Court File and Parties

COURT FILE NO.: FS-18-2842-00 DATE: 20190712 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: A.P. AND: L.K.

BEFORE: J.T. Akbarali J.

COUNSEL: Joanna Harris for the Appellant in Appeal/Responding Party Andrew Faith and Emma Carver for the Respondent in Appeal/Moving Party

HEARD: In writing

Endorsement

[1] The mother, who is the respondent in this appeal, brought a motion for a publication ban and sealing order in this proceeding. The underlying appeal arises from an arbitrator’s decision not to order the vaccination of the parties’ two children; it raises issues of vaccine hesitancy and the family law arbitration process. The appeal has attracted media interest.

[2] On June 28, 2019, I released reasons in the motion: 2019 ONSC 4010. I gave directions with respect to costs submissions if the parties were unable to agree on costs. I have now received the parties’ written submissions. These reasons address costs of the motion for a publication ban and a sealing order.

[3] The mother seeks her costs of the motion, in the amount of $18,922.64. She argues that she was successful in obtaining a variety of confidentiality protections. She argues that the motion was necessary due to the intense public interest in the proceeding that was brought about by the father courting the media to publicize his gofundme.com page to raise funds to continue his appeal. She argues the father’s behaviour justifies a costs award against him because: (i) he deliberately made public information that identified the parties and their children, including his full name; (ii) he sensationalized the proceedings to fund this litigation through his gofundme.com page; (iii) he did not seek any confidentiality protections for the children when filing his appeal; and (iv) he stood in the way of the mother’s efforts to obtain confidentiality protections for the children by insisting that he be allowed to use his first name publicly, impugning her motives in seeking confidentiality protections, making unwarranted accusations about the mother and her counsel, making arguments in support of the media’s position, and referring to the potential harm to the children as speculation, which required the mother to devote resources to responding to his position.

[4] The father argues that there should be no costs of the motion, or, alternatively, that costs should be payable to him. He argues that he made efforts to protect the children’s identity when he went public about the case because he sought, and obtained, media cooperation in not publishing the identity of the children or the mother. He argues that he consented to the relief that was ordered, but resisted the sealing order, which I did not order. He argues that the efforts required to respond to his positions were minimal, and in any event, the mother had to address the media’s position on the motion and satisfy the court that the confidentiality protections were warranted. He argues that costs were increased by the mother’s short service of the original motion for confidentiality protections, determined on an interim basis by Kristjanson J. on May 30, 2019, and by her failure to provide notice to the media as required by the Consolidated Provincial Practice Direction of the Ontario Superior Court of Justice.

[5] The father also argues that the time spent by the mother’s counsel on the motion was excessive and included billing for two lawyers to attend at hearings when only one lawyer made submissions. He contrasts his counsel’s investment of 14 hours on the motion against the mother’s counsel’s investment of over 78 hours.

[6] Modern family costs rules are designed to foster four fundamental purposes: to indemnify successful litigants for the cost of litigation, to encourage settlements, to discourage and sanction inappropriate behaviour by litigants, and to ensure that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867. The cornerstone of costs awards are proportionality and reasonableness: Beaver v. Hill, 2018 ONCA 840 at para. 12.

[7] Subject to the provisions of an Act or the rules of court, costs are in the discretion of the court pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. By r. 24(10)(a) of the Family Law Rules, O. Reg. 114/99, the court is directed to make a decision on the costs of a step in the case promptly after dealing with the step, in a summary manner.

[8] Pursuant to r. 24 the successful party on a motion is presumptively entitled to costs, subject to the factors set out in Rule 24 – a caveat the Court of Appeal recently called “important”: Beaver, at para. 10.

[9] The factors to consider are set out in r. 24(12), and include the reasonableness and proportionality of a number of enumerated factors as they relate to the importance and complexity of the issues. These factors include each party’s behaviour, the time spent by each party, any written offers to settle, including those that do not meet the requirements of r. 18, any legal fees and any other expenses, and any other relevant matter.

[10] There is no general approach in family law of “close to full recovery costs”: Beaver, at paras. 9-13. Rather, full recovery is only warranted in certain circumstances, such as bad faith under r. 24(8) or besting an offer to settle under r. 18(14): Beaver, para. 13.

[11] In a typical case where the court is determining costs, the parties to a step in the proceeding take positions that are adverse to one another on issues that could have been resolved between them. This case is different because, even if the parties were in agreement about the order that should issue, the motion could not have been avoided. First, it is necessary to notify the media when a publication ban or sealing order is sought. In this case, once notified, certain media attended and made argument about the proper scope of the confidentiality protections sought. In many ways, the media was successful on the motion.

[12] Moreover, when a party seeks a sealing order or a publication ban, they must also convince the court that theirs is a case where it is appropriate to depart from the open court principle. Courts do not grant sealing orders or publication bans on consent.

[13] In the end result, I granted certain confidentiality protections on the mother’s motion, but I did not grant all the relief she sought. Significantly, I declined to seal the file. I also allowed publication of certain information that the mother sought to protect from publication, like the children’s ages.

[14] In my view, the most that can be said is that the mother had some success on the motion. The media parties also had some success on the motion.

[15] I conclude that the motion would have been necessary in any event. While the father’s appeal may not have as easily come to the public’s attention without his efforts to engage the media, any proceeding in the courts is public unless subject to an order, and an order for confidentiality protections requires notice of the motion, and therefore the proceeding, to be given to the media. Given the public interest in the issues raised in the appeal, the mother would have likely had to bring the motion, and respond to the media arguments, in any event. The alternative would have been to roll the dice and hope no media noticed the appeal.

[16] In these circumstances, I cannot conclude that the father’s behaviour caused or increased the mother’s costs of the motion. Rather, the costs she incurred were the necessary costs of responding to the media’s arguments and satisfying the court that the confidentiality provisions she sought were appropriate notwithstanding the open court principle.

[17] In my view, it is appropriate to order no costs of this motion.

J.T. Akbarali J. Date: July 12, 2019