Court File and Parties

COURT FILE NO.: FC-16-2267 DATE: 20190102 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

LYLIANE MARIE LINE BEAULIEU Applicant – and – PATRICK BEAUDOIN Respondent

Counsel: Marta Siemarczuk, for the Applicant Gerald Stotland, for the Respondent

HEARD: October 11, 2018

DECISION ON COSTS

Beaudoin J.

[1] On October 11, 2018, I heard two motions wherein the Applicant sought:

1. an interim access schedule for the Respondent and the children;
2. interim custodial decision-making with respect to medical, educational, religious upbringing and extracurricular issues;
3. police enforcement for access;
4. a requirement that the Respondent be required to follow the children’s diet when the children are in his care;
5. fixing of child support arrears owed to the Applicant for the years 2014, 2015 and 2016 pursuant to the parties’ Separation Agreement dated June 14, 2014 in the amount of $980,000 or, in the alternative, such other amount is deemed appropriate by this Court;
6. ongoing child support payable to the Applicant from the Respondent based on the terms of the parties Separation Agreement;
7. security for costs payable by the Respondent; and
8. fixing the questioning of both parties.

[2] The Respondent sought:

1. an order of joint custody of the four children as of January 1, 2019;
2. an order that the children be in his care in accordance with the calendar annexed to his notice of motion;
3. an order that they are being no change of the children’s schools be initiated without his consent;
4. an order authorizing the children to be free to communicate with him and that their privacy rights be respected;
5. a declaration that the June 14, 2014 Separation Agreement is valid and binding;
6. an order for the refund of legal costs incurred due to one year delay of questioning, blocking children’s visits and blocking communications with the children; and
7. costs against the Applicant on the full indemnity basis.

[3] These motions were originally scheduled to be heard on June 18, 2018. Justice Parfett determined that the two hours that were set aside were insufficient to deal with the issues before her. She severed the divorce subject to one condition with respect to life insurance and made an order permitting the children of the marriage to travel to Thailand for the Respondent’s upcoming wedding. The divorce was ultimately severed and the divorce order took effect immediately. Justice Parfett reserved the costs to the return of the motions.

[4] As it turned out, the children did not travel to Thailand and I concluded that this was a matter for another day.

[5] In the end, neither party was successful on the major issues in dispute on these motions. While there were some disclosure issues, these did not prevent questioning. While I ordered that there should be no change in the schooling without agreement of the parties or in the absence of a court order, this was not argued to any degree. The key issues were the Applicant’s claim for $980,000 in child support arrears and the Respondent’s claim for joint custody and shared parenting. There was no issue with respect to the amount of support currently being paid.

The Position of the Parties

[6] The Applicant submits that she was the successful party on the custody and access issues and claims a total of $37,140.50. She submits that the vast majority of the evidence and affidavits before the courts focused on the parenting issues as they were the key issues in this high conflict parenting situation. In the alternative, the Applicant submits that success was divided and that each party should bear their own costs. The Applicant served an Offer to Settle and with respect to the custody and access and she says that her offer was consistent with what was ultimately ordered.

[7] The Respondent seeks full indemnity costs against the Applicant in the amount of $166,344. He submits that his requests for shared parenting were based on his legitimate concerns about the Applicant’s parental capacity and he notes my conclusion that his application for joint custody was not made for tactical reasons.

[8] The Respondent submits that the Applicant’s position on the financial issues was unfounded in law and in fact and he cites the lack of clarity in the Applicant’s position with respect to the validity of the parties’ separation agreement. He accuses the Applicant of being unreasonable and of acting in bad faith. He relies on the continuing record which already comprises the six volumes.

Conclusion

[9] Rule 24(12) of the Family Law Rules, O. Reg. 114/99 provides:

(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.

[10] Rule 24 (6) provides:

DIVIDED SUCCESS

(6) If success in a step in a case is divided, the court may apportion costs as appropriate.

[11] With respect to the appearance on June 18, 2018, I make no finding of any breach of the Orders obtained. It is not surprising that the parties did not share a common understanding of Justice Parfett’s Order with regard to the children’s travel to Thailand. Regrettably, the parties did not seek further guidance from the court and resorted to various forms of self-help.

[12] I conclude that success on these motions was evenly divided throughout. While the Applicant’s views on custody and access prevailed, she made unreasonable demands that the Respondent follow dietary restrictions for the children without any appreciable evidence to support such claims. On the other hand, the Respondent father’s parenting proposal was not realistic.

[13] The Respondent was successful on the claim for arrears of child support and the amount in issue was substantial. Curiously, both parties sought to uphold the validity of their separation agreement as they each saw that it was to their respective advantage to do so. The ultimate validity of that agreement is likely an issue for trial.

[14] In conclusion, I am not persuaded that anything of significance was accomplished in these two lengthy appearances before the Court beyond the expenditure of large amounts of legal fees. While there is some certainty achieved through the interim custody order, there are continuing concerns with regard to the ongoing needs of the children in this high conflict situation. The parties should complete questioning as soon as possible and prepare this matter for trial. I accordingly decline to make any order for costs.

Mr. Justice Robert N. Beaudoin Released: January 2, 2019