Court File and Parties
COURT FILE NO.: FC-12-3056-0 DATE: 2018/10/02 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: N.H., Applicant AND J.H., Respondent
BEFORE: J. Mackinnon J.
COUNSEL: Brian Ludmer, for the Applicant Richard Bowles, for the Respondent
HEARD: In Writing
Costs Endorsement
[1] This 35 day trial took place in 2017. My reasons were delivered in two parts; at 2017 ONSC 4867 as to parenting issues; at 2017 ONSC 6607 as to financial issues. In my trial reasons, I found the applicant to be entitled to full recovery costs in respect to a contempt motion which was brought at and heard contemporaneously with the trial.
[2] Counsel have now made written submissions on costs. The applicant asks for costs fixed at $225,718.73 for the contempt motion, and total costs of $785,457.
[3] The respondent claims costs of $210,000.
The Contempt Motion
[4] The applicant delivered a motion in writing at the opening of trial, seeking a finding that the respondent was in contempt of court. I directed that the motion would be contained in the trial, with oral testimony, rather than on a separate written record. The parties disagree as to how much trial time was taken up with the contempt motion. They do agree that their submissions on this issue took a half day.
[5] The applicant submits that the contempt issues occupied 35% of the trial time. That would amount to more than 12 days of trial. The respondent submits that costs should be limited to the half day for argument. She says that there was complete overlap between the trial and contempt issues such that no additional testimony was called that would not have been called as part of the trial evidence in any event.
[6] I do not agree with the position of either party.
[7] The applicant conflates non-compliance with orders and the contempt findings made at trial. My findings of contempt were specific. The first related to the respondent’s failure to locate a replacement access supervisor acceptable to both parties. The second related to her failure to deliver the children for access as required by court order, commencing from January 28, 2017 and continuing into the trial. The applicant should have restricted his claim for costs to the specific findings made.
[8] The issue with respect to the replacement supervisor was narrow. Did the order require the respondent to find a supervisor acceptable to both parties? Or only to her herself? Or objectively acceptable? I found the order in question required her to locate a mutually acceptable supervisor. I found her in contempt of this order because she stopped looking after locating one supervisor who was only acceptable to herself. Although extensive evidence was provided in connection to the involvement of the supervisor who was to be replaced, and the nature and quality of the services he provided, this evidence was not relevant to the specific contempt allegation.
[9] The respondent did not dispute that the children had not attended access as required by order. She acknowledged her non-compliance with the access orders on the applicable dates. The issue was whether she had established a defence by showing she had done her best to send the children, or by showing reasonable justification for her non-compliance. The first of these issues was the more factually complex and time consuming. Both parents presented evidence from themselves and others designed to show, on the applicant’s part that the respondent was unilaterally withholding the children, and on the respondent’s part that it was the children who did not want to go. The second issue was not as complex in that the clinical psychologist who had been involved in the case for years, had advised in 2014 and 2016 that the children could and should attend their access with their father. The daughter’s physician had also supported continuing the relationship. Further, there had been a number of access interruptions prior to trial in which the respondent made the same or similar arguments. On each occasion the motion judges had ordered her to resume access. These recommendations and findings made it difficult for a defence of reasonable justification to succeed.
[10] The applicant did not persuade me that 35 % of trial time should be allocated to the contempt motion. Schedule 2 of his costs submission sets out his view of the trial time directed to the issue of contempt. I found the schedule inaccurate and unreliable. For example, he included the first three full days of the applicant’s own testimony. During those days, the applicant testified on a far reaching range of issues, including but not limited to his childhood, his education and work history, some events during the period of cohabitation, his relationship with each of his children, and his parenting philosophy.
[11] The applicant did not provide a Bill of Costs. Instead he provided more than 47 individual invoices, on which he had marked a “C” beside those entries he considered to relate to the contempt motion. No compilation of these entries was provided, by timekeeper or service provided. He did not provide a chart that totalled these entries in comparison to those for the rest of the trial to demonstrate the percentage allocations. In the invoices provided to me I could not locate time related to the preparation of the Notice of Motion for the contempt motion or the supporting affidavits.
[12] I accept the respondent’s submission that there was overlap between the issues raised in the contempt motion and in the trial. I do not agree that this disentitles the applicant from any costs recovery for the evidentiary portion of the motion. The notice of motion and supporting affidavits were prepared, and there was an evidentiary aspect to the factual issues raised in defence of the motion over and above the half day devoted to submissions.
The Applicant’s Costs Submissions
[13] I have already noted that the applicant did not provide a Bill of Costs. This is a serious omission. It leaves the court without a breakdown of fees and disbursements in relation to the various issues in the case. Nor are fees charged per time keeper provided in relation to specific issues or services rendered.
[14] In that I have concluded the applicant is entitled to an award of costs I shall address other deficiencies in his materials. My reasons for finding that the respondent is not entitled to costs are set out below.
[15] The applicant improperly re argued some of the factual issues at trial that I had resolved in the respondent’s favour. He improperly re characterized or ignored some of my findings.
[16] I refer to two aspects of the applicant’s submissions, by way of illustration. The applicant justified the amount he claimed in part by saying he was “contesting a flawed custody/assessment and process”, and that the court had rejected the assessor’s recommendations as a result. I did not find that the assessment was flawed. I rejected the applicant’s allegations of bias against the assessor. I found the assessor’s work was balanced and always focused on the best interests of the children. I stated that the testimony I heard and my own observations at trial were consistent with those of the assessor. His recommendations for trial were made in August 2016. As noted at paragraph 629 of my reasons, circumstances had changed considerably between that date and the date the trial concluded. These changes were very important to my consideration of his recommendations.
[17] The applicant also referred to a letter the respondent wrote to the assessor dated February 10, 2017. He describes this letter as an admission that she could have produced the children for access if she had wanted to and as a demonstration of the extent of her falsehood’s and manipulations all designed to marginalize the applicant from the children’s lives. The letter does not say this or demonstrate this at all.
[18] Applicant’s counsel charged a flat 2 % of fees to cover nominal disbursements rather than tracking them individually. The respondent added these charges up to $9,992.01. Other disbursements were redacted as to the payee or purpose for which they were incurred, yet the amount was included in the claim for costs. Outsourced secretarial fees were included as claimable disbursements. The respondent totalled these to $8,238.13. So were travel costs for out of town counsel which totalled $1,903.05 and hotel bills of $20,287.13. Legal research for “miscellaneous trial issues” was also claimed by way of disbursements. Only some research disbursement accounts stated the topic of the research.
[19] There are other deficiencies in the applicant’s claim for costs which were on point with Justice Corthorn’s ruling on costs of a motion between these parties, at 2016 ONSC 7129. I adopt her reasons. Simply put the applicant has claimed for expenses not properly included in a party and party bill of costs.
[20] The disbursement claimed for legal research was totalled by the respondent at $27,542.50. My observation was that the case law presented by the applicant was excessive. His legal briefs appeared to be generic to the broad subject matter rather than specific to this case. My recollection is that I was provided a brief of more than 40 cases on the topic of occupation rent alone.
[21] Fees were incurred in relation to Doctors Bone and Childress. It is not clear what services were provided. The description I found of “litigation consult” is inadequate to support inclusion in a party and party award of costs.
[22] The applicant justified the attendance of a paralegal throughout trial by way of her note taking. This task could have been accomplished by counsel and his client. The other services she provided while the trial was in process were performed outside of sitting hours and not dependant on her presence in court.
[23] Undoubtedly proper party and party disbursements were incurred by the applicant, for example, for printing, serving documents, issuing summonses, and for some outsourced legal research.
Custody and Access
[24] The applicant claims to have been 90% successful on the parenting issues. He was not. He claimed joint legal custody (decision making) and equal residential time with both children. Despite declining to amend his pleadings during trial, he continued to insinuate that the court could nonetheless award him sole decision making and primary residence for both children.
[25] The only one of these claims he achieved after trial was equal residential time with the older child. It is important to note that had I the jurisdiction, I would have removed her from the care of both parents. Equal residential time for this child was ordered because I concluded neither parent was able to provide for her full time. This outcome was a success in comparison to what the applicant sought, but hardly a success based on the reasons provided. I awarded the applicant significantly less residential time with his son than he proposed at trial and in his offer to settle.
[26] He did achieve limited joint decision making for counselling or therapy for both children, and with respect to their daughter’s treatment for anxiety, stress and OCD. This shared authority was for both parents, subject to some significant, limiting “no change” parameters.
[27] The applicant’s alternate claim with respect to decision making was that he should have decision making over health and education for both children under a parallel parenting order. He had some success here, too. He was awarded sole decision making for his son’s extracurricular activities and routine medical care, and for dental and orthodontic treatment for both children.
[28] All other decision making authority rested with the respondent.
[29] My view is that the applicant achieved limited and partial success on the parenting issues.
[30] His offers to settle parenting issues were only delivered the day before the trial started and do not impact my assessment of limited, partial success.
[31] The applicant significantly prolonged the duration of the trial. He advanced positions in relation to trial issues that were time consuming and unsuccessful. His manner of giving testimony was often extensively detailed, slow and non-responsive to the question. His counsel was reduced to using the hand sign for “time out” combined with saying, “TMI” to his client (short for “too much information”) in an effort to control the applicant’s testimony. This happened repeatedly throughout the trial.
[32] The respondent’s position at trial was that she should have sole decision making and primary residential care for both children. She proposed a Wednesday evening visit for the applicant and children, and alternate weekends from Saturday morning to Sunday at 3:00 p.m.
[33] She delivered two offers, dated September 20 and September 26, 2016. Both offered somewhat more access to the applicant, namely an evening visit in one week, and an overnight visit the next week; plus alternate weekend access from Friday after school to Sunday at 6:00 p.m. Alternatively, she offered one overnight every week, and two of every three weekends from Saturday at 10:00 a.m. to Sunday at 3:00 p.m.
[34] As already noted, she did not achieve the full decision making or primary residence she sought.
[35] She did retain much decision making authority, including the important area of education, and the residual, or “catch all” authority. She did retain primary residence of the parties’ son. I awarded the applicant alternate weekends and every Wednesday overnight access with him. This award is closer to what the respondent sought and proposed than it is to the applicant’s claim.
[36] I conclude that the respondent also had limited, partial success on the child related issues.
[37] The applicant made a good point with respect to the respondent’s offers. He asked, how could he accept what she was offering him, when she so frequently failed to make the children available to him at all. I said this about the respondent in my trial reasons, 2017 ONSC 4867:
[352] My ultimate conclusion with respect to the respondent is that she has no insight into or understanding of her contribution to this sad state of affairs. She reserves to herself the entitlement to be the final authority as to whether the children will or will not see their father.
[38] I also found that the applicant’s view of his responsibility for all these years of litigation was “extraordinarily limited.” His focus was on blaming others for his problems. I stated at paragraph 4:
[4] The applicant father, who once had insight and motivation to try to change his angry, reactive responses in frustrating situations, has lost that insight. Now he is fully convinced that he is the blameless victim of a malevolent former spouse. His children have asked him to change, but he does not seem to hear them.
[39] Given that the parties both had limited and partial success on the parenting issues, costs will not be awarded to either of them. They both made allegations of unreasonable litigation behaviour and bad faith against the other in relation to the parenting issues. My conclusion is that the conduct of each parent has also disentitled them to an award of costs in relation to parenting issues. My extensive reasons for judgment detail their contributions to and responsibility for the toxicity their children have lived in. I will not repeat them here.
Financial Issues
[40] Neither party delivered an offer to settle any of the property or support issues. Neither had completed financial disclosure when the trial commenced.
[41] The applicant claims to have been 90% successful on the support and property issues. On this basis he seeks $79,254.08 in partial costs in respect to their issues. Again, I disagree with his assessment of his success.
[42] Both parties provided estimates of the percentage of the total trial time occupied by these issues as follows:
| Applicant | Respondent | |
|---|---|---|
| equalization | 5 % | 5% |
| child support and section 7 expenses | 5% | 6 % |
| occupation rent | 2% | 1 % |
| spousal support | 5% | 2 % |
[43] The applicant was awarded an equalization payment of $54,023.39. Accordingly he is the successful party on that issue. He was also successful on occupation rent, although the award was for the relatively small amount of $8,500. The applicant also succeeded in obtaining an award of spousal support in a case where entitlement was disputed. The award was a lump sum of $45,000, as compared to the wildly excessive lump sum of $236,628 he sought at trial. The applicant utilized the Spousal Support Advisory Guidelines (SSAG) formula most generous to himself, and still exceeded its upper end in proposing this figure. His argument that the applicable custodial payor formula simply provided too low a figure had no merit.
[44] The applicant should be considered the successful party on the issue of spousal support in that he established entitlement. But the position he took on quantum is a significant factor to consider in reduction of the amount of costs to be awarded in connection to this issue.
[45] The respondent was the successful party on the issues of child support and s. 7 expenses. The applicant was found to owe her arrears of child support and arrears of s. 7 expenses.
[46] According to the applicant’s allocation he was successful on issues which occupied 12% of the trial time and the respondent was successful on issues which occupied 5% of the trial time. By the respondent’s allocation the applicant was successful on issues which occupied 8% of the trial time and she was successful on issues which occupied 6% of the trial time. Using this approach and setting off her success against his, the applicant’s greater success occupied at most two days’ worth of trial time. That is before factoring in any reduction on account of the position he took on quantum of spousal support.
Costs of the Assessor and of Supervised Access
[47] The applicant seeks a reapportionment of the fees which the parties paid equally to the clinical psychologist. I agree that these fees are properly considered as a disbursement in the action and that as trial judge I could allocate them as part of an award of costs. Having found that neither party is entitled to costs of the custody and access portion of the trial, I decline to do so.
[48] The applicant also asked for a reapportionment of the fees paid to access supervisors. The effect of Justice Kershman’s order in this regard is that almost all of these expenses were covered by the applicant. The respondent argues that these were essentially part of an award of costs of a motion against the applicant and that accordingly I have no authority to change that order. I disagree. In my view, supervision fees are properly regarded as section 7 expenses for the children, not as an award of costs.
[49] Justice Kershman placed most of the financial responsibility on the applicant because he found supervision necessary on account of the applicant’s conduct. Based on the trial evidence I came to a different conclusion. I viewed part of the raison d’etre for supervision as being to help assuage the respondent’s fears about what bad things might be happening during visits, and in the hope it would result in her ceasing to question the children after visits. I also found that supervision did not succeed and that both parents used it as a new forum to continue their conflict with each other. I also made findings to the effect that the respondent acted in some ways so as to extend the period of supervision.
[50] This is not to minimize the applicant’s conduct which did support the order for supervised access, but simply to note both parties contributed to its necessity and both should contribute to the expense in the usual way, namely in proportion to income. I so order.
Conclusion
[51] My conclusion on the amount of costs to award the applicant is guided by the reasons above and by my assessment of reasonable amounts of time for preparation and presentation of the issues attracting costs awards. No issue was taken with applicant counsel’s hourly rate of $375 for full recovery. I have also considered the reasonable expectations of the opposing party and disbursements properly charged on a party and party basis.
[52] Costs for the contempt motion on a full recovery basis are fixed against the respondent at $45,000 inclusive of fees, disbursement and HST. Costs related to the financial issues are fixed against the respondent on a partial recovery basis in the all-inclusive amount of $10,000. Additionally, the respondent shall reimburse the applicant her share of the fees paid to the access supervisors on a proportionate to income basis.
J. Mackinnon J. Date: October 2, 2018