Court File and Parties

COURT FILE NO.: FC-15-233 DATE: 2018/09/20 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

D. F. – and – D.C.

Counsel: John Allan and Francis Aheto-Tsegah, counsel for the Applicant Suzanne Y. Cote, counsel for the Respondent

HEARD: In Writing

Costs Order

Desormeau, j.

Introduction

[1] Following a sixteen day trial heard late last year and early this year, I released my decision on July 20, 2018. At that time, I invited both parties to make submissions in writing on the issue of costs. This order is in response to the submissions, offers and bill of costs filed on behalf of both parties.

[2] At trial, the main issues to be determined were custody of, and access to L.D., communication, travel, restraining order, and police enforcement. The issue of custody was effectively conceded by the Father based on his draft order.

Position of the Parties

[3] At trial, briefly summarized, Mr. F. requested the following orders:

a. Sole custody to the Mother;

b. Access to the child, based on a gradually increased schedule, ultimately leading to a 2-2-3 schedule, as well as shared specified holidays and unlimited telephone access;

c. Exchanges at the child’s school or a natural setting, not including exchanges through the Maternal Grandmother;

d. Direct access to third party facilitators, information and records;

e. Advance notice by the Mother to the Father of any major decisions and all appointments for the child, and that the Father be permitted to attend same;

f. Authority for both parents to take the child for urgent medical care, with notice to the other as soon as practicable via email. Regular email communication, or if necessary, using Our Family Wizard;

g. Restrictions on either party removing the child outside of Ontario or Quebec without the other’s written consent or court order;

h. No restrictions on travelling with the child. Terms of communication and information to be conveyed if either party plans a vacation with or without the child;

i. 90 days’ notice of intention to move outside of Ottawa, and failing agreement, then mediation or court order;

j. Restrictions on changing the child’s name, and speaking ill of the other parent;

k. Restrictions on the child being in the care of the Maternal Grandmother;

l. Provisions that the Mother provide the Father with a copy of the child’s health card, S.I.N. card, birth certificate and any other identification; and

m. Police enforcement.

[4] Ms. D.C. sought orders for:

a. Sole custody of the child;

b. The Father to have two hours bi-weekly supervised access to the child at the FSO Access Centre (“FSO”);

c. That the Father not be permitted to bathe the child or change the child’s clothing unless it is necessary;

d. Permission for the Mother to travel with the child, obtain and maintain a passport for the child, all without the Father’s signature or consent. The Mother to be permitted to vacation with the child for up to four weeks per year;

e. The Father to surrender his passport(s) to the Mother any time he is in Canada. A requirement that the Mother hold the Father’s passport, up to two days before he has to travel;

f. The Father to provide written confirmation from the appropriate authorities in Ethiopia that no passports, citizenship or residency documents have been issued in the child’s name;

g. That all parties provide a written notice to the Ethiopian Embassy not to issue a passport for L.D. Such notice is to include a certified copy of this Order. The Applicant and the Respondent shall also provide a copy of the notice to Foreign Affairs, Trade and Development Canada Consular Services and to each other;

h. That neither the Father, nor anyone on his behalf, be permitted to remove the child from the jurisdiction;

i. That the parties use Our Family Wizard as the only method of communication. Those communications are to be accessible for any future court proceedings in relation to the child;

j. Neither parent will discuss with the child (or with any person in her presence) any issue which is the subject of any court proceeding or the subject of conflict between the parents;

k. Police enforcement;

l. Restraining order; and

m. The Father shall provide ongoing disclosure about where he lives (address, telephone number) and contact information (email, cell phone number, home phone number) within five days of any change.

[5] Ultimately, I made the following Final Order:

a. I found it was appropriate to grant sole custody of the child to the Mother. The Mother was ordered to consult with the Father regarding all major decisions, and involve him in all areas of the child’s life including keeping him informed of any appointments and changes of circumstance;

b. I granted the Father unsupervised access to the child, based on a gradually increased schedule, leading to access every second week-end from Friday at 6:00 p.m. to Sunday at 6:15 p.m., and every Wednesday from after school or 3:00 p.m. to 6:00 p.m. Exchanges are at FSO, the police station lobby, or the child’s daycare;

c. Each parent to have two non-consecutive weeks of uninterrupted access in the summer, and a fixed holiday schedule;

d. Direct access by the parents to the child’s service providers, including access to their records and information;

e. I ordered that the Mother provide advance notice to the Father of making major decisions for the child, as well as an obligation to keep him advised of all routine appointments and their outcome. Authority was granted to the Father to make appointments with the collaterals and to obtain updates on the child;

f. Each parent shall seek medical care for the child when required, and advise the other via email regarding same, treatment and follow up;

g. No changing the child’s name without consent or order;

h. Neither parent shall speak ill of the other parent while in a caregiving role and shall not permit third parties to make negative comments about the other parent in the child’s presence;

i. The Mother is permitted to travel with the child, obtain a passport for the child, and also vacation with the child for up to four weeks per year without the Father’s consent;

j. The Mother to retain the child’s passport;

k. The Father to surrender his passport(s) to the Mother when in Canada, which shall be returned to him two days prior to his proposed travel dates;

l. The Father is to provide written confirmation from the appropriate authorities in Ethiopia that no passports, citizenship or residency documents have been issued in the child’s name;

m. All parties will provide a written notice to the Ethiopian Embassy not to issue a passport for L.D. Such notice is to include a certified copy of this Order. The Applicant and the Respondent shall also provide a copy of the notice to Foreign Affairs, Trade and Development Canada Consular Services and to each other;

n. That neither the Father, nor anyone on his behalf, is permitted to remove the child from the jurisdiction without a court order;

o. The parties are to use Our Family Wizard as their sole means of communication, baring emergencies. These communications will be accessible for any future court proceedings involving the child;

p. The Father shall provide ongoing disclosure about where he lives (address, telephone number) and contact information (email, cell phone number, home phone number) within five days of any change;

q. Neither parent to discuss with the child, or with any person in the child’s presence, the subject of the court proceedings or the subject of conflict; and

r. The Father was strongly recommended to attend counselling, to include a component addressing anger management.

[6] Upon review of the above, I find that there has been divided success. Further, having considered the submissions of counsel, their bills of costs and offers to settle, for reasons detailed below, I find, in the circumstances that it is appropriate to not award costs to either party.

The Law

[7] The starting point in addressing the issue of costs is section 131 of the Courts of Justice Act, which provides that subject to the provisions of an Act or rules of court, costs are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.

[8] Rule 24 of the Family Law Rules (FLR) addresses the issue of costs, and states that there is a presumption that a successful party is entitled to the costs of a motion.

[9] Rule 24(12) FLR outlines the factors to be considered in quantifying costs:

(12) In setting the amount of costs, the court shall consider,

(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

(i) each party’s behaviour,

(ii) the time spent by each party,

(iii) any written offers to settle, including offers that do not meet the requirements of Rule 18,

(iv) any legal fees, including the number of lawyers and their rates,

(v) any expert witness fees, including the number of experts and their rates,

(vi) any other expenses properly paid or payable; and

(b) any other relevant matter. O. Reg. 298/18, s. 14.

[10] Modern costs rules are designed to foster three fundamental purposes:

1. to partially indemnify successful litigants for the cost of litigation;

2. to encourage settlement; and

3. to discourage and sanction inappropriate behaviour by litigants: Serra v. Serra, 2009 ONCA 395, [2009] O.J. No. 1905 (Ont. C.A.), at para. 8; Sickinger v. Sickinger, 2017 ONSC 2612, at para. 11.

[11] Rule 2(2) FLR 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: Sambasivam v. Pulendrarajah, 2012 ONCJ 711, [2012] O.J. No. 5404 (Ont. C.J.); Lawrence v. Lawrence, 2017 ONCJ 431, at para. 28.

[12] The justice system is a precious public resource. Access to the justice system by individuals must be balanced with the need to ensure that the resource is available for all those who need it. This is one of the purposes of Rule 2: Lawrence v. Lawrence, 2017 ONCJ 431, supra, at para. 52.

[13] Parties to litigation must understand that court proceedings are expensive, time-consuming and stressful for all concerned. They are not designed to give individual litigants a forum for carrying on in whatever manner they may choose, oblivious to the impact of that conduct on the other side and, perhaps most importantly for the purposes of this case, oblivious to the mounting costs of the litigation: Lawrence v. Lawrence, 2017 ONCJ 431, supra, at para. 54.

[14] Modern costs rules accomplish various purposes in addition to the traditional objective of indemnification. An order as to costs may be designed to penalize a party who has refused a reasonable settlement offer. Costs can also be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371 (S.C.C.), para. 25; Lawrence v. Lawrence, 2017 ONCJ 431, supra, at para. 31.

[15] In Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (Ont. C.A.), the Ontario Court of Appeal indicated that a costs award should be a "fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs of the successful litigant". A "fair and reasonable amount" is that amount which the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation: Lupien v. Carmichael, 2017 ONSC 2929, at para. 9.

[16] One measure of what is “fair and reasonable” to pay in costs may be arrived at by looking at what the unsuccessful party paid for their own legal fees. (see Goryn v. Neisner, 2015 CarswellOnt 8562, and Mohr v. Sweeney, 2016 ONSC 3238)

[17] Determining the amount of costs is not simply a mechanical exercise. Costs must be proportional to the amount in issue and the outcome: Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (Ont. C.A.), supra.; Lawrence v. Lawrence, 2017 ONCJ 431, supra, at para. 64.

[18] When awarded on a full recovery scale, costs can serve to express the court's disapproval of unreasonable conduct during the litigation: Prinzo v. Baycrest Centre for Geriatric Care (2002), 60 O.R. (3d) 474 (Ont. C.A.), 2002 CarswellOnt 2263, 2002 C.L.L.C. 210-027, 17 C.C.E.L. (3d) 207, 161, O.A.C. 302, 60 O.R. (3d) 474, 215 D.L.R. (4th) 31 (Ont. C.A.), para 76; Lawrence v. Lawrence, 2017 ONCJ 431, supra, at para. 32.

[19] In determining costs, the court must also consider, pursuant to Rule 24(5) FLR, reasonableness of the parties. 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.

[20] Rule 18(14) sets out the costs consequences of 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. O. Reg. 114/99, r. 18 (14).

[21] Rule 24(6) provides that where success in a step in a case is divided, the court may exercise its discretion to order and apportion costs as appropriate. However, the determination of whether success was truly "divided" requires a contextual analysis that takes into consideration the importance of the issues that were litigated and the amount of time and expense that were devoted to the issues that required adjudication (Jackson v. Mayerle, 2016 ONSC 1556 (Ont. S.C.J.); Slongo v. Slongo, 2017 ONCA 687 (Ont. C.A.)): Lippert v. Rodney, Norton and Norton, 2017 ONSC 5406, at para. 14.

[22] A finding of bad faith is not a condition precedent to full recovery of costs by the other side under the Family Law Rules: Osmar v. Osmar (2000), 8 R.F.L. (5th) 387 (Ont. S.C.J.), 2000 CarswellOnt 2343, 8 R.F.L. (5th) 387, [2000] W.D.F.L. 660, [2000] O.J. No. 2504, [2000] O.T.C. 979 (Ont. S.C.J.), para. 11; Lawrence v. Lawrence, 2017 ONCJ 431, supra, at para. 57.

[23] Rule 24(8) FLR addresses the issue of bad faith. Justice Perkins in S.(C.) v. S.(M.), 2007 ONSC 20279, stated the following regarding bad faith:

“Bad faith” has been explained as “not simply bad judgment or negligence but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. . . it contemplates a state of mind affirmatively operating with furtive design or ill will.” See Biddle v. Biddle (2005), 137 A.C.W.S. (3d) 1164, [2005] W.D.F.L. 2089, [2005] O.J. No. 1056, 2005 CarswellOnt 1053 (Ont. Fam. Ct.), at para. [14]. The definition of “bad faith” in The Concise Oxford Dictionary of Current English (5th ed., 1964, ed. by H.W. Fowler and F.G. Fowler) is simply “intent to deceive”. The essence of bad faith is the representation that one’s actions are directed toward a particular goal while one’s secret, actual goal is something else, something that is harmful to other persons affected or at least something they would not willingly have supported or tolerated if they had known.

In order to come within the meaning of bad faith in subrule 24(8), behaviour must be shown to be carried out with intent to inflict financial or emotional harm on the other party or other persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court. A misguided but genuine intent to achieve the ostensible goal of the activity, without proof of intent to inflict harm, to conceal relevant information or to deceive, saves the activity from being found to be in bad faith. The requisite intent to harm, conceal or deceive does not have to be the person’s sole or primary intent, but rather only a significant part of the person’s intent. At some point, a party could be found to be acting in bad faith when their litigation conduct has run the costs up so high that they must be taken to know their behaviour is causing the other party major financial harm without justification.

In construing subrule 24(8), I think there is an implication from the context of the provision that the bad faith must relate to the issues at stake in the case or to the conduct of the case — not behaviour outside the issues in the case or in a separate (even if related) case — in order to justify a costs penalty in the case: S.(C.) v. S.(M.), 2007 ONSC 20279 at para’s 16, 17 and 18.

[24] Success is given presumptive pre-eminence in Rule 24. While Rule 24(12)(b) [previously 24(11)(f)] does permit the consideration of ability to pay (under the umbrella of "any other relevant matter"), it is given significantly less prominence than the presumption that costs will follow success. (see Biant v. Sagoo (2001), 20 R.F.L. (5th) 284 (Ont. S.C.J.), 2001 CarswellOnt 3315, [2001] O.T.C. 695, 20 R.F.L. (5th) 284 (Ont. S.C.J.): Lawrence v. Lawrence, 2017 ONCJ 431, supra, at para. 33)

[25] Ability to pay alone cannot, nor should it, over-ride the other factors in Rule 24(12). (see Peers v. Poupore, 2008 ONCJ 615 (Ont. C.J.), para. 42; Lawrence v. Lawrence, 2017 ONCJ 431, supra, at para. 35)

[26] The (financial) means of the unsuccessful party may not be used to shield them from liability for costs, particularly when they has acted unreasonably: Gobin v. Gobin (2009), 71 R.F.L. (6th) 209 (Ont. C.J.), para. 24; Lawrence v. Lawrence, 2017 ONCJ 431, supra, at para. 36.

[27] To determine whether a party has been successful, the court should take into account how the order compares to any settlement offers that were made: Lawson v. Lawson (2008), 167 A.C.W.S. (3d) 723 (Ont. S.C.J.), 2008 CarswellOnt 2819, [2008] W.D.F.L. 3600, 167 A.C.W.S. (3d) 723, [2008] O.J. No. 1978 (Ont. S.C.J.). The position each party took in the case should also be examined: Lawrence v. Lawrence, 2017 ONCJ 431, supra, at para. 41.

Analysis

[28] At the outset, it is important to note that in submissions, Applicant’s counsel made reference to comments made at conferences by other judges. As set out in Rule 17(23) of the Family Law Rules, these submissions are inappropriate, and thus have been completely disregarded by the court.

[29] In their costs submissions, both counsel are seeking costs on a full recovery basis. The Mother argues that the Father acted in bad faith, and that she was the successful party. The Father argues that the Mother’s conduct was unreasonable and unnecessarily prolonged the resolution of the matter by forcing it to trial. The Father relies on Hackett v. Leung (2005), 2005 ONSC 42254 in support of this assertion.

[30] In determining the quantum of costs, I have taken into account the factors set out in Rule 24(12):

(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues: The issues at trial were important to both parties, but not significantly complex. A great deal of time and effort was dedicated by both parties in addressing the issues in question.

(i) each party’s behaviour: Both parties made offers to settle which were open for acceptance up to the commencement of trial.

The Father was prepared to accept the recommendations of the OCL, which demonstrated reasonableness. However, he failed to comply with disclosure orders, and tried to rely on the polygraph evidence without a legal basis for same, both of which demonstrated unreasonable behaviour.

The Mother behaved unreasonably by advancing her position on access, which was a significant step back from the access regime at the time of trial, as she was unwilling or incapable of accepting the conclusions reached by any independent investigators regarding the allegations of abuse against the child.

Despite the Father’s assertions to the contrary, the Mother seeking to adduce hearsay evidence of the child’s statements was not unreasonable, nor was it unreasonable for the Father to argue against the evidence being considered.

(ii) the time spent by each party: Both parties submitted bills of costs which are in similar ranges. I take no issue with either one of them.

(iii) any written offers to settle, including offers that do not meet the requirements of Rule 18:

The Mother’s offer to settle dated September 18, 2016 was subject to acceptance in parts. Though the Mother was successful in some of those ‘parts’, the Father was unable to accept sole custody to the Mother and argue about access as those were contained together in one ‘part’.

The Father’s offer to settle mirrored the OCL recommendations, which was reasonable. His offer dated November 14, 2017 was open for acceptance until the commencement of trial, and did not contain any restrictive terms regarding acceptance.

Pursuant to subrule 18(14), in order to be entitled to full recovery of costs from the date of the offer, the party making the offer must obtain an order that is as favourable as or more favourable than the offer. This is not the case for either party.

(iv) any legal fees, including the number of lawyers and their rates: While Mr. F. had two counsel of record who have submitted their accounts attached to the bills of costs, those accounts are marginally lower than that of Respondent’s counsel. Further, given that the trial had been previously adjourned, and the high conflict nature of this file, I have no difficulty with the fees, rates and number of lawyers on file.

(v) any expert witness fees, including the number of experts and their rates: In this case, this was not a salient factor.

(vi) any other expenses properly paid or payable: The disbursements claimed by both parties are reasonable.

(b) any other relevant matter: n/a.

[31] The Respondent asserts that the Father acted in bad faith as found in Rule 24(8) FLR in support of their request for full recovery. In support of same, the court is referred to S.(C.) v. S.(M.), 2007 ONSC 20279, supra, as well as the Father’s actions which led the court to find him to have demonstrated a carelessness with the truth, and despite numerous court orders, failed to disclose his un-redacted immigration file until the first day of trial. I have considered whether or not the Father’s actions involved a conscious doing of wrong, or a state of mind affirmatively operating with furtive design or ill will. I have also considered whether the actions relate to the conduct of the case or issues at stake or whether they are separate issues outside of the case. After great deliberation, I am not persuaded that the Father’s actions fall within the ambit of bad faith as intended by Rule 24(8) FLR.

[32] I am mindful that the Court’s role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees: Aprile v. Aprile, 2016 ONCJ 678, at para. 13.

[33] As noted above, I find that success was divided success. Sole custody to the Mother was conceded, in accordance with the OCL recommendations. Thereafter, the main issues in dispute were access, communication, travel, restraining order and police enforcement.

[34] I find that much of the trial focused on the Father’s access and the allegations of abuse made against him. While the Father suggested access as per the OCL recommendations, the Mother argued strongly for more supervision and less access than what was the status quo. The remainder of the issues, which though I will refer to as secondary or ancillary issues, were no less important to the parties, were not the basis of substantial argument.

[35] Mr. D.F. was successful in his claim for generous unsupervised access and set holiday times, despite not reaching shared time as requested by him. Meanwhile, Ms. D.C. had greater success on the ancillary issues. Additionally, on a balance of probabilities, I was not persuaded that the Father abused the child, but I was persuaded that there was abuse toward the Mother. Ultimately, neither party was fully successful or fully unsuccessful.

[36] As stated by Justice D. Chappel in Thompson v. Drummond, 2018 ONSC 4762, when addressing divided success:

The determination of whether success was truly "divided" does not simply involve adding up the number of issues and running a mathematical tally of which party won more of them (Brennan v. Brennan, 2002 CarswellOnt 4152 (Ont. S.C.J.)). Rather, it requires a contextual analysis that takes into consideration the importance of the issues that were litigated and the amount of time and expense that were devoted to the issues which required adjudication (Jackson v. Mayerle, 2016 ONSC 1556 (Ont. S.C.J.); Slongo v. Slongo, 2017 ONCA 687 (Ont. C.A.)) Where the court concludes that success was in fact divided, it may award costs to the party who was more successful on an overall global basis or on the primary issue, subject to adjustments that it considers appropriate having regard for the lack of success on secondary issues and any other factors relating to the litigation history of the case (Gomze-Pound v. Pound, [2009] O.J. No. 4161 (Ont. C.J.); Boland v. Boland, 2012 ONCJ 239, [2012] O.J. No. 1830 (Ont. C.J.)). (see Thompson v. Drummond, 2018 ONSC 4762 at para. 12)

[37] After considering the relevant factors and case law, the behaviour of both parties, and what I am persuaded is divided success, despite the substantial legal fees incurred by both parties, I find it is appropriate in the circumstances that no costs be awarded.

Disposition

[38] No costs.

Madam Justice Hélène C. Desormeau Released: September 20, 2018