Court File and Parties

COURT FILE NO.: 2737/14

DATE: 2019-01-07

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: N.M., Applicant

AND:

M.M., Respondent

BEFORE: The Honourable Madam Justice L. Madsen

COUNSEL: Jennifer L. Swan, Counsel for the Applicant Denita Cunningham, Counsel for the Respondent

HEARD: In Chambers

A limited publication ban was ordered on November 20, 2018 pursuant to my discretion under s. 70 of the Children’s Law Reform Act. No person shall publish or make public any information that has or could have the effect of identifying the parties, the non-parties, or the children. Any person who has gained, or gains in the future, access to the court file is prohibited from communicating to any other person the identity of the parties, the non-parties, the children, or any information that has the effect or could have the effect of identifying the parties, non-parties, or the children.

COSTS ENDORSEMENT

[1] This endorsement addresses the costs claims in relation to the motions for a sealing order and publication ban, permission to read a bail transcript, contempt, and access, heard November 19 and 20, 2018.

[2] For the reasons set out below, this court finds that neither party shall pay costs to the other in relation to the motions.

Brief Background

[3] The father brought a motion to change the final order of Justice Hambly which provided for his access to the parties’ child. Before that motion was heard, the father was charged with five alleged offences, including sexual assault, make explicit sexual material, and sexual interference. Since those charges were laid on August 30, 3018 and until the Order of this court dated November 22. 2018, the mother would not permit any access to the child. She rejected all proposed supervisors for access, including the father’s wife, who had been approved by two child protection agencies.

[4] The father brought a motion seeking that the mother be found in contempt for denying access, as well as seeking changes to access in light of the charges. The mother brought a motion for a publication ban, sealing order, and permission to view the bail transcript so that she could have an understanding of the factual underpinning of the charges, so as to inform her position on access.

[5] This court addressed the matter of the requested sealing order and publication ban, as well as the request to view the bail transcript, first. As at the hearing of the motion, the relief was consented to. Nevertheless, given the proposed incursion on the open court principle, the court heard submissions from both parties. In the result the court granted the publication ban and the request for the mother to view the transcript, but denied the sealing order. The court also initialized the file.

[6] The following day was scheduled for the motion addressing contempt and modifications to access. As at the commencement of court, the contempt motion was withdrawn, and only the access motion proceeded. The mother proposed that the father have four hours of access per month supervised by a supervision agency; the father proposed access supervised by his wife or a mutually agreeable alternate supervisor, two hours each week on a weeknight, and on alternate Sundays from 9:00 a.m. to 7:00 p.m. The court ordered the access sought by the father on weeknights, as well as access on alternate Sundays from 11:00 a.m. to 5:00 p.m.

Positions of the Parties

[7] The mother provided a costs outline reflecting costs on a partial indemnity basis of $5,808.60, and costs of $8,025.66 on a substantial indemnity basis. She says she was successful on the issues related to the publication ban and sealing order, and successful in that the father withdrew his contempt motion, albeit at the 11^th hour. She says she was also successful on the issue of the bail transcripts, which the court permitted her to review. Finally, she says that it was necessary that the access motion go ahead as “it wasn’t a decision she could make on her own.”

[8] The father seeks costs of $1,787.54 in relation to the issue of access to the child, on which he says he was successful. He says it was not reasonable for the mother to continue to withhold access after the child protection agencies approved his wife as a supervisor, and insisting on reviewing the bail transcripts which he says were in any event publicly available. The father notes that he consented to the relief sought with respect to the publication ban, sealing order, and transcripts, and as such each party should bear their own costs on this issue. Further, he stresses that he ultimately withdrew his contempt motion and only the issue of access proceeded.

Law and Analysis

[9] Rules 24 and 18 of the Family Law Rules govern the assessment of costs in a family law proceeding.

[10] The costs provisions set out in the Family Law Rules are intended to foster four important principles:

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

b. to encourage settlement;

c. to discourage and sanction inappropriate behavior by litigants;

d. to ensure that cases are dealt with justly under subrule 2(2) of the Family Law Rules.

Serra v. Serra, 2009 ONCA 395, Mattina v. Mattina, 2018 ONCA 867 (O.C.A.), Beaver v. Hill, 2018 ONCA 840 (O.C.A.).

[11] The Family Law Rules emphasize the importance of reasonableness and proportionality in the court’s approach to setting of costs. Mattina, supra at 10; Beaver, supra at 4.

[12] The overall objective in a costs assessment is to determine an amount of costs that is fair and reasonable for the unsuccessful party to pay the successful party in all of the circumstances. Delellis v. Delellis, 2005 CanLII 36447 (ON SC), 2005 CarswellOnt 4956.

[13] Determining the fair and reasonable amount is not a mechanical exercise. It is more than adding up the lawyers’ dockets. Jackson v. Mayerle, 2016 ONSC 1556.

Rule 24

[14] Under Rule 24, the starting point is that the successful party is entitled to costs. See Rule 24(1). Sims-Howarth v. Bilcliffe, 2000 CarswellOnt 299.

[15] Under Rule 24(6), if success is divided, the court may apportion costs “as appropriate”. Divided success does not necessarily mean equal success. Where success is divided, the court will carefully consider the positions of the parties and the factors set out in Rule 24(11).

[16] Under Rule 24(12) a court must consider the following factors:

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 expenses properly paid or payable; and

b. any other relevant matter.

[17] I find that in this case, an award of costs is not appropriate. This is so for the following reasons:

a. The issue of the publication ban and sealing order, while ultimately on the consent of both parties, required determination by the court. The court requested submissions from both counsel, granting the publication ban but declining to grant the sealing order. The parties’ consent was insufficient for the court to seal the file given the importance of the open court principle. The court initialized the file on its own motion. Neither party is properly regarded as “successful” on this issue.

b. There was effectively divided success on the issue of contempt and the issue of access.

i. The father withdrew his motion for contempt, but not until the second day of argument. However, it was not appropriate to bring the contempt motion in the circumstances of this case. In seeking changes to access, the father was effectively conceding that the order of Justice Hambly could not reasonably be followed after he was charged criminally. In this context he should not have brought a contempt motion, thereby putting the mother to the expense and time of responding preparing materials on that issue;

ii. At the same time, the mother’s position on access, once she had had an opportunity to review the bail transcript, was not reasonable. While in the endorsement the court acknowledged her concerns regarding access, the court also found that the level of restrictions she was seeking was excessive on the facts of this case. Two child protection agencies had approved the father’s wife as a supervisor. The father’s access under the Hambly order had proceeded for almost two and a half years without difficulties. The mother’s position that there be four hours per month of access was not reasonable. Rejecting numerous proposed access supervisors and suggesting no alternate supervisors (other than an agency) was also not reasonable.

c. The court was not provided with any Rule 18 offers to settle by either party. The court was provided with a letter dated October 3, 2018, proposing access similar to what the court ultimately ordered. The court notes that the letter was marked “without prejudice.”

[18] Applying Rule 24 of the Family Law Rules, balancing all of the factors in this case, and considering the important principles of proportionality and reasonableness, this court finds that it is fair and reasonable that each party bear their own costs of the motions.

Madsen J.

Date: January 7, 2019```