Court File and Parties
BARRIE COURT FILE NO.: FC-16-1756-00 DATE: 20190322 SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
RE: Amanda Erin Anderson, Applicant -and- Jason Thomas Michael McMann, Respondent
BEFORE: The Honourable Madam Justice R.S. Jain
COUNSEL: Valois P. Ambrosino and Amy Voss, for the Applicant Robyn Switzer, for the Respondent
HEARD: In Writing
Costs Endorsement
[1] This ruling on costs follows a motion on the issues of custody and access that was heard on December 14, 2018. My decision was released on December 18, 2018.
[2] I have now reviewed the written costs submissions from both parties.
[3] The applicant seeks costs of the proceeding on a full indemnity basis (for her costs on her motion and the respondent’s motion from October 5, 2018 until December 15, 2018 in the sum of $18,876.00) and a partial indemnity basis (for her costs from September 11, 2018 until October 5, 2018 in the sum of $7,894.25 plus H.S.T. and disbursements), for a total of $31,795.93 (which includes preparation of cost submissions).
[4] The respondent seeks costs on a partial indemnity basis for his costs of the applicant’s motion dated September 12, 2018 in the sum of $3,208.07, representing only his costs of arguing costs, inclusive of HST.
[5] For the reasons set out below, I dismiss the applicant’s claim for costs on a partial indemnity basis for her costs from September 11, 2018 until October 5, 2018. I am further dismissing the respondent’s claim for partial indemnity costs. I am awarding costs to the applicant on a partial indemnity basis for her costs of her motion and the respondent’s motion from October 25, 2018 until December 15, 2018.
[6] The applicant submits that she was substantially successful in the motion and therefore presumed entitled to costs. She further submits that the respondent acted unreasonably and aggressively throughout these proceedings in an attempt to exploit the applicant during a vulnerable time (i.e. during her mental health episodes). She also says that the respondent made changes to the child’s daycare and made material misrepresentations to Simcoe Muskoka Child and Family Services (SMCFS), which formed the basis of their recommendations, which he sought to rely upon in his favour in court.
[7] The respondent submits that he assumed neither party would pursue costs. He says that neither had raised the issue throughout the proceedings. He further submits that the underlying circumstance of the applicant’s mental breakdown and the respondent’s protective response for their child were understandable and not to be faulted. He asserts that the applicant is unreasonable in pursuing costs of this matter and that he cannot afford to pay costs due to his financial circumstances.
[8] In Serra v. Serra, 2009 ONCA 395, the Ontario Court of Appeal confirmed that modern costs rules are designed to foster three fundamental purposes: to partially indemnify successful litigants for the cost of litigation, to encourage settlement, and to discourage and sanction inappropriate behaviour by litigants, bearing in mind that the awards should reflect what the court views is a fair and reasonable amount that should be paid by the unsuccessful party.
[9] Rule 2(2) of the Family Law Rules, O. Reg. 14/99 (the Rules) 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 r. 24 of the Rules. Rule 2(4) of the Rules states that counsel and parties have a positive obligation to help the court to promote the primary objective under the Rules. Rules 2(3)(a) and (b) of the Rules set out that dealing with a case justly includes ensuring that the procedure is fair to all parties and saving time and expense.
[10] Rule 24(1) of the Rules creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. The applicant was granted substantially all the relief that she sought during the motion, specifically, a return to the status quo parenting arrangements. Therefore, the applicant is presumptively entitled to costs, subject to the factors listed in r. 24(11) of the Rules, the directions set out under r. 24(4) regarding unreasonable conduct and r. 24(8) regarding bad faith, any offers to settle, and the reasonableness of the costs sought by the successful party.
[11] This is not a matter where it was crystal clear or easy to determine whether one party was behaving unreasonably or in bad faith prior to October 25, 2018. As in many family law matters, the behaviour of the parties may be at different times: emotional; fearful; reactionary; and stem from a lack of trust and information. This by no means excuses unreasonable conduct or permits parties to act in bad faith. However, it clouds the determination of fault for the alleged unreasonable or bad faith conduct.
[12] One of the determining factors in my consideration of costs during the period from September 11, 2018 to October 24, 2018 is “the fact that this is a case that was justifiably brought by the Applicant, and justifiably defended by the Respondent.” Petit v. Petit, 2009 ONSC 34027. I cannot fault either party for their behaviour during the time period from September to October 24, 2018.
[13] Just as it would be unfair to award costs against the applicant for her behaviour as a result of her mental health episodes, it would be unfair to award costs against the respondent for his behaviour in reaction to the applicant’s episodes. The applicant admittedly suffered a mental health breakdown that necessitated the respondent taking the child temporarily into his care. It was not unreasonable for the respondent to refuse returning the child to the applicant’s care temporarily during that time period. He had the added pressure of instructions from SMCFS not to return the child. I cannot find that either party was behaving completely unreasonable or in bad faith during that time period. Until that point, I have no doubt that both parties were motivated by what each believed to be in the best interests of their child.
[14] However, during and after the court date with Eberhard J. on October 25, 2018, it was unreasonable for the respondent to require continued supervised access with no plan to return to the status quo, (which should have been the “goal” of the court and the parties per Eberhard J.’s endorsement). The respondent’s unreasonable behaviour and demands were not in compliance with r. 2(4), thus, much more time and expense was spent to deal with this matter after this time.
[15] The large stumbling blocks in settling this matter was information and lack of trust: the respondent was seeking too much information, i.e. full disclosure of the applicant’s personal medical records (which was not reasonable or proportionate in this particular matter given the recent final order, the Children’s Lawyer’s report and the information he had already received). The respondent did not trust the applicant even after receiving medical documentation that confirmed the applicant was compliant with treatment plans and able to take care of herself and their son; and affidavit evidence from the applicant’s mother (who was the access supervisor since October 26th, 2018), which indicated there were no concerns about the applicant’s ability to care for the child. Additionally, the respondent had provided inaccurate information regarding the parenting schedule to the SMCFS which may have contributed to their recommendations.
[16] The applicant was also distrustful of the respondent. I found that the applicant had provided sufficient information to the respondent to work towards returning to the status quo; however, she was continuing to refuse signing consents for information with the SMCFS. This meant the SMCFS lacked information and was unable to complete their investigation and they could not review their recommendations. This was part of the reason why I made the order with respect to requiring the parties to cooperate with SMCFS and for the applicant to sign a limited consent for information with the SMCFS.
[17] It is difficult for the court to measure exactly how much of the respondent’s behaviour stemmed out of his unreasonable demands for information; the incomplete investigation and recommendations from SMCFS; his misrepresentations to the SMCFS; his concern for the wellbeing of their child; and/or his possible unreasonable litigation strategy. For these reasons, it would not be fair or just to award the applicant with full recovery of her costs; however, at the same time, it would be unfair and unreasonable for the applicant to bear all her costs for the motions.
[18] I found that the costs sought by the applicant on her motion and the respondent’s motion from October 25, 2018 onwards were reasonable. She was substantially successful on her motion and is therefore presumed entitled to costs. Costs awards should reflect what the court views is a fair and reasonable amount that should be paid by the unsuccessful party.
[19] I therefore order the respondent to pay to the applicant, her costs on a partial indemnity basis, in the sum of $12,432.11 plus HST, for a total of $14,048.28.