Court File and Parties

Court File No.: FC-14-1977-1/FC-14-1977-2 Date: 2019-06-14 Ontario Superior Court of Justice

Between: Anneke Joyce Kooistra, Applicant – and – Eric Daniel Joseph Rochon, Respondent

Counsel: Mary Cybulski and Katherine A. Cooligan, for the Applicant Eric Letts, for the Respondent

Heard: By written submissions

Decision on Costs

Audet J.

1Following the release of my trial decision in the above-noted matter (2019 ONSC 1530), I invited the parties to provide written submissions on costs should they be unable to settle this issue. Having received those submissions, this is my decision on costs.

2This was a six-day trial held in the context of the father’s motions to change the final consent order of Justice Shelton dated July 25, 2016. The father sought an order granting the parties equal parenting time to their two children, and varying his child support obligations effective either on February 1, 2017 or April 1, 2016. This would have resulted in the repayment by the mother of up to $30,000 on account of past child support paid to her by the father.

3The mother requested that the children’s primary residence remain with her in accordance with the existing final order, with expanded access to the father, and final decision-making authority over the children’s health and education. The father disputed the mother’s request for final decision-making authority, and sought the continuation of the existing joint custody arrangement.

4I ultimately granted both of the mother’s requests, but awarded final decision-making authority over religious matters to the father. Child support was adjusted to accord with the Guidelines based on the parties’ current income.

5In support of his request for termination of child support (his second motion to change), the father brought a constitutional challenge to the Ontario’s Child Support Guidelines, S.O.R./97-175 (“Guidelines”) which was abandoned at the last possible moment, with no notice, during his counsel’s closing arguments.

6The mother seeks costs in the amount of $62,477.71, being:

• costs on a partial indemnity basis from the commencement of the proceedings until January 10, 2019, being in the amount of $21,850.81 ($19,377 plus HST);
• costs on a substantial indemnity basis (85% of $31,012.40) from January 10, 2019 forward, on all issues except child support and the constitutional issue (80% of time spent during that timeframe), being $29,787.41 ($26,360.54 plus HST);
• costs on a full indemnity basis in relation to the constitutional issue, and on the issue of child support from January 10, 2019 forward, being $8,761 (20% of time spent in that timeframe) ($7,753.10 plus HST); and
• disbursements totalling $2,078.49.

7The father argues that he has made repeated and sustained attempts to settle this matter throughout the process, but that a trial was required because of the mother’s refusal to negotiate or cooperatively expand the father’s access. He is of the view that he was the successful party on much of what he offered, and as a result of this divided success, each party should bear their own costs. Finally, he states that he has limited ability to pay any award of costs since he remains seized of debts that stem from the relationship and he is required to pay child support despite the fact that he has the children in his care for more than 40% of the time.

Legal Framework

8Modern costs rules are designed to foster four fundamental purposes (1) to partially indemnify successful litigants; (2) to encourage settlement, (3) to discourage and sanction inappropriate behaviour by litigants and; (4) to ensure that cases are dealt with justly under subrule 2(2) of the Family Law Rules, O. Reg. 114/99 (“the rules”) (Mattina v. Mattina, 2018 ONCA 867).

9Costs can be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice (British Columbia (Minister of Forests) v. Okanagan Indian Band, [2003] 3 S.C.R. 371, 2003 SCC 71 at para. 25).

10Subrule 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 (Sims-Howarth v. Bilcliffe (2000), 6 R.F.L. (5th) 430 (Ont. Sup. Ct.) (Fam. Div.)). To determine whether a party has been successful, the court should take into account how the order compares to any settlement offers that were made (Lawson v. Lawson). The position each party took at trial should also be examined.

11Subrule 18(14) of the rules provides that a party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the conditions set out therein are met. The court is not required to examine each term of the offer as compared to the terms of the order and weigh with microscopic precision the equivalence of the terms. What is required is a general assessment of the overall comparability of the offer as contrasted with the order (Wilson v. Kovalev, 2016 ONSC 163, 72 R.F.L. (7th) 362).

12An award of costs is subject to the factors listed in subrule 24(12), subrule 24(4) pertaining to unreasonable conduct of a successful party, subrule 24(8) pertaining to bad faith, subrule 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party (Berta v. Berta, 2015 ONCA 918, 128 O.R. (3d) 730 at para. 94).

13In making its decision, the court must finally consider the factors set out in subrule 24(12) of the rules which reads as follows:

24(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,

(iii) any legal fees, including the number of lawyers and their rates,

(iv) any expert witness fees, including the number of experts and their rates,

(v) any other expenses properly paid or payable; and

(b) any other relevant matter.

Analysis

Success

14There is no question that the mother was the successful party on all major issues in this trial. She retained primary residence of the children as well as decision-making authority over health and education related matters. The father’s claims for an equal time-sharing arrangement and joint decision-making authority were not successful. His constitutional challenge of s. 9 of the Guidelines was withdrawn in the context of his closing submissions and, therefore, his claim for a retroactive termination of child support became moot. Prospective child support was set based on my decision on parenting, and required him to continue to pay child support based on the Table amount set out in the Guidelines.

15While the father obtained some level of success on the issues of decision-making authority on religious matters and equal parenting time during the months of July and August, and while I ordered the mother to obtain a second opinion with regards to Zachary’s ADHD diagnosis, these small successes do not override the mother’s success on most of the issues in dispute. Further, the mother did not take a strong oppositional stance on the issues of summer parenting time and decision making authority over religious matters.

Offers to Settle

16The mother made several offers to settle throughout this proceeding. In particular, the mother made a severable Offer to Settle on January 10, 2019. Her offer in relation to parenting matters was substantively similar to the orders made at trial, with the exception that it did not provide for equal time sharing during the summer months.

17With regards to child support, her offer was more favorable to the father then the result he achieved at trial; the mother was prepared to accept the set off amount pursuant to a shared custody regime although the parenting regime she offered did not provide the father with at least 40% of the time with the children.

18It is important to note that, in an email offer made in July of 2018, the mother was prepared to agree that the father’s income be reduced by 20% for the purpose of calculating his child support obligations, and to put one half of the child support payments received in an account to be credited as both parties’ contribution towards post-secondary educational expenses. The father did not accept that offer.

19The father did not make any severable offers to settle. His August 17, 2018 Offer to Settle provided for an equal time sharing schedule and joint decision-making. It did not address child support. His December 13, 2018 Offer to Settle was identical to the one he made in August 2018. His January 30, 2019 Offer to Settle was much more detailed, but still provided for a joint parenting and decision-making regime. Throughout, he pursued a termination of his child support obligations. It is difficult for me to understand how the father is now arguing that he was “successful at trial in obtaining much of what he offered”. In fact, he achieved very little success and only on minor issues.

20Based on the above, I find that the mother is entitled to her costs on a substantial indemnity basis from the date of her January 10, 2019 Offer to Settle to the end of the trial, at the rate of 80%.

21As stated above, in his second Motion to Change the father challenged the constitutionality of s. 9 of the Guidelines, and sought the reimbursement of significant child support paid to the mother over the past several years. This claim was withdrawn during his closing submissions at the end of the trial. Pursuant to rule 12(3), the mother is entitled to her full costs on these issues from the time the father’s second Motion to Change was served until the end of the trial.

Reasonableness

22This leaves the issue of costs related to the father’s first Motion to Change (parenting), from the commencement of the proceeding to January 10, 2019 (date of the mother’s Offer to Settle). The mother is seeking partial indemnity costs. Rule 18 does not apply to this portion of the costs.

23Subrule 24(5) provides criteria for determining the reasonableness of a party’s behaviour in a case, in relation to all of the factors set out in para. 24(12). It reads as follows:

Decision on Reasonableness

(5) 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.

24I find that the father’s approach in these proceedings was unreasonable in many ways, including the following:

• the father brought his Motion to Change the parenting schedule set out in Justice Shelton’s final order of 2016 four months after he consented to that order being made, and even though the graduated schedule he agreed upon had not yet elapsed (it had barely commenced). In my trial decision, I concluded that there was no material change in circumstances supporting a Motion to Change at that time, and that the father’s decision to bring this motion was not reasonable;

• At the first case conference which proceeded in 2017, the father served a 200-page brief and sought to have the master make a final order. This was zealous at best;

• In the fall of 2017, the father brought an urgent motion alleging that the mother was not agreeing to a psychiatrist and that he needed right of first refusal on an urgent basis. When he failed to obtain the urgent finding, he never re-scheduled his motion;

• He frequently accused the mother of not being honest or of lying, an accusation that he made constantly throughout the trial as well, and in his communications with her during the litigation. This was so even when he was represented by counsel. The following excerpt from an email exchanged between counsel on December 13, 2018 is telling as to the condescending and accusatory stance the father adopted towards the mother in these proceedings;

  It appears from the record that your client is immune from the court’s recommendations, she lacks any credibility and instead of ‘parenting’, everything she does with the children is a power-play infused with secrecy and self-interest. I appreciate the words are harsh, but she has wasted so many public resources as well as drained her children’s families resources for her own interests.

  This litigation is about Ms. Kooistra’s drive for power and child support. She is not a ‘good parent’ and this will be highlighted at trial. She has lied under oath and to the OCL investigators, made allegations against this dad that were completely without merit, frustrated the children’s time with their father, continued to make allegations about the children’s behaviour merely to advance her perceived litigation interests among other selfish and nefarious acts.

• The father chose to challenge the constitutionality of the Ontario’s Guidelines in order to avoid the payment of child support, or to create a strategic advantage in the negotiation of a settlement. This is clearly evidenced by the fact that he maintained his constitutional challenge all the way through to the end of the trial (although the choice of abandoning that claim was offered to him on several occasions, including during judicial conferences), without adducing any evidence whatsoever in that regard, and choosing to withdraw his claim during closing submissions;

• By repeatedly advancing offers that reduced and even eliminated child support, the mother sent a clear message to the father that support was not her priority. Nevertheless, at trial the father aggressively advanced his theory that the mother’s insistence on retaining primary residence of the children was motivated by financial gain in the form of child support;

• His decision to bring two distinct motions to change (one pertaining to parenting and child support and the other pertaining to his constitutional challenge and request for a retroactive reimbursement of up to $30,000 in paid child support) resulted in a total of eight court dates (a first appearance, two case conferences, three settlement conferences, a trial management conference, and a failed urgent motion) and significantly prolonged the litigation and increased costs;

• During the period of approximately four weeks from mid-December 2018 to mid-January 2019, the father (and / or his counsel) was unresponsive which put on the mother’s shoulders the entire burden of preparing the voluminous document books used at trial by both parties.

25I have no evidence before me that would support a finding that the mother behaved unreasonably in this litigation. She pushed for the two motions to change to be heard at the same time, a result that she finally achieved at a case conference in January 2018 despite the father’s initial objections. She made a severable Offer to Settle in the hope of reducing the length of the trial, and her position and demeanor during the trial remained calm, fact-based and non-accusatory, which is suggestive of how she approached this litigation throughout.

26In all of the circumstances, I might have been inclined to make an order for costs on a substantial indemnity basis for this portion of the proceedings. However, I acknowledge that the main issues raised by these proceedings related to the well-being of two young children. Ultimately, the father was successful in gaining more access to his children, including equal time during the months of July and August. In addition, one of the most disputed issues between the parties related to the medical treatment of the parties’ child, Zachary, who was diagnosed with ADHD. On that issue, I concluded that both parties’ positions were very valid, and I required that the mother obtain a second opinion before making a decision on whether or not Zachary should be medicated.

27It is also to be noted that the mother did not seek substantial indemnity costs for this part of the proceedings, although she is seeking partial indemnity costs at the rate of 67.5%.

28Based on all of the above, I find that the mother is entitled to her costs on a partial indemnity basis from the commencement of the proceedings until January 10, 2019, at the rate of 60%.

Amount - Reasonableness and Proportionality

29I have carefully reviewed the mother’s counsel’s detailed Bill of Costs, and make the following observations:

• Ms. Cybulski was mainly responsible for the conduct of this file, along with Ms. Johnston, and did most (if not all) of the work throughout these proceedings. They were both called to the bar in 2012 and charged between $200 and $235 an hour. I find that this is a reasonable hourly rate for lawyers with their level of experience.
• Ms. Cybulski’s Bill of Costs includes time for her staff and more junior lawyers only in the context of her preparation for trial (after the mother made her January 10, 2019 Offer to Settle). I find that the hourly rate charged by her staff ($190 an hour) and much more junior lawyers ($250 to $260) is inordinately high, particularly in light of the hourly rate charged by the lead counsel on the file (their combined work represents 20.1 hours in total).
• The assistance of a much more senior counsel in the firm, Ms. Cooligan, was required in the context of the last minute Settlement Conference held on January 18, 2019 and in the context of counsel’s preparation for trial to deal with the father’s constitutional challenge. Ms. Cooligan charged $510 per hour for her work, which although not unreasonable given her level of experience is nonetheless at the very high end of what is normally charged by family lawyers with her level of experience in Ottawa. However, she minimized her involvement to what was absolutely necessary, and only charged 2 hours of her work to deal with this rather complex issue.
• The hours of work invested by the various legal professionals involved in this file were very reasonable given the many steps required in the proceedings, the level of complexity of some of the issues raised, and the significantly high conflict nature of the parenting dispute.
• Since I was not provided with a detailed Bill of Costs from the father’s counsel, it is not possible for me to compare the hours charged by the mother’s counsel to the hours charged by the father’s counsel for the same work. However, I note that the total fees charged by the father’s counsel for the preparation and attendance at trial was $28,796.11 (at $200 an hour), which is not very far from the total amount charged by counsel for the mother for the same steps in the case ($36,657 at $235 an hour).

30In the end, I find that the mother’s counsel’s Bill of Costs is reasonable, although I would reduce it by $1,000 for the period of January 18, 2019 to the end of trial to account for high hourly rates charged by junior lawyers and staff members.

31In light of all of the above, I make the following order as it relates to costs:

1. The father shall pay to the mother her costs totaling $57,338.05, detailed as follows: a) costs on a partial indemnity basis from the commencement of the proceedings until January 10, 2019, being in the amount of $19,463.35 (60% of $28,707 plus HST); b) costs on a substantial indemnity basis (80% of $31,012.40 plus HST) from January 10, 2019 forward, on all issues except child support and the constitutional issue (80% of time spent during that timeframe), being $28,035.21; c) costs on a full indemnity basis in relation to the constitutional issue, and on the issue of child support from January 10, 2019 forward, being $8761 (20% of time spent in that timeframe) ($7753.10 plus HST); d) disbursements totaling $2078.49; e) minus $1,000.

32As the costs associated with the father’s second Motion to Change (constitutional challenge) was entirely related to the issue of child support, same ($8761) shall be enforced by the Family Responsibility Office as support.

Father’s alleged inability to pay

33On a final note, I wish to address the father’s main argument against a cost award being made against him, namely, his alleged inability to pay.

34The father argues that he remains seized of debts that stem from the relationship, in addition to having to pay full Table child support while having the children in his care for at least 40% of the time. At para. 38 of my trial decision, I concluded as follows:

38 In August 2016, Mr. Rochon decided to sell his house in Nepean. While he claims that he did so because he was on the verge of bankruptcy, I have been provided with no evidence that would support that claim. Mr. Rochon states that the court proceeding, which led to the Final Order and resulted in child support obligations on his part, was the cause of his “near bankruptcy”. The parties’ 2016 income tax returns reveal that the parties, at that time, both earned in the range of $70,000 per annum. Both had just come out of a lengthy and costly family litigation, and both were responsible for maintaining their respective homes in the same neighbourhood. I do not accept that Mr. Rochon was in any more financial distress than Ms. Kooistra as a result of their first litigation, and I do not accept that the mere payment of child support, in accordance with the Guidelines, pushed Mr. Rochon towards “near bankruptcy”. While Mr. Rochon may very well have been in dire financial circumstances at that time, I am not aware of the exact causes for this state of affairs.

35I also concluded that the children continued to have their primary residence with their mother (and, thus, the father did not have the children in his care for at least 40% of the time), and ordered that he pays the full amount of child support.

36The father also argues that he is responsible for the costs of housing and caring for his two step-daughters, in addition to his own children, and that a costs order would adversely affect these children.

37Firstly, the father lives with his new spouse who is also gainfully employed. Together, they earn a combined income of over $150,000. Even if I was to consider his new spouse’s children to be his financial responsibility as well, which I do not, these children have a father who cares for them on an equal-time sharing basis and who undoubtedly assumes at least one half of their housing and other day-to-day costs. In addition, while the father (Mr. Rochon) has the benefit of sharing his housing costs with a new spouse, the mother does not.

38Secondly, family law litigants are responsible and accountable for the positions they take in the litigation (Heuss v. Surkos, 2004 ONCJ 141, 2004 CarswellOnt 3317). A party’s limited financial circumstances will not be used as a shield against any liability for costs, but will be taken into account regarding the quantum of costs, particularly when they have acted unreasonably and are the author of their own misfortune (Snih v. Snih at paras. 7-13).

39I have considered the father’s ability to pay a cost award, in light of all of the above, and I find that it does not alleviate his obligation to pay the costs award I have made. In light of a very reasonable and severable Offer to Settle served well ahead of trial, which could have settled his constitutional challenge, child support obligations and other parenting matters in a reasonable manner and at no cost, the father chose to proceed to trial on all issues with full knowledge of the risks associated with litigation from a cost perspective. He must now bear the consequences of his decisions.