Court File and Parties

COURT FILE NO.: FC-17-2507 DATE: 2019/04/26 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: A.L., Applicant -and- L.L., Respondent

BEFORE: Justice P. MacEachern

COUNSEL: Karla Policelli, for the Applicant Daniel Nugent, for the Respondent

HEARD: In Writing

Pursuant to the order of Sheard J. on December 7, 2017, a non-publication order was made under s. 70 (b) of the Children’s Law Reform Act, RSO. 1990, c. C. 12, as am., in which no person shall publish or make public information that has the effect of identifying any person referred to in any document relating to the application that appears in the court file.

COSTS ENDORSEMENT

[1] This endorsement determines costs following my decision released on March 25, 2019 in A.L. v. L.L., 2019 ONSC 1901. In that decision, I dismissed L.L.’s motion for interim supervised access, referred this matter to the Office of the Children’s Lawyer for their involvement, made a further order for the production of child protection records, made orders requiring L.L. to provide income disclosure and a sworn financial statement, and ordered both parties to provide updated and complete Form 35.1s.

[2] Both parties have provided written submissions on costs.

[3] Having considered the parties’ submissions, the Applicant’s bill of costs, and the Family Law Rules [1], the Court awards the Applicant costs in the amount of $2,700 inclusive of HST and disbursements, payable in the amount of $200 per month commencing May 1, 2019.

Positions of the Parties

[4] A.L. seeks her costs of this motion fixed in the amount of $3,600, inclusive of disbursements and HST. This represents full indemnity of her costs for the preparation and attendance on the motion heard on March 21, 2019. A.L.’s position is that she was the successful party on the motion, and her costs are reasonable and proportional. She argues that full indemnity costs are warranted because L.L. acted unreasonably in bringing the motion without putting forward a plan to address the children’s best interest and in the absence of significant disclosure. A.L. also notes L.L.’s failure to pay a previous cost award of $1,500 ordered on December 12, 2017, and that his affidavit material was served at the last minute, as factors that compound L.L.’s obligation to pay costs. Lastly, A.L. notes that L.L. is not currently paying child support, such that she is the sole financial support for the two children, and incurring legal fees for unnecessary motions places her, and the children, in a position of financial hardship.

[5] L.L.’s position is that each party should bear their own costs of the motion due to the fact that A.L. did not make an offer to settle, A.L.’s fees are excessive, and that he is of limited financial means. L.L. asserts other arguments in support of his position that his request for access was reasonable.

Factors in Determining Costs

[6] The Ontario Court of Appeal in Mattina v. Mattina [2] recently confirmed that the modern costs rules are designed to foster four fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants and to ensure that cases are dealt with justly (Rule 2(2) of the Family Law Rules [3]).

[7] Rule 24(12) of the Family Law Rules sets out factors relevant to setting the amount of costs, and specifically emphasizes “reasonableness and proportionality” in any costs award.

[8] There is a presumption of costs in favour of the successful party. This presumption does not, however, require that the successful party always be entitled to costs [4]. An award of costs is subject to: the factors listed in Rule 24(12), Rule 24(4) pertaining to unreasonable conduct of a successful party, Rule 24(8) pertaining to bad faith, Rule 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party [5].

[9] Rule 24(12) sets out a list of factors the court shall consider in determining an appropriate amount of costs:

(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] The Family Law Rules only expressly contemplate full recovery costs in specific circumstances, e.g. where a party has behaved unreasonably, in bad faith, or has beat an offer to settle under Rule 18(14).

[11] Rule 24(4) addresses the situation in which a successful party has behaved unreasonably:

Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs.

[12] Rule 24(5) provides guidance on how to evaluate reasonableness:

In deciding whether a party has behaved reasonably or unreasonably, the court shall examine, (a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle; (b) the reasonableness of any offer the party made; and (c) any offer the party withdrew or failed to accept.

[13] Rule 24(8) discusses the cost consequences for a party who has acted in bad faith:

If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.

Success of the Parties

[14] The main issue in dispute on this motion, which consumed most of the time in preparation and on argument, was L.L.’s request for access. I dismissed his request for access. A.L. was therefore the successful party on the motion and is presumptively entitled to her costs.

Offers to Settle

[15] Neither party provided me with any offers to settle the motion.

[16] I do not find that A.L.’s failure to make an offer, particularly given the outstanding disclosure, the late service of L.L.’s affidavit, and the ultimate outcome of the motion (being no access) amounts to unreasonable behavior that disentitles her to costs as the successful party.

L.L.’s Behaviour

[17] Rule 24(12)(a)(i) specifically directs the Court to consider the reasonableness and proportionality of each party’s behavior as it relates to the importance and complexity of the issues. The issue of access is an important one to both parties, in particular, due to the serious and complex circumstances surrounding this matter given the charges against L.L. and his past convictions.

[18] I find that A.L.’s behavior was reasonable and proportional. I do not make the same finding for L.L. I find that L.L. did not act reasonably in bringing his motion for access in the absence of significant disclosure that he controlled and without providing a tailored plan to address the best interest of the children, including how and when access should be reintroduced. As I stated in paragraph 11 and 15 of my decision:

[11] L.L. has not provided any statements in his affidavit material as to how or why such access is in the best interests of the children, including how to reintroduce his access to the children, or a plan for how the best interests of the children will be served going forward, in particular due to the uncertainty of the criminal proceedings.

[15] There is a significant basis for concern with respect to the Respondent’s access to the children. The children have not had any access to the Respondent since November 23, 2017. One child is dealing with some anxiety issues. No doubt, recent events have been stressful for all members of the family. I am concerned with how and when access should best be reintroduced, particularly given the uncertainty surrounding the Respondent’s current mental health and whether any renewed access would only be interrupted again if he is sentenced to a period of incarceration. Any reintroduction of the Respondent’s access to the children needs to be carefully tailored based on all of the relevant information being known so that a solid plan for access that is in the children’s best interests can be put in place. I am not prepared to order any interim access until this information is provided.

[19] I do not find that L.L.’s behavior is such that it justifies an award of costs on a full indemnity basis, but it is a factor that warrants a higher level of costs.

Other Factors

[20] A.L.’s fees of $3,600 include $151.42 in disbursements, $3,061.50 in fees, plus HST. A.L.’s lawyer was called in 2006, and charges an hourly rate of $285. The time spent by her lawyer is 9.7 hours, plus 2.2 hours by a law clerk at the hourly rate of $110. Although L.L. states these fees are excessive, he has not provided his own fees or time expended as a comparison. I find that the time spent by A.L.’s lawyer and the fees claimed by her are reasonable and proportional as it relates to the importance and complexity of the issues.

[21] L.L. also relies on his own limited financial resources as a factor to limit an award of costs against him. As noted in my decision released on March 25, 2019, L.L. had not yet filed a financial statement in this proceeding, nor evidence of his income, despite this material being due over 14 months ago. An extension of time was provided for him to file his financial statement, and this has been filed as of today’s date.

[22] As a result of the criminal charges, L.L. is now unemployed and in receipt of social assistance. He appears to have limited financial resources although his financial statement does show that he has had access to significant funds through incurring consumer debt of over $40,000. It is not apparent how this financing has been used. L.L. is not paying child support. Nor has he used this financing to pay the previous cost order made on December 12, 2017, that is still outstanding.

[23] While a consideration, L.L.’s financial circumstances should not insulate him from the costs consequences of pursuing a poorly thought out motion, particularly when such conduct forces A.L. to incur legal fees to respond to such a motion, and when he is not paying child support, has unpaid previous cost orders outstanding, and has had financing available that he has apparently used for other purposes.

Disposition

[24] Taking all of these factors into consideration, I order L.L. to pay costs to A.L. for the motion heard on March 21, 2019 fixed in the amount of $2,700, inclusive of HST and disbursements. These costs shall be payable in the amount of $200 per month, commencing May 1, 2019 and continuing on the first day of each subsequent month until paid in full.

[25] This order shall bear post-judgment interest in accordance with the Courts of Justice Act.

Justice P. MacEachern Date: April 26, 2019

COURT FILE NO.: FC-17-2507 DATE: 2019/04/26 ONTARIO SUPERIOR COURT OF JUSTICE RE: A.L., Applicant -and- L.L., Respondent BEFORE: Justice P. MacEachern COUNSEL: Karla Policelli, for the Applicant Daniel Nugent, for the Respondent COSTS ENDORSEMENT Justice P. MacEachern

Released: April 26, 2019

Footnotes

[1] Family Law Rules, O. Reg. 114/99, as am. [2] Mattina v. Mattina, 2018 ONCA 867 [3] Family Law Rules, rule 2(2) [4] M.(C.A.) v. M.(D.), [2003] O.J. No. 3707, at para. 40 [5] Berta v. Berta, 2015 ONCA 918 at para. 94