Court File and Parties
COURT FILE NO.: FC-14-2450
DATE: 2019/09/06
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Luis Alfonso Mejia, Applicant
AND
Brigitte Page and Suzanne Cousineau, Respondents
BEFORE: Justice A. Doyle
COUNSEL: Frédéric Huard, Counsel, for the Applicant
Catherine Calvert, Counsel for the Respondent, Brigitte Page
Dave Morin-Pelletier, Counsel for the Respondent, Suzanne Cousineau
HEARD: In writing
COSTS ENDORSEMENT
[1] On July 22, 2019, the Court granted judgment which provided, among other things, sole custody of 13-year-old Celeste to the Respondent Suzanne Cousineau, the maternal grandmother, access to the Applicant father, and supervised access to the Respondent mother. The Court also ordered that the father pay child support in the amount of $536.00 to the grandmother in accordance with the Child Support Guidelines (Ontario), O. Reg. 391/97.
[2] If the parties were unable to agree on costs, they were to provide written costs submissions.
[3] For the reasons that follow, and after having considered the parties’ submissions, offers to settle, Bill of Costs, and the Family Law Rules, O. Reg. 114/99 (FLRs), the Court orders that the father pay to the grandmother costs in the amount of $15,000.00 and costs to the mother in the amount of $3000.00.
Father’s Position
[4] The father submits that each party should bear their own costs.
[5] The issue of custody of the child was a valid issue for trial. The case law was in his favour as he is the father of the child. He honestly believed it was in Celeste’s best interests to live with her sister who resided with him.
[6] He followed the Children’s Aid Society’s recommendation and submitted a plan of care with his Application.
[7] In addition, his offer to settle filed with his settlement conference brief provided that he would have custody and the grandmother would have access at his discretion. The mother would have supervised visits.
[8] Even though the grandmother was successful, the father submits that throughout the proceedings, she has been interfering in his ability to care for his daughter and was using her financial means to pursue litigation against him.
[9] In addition, the grandmother has shown bad faith in refusing to communicate with the father, enrolling the child in activities without his consent (including during the father’s church activities), and bringing motions when the father would not agree to her demands.
[10] The Court retains a residual discretion to make cost awards which are proportional, fair, and reasonable in all the circumstances.
[11] The Court should also consider the father’s ability to pay as set out in M. (C.A.) v. M. (D.), 2003 CanLII 18880 (ON CA), 67 O.R. (3d) 181(Ont. C.A.). He has limited means and is now obliged to pay child support in the sum of $536.00 per month. He already has a cost award of $5500.00 to pay. He lives pay cheque to pay cheque, and a costs order could mean the loss of his home. He is on a legal aid certificate which resulted in a legal aid lien being registered against his home.
Maternal Grandmother’s position
[12] She submits that, as the successful party, she is entitled to costs and is requesting costs on a full indemnity basis in the amount of $113,606.92 for work completed from the date the proceeding was initiated to the completion of trial (excluding hearings where costs were awarded).
[13] She submits that costs were reserved to the trial Judge at some of the Court attendances.
[14] She submits that there is no evidence that she acted unreasonably but rather always acted in Celeste’s best interests.
[15] Regarding the father’s allegation of his lack of ability to pay, his financial statement shows he does have the means to pay.
[16] On September 29, 2014, the grandmother offered a joint custody regime, but he did not respond to the offer to settle. She was required to bring motions when he refused to permit Celeste to attend trips, renew her passport, permit the grandmother to register her in activities, and register in her school. He failed to abide with Justice Labrosse’s Order requiring communication between the parties concerning child related issues via Family Wizard. He failed to pay costs of $5500.00 ordered against him.
[17] The grandmother relies on Goldstein v. Walsh, 2019 ONSC 3174 where the court found that the father was not reasonable in the litigation, as he had refused to consent to trips for the child and refused to communicate regarding issues surrounding the child. The Court ordered $400,000.00 in costs.
[18] In addition, pursuant to r. 18(3) of the FLRs, she submits that she is entitled to costs on a solicitor and client basis as her offer to settle dated March 28, 2018, which was part of her settlement conference brief, satisfied the requirements of r. 18.
Mother’s Position
[19] The mother is requesting costs in the amount of $27,938.24 as the father’s behavior resulted in numerous court appearances. He refused to permit Celeste to travel with her grandmother, refused to proceed with the assessment by Ms. Morinville, and refused to obey court orders.
[20] In addition, the mother forwarded an offer to settle contained in her settlement conference brief dated March 27, 2018 which mirrors the final decision.
[21] In addition, the father refused to accept Celeste’s views and preferences.
Legal Principles
[22] In Mattina v. Mattina, 2018 ONCA 867, the Court of Appeal confirmed the purposes of costs: (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 r. 2(2) of the FLRs.
[23] Subrule 24(1) of the FLRs 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 CanLII 22584 (ON SC), 2000 ONSC 22584, 6 R.F.L. (5th) 430. 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, 2008 CanLII 23496 (ON SC), [2008] O.J. No. 1978 (Ont. S.C.).
[24] Cost awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519.
[25] One of the considerations in an assessment of costs is to fix costs in an amount that is “fair and reasonable” for the unsuccessful party to pay in a particular proceeding.
[26] Another consideration is that the previous court appearances are governed by the old FLRs, that is, parties are to claim costs for any step along the way. See previous r. 24(10) of the FLRs, and Islam v. Rahman, 2007 ONCA 622, 228 O.A.C. 371. This Court can consider costs at hearings where the Court reserved the issue to the trial Judge.
[27] An offer to settle in a settlement conference brief can be accepted before it is withdrawn under the law of contract.
Analysis
Who was successful?
[28] There is no question that the grandmother and mother were successful. Hence, there is a presumption that they are entitled to costs.
[29] The final decision mirrors the offer to settle contained in the mother’s settlement conference brief, i.e. sole custody to the grandmother with consultation with the father, supervised access to her, and the father would have every second weekend access and one mid-day visit during the week.
[30] The grandmother’s offer to settle does provide that the parties follow the recommendations of Valérie Morinville: i.e. sole custody to the grandmother, every second weekend access to the father, and supervised access to the mother. It could be accepted until a minute after the commencement of the trial. It was not withdrawn.
[31] The grandmother’s first letter dated September 29, 2014 to the parties indicated that she was prepared to offer a joint custody regime, but there was no indication of the parenting schedule.
Quantum of costs
[32] For the reasons set out below, I am not prepared to order costs against the father on a substantial or partial indemnity basis. However, the mother and grandmother are entitled to some costs.
[33] In determining the quantum of costs, the Court is required to consider r. 24(12) of the FLR’s which states:
(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,
(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.
[34] Pursuant to r. 24(12) of the FLRs, the Court considers the following:
Importance, complexity or difficulty of the case:
[35] The issues were important as they dealt with a child. The trial took place over five days, and the court heard from the father, two of the father’s friends, grandmother, her partner, and Ms. Morinville. All parties filed extensive books of authorities dealing with the rights of grandparents and parents as it pertains to custody litigation.
Reasonableness of each party’s behavior:
[36] Rule 24(5) of the FLRs states that:
(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.
[37] The Court finds that the father’s behaviour was unreasonable during the litigation in:
Refusing to give permission for Celeste to travel out of the country with her grandmother;
Refusing to consent to allowing Celeste to attend activities that she really wanted to attend and participate in:
Requiring the mother to bring a motion to register her for a school;
Failing to comply with the Order of Justice Labrosse to use the Family Wizard App; and
Failing to provide costs as ordered by the Court.
[38] His actions lengthened the litigation process and required numerous court motions.
[39] I do not find that the grandmother’s behaviour was unreasonable but rather she made efforts to engage with the father regarding the child’s needs and interests. Unfortunately, the father characterized her efforts as controlling and usurping his role as a parent.
[40] I do note the lack of candour of the grandmother and mother with respect to the incident that precipitated the father’s application. They did not advise the father of this incident where the mother allegedly sexually assaulted her young nephew, but rather he heard about this incident from a third party. The father initiated the application as he was motivated by a concern for his daughter’s welfare.
Bad Faith
[41] Rule 24(8) of the FLRs states:
(8) 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.
[42] I find that the father’s behaviour does not reach the level of bad faith which requires some element of malice or intent to harm. See Harrison v. Harrison, 2015 ONSC 2002. Justice Perkins in S.(C.) v. S.(M.), 2007 CanLII 20279 (ON SC), 38 R.F.L. (6th) 315 (S.C.), defined bad faith as:
[17] …behaviour must be shown to be carried out with intent to inflict financial or emotional harm on the other party or other persons affected by the behaviour.
[43] The father was motivated for what he perceived as the right to exert his right as a father rather than by malice. His behaviour did not reach the high threshold of egregious behaviour. See S(C.) v. S. (M.).
[44] Although his initial application was well motivated and brought with genuine concern, the litigation became one of high conflict due to the father’s inability to see that the grandmother was an important person in Celeste’s life and was like a mother to her.
[45] The father was motivated by what he believed his parental right and obligation to fight for his daughter was, and certainly there is case law that indicate that parental rights are not easily usurped by grandparents.
[46] Unfortunately, he approached the litigation from a perspective of his parental right rather than what was best for Celeste. That manifested itself in not permitting her to attend activities and forcing the grandmother to bring motions to deal with these issues and trips that would permit Celeste to attend competitions.
[47] Fighting for custody for your daughter is a laudable goal but must be tempered with the realities of the circumstances which determine her best interests.
[48] I distinguish this case from Goldstein v. Walsh, 2018 ONSC 2978, where the Court found that the father had acted in bad faith throughout the proceedings including making false allegations as to the mother’s parenting and providing misleading evidence at the trial. This behaviour is not present here.
[49] In Romero v. Malecka, 2018 ONCJ 400, following the death of the mother, the maternal grandparents were successfully granted temporary custody of the children, and the father was granted access. The maternal aunt and uncle were also successful regarding motions they brought. The father opposed any order as to costs, and one (of five) reasons for his opposition was that “it was reasonable of him to fight for his children and his family as he is their father and capable of parenting them” (para. 11).
[50] When considering costs in Romero, Victoria Starr J. notes that although the father acted unreasonably and increased time on the case by increasing steps to be taken and the number of court appearances, his conduct did not rise to level of bad faith warranting substantial costs. She states at para. 26:
[26] In fact, from the father's submissions and what evidence I do have it is very clear to me that the father truly believes that as the children's remaining living biological parent it is both his right and their right to be raised by him now. Indeed, this, and his unwillingness or inability to see things any other way, likely accounts for why he brought the emergency motion heard on May 11, 2017, and why he opposed a negotiated outcome once the OCL held the disclosure meeting, and why he opposed the summary judgment motion. His belief as to the test, while incorrect from a legal standpoint, is understandable. It was, I find, his motives sincere and genuine.
[51] This case involves a matter between a grandparent and a father with different competing interests and certainly there is a principle in the case law that parents are in a different category than a grandparent. This must be considered in the determination of costs, as the father would be certainly and reasonably believed that as absent unusual and exceptional circumstances, the law favoured a parent over a grandparent.
[52] Ultimately, though, the parenting of a child is determined based on her best interests. That is the guiding principle that must be followed.
[53] The assessment completed by a social worker made findings that the father was not in tune to Celeste’s needs. In addition, the Court made a finding that the father’s lack of insight into Celeste’s needs and interests led him into an approach that was not child-centric but rather more an issue of parental rights.
The lawyers’ rates and the time spent on the motion, in light of the various issues and case law
[54] The trial took place over five days. The final oral decision was given on July 22, 2019 and took about an hour of court time.
[55] The grandmother has submitted a detailed Bill of Costs. Generally, the Court notes that the litigation costs are quite high and there appears to be some duplications.
[56] The Court will now deal with the issue of costs for previous hearings.
[57] The motion before Justice Shelston dated July 6, 2016: The time spent included $2079.75 for Mr. Morin-Pelletier and 15 hours for the assistant’s work, in the sum of $1085.00. The father had obtained an adjournment as he did not understand French and could not proceed. I am not prepared to order costs for this appearance, as he was entitled to understand the proceedings in one of the official languages.
[58] The motion before Justice Shelston dated August 3, 2016, $295.00 and $120.00 for the assistant: The matter was spoken to as Justice Shelston was case managing the matter. Minimal amount of time was spent at this motion. I have reviewed the endorsement on that date, and there is no mention of costs and hence the court will not deal with costs at this step as per the previous FLRs.
[59] The Settlement Conference before Justice Shelston held on April 9, 2018 shows fees of $2427.75 for Mr. Morin-Pelletier and $1260.00 for the assistant. A Settlement Conference is a required step under the FLRs which provides the parties an opportunity to canvas the outstanding issues with a Judge and allows the parties to discuss settlement negotiations and obtain guidance and input from the Court. There will be no costs awarded for this step.
[60] For the motion before Justice Laliberté dealing with the registration of Celeste at École secondaire catholique Béatrice-Desloges high school, Mr. Morin-Pelletier claims $1910.93 and for the assistant the amount of $955.07. The Order proceeded on consent and hence I order no costs.
[61] The rate of $250.00 per hour for the Mr. Morin-Pelletier as counsel with a call to the Bar of 2006 is reasonable.
[62] I also found that Ms. Godbout’s hour rate of $310.00 per hour was reasonable, given her call to the Bar in 1998. Ms. Pelletier at the hourly rate of $220.00 with a call to the Bar in 2011 is reasonable and $134.00 per hour for Karina Labelle called to the Bar in 2017 is reasonable.
[63] The trial preparation was $33,433.28 and junior lawyer Karina Labelle at $134.38 per hour was $14,644.34, the assistant was $5836.52, and the students were $177.43 and $201.93.
[64] Mr. Morin-Pelletier’s attendance in Court for the delivery of the oral decision was $487.50.
[65] Mr. Morin-Pelletier charged $3770.00 for costs submissions and $300.00 for his assistant. This is a significant amount for costs submissions.
[66] Total disbursements were $2450.32 plus $303.60 of HST.
[67] The mother’s Bill of Costs is a general summary of the work completed by individuals in Ms. Calvert’s office: Ms. Calvert: $20,073.48; Robyn Eaton: $86.33; Carolyne Chenier: $616.00, and $6.16 for Melyssa Chenier/Brunet and $181.27 for Elyssa Potvin. Disbursements were $3760.87. She has submitted all the statements of accounts from January 21, 2019 for the commencement of the fixing of the date for the trial which detail all work completed by her counsel’s law office.
[68] The mother’s role during the trial was limited. She did not participate in the trial, nor did she call evidence. Her position was aligned with the grandmother’s position, and as a party it was her right to have counsel present during the trial, but the contribution to the evidence was minimal and hence the costs awarded to her should be minimal. Ms. Calvert’s rate of $103.90 was extremely reasonable, and the other rates of those who worked on the file were also discounted. I assume it was to permit the mother the ability to have counsel attend the trial on her behalf and provide access to justice for Ms. Page.
[69] Costs awards are not only for indemnification but also to discourage unreasonable conduct, encourage reasonable behaviour, and promote early resolution. The level of costs must be high enough to send a message to this father who is of modest means, that while he is free to decide his position during litigation, there will be consequences to his actions. They will be expected to pay some costs even if they are of limited or modest financial means.
Other Factors
[70] The ability to pay is another factor to consider. In M. (C.A.) v. M. (D.), 2003 CanLII 18880 (ON CA), 67 O.R. (3d) 181,the Court of Appeal for Ontario stated that the r. 24 of the FLRs presumes that the successful party is entitled to costs but does not require that the successful party is always entitled to costs. The financial situation of the parties can be taken into account when setting the amount of the costs award. In fixing costs, the courts cannot ignore the best interests of the child and cannot ignore the impact of a costs award against a custodial parent that would affect the child’s interests. In that case, costs were being sought against a non-custodial parent, and the Court of Appeal for Ontario refused to consider setting aside the over $45,000.00 costs award made by the trial Judge, as the mother had lied during the trial and fabricated evidence. She went through a nine and a half (9.5) day trial and was completely unsuccessful. There were costs consequences under r. 18(14) of the FLRs, and the father should get costs.
[71] I have viewed the father’s financial statement and note that he owns his home and has an income of $58,000.00 per year. He owns a vehicle and has some funds in an account and small investments. He will now be paying child support in the amount of $536.00 per month. He is also supporting another daughter who lives with him. I find that an amount that is paid on an instalment basis over a reasonable period of time should allow him to budget to pay for the legal expenses.
[72] Litigants are responsible for the positions that they take during litigation, and even those on Legal Aid certificates are responsible for costs. See Heuss v. Surkos, 2004 ONCJ 141.
[73] Costs are appropriate for the trial and the preparatory work, including initial interviews, meetings and settlement discussions before filing the application, the application document itself, the reply, and the financial statements.
[74] This is not a case for full indemnity or substantial indemnity. However, costs must be awarded against the father for increasing the litigious aspect of this case by forcing the grandmother to proceed to court.
[75] Based on the above, a fair and reasonable amount of costs for the trial payable by the father to the mother is $3000.00 and to the grandmother $15,000.00.
[76] The father will pay the costs awards by way of instalments at $50.00 per month to the grandmother and $25.00 per month towards the mother. The balance will be due when child support is no longer payable by him to Celeste. Post-judgment interest will be payable on the costs owing as per the Courts of Justice Act, R.S.O. 1990, c. C. 43.
Justice A. Doyle
Date: September 6, 2019
COURT FILE NO.: FC-14-2450
DATE: 2019/09/06
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Luis Alfonso Mejia, Applicant
AND
Brigitte Page and Suzanne Cousineau, Respondents
BEFORE: Justice A. Doyle
COUNSEL: Frédéric Huard, Counsel, for the Applicant
Catherine Calvert, Counsel for the Respondent, Brigitte Page
Dave Morin-Pelletier, Counsel for the Respondent, Suzanne Cousineau
COSTS ENDORSEMENT
Justice A. Doyle
Released: 2019/09/06