Court File and Parties

Court File No.: FC-16-1860 Date: 2018/10/17 Ontario Superior Court of Justice

Between: Melanie Krystal Ashley Dulude, Plaintiff – and – Derry Cordeiro, Defendant

Counsel: Self-Represented (for Melanie Krystal Ashley Dulude) Self-Represented (for Derry Cordeiro)

Heard: In Writing (at Ottawa)

Costs Decision

Kane J.

Background

[1] Ms. Dulude seeks $15,000 costs against Mr. Cordeiro being the invoices from her former lawyer for fees and disbursements charged between October 24, 2016 and March 29, 2017 totaling $14,104.95, as well as disbursements she paid for binding and charges from Canada Post which total $67.98.

[2] Mr. Cordeiro seeks $5,373.09 costs against Ms. Dulude, being the amount of invoices he received from his former lawyer for fees and disbursements charged between December 15, 2016 and January 6, 2017.

[3] Ms. Dulude sought orders: (1) that the father take anger management training; (2) for supervised access only for the father; (3) the right to relocate the children to Manotick with the father to be responsible for all resulting driving; (4) proportional sharing of s. 7 expenses including therapy, tutoring, medical, dental, camps, daycare, sports, extra-curricular activities and the father’s retroactive obligation thereof totalling $55,468; (5) $959 monthly child support, retroactive to 2009; (6) judgment of $18,565 for loan debt owed; and (7) costs of $17,000.

[4] Mr. Codeiro sought orders: (1) prohibiting the mother moving the children to Manotick; (2) unsupervised access every other weekend and shared holidays; (3) reduction of monthly child support to $329 from $959 based on his annual income of $32,800; and (4) proportionate payment of s. 7 expenses based on his annual $32,800 income and limited to dental and medical expenses.

[5] Each of the parties have limited financial means which led to them proceeding with argument of their motions without counsel.

[6] Subject to legislation and the rules of the court, a cost award incidental to a step in a proceeding is in the discretion of the court: Courts of Justice Act, R.S.O. 1990 c. C43, s. 131.

[7] Rule 24 of the Family Law Rules, O. Reg. 114/99, contains the following relevant provisions: (a) R. 24(1) – there is a presumption that a successful party is entitled to the costs of a motion; (b) R. 24(4) – notwithstanding the above presumption, a successful party that behaved unreasonably during a proceeding may be deprived of all or part of their costs or ordered to pay all or part of the unsuccessful party’s costs; (c) R. 24(5) – to determine whether a party has acted unreasonably, the court shall consider the parties’ behaviour in relation to the issue including whether the party made an offer to settle; (d) R. 24(6) – the court may apportion costs if success in a step in the case is divided; (e) R. 24(8) – requires the court to order payment of full recovery costs if a party has acted in bad faith; and (f) R. 24(11) – to determine the amount of costs, the court shall consider the importance and complexity of the issues, the reasonableness or unreasonableness of each party’s behaviour, the lawyers rates, the time expended on the case including conversations between lawyer and client, witnesses, drafting documents, correspondence, attempts to settle, preparation, hearing, argument, expenses properly payable and any other relevant matter.

Analysis

[8] Neither party submits they served a written offer of settlement as to these motions.

[9] The invoices from their lawyers relied upon by each party include charges for legal services prior to, independent of and not relevant to these motions including: (a) in the case of Ms. Dulude: (1) drafting a reply to the defence filed by Mr. Cordeiro; (2) first appearance in the Superior Court; (3) preparation of Case Conference Brief and attendance on the conference; and (4) seeking involvement of the Children’s Aid Society (“CAS”) based on the alleged need for supervised access; and (b) in the case of Mr. Cordeiro: (1) time for a new lawyer to become current as to past events involving the previous lawyer; (2) preparation of Case Conference Brief and attendance on that conference; and (3) recommendation that Mr. Cordeiro ceases communication with opposing counsel.

Mr. Cordeiro

[10] Mr. Cordeiro submits that he was successful on these motions as: (a) he sought and obtained unsupervised access which had been denied since July 2016, which is accurate; (b) joint custody of the oldest child was ordered should that son decide to live with Mr. Cordeiro, which is correct if that child so decides but ignores his failure to obtain joint custody of the two other children; (c) the court ordered that the oldest son could continue his education at a school in Orleans, which is accurate; (d) the court determined his proportionate share of s. 7 expenses was 70.5% versus the 80% claimed by Ms. Dulude. Mr. Cordeiro was unsuccessful on this issue as the mother sought to impute $50,000 as his annual income which he admitted in argument. That exceeds the $32,890 he alleged in his pleadings; and (e) the court agreed with his position that the extent of special expenses claimed by Ms. Dulude exceeded the financial capacity of the parties and limited acceptable categories thereof.

[11] Mr. Cordeiro was unsuccessful: (a) as to his claim for interim custody of all three children; (b) in his claim that his child support obligation should be reduced and calculated on his alleged annual income of $32,800. He admitted during argument that his annual income for the purpose of child support should be $50,000; (c) in opposing the move to and schooling of the children in Manotick, despite his prior move from Orleans to another area of the city; and (d) in his request to limit s. 7 expenses to medical and dental costs.

[12] The liability of Mr. Cordeiro as to the approximate $50,000 of arrears of extraordinary expenses claimed remains to be determined, including whether he paid anything towards that liability in the interim.

[13] Mr. Cordeiro ignores his history of temper outbursts, yelling and lack of anger control in past dealings with Ms. Dulude and the children. This conduct although dealt with in the court ordering interim unsupervised access, relates in the past and at the present to the issues of joint custody, access and whether the children are in need of protection.

[14] Mr. Cordeiro omits his involvement in drug trafficking leading to his conviction and imprisonment in early 2016. That criminal activity supported a reasonable concern for any parent as to whether the incarcerated parent was an appropriate caregiver of younger children.

Both Parties

[15] The court concluded that each of these parents was improperly involving and exposing their children to their parental disputes and thereby “using” the children in their attempt to strike at the other parent.

[16] The court determined each of these parents was interfering in the telephone or Skype access of the other parent with the children.

Ms. Dulude

[17] Ms. Dulude was successful on these motions: (a) permitting the two youngest children moving with her to Manotick; (b) obtaining an order for interim child support calculated on Mr. Cordeiro’s $50,000 actual annual income as opposed to the $31,890 he alleged; (c) obtaining determination of Mr. Cordeiro’s appropriate share of special expenses and clarity as to the acceptable interim chargeable categories thereof; and (d) the requirement for anger management training/courses for the father.

[18] Despite past regular unsupervised access, Ms. Dulude effectively eliminated access for a lengthy period after July 16, 2016 because she insisted upon supervised access. She took this position despite the contrary opinion of the CAS, the Office of the Children’s Lawyer and Mr. Cordeiro’s prior unsupervised access with the children.

[19] Given the unavailability and delay to access community agencies to interview Mr. Cordeiro and the children as to his access, Ms. Dulude acted unreasonably in refusing to allow the therapist she and her children were using to provide information to Mr. Cordeiro in order to complete a step required under an earlier consent order.

[20] Ms. Dulude acted improperly in having the 2 younger children attend with her and police at Mr. Cordeiro’s home in relation to the oldest child sleeping overnight on one occasion with his father.

Conclusion

[21] Given the divided success and lack of success and the inappropriate conduct of each party as to important issues in these motions, there shall be no cost award to either motion. This conclusion as to divided success is supported by Lowndes v. Summit Ford Sales Ltd., 2016 ONCA 279.

Released: October 17, 2018 Mr. Justice Paul Kane