BARRIE COURT FILE NO.: FC 15-1348 DATE: 20190509
ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT
BETWEEN:
DAWN BALFOUR Applicant – and – DEVLIN BALFOUR Respondent
COUNSEL: K. BROMLEY, for the Applicant Self-Represented
Written Submissions Received: December 14, 2018, January 14, 2019
DECISION - COSTS
L. E. FRYER, J.
I. Introduction
[1] I heard the trial of this matter over 16 days spanning three different trial sittings.
[2] The parties had settled the issues related to the division of property, and the primary issue for trial was the complex and difficult issue of parenting. The Respondent (the “Father”) alleged that the Applicant (the “Mother”) engaged in parental alienation, and these allegations were to some extent substantiated. The Mother alleged that the Father had mental health challenges that impaired his ability to parent and these allegations were also to some extent substantiated. There were numerous professionals involved with this family including representatives of the Children’s Aid Society, the Office of the Children’s Lawyer and an assessor, many of whom gave evidence at the trial.
[3] The Mother’s position is that she was the successful party. She does not seek full indemnity costs. She acknowledges that her own behaviour contributed to the issues with respect to the children and the Father’s relationship with them. The Father maintains that essentially the only relevant issue is the Mother’s parental alienation of his children. He seeks costs from the Mother.
II. Apportionment of the Costs of the Assessment
[4] At the beginning of the trial, the Father attempted to introduce “expert evidence” of parental alienation through articles and excerpts of articles that he had obtained from the internet which I did not permit him to introduce for obvious reasons. As the trial progressed, it became clear that some expert evidence was necessary to assist the court in understanding the parenting issues raised by both parties. The Mother alleged that the Father had mental health issues. She also believed that the Father may have exposed their daughter, T.B., to pornography. As a result, she feared that the Father may be grooming the child for a sexual relationship and this was informing her position with respect to facilitating access.
[5] I asked the parties to make submissions to me with respect to obtaining some expert evidence. The Mother sought to re-engage the Office of the Children’s Lawyer, which would have been a more cost-effective option; the Father was vehemently opposed. The Mother indicated that she was agreeable to an assessment provided that the Father funded it up front. The Father proposed Howard Hurwitz and one other assessor. The Mother indicated that she was agreeable to either one of them. Both parties also wanted psychological testing to be conducted on the other. The trial was adjourned to the next trial sittings in order for the assessment to be completed.
[6] The parties retained Mr. Hurwitz to conduct a custody and access assessment pursuant to s. 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12. Per my endorsement appointing Mr. Hurwitz, the Father undertook to pay the full cost of the assessment subject to re-apportionment. Each party underwent psychological testing with Dr. Fitzgerald and paid their individual share of that process.
[7] The Father paid Mr. Hurwitz $36,492 for the assessment. The Mother now proposes to pay 10% of this cost. The Father’s submissions are not clear on this point; he is seeking costs generally in excess of $54,000 from the Mother, which includes the full cost of the assessment.
[8] In X. v. Y., 2016 ONSC 5551, 88 R.F.L. (7th) 446, at para. 153, Trimble J. posed the following series of questions for the court to answer or consider when apportioning the costs of a custody and access assessment:
a) Weigh the Factors enumerated in R. 24(11). This includes the conduct of the parties in creating the need for the assessment. It would also include the conduct of the parties following the release of the assessor’s report. b) Is there bad faith under R. 24(8)? c) Is there serious financial hardship? Serious financial hardship is taken to mean that the person being asked to contribute is impecunious or his or her ability to care for children might be seriously impaired. d) Was the order appointing the assessor made on consent, or contested, and if the latter, contested by the person being asked to contribute? e) What was the custody and access decision at trial? f) What were the opinions and recommendations of the assessor, and how did they influence the final decision? g) Did the person being asked to pay part or all of the Assessors’ fees challenge the Assessor’s opinion and recommendations?
[9] Although referred to by Trimble J. in his reasons in X. v. Y., I would add to this list that the court should specifically consider the conduct of a party during the assessment, including conduct that tended to disproportionately contribute to the cost of the process.
[10] The assessment did not proceed smoothly.
[11] Upon the scheduled resumption of the trial in November 2017, it came to light that the Father had not paid Mr. Hurwitz despite having funds available and this caused delay. The Father undertook to remedy the outstanding payment, but the trial had to be adjourned to the May 2018 sittings.
[12] Midway through the assessment, the Father took issue with the psychologist proposed by Mr. Hurwitz. The Father then changed his mind but did not get the payment to the proposed psychologist in a timely manner (the reason for this is disputed). The psychologist subsequently advised that she was not prepared to work with the family and Mr. Hurwitz had to make arrangements for someone else to conduct this part of the assessment. All of this was the subject of a 14B motion dealt with by me and resulted in a further delay of the progress of the assessment. Ultimately, the assessment report was not completed and released to the parties until a day or two before the resumption of the trial in May 2018.
[13] The original estimate for the assessment was $18,000 to $20,000. In the end, the Father paid almost double that. Mr. Hurwitz found that the Father needed considerably more time with him during the process; he asked for additional interviews and he took considerable time to relay his side of the story. Dr. Fitzgerald, the psychologist who was ultimately retained by Mr. Hurwitz, determined the same thing. The Father took much longer to complete the psychological testing than the average person.
[14] In cases such as this, allowances must be made for different approaches and presentation in these stressful processes that hold so much significance. The Father’s presentation during the trial was similar to that described by Mr. Hurwitz and Dr. Fitzgerald. However, the Mother should not be required to bear the burden of additional cost incurred by the Father due to his intransigence.
[15] I do not find that either party acted in bad faith during the assessment process.
[16] Neither party is of substantial financial means. The Father drew upon his retirement assets and the money he received from the Mother in the property settlement in order to fund the assessment. In his submissions, the Father stated that he is not currently working. The Mother has primary care of the parties’ two children. She earns a modest income as a yoga instructor. The Mother used her limited funds to pay for a lawyer throughout the trial which was of assistance to the court and permitted the trial to move forward more efficiently. The relative impecuniosity of each party and/or hardship is not an issue in the overall analysis of costs.
[17] Mr. Hurwitz’s findings and recommendations are summarized in my reasons released on November 22, 2018. Mr. Hurwitz found that some of the Mother’s behaviours were indicative of parental alienation. However, he also found that the Father had a number of serious parenting issues that had contributed significantly to his lack of relationship with his children. Furthermore, Mr. Hurwitz found that the Father lacked insight into his own behaviour, whereas the Mother appeared to understand and accept her role.
[18] Upon the resumption of the trial, the Mother advised the court that she accepted Mr. Hurwitz’s findings for the most part and she modified the relief that she was seeking from the court to reflect those recommendations.
[19] The Father, however, only accepted those parts of Mr. Hurwitz’s findings that aligned with his world-view that the Mother is a parental alienator. He challenged Mr. Hurwitz’s findings at length, including challenging findings that were favourable to him. The Mother’s cross-examination of Mr. Hurwitz took just over one hour, whereas the Father’s cross-examination of Mr. Hurwitz took a full day.
[20] In addition, it came to light during the trial that the Father had surreptitiously audiotaped his interactions with Mr. Hurwitz after Mr. Hurwitz had expressly refused to consent to being recorded when asked by the Father at the commencement of the assessment process. I had previously ruled that the Father was required to produce all video or audio recordings that he proposed to rely on, for any reason during the trial, to the Mother by a certain date. The Father attempted to use the tapes of his conversations with Mr. Hurwitz in cross-examination despite failing to comply with my ruling to produce the recordings in advance to the Mother. I declined to permit the Father to rely upon these recordings for this and other reasons delivered during the trial.
[21] The Father should be commended for funding for the assessment process. The evidence of Mr. Hurwitz was very helpful to the court in understanding this complex parenting case and in crafting an order that best reflected each parent’s strengths and challenges. My ultimate order was much closer to Mr. Hurwitz’s recommendations and to the Mother’s proposed final order than to the order requested by the Father.
[22] Had the Father been prepared to incorporate some of Mr. Hurwitz’s recommendations in a meaningful way into his own trial conduct and position, I might have been inclined to order that the cost of this process be shared equally. However, for the reasons set out above, I find that the Mother shall be responsible for 30% of the cost of the assessment process or $10,950. Each party shall bear the cost of their own individual psychological testing.
III. Costs of the Proceeding Generally
[23] The Mother seeks costs of between $40,000 and $60,000, inclusive of HST and disbursements.
[24] The Father seeks costs of “up to in the range of” $54,000, which includes the full cost of the custody and access assessment and his own psychological testing.
1. Law on Costs
[25] In Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, at para. 8, the Court of Appeal for Ontario confirmed that modern costs rules are designed to foster three fundamental purposes: (i) partial indemnification of the cost of litigation for successful litigants, (ii) encouragement of settlement between parties, and (iii) deterrence and sanctioning of inappropriate behaviour by litigants. Ultimately, costs should reflect what the court views as the fair and reasonable amount to be paid by the unsuccessful party.
[26] In Berta v. Berta, 2015 ONCA 918, 128 O.R. (3d) 730, at para. 94, as revised on January 18, 2016, the court stated the following:
[A] successful party in a family law case is presumptively entitled to costs. An award of costs, however, is subject to the factors listed in r. 24(11), the directions set out under r. 24(4) (unreasonable conduct), r. 24(8) (bad faith) and r. 18(14) (offers to settle), and the reasonableness of the costs sought by the successful party.
The fact that the above-noted presumption is subject to the factors set out in Rule 24 of the Family Law Rules is integral to a costs assessment in family law. As the Court of Appeal held in the recent decision of Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519, at para. 10, “[t]his caveat is an important one since, as this court pointed out in Frick v. Frick, the Family Law Rules “embody a philosophy peculiar to a lawsuit that involves a family”. [Citations omitted.]
[27] In Mattina v. Mattina, 2018 ONCA 867, at para. 10, it was held that “Rule 2(2) adds a fourth fundamental purpose: to ensure that cases are dealt with justly”. [Citations omitted.]. Therefore, the assessment of costs is not just a mechanical exercise. Costs must be proportional to the amount in issue and the outcome: Beaver, at para. 12.
[28] The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant: see Boucher et al. v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.); Selznick v. Selznick, 2013 ONCA 35, [2013] W.D.F.L. 1013; Murray v. Murray (2005), 79 O.R. (3d) 147 (C.A.); Delellis v. Delellis.
2. Analysis
[29] The starting point in an analysis of costs is an assessment of relative success: see Family Law Rules, O. Reg. 114/99, r. 24(1); Sims-Howarth v. Bilcliffe (2000), 6 R.F.L. (5th) 430 (Ont. S.C.); Mattina, at para. 13.
[30] Rule 24(6) of the Family Law Rules requires the court to consider whether there was divided success. Divided success does not mean equal success. Rather, r. 24(6) requires a contextual analysis because not all issues are equally important, equally time-consuming or equally expensive to determine: Jackson v. Mayerle, 2016 ONSC 1556, 130 O.R. (3d) 683, at paras. 66-67. In this case the primary, if not exclusive issue for the trial was the Father’s parenting time with the children and how to ensure that his relationship with the children was repaired.
[31] The Mother submits that she was the successful party in that the final order more closely aligned with her stated position at the end of the trial, as well as her offer to settle.
[32] The Father’s position was somewhat unclear, but he seemed to suggest that the court consider that the children having been alienated from him and from his family as grounds to award costs in his favour.
(a) Determination of Success
[33] The Mother made an offer to settle dated March 1, 2017. She offered that she would have sole custody of the children and that the Father’s access would be suspended, to be re-instated upon the advice of the reintegration therapist. The reintegration therapist would be Sue Cook, with whom the Father did not have confidence and who had not included the Father in the process for some time. This offer, which was not severable, also contained terms relating to property division.
[34] The Father made a detailed, non-severable offer to settle dated May 5, 2017. He offered that the parties have joint custody of the children. His proposal was for regular unsupervised access that was “subject to further recommendations of the reintegration counsellor,” and that a new mutually agreeable reintegration counsellor be selected. He proposed that access be reviewed in January 2018 with a view to moving back to shared parenting; the review would take into consideration the recommendations of the reintegration therapist and possibly a custody and access assessment.
[35] The Father’s offer appears on its face somewhat more reasonable than the Mother’s. However, there were some issues of interpretation with the Father’s offer. He proposed that the parties would be bound by the therapist’s recommendations for “reasonable changes to the access schedule” [emphasis added]. Having heard sixteen days of evidence in this trial and having become familiar with the communication between the parties, the initial selection and continued retainer of the therapist in addition to what recommendations might be considered “reasonable” would all be a recipe for conflict and likely lead to further litigation.
[36] For these reasons, I do not view either party’s failure to accept the other’s offer as unreasonable.
[37] The ultimate result did not match either party’s offer. I awarded sole custody to the Mother, but the issue of custody took a backseat to the issue of the Father’s access during the trial. I declined to suspend the Father’s access as she had set out in her offer. Some aspects of the Father’s offer were reflected in my order, including those parts relating to the flow of information about the children but otherwise there was little similarity.
[38] The Mother’s draft order presented at the conclusion of the trial represented a modified position for her. Reflecting for the most part Mr. Hurwitz’s recommendations, she proposed that the Father have supervised access at an access centre. She sought that access only be expanded as recommended by the reintegration therapist. The Mother sought to have Sue Cook continue as the therapist, but she was open to other therapists provided the Father bore the cost.
[39] The Father’s draft order presented a highly unusual and unreasonable proposal having regard to the evidence at trial. His proposal was that the children would be removed from the care of the Mother and placed in the care of someone other than himself until such time as he and the children had participated in therapy with Dr. Barbara Fidler or someone similarly qualified. He did not adduce any evidence as to whether these alternate caregivers would be appropriate or willing to take on this task. His proposal was that the Mother would have access only as recommended by that therapist.
[40] In terms of the ultimate result, the Mother had success relative to her draft order.
[41] Overall, the Father was successful in demonstrating to the court that the Mother had engaged in parental alienation and that she had contributed to the fractured state of his relationship with the children. However, the expert evidence presented to the court confirmed that the Father’s own challenges were also a significant contributing factor, and for this reason, I found that it was in the children’s best interests to remain in the Mother’s care. In the end, the Mother enjoyed greater success than did the Father.
(b) Reasonableness of the Parties
[42] Rule 24(4) of the Family Law Rules states that a court can sanction unreasonable conduct through an award of costs.
[43] Rule 24(5) of the Family Law Rules provides criteria for determining the reasonableness of a party’s behaviour in a case as follows:
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.
[44] The Father’s dogged pursuit of his case and his desire to remedy and repair his relationship with his children was understandable, and in many respects, reasonable. He was insistent that the Mother was engaging in parental alienation and he was to some extent vindicated by Mr. Hurwitz who found that the Mother was engaging in alienating behaviours. The Father’s view is that the Mother should now be penalized with a costs award much like the mother in X v. Y. While there is no question that the Mother bears significant responsibility for the children’s lack of relationship with the Father, I make no finding of bad faith as did Trimble J. in X v. Y. As I canvassed at some length in my original reasons, the situation for these children was complex and multifaceted, with both parents making negative (and positive) contributions. Following the assessment, the Mother appeared to genuinely recognize and acknowledge the part that she had played, whereas the Father paid only lip service to his role.
[45] Both parties suggested that they had tried harder than the other to settle. In my view, both parties had firm positions on the issues in the period leading up to the assessment that made resolution difficult.
[46] I found the Mother’s litigation behaviour, particularly her conduct of the trial, reasonable. Ms. Bromley kept her examinations of her own witnesses and her cross-examinations brief and directed squarely at the issues at hand. The Mother made appropriate concessions and admissions which expedited the proceeding. In one instance, albeit at my request, the Mother’s lawyer assisted the Father in organizing his documents so that we could move the case forward.
[47] The same cannot be said of the Father’s conduct of the trial. While I had considerable empathy for the Father’s position: he had next to no relationship with his children and he was struggling to change that situation, I find that the Father’s litigation behaviour was in many respects unreasonable. I allowed the Father extensive latitude due to the fact that he was self-represented and due to the complexity of the case. Despite these accommodations, the Father frequently ignored my instructions to move the trial forward expeditiously. He was often late starting in the morning and returning from breaks. This resulted in delays for the Mother, her lawyer and the court, and is a factor to be considered under r. 24(7) of the Family Law Rules. He was often unprepared to conduct an examination or to give his own evidence despite me reviewing with him the day before what was required. On a number of occasions, I ordered him to write down all of his questions and to stick to the written script; the Father would comply for a while and then insist on soliloquizing.
[48] Many self-represented parties find it very challenging to represent themselves at trial, particularly when the other side has a lawyer. Almost all family law litigants feel strongly about their position, especially when their children are concerned, and they want to ensure that the court has the full picture. What differentiated the Father was his wilful insistence on doing things his own way despite repeated direction from the court. The Father’s conduct of the trial considerably lengthened this proceeding and in that respect was unreasonable.
(c) Factors in Setting the Amount of Costs
[49] The Mother was the successful party and she is entitled to some costs.
[50] Rule 24(12) of the Family Law Rules sets out a number of factors to be considered in determining the quantum of costs as follows:
(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.
[51] I have discussed the reasonableness of each party’s behaviour above.
[52] The amount of time billed to the Mother by her lawyer for the preparation and attendance at a sixteen-day trial was very reasonable, if not on the low side. Ms. Bromley’s billing rate is appropriate for her level of experience. She capably conducted this trial on behalf of the Mother.
[53] Neither party’s offer met the criteria of r. 18(14) of the Family Law Rules. Although the offers can be considered under r. 24(12) of the Family Law Rules, as indicated above, the offers to settle were a neutral factor.
[54] The issues in this case were both complex and very important for the parties. The Father had next to no relationship with the children when the trial commenced. Both parties alleged that the other suffered from mental illness that impaired their ability to parent. Further, it was alleged that the Father had exposed T.B. to pornography. This allegation did not originate with the Mother but informed her position in terms of the children’s relationship with the Father. The Father vehemently denied any such allegation. This issue was understandably important and highly emotional for both parents – I specifically found that the children were not at risk of sexual harm from the Father. From the court’s perspective, this confluence of factors was what necessitated the custody and access assessment.
[55] As previously outlined, one of the considerations in an assessment of costs is to fix costs at an amount that is “fair and reasonable” for the unsuccessful party to pay in a particular proceeding: Farjad-Tehrani v. Karimpour (2009), 64 R.F.L. (6th) 375 (Ont. S.C.), at para. 32, aff’d 2010 ONCA 326, 83 R.F.L. (6th) 17, at para. 4.
[56] The Father had counsel previously and he should reasonably have been aware of what costs the Mother was incurring.
[57] In summary, although the Mother did not have complete success, she was more successful than the Father. I find that both parties exhibited unreasonable behaviour in terms of their contribution to the children’s poor relationship with the Father. However, the Mother appears to have acknowledged her part and modified her position to reflect that recognition. The same cannot be said for the Father who remains fixated on the parental alienation issue. The Father’s litigation behaviour, even allowing for the fact that he was self-represented, significantly lengthened the trial and added to the Mother’s legal costs.
[58] Having regard to all of the foregoing, the Father shall pay costs of $20,000, inclusive of HST and disbursements. The Mother’s contribution to the cost of the assessment: $10,950, shall be deducted from this amount. This leaves a total of $9,050, inclusive of HST and disbursements to be paid by the Father to the Mother within 60 days.
[59] The Mother sought to have costs enforceable through the Family Responsibility Office (“FRO”); however, this trial was almost exclusively about parenting and the Father consented to the orders relating to child support. I therefore decline to make costs payable through the FRO.