Court File and Parties

COURT FILE NO.: 03-FL-928-1

DATE: 20190829

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Paul Eugene Francois Marchand Applicant

– and –

Susanne MacKenzie Respondent

COUNSEL:

Christian Pilon, for the Applicant

Suzanne E. Galarneau, for the Respondent

HEARD: In Writing (at Ottawa)

DECISION ON COSTS

LINHARES DE SOUSA J.

[1] The issues for determination on this Motion for Change brought by Mr. Marchand against Ms. MacKenzie were the following:

(a) custody and access as well as some ancillary questions relating to the custody and access issues;

(b) child support for the child Sophie, including section 7 expenses; ancillary to the child support issues there arose the issues of retroactive support as well as future ongoing support;

(c) whether the obligation to provide complete financial disclosure was met by Ms. MacKenzie and whether an income ought to be imputed to Ms. Mackenzie; and finally,

(d) the issue of costs.

[2] With respect to all these issues, there is no question, in my view, that Mr. Marchand was substantially successful. As a result, pursuant to Rule 24 (1) of the Family Law Rules, Mr. Marchand is presumptively entitled to his costs, unless his unreasonable conduct during the case would disentitle him to such costs. Except, as mentioned in my reasons below, I cannot find that Mr. Marchand has behaved unreasonably throughout this litigation in a way that would disentitle him to his costs.

[3] Having said that, I acknowledge that Mr. Marchand did not receive all of the relief he sought in this motion. He was ordered to provide information to Ms. MacKenzie of his travel dates when he travelled with Sophie. Furthermore, while he succeeded in having the Court impute an income to Ms. MacKenzie, the imputed income attributed to Ms. MacKenzie was not as high as Mr. Marchand sought. Nonetheless, in the totality of issues here one can hardly conclude that there was divided success between the parties.

[4] On the other hand, as already referred to in my substantive reasons on the motion, I conclude that Ms. MacKenzie by her conduct throughout the litigation behaved unreasonably by substantially prolonging and delaying the final determination of all issues in this motion. She did this by not following through with the process that she herself requested to determine the wishes of Sophie with the help of Ms. Scholey; by not quickly finalizing the issues of custody and access when she acknowledged for the first time, at the examination for discovery in July 2016, that custody and access were not real issues between the parties, some two years after the motion had to be commenced by Mr. Marchand; and, by delaying and not exercising due diligence in meeting her obligations to make complete and comprehensive financial disclosure as ordered by Master Champagne in March 2016. This was a litigation that commenced in 2015 and was finally adjudicated upon in 2019.

[5] Bad faith is a very high standard. On the totality of the evidence before me, I cannot find that either party acted in bad faith in this hotly contested motion.

[6] Rule 24(12) outlines several factors to be considered by the Court in coming to its final decision on costs. The various issues on this motion were certainly important to the parties. They were not, however, particularly complex. The support issues were rendered complex and difficult throughout the litigation because of the delay on the part of Ms. MacKenzie in providing complete disclosure. I have already referred to the parties’ behavior.

[7] At different times during this long litigation, both parties made offers to settle. There were both informal and formal offers to settle, and the Court may consider all offers made by the parties in assessing the reasonableness of their conduct and their offers. Based on the material and submissions of Mr. Marchand’s counsel, it is clear that Mr. Marchand attempted early on in the litigation to avoid further litigation and to finally and formally resolve the issues of custody and access. I refer to his informal offers of February 27, 2015 and May 26, 2015, and his formal offer of November 19, 2015 made pursuant to Rule 18 of the Rules of Family Law.

[8] Despite acknowledging in July 2016 that custody and access were no longer issues, those various offers were not responded to by Ms. MacKenzie. Ms. MacKenzie presented her own offer on January 25, 2017, which effectively and substantially accepted Mr. Marchand’s earlier offers relating to custody and access with the exception of notice of travel plans, which condition Mr. Marchand, curiously, did not want to accept and which had to be ordered by the court at the February 21, 2017 hearing.

[9] While I understand the reasoning of Mr. Marchand’s counsel that his client could not have accepted Ms. MacKenzie’s January 25, 2017 offer to settle the custody and access issues without the inclusion of a costs clause in favour of his client, I cannot understand why his client did not provide a counter offer with the inclusion of a costs clause or with a clause leaving the question of costs to the court, which is exactly what happened after the February 21, 2017 hearing.

[10] In my view the court has the discretion to consider all offers to settle made by the parties and when they were made.

[11] Ms. MacKenzie’s offer of January 25, 2017, relating to the issues of custody and access was her first reasonable effort to formally and finally resolve the questions of custody and access. Nonetheless, I cannot ignore the fact that it was made some 2 years after the motion to change was commenced by Mr. Marchand and was rendered somewhat less reasonable by ignoring the issue of the substantial costs that had to date been incurred by Mr. Marchand, largely due to her own delay in dealing with the issues. This reality must be considered if determining whether an offer to settle, in the discretion of the court, is “as favourable” or “more favourable” pursuant to Rule 18 of the Rules of Family Law. I find it was not.

[12] Ms. MacKenzie also made an offer to settle on the question of child support dated March 25, 2019. This offer falls far short of what was ordered by the Court and does not engage Rule 18 of the Rules of Family Law.

[13] Mr. Marchand did not make an offer to settle the child support issues and that cannot be considered reasonable on his part. Nonetheless, he was substantially successful on the child support issues.

[14] The next factor to consider is the bill of costs submitted by counsel for Mr. Marchand. Ms. MacKenzie has chosen not to share with the court her counsels’ bills of cost. It is, therefore, difficult to assess whether Ms. MacKenzie could not have reasonably anticipated the magnitude of Mr. Marchand’s legal fees by examining her own legal fees (see Boucher v. Public Accountants Council (Ontario) (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.)). In view of that, I must assume she was fully aware of the cost of this 4 year litigation.

[15] Given the intense conflict involved in this litigation, I am not prepared to second guess experienced counsel’s determination of the reasonable time involved to properly address the issues on this motion, in his client’s best interests. Given the needless delays incurred in this litigation, I cannot find that time nor the rates unreasonable. I would, however, deduct from the bill of costs the $1,500 costs awarded to Mr. Marchand for the case conference held before Master Champagne on March 4, 2016, and which appears to be included in the bill of costs.

[16] The final consideration listed in Rule 24(12) is “any other relevant matter”. Under this rubric the court can consider any parental obligations and a parties’ ability to pay costs. I have considered these factors. Mr. Marchand continues to be principally responsible for Sophie’s financial support. He incurred very high costs in resolving the legal status of Sophie’s custody and access and financial support and experienced costly delays in doing so. To not grant him his substantial costs in this matter would be unfair and punitive to him. Nevertheless, he must take responsibility for some of his unreasonable behavior mentioned earlier.

[17] For all these reasons, I award Mr. Marchand his costs that I fix in the amount of $40,000.00, disbursements and HST included, payable by Ms. Mackenzie within 90 days of this decision.

M. Linhares de Sousa J.

Released: August 29, 2019

COURT FILE NO.: 03-FL-928-1

DATE: 20190829

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Paul Eugene Francois Marchand Applicant

– and –

Susanne MacKenzie Respondent

DECISION ON COSTS

M. Linhares de Sousa J.

Released: August 29, 2019