekend access and time on Wednesday evenings. Two years later the applicant alleged, a few days before a motion was to be heard, that Evan had disclosed some form of sexual abuse by the respondent. It was said that a subsequent disclosure was made to Ms. Crittenden, a play therapist engaged by the applicant. Faced with these allegations, the respondent agreed to suspend his access. He was required to see Evan in a supervised access setting at Merrymount Children’s Centre in London.

[3] Both the City of London Police Service and the Children's Aid Society of London and Middlesex investigated the allegations. There was no evidence that the respondent had in any way sexually abused his daughter.

[4] When the trial subsequently came before me in early October, 2015, the parties were settled and had signed Minutes in which the respondent conceded his access would continue to be supervised for six months. After that, both the applicant and respondent agreed that he would have access with Evan overnight every second weekend and for extended periods during the summer and at Christmas. The Minutes provided, first, that the respondent would attend and complete a parenting program at Merrymount (with which he complied) and, second, that he have monthly telephone calls or personal meetings with the therapist.

[5] The respondent had to bring a motion almost 90 days after his six months at Merrymount had been completed. He still had not had unsupervised access. Bondy J. demanded compliance with the condition directing contact between the respondent and Ms. Crittenden. The order of Bondy J. was not without difficulty, but I later gave some brief written reasons July 13, 2016 seeking clarification directly from Ms. Crittenden. That resulted in what I thought was a quite satisfactory answer and explanation from her. I was surprised when the applicant’s counsel requested a brief adjournment to August 17, 2016 to deliver further affidavits, and even more surprised on the return date when counsel produced an unsworn affidavit of the applicant (who was vacationing in Muskoka) and an affidavit of the applicant’s mother who provides daycare for Evan. The applicant was attempting to bring all manner of new facts to the discussion of access, much to the distress of counsel for the respondent who pointed out that the issue of the resumption of access had already been determined by me, was over, and could not be relitigated.

[6] The respondent seeks costs of $3,600, claiming a presumptive right to costs based on his success.

[7] In Blanchard v. Walker, 2012 ONCJ 799 (Ont. Ct.), Curtis J. said:

14 The courts have a broad discretion to award costs. The general discretion of the courts regarding costs is contained in the Courts of Justice Act, s. 131(1), which sets out specific principles regarding costs:

(a) the costs of a case are in the discretion of the court;

(b) the court may determine by whom costs shall be paid; and,

(c) the court may determine to what extent the costs shall be paid.

15 Modern costs rules are designed to foster three fundamental purposes: Fong v. Chan (1999), 1999 2052 (ON CA), 46 O.R. (3d) 330, 181 D.L.R. (4th) 614 (Ont. C.A.), para. 24, and Serra v. Serra, 2009 ONCA 395, [2009] O.J. 1905 (Ont. C.A.):

(a) to indemnify successful litigants for the cost of litigation;

(b) to encourage settlement; and

(c) to discourage and sanction inappropriate behaviour by litigants.

16 Rule 2 (2) of the Family Law Rules adds a fourth fundamental purpose for costs: to ensure that the primary objective of the rules is met -- that cases are dealt with justly. This provision needs to be read in conjunction with rule 24 of the rules: Sambasivam v. Pulendrarajah, [2012] O.J. No. 5404, 2012 ONCJ 711 (Ont. Ct), para. 37.

[8] Later decisions augment the general purposes of costs. The fifth, to protect and foster access to justice, was described by Czutrin J. in Jordan v. Stewart, 2013 ONSC 5037 (Sup. Ct.), and the sixth is to sanction and discourage unreasonable conduct: see Atkinson v. Atkinson, 2014 ONCJ 474 (Ont. C.J.).

[9] There is no precise definition of “success” in r. 24 of the Family Law Rules, O. Reg. 114/99. A literal view remains impossible. One cannot say that, because a party did not achieve exactly what was sought, success eluded the litigant, but where a motion represented a reasonable response to a party’s failure to comply, especially where the court makes an order effectively giving a moving party the result sought, there is a showing of success for the purposes of costs: Thrush v. Hiros (No. 2), 2015 ONCJ 548 (Ont. Ct.) per Kukurin J. While the applicant in this motion did achieve some changes to the requirements of my original order which enabled her to obtain access to some equalizing funds, the great preponderance of the motion involved the applicant’s reluctance to comply with the agreed return to unsupervised access. Generally, the respondent was successful.

[10] I am trying to view the issue of costs of this motion in a flexible and balanced way, recognizing the wide discretion afforded by r. 24 of the Family Law Rules, O. Reg. 114/99: Ostapchuk v. Ostapchuk, 2003 57399 (ON CA), 2003 CarswellOnt 1661, [2003] O.J. No. 1733 (C.A.). The respondent is entitled to his costs, but the quantum to be paid must reflect the factors in r. 24(11) viewed flexibly: C.A.M. v. D.M. (2003), 2003 18880 (ON CA), 67 O.R. (3d) 181 (C.A.). The costs award, as well, must represent a fair and reasonable amount that should be paid by the applicant, rather than any exact measure of the actual costs to the respondent: Zestra Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] O.J. No. 4495 (C.A.).

[11] I am required to step back and make an assessment of a sensible and fair result consistent with what the unsuccessful party might reasonably have expected to have to pay: Moon v. Sher (2004), 2004 39005 (ON CA), 246 D.L.R. (4th) 440, [2004] O.J. No. 4651 (C.A.). The costs assessment, as well, must reflect some form of proportionality to the actual issues argued, rather than an unquestioned reliance on billable hours and documents created: Pagnotta v. Brown, 2002 CarswellOnt 2666 (Sup. Ct.).

[12] To my mind, a balanced, fair costs award to the respondent to reflect his significant success is $2,500, inclusive of recoverable disbursements and H.S.T.

“Justice Henry Vogelsang”

Justice Henry Vogelsang

Date: February 6, 2017