COURT FILE NO.: FS-17-00021337

DATE: 20180522

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ERIN CRAIG, Applicant

AND:

DANIEL TORRANCE, Respondent

BEFORE: SPIES J.

COUNSEL: Judith Nicoll, for the Applicant

Judy Piafsky, for the Respondent

HEARD: In writing

COSTS ENDORSEMENT

Introduction

1Erin Craig (the “mother”) commenced an application seeking, among other things, orders for sole custody of the two children of the relationship she had with the respondent, Daniel Torrance (the “father”); M., who is now 11 years old, and S., who is now 6 years old; that the father have access to the children on a set schedule where there would be no deviation save in the case of an emergency; that the father not engage with her when dropping off or picking up the children and that they communicate through a monitored source such as “Family Wizard” and then only about issues relating to the children. The mother is also seeking orders with respect to s. 7 expenses and retroactive child support.

2No motions were brought by the parties until the mother’s motion before me seeking an order for temporary sole custody of the two children and a fixed schedule of residential time for the children with their father which would have reduced the father’s parenting time with the children that they had informally agreed to, to 3 out of 14 overnights and one dinner. The father brought a cross-motion returnable the same day seeking temporary joint custody of the children and an interim order that the parties have equal parenting time with their children in accordance with a proposed schedule according to a 2-2-3 rotation.

3The mother’s motion was initially returnable November 14, 2017. The mother filed her own affidavit in support of the motion. The father filed a considerable amount of material in response to the mother’s motion. Not surprisingly, the mother then sought an adjournment of her motion to give her time to file responding materials. The adjournment request was heard by Justice Stewart on November 14, 2017. She granted the adjournment and reserved costs to the judge hearing the motions. The father is seeking the costs of this attendance as well.

4In her reply affidavit, the mother proposed that the father have the children overnight 4 out of 14 nights but only on condition that the father return the children to school or her house in the morning. The mother then changed her position again during the argument of the motions on November 30, 2017 before me, moving even closer to the father’s position of equal time with the children.

Reasons for Decision

5As I set out in my Reasons for Decision (Reasons): Craig v. Torrance, 2018 ONSC 541, I found in favour of the father and made an order on an interim basis that the parents have joint custody of their two children and that they each be responsible for day-to-day decisions and expenses arising at times when the children are residing with them. I also ordered that the parents have equal parenting time with the children in accordance with a two-week schedule and equally share all holiday times. In addition, I set out detailed terms dealing with communication between the parents, decision making and other matters. The father was also successful on several minor points of contention regarding the schedule, as follows:

a. The mother wanted the children returned to her home in the mornings before school, while the father sought to make his own childcare arrangements, both before and after school. I granted the father’s request and, in addition, I ordered that the paternal grandmother could assist with care of the children if needed;

b. The mother sought a right of first refusal, which the father agreed with, but only if a party was away for more than 12 hours or overnight. I accepted the father’s position; and

c. The father proposed a detailed access schedule for PA days and holidays. I accepted the father’s schedule with the exception of Christmas 2017 which the parties consented to on the day the motion was argued.

6My Reasons are, to some extent, relevant to the issue of costs. The relevant paragraphs are as follows:

165After my extensive review of the evidence, my decision on the issue of custody is not difficult. The mother has focused on her quantity of time with the children both prior to and after separation. … Although I find that the mother has exaggerated her role as what she alleges is the “primary caregiver”, that is not very relevant to the decision I must make. It is crystal clear on the evidence that both parents are in every respect equally skilled and competent, equally loving, and equally reliable, - they are equal in what they can offer their children in the future. Considering the presumptions at play, the factors set out [in] s. 24(2) I am of the view that both parents are equally entitled to custody.

166There is no evidence that the father has, by his conduct, done anything that might even come close to disentitling him to equal custody to the children. …

167I am satisfied that the father, given the evidence I have of his character, his love for and bond with his children and the positive influence he has been and can be in their lives, should have joint custody of the children with the mother. … Even though the father's parenting time has been reduced after separation, he has maintained a consistent and involved role in their lives.

168The mother, on the other hand, has created a distorted status quo by making important decisions affecting the children unilaterally and unreasonably controlling the father’s access. Her attitude is also demonstrated by her change in position from what she asserted was reasonable and necessary in the children’s best interests in her notice of motion and original affidavit as compared to her final position in her reply affidavit. The mother should not be rewarded for creating this status quo.

169I share the father’s concern that if the mother is awarded sole custody she would exclude him even more from decision making and from information relevant to the children’s school, medical care and activities.

170In deciding this issue I must be concerned about the parents’ ability to cooperate. Based on what I have seen in the email communications, the mother is too quick to say that the father is making “accusations” when, for example, he complains that she has made a unilateral decision about the children. As I have pointed out, in the circumstances the father has exercised great restraint. He has also made bona fide attempts to cooperate with the mother and I find that his suggestion that they engage in professional counselling was made in good faith. I do not understand why that suggestion has been ignored and now rejected by the mother.

171Like the status quo engineered by the mother, I am not prepared to have the fact there are communication issues between the parents, which I find the mother is more responsible for than the father, stand as a reason to deny a formal order of joint custody. …

177The mother has not given any compelling reasons for why the children should not be in the father's care for equal amounts of time. She asserts baldly that the status quo, which she has created, is in their best interests. …

179Given my views on custody, I see no reason why the father should not have equal access to the children, maximizing his contact with both children. I am persuaded that the children ought not to be denied the opportunity to have two parents fully committed to their day-to-day care. [Emphasis added]

Position of the Parties

7The father seeks costs against the mother on a full indemnity basis in the amount of $74,862, inclusive of disbursements and HST. In the alternative, the father seeks costs on a partial indemnity basis (based on 75% of full indemnity costs) until his offer to settle dated November 2, 2017 (Offer) and full indemnity costs thereafter. The total costs based on this alternative position amounts to $67,013, inclusive of disbursements and HST.

8The mother concedes that the father was more successful than she was but submits that this is not an appropriate case for costs on a full indemnity basis for three reasons: 1) because success was divided, 2) the father’s costs are disproportionately high, and 3) that an award in the range sought by the father would negatively impact her ability to participate in the action and to care for the children. The mother’s lawyer spent a total of 30.1 hours on the file. With disbursements and HST, her costs on a full l indemnity basis are $14,197.

Rules and Principles of Law

9Rules 18 and 24 of the Family Law Rules O Reg. 114/99 (Rules) apply to offers and costs awards. Rule 24(1) presumes that the successful party is entitled to costs although this presumption does not mean that the successful party is always entitled to costs; see M. (A.C.) v. M. (D.) (2003), 2003 18880 (ON CA), 67 O.R. (3d) 181 (C.A.) at p. 184.

10In Biant v. Sagoo, 2001 28137 (ON SC), [2001] O.J. No. 3693 (S.C.J.), Perkins J. held, at para. 20, that since the Rules do not state how much or on what basis costs should be awarded, save that they be “reasonable” that he agreed with Aston J. in Sims-Howarth v. Bilcliffe, 2000 22584 (ON SC), [2000] O.J. No. 330 (S.C.J.) citing Mallory v. Mallory (1998), 1998 29653 (ON SC), 35 R.F.L. (4^th) 222 (Ont. Gen. Div.) that the “preferable approach in family law cases is to have costs recovery generally approach full recovery, so long as the successful party has behaved reasonably and the costs claimed are proportional to the issues and the result.” [Emphasis added]

11Perkins J. went on to propose the following framework to a costs order at para. 21:

… where the rules leave me a discretion on how much to award, I propose to look at the full amount claimed, look at the impact of reasonableness of behaviour and divided success, test the amount against the factors listed in r. 24 (11), and then look at factors such as ability to pay in deciding whether the costs awarded should be a substantial (about 80%) or a full recovery, or somewhere in between.

12It is important to note that in Biant, neither party obtained a result as favourable to them as their offer, so the automatic costs consequences of Rule 18(14) were not engaged. Rule 18(14) 1 provides that a party who makes a written offer at least one day before the motion and obtains an order as favorable as or more favorable than the offer, is entitled, unless the court orders otherwise, to costs to the date that the offer was served and full recovery costs from that date. As confirmed in M. (A.C.) at p. 184, the wording of this rule makes it clear that the court has a discretion not to make an award of full recovery even where the party has met the conditions in Rule 18(14).

13Rule 18(16) provides that the court can take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply. This Rule applies to a proposal made by the mother that I will come to.

14Rule 24(6) states: “If success in a step in a case is divided, the court may apportion costs as appropriate.” The mother argues that this Rule applies in this case.

15Finally, Rule 24(11) provides that, in exercising its discretion to award costs, the court must consider the following factors:

(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;

(e) expenses properly paid or payable; and

(f) any other relevant matter.

16In Serra v. Serra, 2009 ONCA 395, at para. 8, the Court of Appeal held that the goals of modern costs rules are to: (1) partially indemnify successful litigants for the cost of litigation, (2) encourage settlement, and (3) discourage and sanction inappropriate behaviour by litigants.

17In Jackson v. Mayerie, 2016 ONSC 1556, Pazaratz J. summarized some additional principles which are of relevance here:

91Even where the “full recovery” provisions of the Rules are triggered — either by an offer which meets Rule 18(14) requirements, or by a finding of bad faith — quantification of costs still requires an overall sense of reasonableness and fairness. Goryn v. Neisner, 2015 ONCJ 318. The Rules do not require the court to allow the successful party to demand a blank cheque for their costs. Slongo v. Slongo, 2015 ONSC 3327. The court retains a residual discretion to make costs awards which are proportional, fair and reasonable in all the circumstances. M. (A.C.) v. M. (D.) (2003), 2003 18880 (ON CA), 67 O.R. (3d) 181 (Ont. C.A.); Scipione v. Del Sordo, 2015 ONSC 5982. [Emphasis added]

93In Sepiashvili v. Sepiashvili, 2001 CarswellOnt 3316 (S.C.J.) Justice Wildman stated at paragraph 20:

... Regardless of the outcome of the case, a client is not entitled to direct vast resources to litigation and expect full reimbursement. When the rules use the term “full recovery costs”, there is an implied qualification that the costs incurred must be reasonable. There must be some assessment of the most effective use of resources to present the case, and some attempt to approach the matter in a cost-effective manner. [Emphasis added]

94The costs determination must reflect proportionality to the issues argued. There should be a correlation between legal fees incurred (for which reimbursement is sought) and the importance or monetary value of the issues at stake. Pagnotta v. Brown, [2002] O.J. No. 3033 (Ont. S.C.J.); Gale v. Gale, 2006 CarswellOnt 6328 (Ont. Div. Ct.). [Emphasis added]

95By the same token, proportionality should not result in reduced costs where the unsuccessful party has forced a long and expensive trial. Murphy v. Murphy, 2010 ONSC 6204; Philippe v. Bertrand, 2015 ONSC 2449.

96The Supreme Court of Canada has recognized in Hryniak v. Mauldin, 2014 SCC 7 that timeliness, affordability and proportionality are essential components of any legal system that seeks to provide true access to justice. Affordability and proportionality require that lawyers budget their time. The expenditure of a disproportionate amount of docketed time will not be sanctioned by the court. Karkulowski v. Karkulowski, 2015 ONSC 3171. [Emphasis added]

97Simplistically, a common theme in the “reasonable expectations” and “proportionality” analyses is that the loser should not have to reimburse the winner for excessive or unnecessarily expensive litigation behaviour which might be regarded as “overkill”. Scipione v. Del Sordo [2015 ONSC 5982]. [Emphasis added]

99The size of an unsuccessful party’s legal bill does not in any way dictate that the successful party’s legal bill is limited to the same amount. Sometimes the winner was successful precisely because their lawyer put more work into the file. But at the very least the unsuccessful party’s legal bill may be of assistance as a benchmark for proportionality. [Emphasis in original]

107But while a party’s limited financial circumstances is a factor for the court to consider, it should not be used as a shield against any liability for costs and should only be taken into account regarding the quantum of costs. Snih v. Snih [2007 CarswellOnt 3549 (Ont. S.C.J.)] 2007 20774; Quinn v. Nicholson, 2013 ONSC 1125; Luke v. Luke, 2014 ONSC 422. [Emphasis in original]

108The impact of a costs order on a party’s ability to provide for a child must also be considered. Beckett v. Beckett, 2010 ONSC 2706, [2010] O.J. No. 1957 (Ont. S.C.J.); Emmerson v. Emmerson, 2015 ONSC 2949. But this cuts both ways:

A large costs order against an unsuccessful party may affect their ability to provide for a child in their care.

But inadequate reimbursement for costs may similarly impoverish a child residing in the successful party’s household. [Emphasis added]

Analysis

Was Success Divided?

18The mother submits that there has been divided success up to this point in the application for three reasons. First, she requested and received an adjournment of her motion on November 14, 2017. Second, on that same date, there was no change to the status quo parenting arrangement, despite the request by the father to change it. Lastly, on the day the motions were argued the mother was successful in getting the Christmas access outlined in her factum, save for two addendums.

19In my view, in considering whether or not success was divided, the attendance before Stewart J. is irrelevant. It was a step in the hearing of the motions where costs were reserved to the judge hearing the motions. The court will consider that there has been divided success on a motion where one party succeeded on some of the issues argued on the motion and the other party succeeded on the others. That is not the case with an attendance to adjourn a motion.

20The costs of the attendance before Stewart J. must be determined however. The mother submits that the father declined to agree to the adjournment which meant that counsel needed to attend before Justice Stewart. Furthermore, the mother submits that on the attendance before Justice Stewart, the father sought to have a change to the de facto custody arrangements, which Stewart J. declined to do, given that the adjournment was for a period of only nine days.

21In my view given the volume of material filed by the father, and given the short period of the adjournment, it was not reasonable for the father to oppose it and force an attendance to argue a temporary change to custody. I appreciate he was frustrated by the mother’s actions but this was a wasted expense. I am prepared to consider that the mother prevailed on this attendance but in my view it does not mean that there was divided success on the motions to justify in whole or in part an order that each party bear their own costs. At its highest, the father is not entitled to costs of this attendance. I will consider this in assessing the father’s costs.

22Ms. Piafsky docketed 3.5 hours for preparation, travel to and from, attendance at court on November 14^th and other work on the file. She included travel time which in my view is not compensable, something she claimed for November 30^th as well, which I will come to. Based on the mother’s Costs Outline, the attendance before Stewart J. was about one hour long. In my view a deduction of three hours of time is warranted.

23As for the Christmas access schedule, as I recall, the father was essentially in agreement with the mother’s schedule and that in fact is reflected in his Offer. It took only a few minutes to sort this issue out on consent. In my view this is not a matter that the mother succeeded on that would impact costs, given the parties were essentially in agreement on this issue. The resolution of this issue would not have prevented the motion from proceeding.

The Father’s Offer and the Mother’s Proposal for Settlement

24In the father’s Offer he offered joint custody of the children, and that he have the children for 6 nights of every 14. His offer was severable and was open for acceptance for a few days on a without costs basis. There is no doubt that the father was as or more successful than his Offer on both of the main points of joint custody and shared parenting as well as other terms.

25The mother acknowledges that she made no official offer to settle, but she submits that her global proposal for settlement sent to the father on November 21, 2017 (Proposal), following their failed mediation, should not be ignored in my assessment of costs. This Proposal can be considered given Rule 18(16).

26The mother’s Proposal proposed that the father have the children overnight for 5 nights of every 14 together and that he have two evening visits with the children on a one on one basis but this Proposal was for the following two months only. After this two-month period, the mediator would meet with M. to report on M.’s wishes and the parties would then to try to resolve matters on a final basis without the necessity of going to court.

27The father did not respond to this Proposal. The mother submits that to ignore this Proposal would run contrary to “accepted principles and policy that encourages parties to try to resolve disputes freely and properly.”

28Although this Proposal suggested some movement in the mother’s position from her formal position on the motions, it still fell considerably short of what I ordered. I fail to see the relevance of the mother’s Proposal with respect to my assessment of costs as it made no proposal with respect to custody and in particular did not propose equal parenting; offered the father only 5 nights out of 14 as opposed to the 7 that I ordered. Furthermore, it was not an offer to settle the motions but only to provide for a two-month test period after which if mediation did not resolve the issues presumably the motion would proceed. In my view this Proposal is not relevant to my determination of the father’s costs.

29As already stated, the father was clearly more successful than his Offer and Rule 18(4) applies subject to the principles of law that I have set out. The father is entitled to costs that approach full recovery, subject to the mother’s other submissions that the father’s costs are disproportionately high and that an award in the range sought by the father would negatively impact her ability to participate in the action and to care for the children.

The Behaviour of Each Party

30Neither party asserts bad faith on the part of the other but the father submits that the mother acted unreasonably.

31The father submits that he acted reasonably and presented materials that, while voluminous, were necessary for this Court to resolve the motion. He submits that the mother acted unreasonably by advancing unreasonable positions on custody and access (which changed throughout the process), by seeking an adjournment of her own motion, by unilaterally choosing a date for the motion, and by not responding to his offer to settle. He submits that the outcome of the motions should have been evident to the mother. The mother further acted unreasonably in not accepting the father’s offer to settle. Instead she played ‘hardball’ with the father, refusing to provide him with a reasonable position on the issues and forcing the parties to attend and argue the motion. Referring to her greater means, the father added: “She should answer in costs and she has the ability to do so.” The father submits that the mother’s litigation strategy amounts to hardball tactics that this Court has implored parents to avoid, relying on Jackson at paras. 113-115 where Pazaratz J. stated: “All of this could have been avoided. All of this should have been avoided. Courts have an obligation to deliver this message so parents will stop pretending that hardball custody litigation is ‘for the sake of the child’”.

32The mother submits that she filed her motion for sole custody on October 20, 2017 because the father had threatened to do since at least March 2017. She disputes that she unilaterally chose a date for the hearing and she also argues that she sought an adjournment of her motion because the father filed eight affidavits, which forced her to respond in kind, and that costs increased as a result. She maintains that she has not acted unreasonably throughout the proceedings. In support of that submission she refers to the Proposal, which I have already dealt with.

33The issue of how the date for the mother’s motion was chosen is in dispute between counsel and I make no finding as to whether or not the mother chose the date for the motion unilaterally. It would not impact on costs in any event. As I have already said the fact that the mother sought an adjournment of her motion was to be expected given the volume of material filed by the father. I have already dealt with the Proposal.

34In my view the mother acted unreasonably in coming to court to disturb the status quo that she had already engineered in her favour, particularly as she took a formal position in her motion that provided less access for the father to the children than he already had and she provided for more access to the father in her reply material. Her position changed again on the hearing of the motion resulting in the fact that there was very little difference in the position of the parties on the question of access. Had the mother been reasonable from the outset on the issues of access and overnights, the parties would not have needed to argue that aspect of the motion. The mother, however, maintained her claim for sole custody which she was trying to secure on a motion for a temporary order.

35The substance of the affidavit evidence filed by the father would not have come to a surprise to the mother as surely she would have known how the father had cared for the children during the course of their relationship and separation. In any event, recognizing the strength of the father’s case is no doubt what prompted her to improve her position on the access she was offering to the father, resulting in the fact that during the course of argument there was very little difference between them. The big issue was whether or not the mother was entitled to sole custody but there was absolutely no merit to that claim. She ought to have accepted the father’s Offer. It was more than reasonable. As I said in my Reasons, the mother acted unreasonably. It seems that the mother, who already dictated the access the father had to the children, was determined to create an even better status quo to support her position that she should have sole custody. This must have some impact on costs, particularly as I am concerned that the mother was trying to take advantage of the fact that she has more financial resources than the father.

Are the Legal Fees Claimed by the Father Proportional to the Issues and the Result?

36This is the most difficult issue that I must deal with. The mother filed an affidavit sworn on October 20, 2017 detailing all of the reasons why the relief she claimed was in the best interests of the children. The father responded with an affidavit sworn on November 2, 2017 and he included a number of affidavits from family, friends and persons I would describe as neutral third parties. The mother responded with a reply affidavit and affidavits from family and friends and the father then provided his reply affidavit and a few more affidavits from friends.

37In my Reasons I stated as follows:

11It is impossible and quite frankly counter-productive and unnecessary to summarize all of the evidence in detail. I have taken a considerable amount of time to read all of the material filed by each parent in coming to my conclusions. The views of the parents are diametrically opposed and if I had only their sworn affidavit evidence it would be impossible to come to any conclusions on who is telling the truth. In my view, even if this was a trial and I could receive the viva voce evidence of the parents, findings of credibility would be difficult if that is all I had.

12Fortunately, additional evidence was filed that gives me the ability and confidence to make findings of fact. What I was impressed by, and I expect any trial judge would be, was the email communications between the parents which cover some of their communications since separation until late 2017 and the views of the neutral third parties who were prepared to swear affidavits. That evidence, in my view, is deserving of the greatest weight and, for the most part, it is what I have based my decisions on. For these reasons, in my view, a trial on these issues is not necessary and would be a colossal waste of the financial resources the parents have, which could be better spent on their children. [Emphasis added]

38There is no doubt that the material filed on both motions was voluminous; over three volumes of the Continuing Record. As I stated in my Reasons, both counsel agreed that it was too much to be dealt with on a one-hour motion, which was all the time that was booked. Ms. Nicoll, counsel for the mother, was content that I adjourn the motion for a trial of an issue but Ms. Piafsky, counsel for the father, urged me to deal with it. I knew from the material filed that the mother earned more than the father, that she was still living in their home and that she was the one dictating to the father when he could see the children. Knowing that a trial of an issue would increase the legal costs of the parties even more, I was concerned that the fees not stand in the way of resolution of these important issues. Accordingly, I proceeded to hear the motions, after granting more time for argument.

39Although one can debate exactly how much was necessary for the father to respond to the mother’s motion, my Reasons support the father’s position that the extra material he filed, in particular the email correspondence and the views of neutral third parties, was necessary to resolve the custody and residency/access issues, because evidence coming from the parents alone would have made it impossible to decide who was telling the truth and I would have been forced to direct a trial of these issues.

40In my view although one can debate if all of the affidavits filed by the father were necessary, as experienced counsel I would have thought that Ms. Nicoll would have expected the father to respond as forcefully as he could. Although the orders sought by the mother were temporary, she sought to assume sole custody of the children and reduce the father’s time with them even more than the status quo she had engineered, rather than simply push the matter on to trial. The status quo can be very important on custody and access motions. Had she succeeded on her motion, particularly had she succeeded in getting a temporary order for sole custody, that would have been very significant and a serious obstacle to the father obtaining joint custody at trial. In my view the mother was clearly trying to obtain a status quo that was favourable to her overall position in the application. Unfortunately, given the overwhelming evidence I received from those who knew the father and the email communications between the parents, it seemed to me that she was not focusing on what was in the children’s best interest.

41The father relies on Green v. Green, [2008] O.J. No. 3778 (S.C.J.) at para. 37 in support of his position that time spent is important but Sproat J. was speaking only of the time spent in making cost submissions. The father also relies on para. 39 of Green but the first part of that paragraph was speaking to a financial fight between high-income spouses which is not this case. I do agree, however, with the observation of Justice Sproat at para. 39 that the “parties must understand and be motivated to settle by the fact that there are cost consequences at the end of the line.” As the motion was argued, at least on the question of the father’s time with the children, there was only one overnight separating the position of the parents. It was the mother who moved towards the father’s position, which makes one wonder why she brought her motion in the first place.

42The mother argues that in assessing what a reasonable, fair, and proportional costs order should be, I should pay particular attention to the fees incurred by the other party. In this regard the mother relies on Vetro v. Vetro, 2011 ONSC 7293, at para. 24 and Durbin v. Medina, 2012 ONSC 640, at para. 23 where McGee J. held that “one of the measures of what is fair and reasonable is often arrived at by looking at what the other party has paid for his own legal fees with respect to a matter.”

43I agree that the time spent by counsel for the mother is a factor to consider and may be of assistance as a benchmark for proportionality, however, I must also consider the fact that as Pazaratz J. stated at para. 99 in Jackson, set out above, that the amount of the mother’s costs does not mean that the father’s costs must be limited to the same amount. As I have already stated, a change in the status quo would have been significant. In this case the father succeeded, in part, because his lawyer put more work into the file and, in particular, marshaled evidence that I could rely upon in making my decision that did not require credibility assessments that would be difficult if not impossible to make on only affidavit evidence coming from each of the parents. I must still consider however, whether or not his response was overkill and all of the relevant factors in Rule 24 to determine what is fair and reasonable. I will address this when I consider what quantum should be fixed for the father’s legal fees.

Would an Award of Costs in the Range Sought by the Father Negatively Impact the Mother’s Ability to Participate in the Litigation and to Care for the Children?

44The mother alleges that she brought her motion because the father had not done so despite threatening to do so since at least the first case conference of March 2017. That, of course, is not a reason to bring a motion that I determined was without merit. The mother asserts that the father’s decision to file the extensive materials that he did caused her financial hardship and caused her to incur significantly greater costs than she would otherwise have done. Moreover, the mother argues that any order of costs approaching either of the father’s requested costs amounts would impact negatively upon her ability to effectively participate in this action or to support the children while in her care. She relies on Antic v. Antic, 2011 ONSC 4752, presumably at para. 8 but there the issue was whether or not the respondent had acted in bad faith by his professed intent to negatively impact on the applicant’s ability to effectively participate in the action. If I were to consider that, I would have to say this was the mother’s intent, possibly based on the fact that the father had difficulty in retaining counsel and had changed counsel a number of times. I do not find that this was the father’s intention. Rather in my view he took the steps that he did to ensure his success on the motions.

45I have difficulty with the mother’s position since she had the option of accepting the Offer which would have put her in a more favourable position than my decision. Furthermore, as the father submits, in her financial statement sworn October 20, 2017, the mother had almost $100,000 in her PC chequing account, $15,000 in savings plans, and a home worth over $750,000 (which she stated has net equity of approximately $200,000). Her net worth was over $325,000 as of October 2017. She earns over $110,000 per annum. She is in a far better financial position than the father, who earns less than her and does not own a home.

46The unfortunate reality in this case is that the parents, and in particular the father, have spent a considerable amount of money on these motions. Obviously the expenditure of those funds will impact on each of them in terms of their ability to provide for their children and to continue to participate in this litigation. I have to balance on the one hand that a large costs order against the mother, as the unsuccessful party, may affect her ability to provide for the children when they are in her care against the fact that inadequate reimbursement of the father’s costs may similarly impoverish the children when they are residing with him. Given the mother earns more than the father and has more assets, in my view the impact on the mother’s ability to care for the children when they are in her care is not a consideration any more than the father’s financial means when they are in his care.

47As for the ability to participate in this litigation, hopefully the parents will have learned a lesson as to how expensive it is to bring these issues to court. At para. 164 of my Reasons, I said the following:

Both parents have alleged that the other is motivated in the relief sought by a desire to avoid paying child support. I do not make that finding with respect to either parent but I must observe that something must have motivated the parents to go to such great expense, particularly on the access issue, where they were really not that far apart. I hope they both now recognize how expensive these types of all out battles can be once the court is engaged. They should also realize that the costs they have incurred to bring these motions on for hearing are just a fraction of what it would cost to bring these issues to a trial. They both earn a good income but I hope they will agree that this money can be better spent on the children now and securing that they can have lots of options for their post-secondary education.

What Quantum Should be Fixed for the Father’s Legal Fees?

48In my view, accepting the views of Perkins J. in Biant and given the father’s successful Offer, he should, subject to the reasonableness of the amount, be entitled to costs on a full indemnity basis. The question, however, is whether or not his claim for costs on this basis in the amount of $73,983¹ is reasonable.

49The Costs Outline filed by the father states that Ms. Piafsky, a 2002 call, spent a total of 88.8 hours and her associate, who was called in 2012, spent a total of 70.3 hours, for a total of 159.1 hours. This compares to the total of 30.1 hours spent by Ms. Nicoll, a 1984 call. The father’s counsel filed more material in support of his position but that does not explain why the time they incurred is about five times the hours spent by Ms. Nicoll. This is the most difficult issue that I must consider.

50The mother complains that Ms. Piafsky’s expenditure of time at approximately 2 ½ times that of Ms. Nicoll is already disproportionate. To then add a further $23,000 from an associate lawyer who was not present in court at any time would be unreasonable in the circumstances.

51I am not troubled by the fact that the associate did not attend court, but there does not seem to be any logic in how work was delegated to her. Ms. Piafsky was still heavily involved in the preparation of the numerous affidavits filed by the father, which I would have thought could have been delegated to her associate. By doing so that would have more than compensated for any duplication of time in the associate needing to become familiar with the file.

52I have considered the reasonableness of the hourly rates charged by the father’s counsel. Ms. Piafsky’s hourly rate on a full indemnity basis is claimed at $480 whereas her associate’s is claimed at $325/ hour. Ms. Nicoll, who has 33 years’ experience, as compared to Ms. Piafsky’s 16 years, only charged $400/hour on a full indemnity basis.

53There is no Costs Grid that applies to family court matters to guide me. I have, therefore, considered the Information for the Profession (Information) set out in connection with Rule 57 of the Rules of Civil Procedure as a guide. It sets out hourly rates fixed as of July 1, 2005 for civil matters and fixing costs on a partial indemnity basis, and obviously to the extent I consider these rates, they should be adjusted for inflation.

54The Information provides that for lawyers with more than 10 years, but less than 20 years, the maximum partial indemnity hourly rate should be $300/hour. Given the definition of substantial indemnity costs in Rule 1.03, which, I appreciate, is less than full indemnity, the substantial indemnity rate for Ms. Piafsky would be $450. Adjusted for inflation, Ms. Piafsky’s full indemnity hourly rate of $480 is reasonable.

55As for Ms. Piafsky’s associate, given she has less than 10 years’ experience, her maximum partial indemnity hourly rate would be $225/hour, which would put her substantial hourly rate at $337.50/hour which is more than the hourly rate claimed of $325/hour.

56For these reasons I conclude that the hourly rates claimed by the father’s counsel are reasonable. Ms. Nicoll’s seems low, which could explain part of the discrepancy in costs.

57The motions were not particularly complex or difficult. They were fact driven. The real issue then is what amount of time was required to do the work done by counsel for the father.

58I have already decided that three hours spent on the preparation for and attendance before Stewart J. should be deducted. In addition, Ms. Piafsky redacted some portions of her dockets but on only one occasion did she change the docketed time. In addition she charged for travel time to and from court on the day the motions were argued before me which as I have already stated, is in my view not compensable. These deductions however would only result in a modest reduction of the time claimed.

59The Costs Outline filed by the mother was prepared after the outcome of the motions was known. I do not recall if a Costs Outline was filed by the mother at the time of the hearing of the motions, before the outcome was known. I do note, however, that at least in one entry, the one for November 14, 2017, it is stated that it is “time reduced”. I would have to say that the time overall Ms. Nicoll incurred seems quite low even given that the mother did not file the same volume of materials as the father. That, however, in my view does not explain the entirety of this huge discrepancy in time spent as between counsel.

60Before the Offer (in the period of October 18 to November 2, 2017) the father filed eight affidavits with 33 exhibits in support of his motion and he incurred $20,838 in legal fees (not including HST), based on 50.3 hours of work by Ms. Piafsky and 11.2 hours of work by her associate.

61After the father’s Offer on November 3, 2017, he incurred an additional $37,687 in fees before HST, based on 38.5 hours by Ms. Piafsky and 59.1 hours by the associate lawyer for their time spent up to and including the argument of the motions and preparation of the costs’ submission. In that timeframe, the mother served 11 affidavits and the father then prepared significant responding materials as well as his factum and bill of costs.

62I accept that the delegation of work by Ms. Piafsky to her associate was not that efficient particularly given her hourly rate was not significantly lower than Ms. Piafsky’s. I have also found that the amount of time spent by Ms. Nicoll was unusually low. These factors, however, and the other adjustments I have made do not totally explain why Ms. Nicoll’s time is so low as compared to the father’s counsel. I conclude that the time spent by counsel for the father was somewhat excessive but do not conclude that it should not have been at the level spent by Ms. Nicoll or even close to it. To a large extent, the time spent by counsel for the father resulted in his success on the motions.

63In my view a reasonable amount for the father’s fees inclusive of HST, considering all of the circumstances is $60,000.

What Quantum Should be Fixed for the Father’s Disbursements?

64No issue was raised with respect to the father’s disbursements claimed in the amount of $878 inclusive of HST.

Disposition

65For these reasons I order that the applicant mother pay the respondent father’s costs in the amount of $60,878 inclusive of HST within 30 days of the release of this endorsement.

66Too much money has been wasted by the parents on these issues. I remind the parties, as I said in my Reasons, that although the order I made was a temporary order, in my view, a trial on these issues is not necessary and would be a colossal waste of the financial resources the parents have, which could be better spent on their children. I hope they consider this before they come back to this Court for any further guidance or direction.

Footnotes

1. 1All amounts are rounded off to the nearest dollar.