Court File and Parties

COURT FILE NO.: 35/38/013554/13 DATE: 20200422 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Brian Richard Soulard, Applicant AND: Trinidi Elizabeth Soulard, Respondent

BEFORE: Justice R. Raikes

COUNSEL: George F. McFadyen - Counsel, for the Applicant Rose A. Faddoul - Counsel, for the Respondent

HEARD: In writing

Costs Endorsement

[1] The parties have been engaged in bitter family law proceedings for years. This endorsement will address costs of the following steps:

1. A motion heard April 14, 2016 to permit Ms. Faddoul to be reinstated as counsel for the Respondent in a contempt trial: (see 2016 ONSC 4271);
2. The motion to change the final order of May 25, 2015 which resulted in the final order of April 14, 2016;
3. The Respondent’s motion heard September 4, 2018 and costs thrown away for trial scheduled to commence on that date; and
4. The trial which commenced October 1, 2018 and proceeded with interruptions, finally concluding on June 27, 2019 (10 days): (see 2019 ONSC 4983).

[2] The tortured procedural history that underpins this litigation and the above costs determinations is found in the decision of Desotti J. dated September 10, 2015 (see 2015 ONSC 5618) and my decisions referred to above. I will not repeat same here.

[3] I will address the costs in respect of each step in the same order as they are set out in para. 1 above.

Law - Costs

[4] Costs in family law litigation are governed by r. 24 of the Family Law Rules.

[5] Rule 24(1) provides that there is a presumption that a successful party on a motion or trial is entitled to his or her costs. The court may decline to award costs to a successful party where that party has behaved unreasonably: r. 24(4).

[6] In deciding whether a party has behaved reasonably or unreasonably, the court must examine the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle, the reasonableness of any offer the party made and any offer that party withdrew or failed to accept: r. 24(5). Reasonable litigation conduct is gauged over the totality of the proceeding: Y.(J.) v. F.(L.), 2017 ONSC 6039.

[7] If success in a step in a case is divided, the court may apportion costs as appropriate: r. 24(6). Where success is divided but one party is markedly more successful than the other, the more successful party is entitled to some costs, absent consideration of bad faith or unreasonable behaviour: Boland v. Boland, 2012 ONCJ 239.

[8] A lawyer may be liable for costs personally where the lawyer has run up costs without reasonable cause or has wasted costs, provided that the lawyer is given an opportunity to be heard: r. 24(9). The conduct of the lawyer need not amount to bad faith. The court must exercise extreme caution in awarding costs against a lawyer personally: Ben Lolo v. Wang, 2012 ONSC 453 (Div. Ct.); Covriga v. Covriga, 2010 ONSC 3030.

[9] In determining the amount payable for costs, the court is guided by r. 24(12) which sets out the factors that the court must consider:

a. the importance, complexity or difficulty of the issues; b. the reasonableness or unreasonableness of each party’s behaviour in the case; c. the lawyers’ rates; d. the time properly spent on the case including, inter alia, preparation, hearing and argument; e. expenses properly paid or payable; and f. any other relevant matter.

[10] Cost awards are designed to foster the following fundamental purposes:

1. to partially indemnify successful litigants for the cost of litigation;
2. to encourage settlement;
3. to discourage and sanction inappropriate behavior by litigants; and
4. to ensure that the primary objective of the rules is met: that cases are dealt with justly.

See: Serra v. Serra, 2009 ONCA 395, [2009] O.J. No. 1905 (Ont. C.A.); Bridge v. Laurence, 2017 ONSC 1655 (Div. Ct.).

[11] The Family Law Rules do not mention scales of costs as is the case in the Rules of Civil Procedure. Rule 24(12) makes clear that proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs: Beaver v. Hill, 2018 ONCA 840.

Motion to be Reinstated as Counsel of Record

[12] Ms. Faddoul was removed as counsel of record on February 5, 2016, midway through a contempt trial, because she was in an acknowledged conflict of interest resulting from her failure to appeal the order of Desotti J. dated September 10, 2015 as instructed by Ms. Soulard. She repeatedly advised the court during the contempt trial either that the appeal had been filed or was going to be filed, always with excuses that put responsibility for the failure to do so on someone else in her office. Following her removal, the contempt trial had to be adjourned multiple times as Ms. Soulard sought and eventually obtained new counsel through Legal Aid.

[13] The contempt trial was set to resume on April 13, 2016. Ms. Faddoul brought a motion to be reinstated as counsel of record for the Respondent, Trinidi Soulard, returnable on that date. The motion was dismissed on April 14, 2016 with reasons to follow. Those reasons were released June 28, 2016 (2016 ONSC 4271).

[14] The contempt trial did not resume following the motion to reinstate Ms. Faddoul as counsel. Instead, the parties entered into negotiations that resulted in Minutes of Settlement that settled the contempt trial and the Applicant’s motion to change. A consent final order was made April 14, 2016. Per the Minutes of Settlement, para. 24 of the final order stated:

24. Costs of this proceeding shall be fixed by the Trial Judge following written submissions, and shall be fixed [sic]. In addition, costs shall be fixed by the Trial Judge in relation to the Respondent’s motion to reinstate Rose Faddoul as her counsel.

[15] I take the reference to Trial Judge to be the judge ultimately deciding the remaining financial issues including child and spousal support.

[16] I did not address costs of the motion to reinstate Ms. Faddoul in my reasons released in June 2016 because the issue was already preserved through the final order of April 14, 2016.

[17] Written submissions were subsequently filed but my costs decision was deferred because litigation over the final order made April 14, 2016 as it related to custody and access of the two children erupted anew almost immediately after the order was made (see 2018 ONSC 7294), and trial of the remaining issues was still outstanding.

[18] The Applicant seeks his costs of the motion to reinstate Ms. Faddoul as counsel on a full recovery basis. He seeks $6,500 for same together with costs thrown away for trial on April 13, 2016 of $2,500 plus HST. In aggregate, he seeks $10,170.

[19] The Applicant was the successful party on the motion. He is presumptively entitled to his costs. There is no good reason to displace that presumption. His counsel was late served with the motion, responded with reasonable dispatch, and his position ultimately prevailed.

[20] There were no offers to settle the motion, no doubt, in part, because of the very short time between service and argument.

[21] I agree that this is an appropriate case for an award of full recovery costs. As mentioned, the motion was served late. The materials filed were wholly inadequate. Ms. Faddoul tried to remedy some of the deficiencies by giving evidence from the counsel table which was itself inappropriate. The underlying conflict remained, and the material filed failed to address what had changed to justify allowing her to act as a counsel. In my view, the motion was ill-conceived, unreasonable and resulted in completely unnecessary expense to the Applicant.

[22] I observe that the trial time thrown away on April 13, 2016 was not preserved by the final order of April 14, 2016. The time thrown away relates to the contempt trial then ongoing. The costs of the contempt trial, which was never completed, were not preserved. Accordingly, I do not agree that the Respondent should be liable for those costs ($2,500 + HST).

[23] The issue raised by the motion was of moderate complexity and was important to the parties. The motion took one-half day to argue. No facta were filed.

[24] Mr. McFadyen is senior family counsel in Sarnia. His hourly rate of $500 is reasonable and appropriate to his experience. His time spent appears to me to be reasonable except for the counsel fee to argue what was a half day motion. He seeks $3,000. I note that he has separately claimed time for preparation. A half day in court without preparation is roughly three hours; $3,000 strikes me as excessive.

[25] The hourly rate of his law clerk is $125. No information is provided as to her level of experience. Nevertheless, the time spent by her appears reasonable and her hourly rate is appropriate to a law clerk.

[26] I fix the costs of the motion payable by the Respondent to the Applicant at $5,000 plus HST.

Motion to Change Final Order date May 25, 2015

[27] I agree with the submission made by the Applicant that the motion to change the final order of May 25, 2015 was driven by the Respondent’s refusal to abide by the terms of the order she agreed to in Minutes of Settlement. She persisted in conduct that frustrated his right to parenting time with the children. She had every opportunity to abide by court orders but did not. She insisted that her children did not want to see their father or were fearful of him but ignored the role she played in creating and fostering those sentiments.

[28] The terms of the April 14, 2016 final order are similar to those in the May 25, 2015 order in that the parties had joint custody and shared parenting time with the children on a week about schedule. The order contained additional provisions intended to ensure future compliance by the Respondent.

[29] The April 14, 2016 order reserved the costs of the motion to change to the trial judge dealing with the remaining issues including child and spousal support. I deferred determination of same until completion of the trial.

[30] I am satisfied that the Applicant was the successful party when the terms of the April 14, 2016 order are considered in the context of the issues and proceedings at the time. Accordingly, he is presumptively entitled to his costs. He did nothing that would disentitle him to those costs. He sought to enforce orders made. He ultimately agreed to give the Respondent one more chance to make a week about schedule work albeit with new provisions to motivate her compliance.

[31] I find that the Applicant is entitled to his costs on a full recovery basis given the Respondent’s unreasonable conduct; however, the order of April 14, 2016 does not permit recovery of trial costs for the contempt trial. The contempt trial was a discrete step taken in the motion to change.

[32] I observe that the contempt trial was already several days in when Ms. Faddoul was removed as counsel. The Bill of Costs submitted by the Applicant claims costs only for preparing for the resumption of that trial on April 13, 2016. If the intent of para. 24 was to preserve the costs of the contempt trial, it does not do so expressly nor does the Bill of Costs submitted accord with that understanding. Accordingly, the time claimed on the Bill of Costs for April 11, 2016 for preparation for trial is not recoverable.

[33] The issues raised by the motion to change were very important although not complex. The Applicant sought to work within the bounds of the order agreed to and made. The Respondent did not.

[34] My findings above regarding Mr. McFadyen’s hourly rate apply equally to the costs claimed for the motion to change. The time spent strikes me as reasonable and appropriate. I fix the costs of the motion to change at $4,500 plus HST payable by the Respondent to the Applicant.

September 4, 2019 Motion and Costs Thrown Away

[35] When the Respondent failed to abide by the April 14, 2016 order for sharing parenting time with the children, the Applicant brought a further motion to change in which he sought sole custody of the children and very restrictive access by the Respondent. In doing so, he inadvertently referred to changing the order of May 25, 2015 and not the subsequent final order dated April 14, 2016 that superseded it. It was a technical mistake that only came to light on September 4, 2018 when the trial of the motion to change and the remaining issues was to commence.

[36] The Respondent made submissions that interim orders made by the court starting in June 2016 and costs awarded on those motions should all be set aside. Because of that position, I decided not to simply permit an amendment of the existing motion to change and directed that new pleadings be done on an expedited schedule so that the trial could go ahead as soon as possible. Her position regarding the earlier orders and costs awards would be addressed in that trial. The trial started October 4, 2018, a month later.

[37] The Respondent seeks her costs thrown away for September 4, 2018 and her trial preparation time (32 hours) although she included the trial preparation time in the section of her Bill of Costs for the motion. She seeks $10,500 plus HST for that time.

[38] On the same date, Ms. Faddoul appeared and asked to be permitted to act as counsel of record for Ms. Soulard on the trial. She brought a motion for that purpose.

[39] The motion was initially opposed by the Applicant on the same basis argued in April 2016. Upon inquiry, it became clear that Ms. Soulard was not appealing the order of Justice Desotti and agreed that she would not be contesting the correctness of that order by way of collateral attack. That was not the case in 2016 where Ms. Soulard told me that she thought that her lawyer had appealed and was unaware that she had not. At the time, Ms. Faddoul was arguing that the decision of Justice Desotti was wrong and was obtained by ambush. Non-compliance with that order was at the heart of the contempt trial.

[40] As soon as it was apparent that the underlying conflict of interest was no longer present, Applicant’s counsel conceded that Ms. Faddoul could act for the Respondent. It was not clear from the motion material filed that the conflict had been eliminated; that only became apparent when questions were asked of Ms. Faddoul and her client.

[41] The Respondent has filed a Bill of Costs seeking $3,960 for costs of the motion. The balance of the fees claimed relate to preparation for the trial between August 18 and September 3, 2018 as well as the time thrown away for September 4, 2018 when the trial did not proceed.

[42] Costs were not requested on September 4, 2018 in respect of the motion nor did I make any endorsement regarding same. In any event, I decline to award costs of the motion because:

1. The motion was only necessary because Ms. Faddoul previously had a conflict of interest and I made the order of April 14, 2016 declining her request to act on the continuation of the contempt trial;
2. The material filed did not clearly show that the conflict of interest was no longer present;
3. The Applicant readily conceded the motion once that became evident; and
4. The motion was not the result of anything done or not done by the Applicant. The motion would have been required in any event given my earlier decision.

[43] As for the costs thrown away, I did not make any endorsement regarding same on September 4, 2018 nor was I asked to do so. In any event, the trial proceeded soon after September 4 such that the preparation time expended in August and early September would be useful. That time forms part of the preparation for the trial on the merits that started October 4, 2018.

[44] I decline to award costs thrown away for September 4 or for preparation time. I will consider the Applicant’s misstep in his motion to change and the inability to start the trial on September 4, 2018 in assessing the reasonableness of his conduct in the proceeding and in determining costs of the trial.

Trial Costs

[45] The issues at trial were:

1. Custody and access;
2. Child support;
3. S. 7 expenses;
4. Spousal support; and
5. Set-off of costs orders against equalization.

[46] The trial lasted approximately 10 days. The overwhelming percentage of time at trial was focused on custody and access. The evidence on spousal support was “thin”. The time spent on child support, s. 7 expenses and spousal support was at most a day combined for all three. Similarly, the time dealing with set-off was de minimis.

[47] I observe that findings were necessary within the child support and spousal support issues as to imputation of income to the Respondent and increases in income post-separation by the Applicant. It is fair to say that there was some division of success within these issues.

[48] As mentioned, the predominant issue at trial was custody and access. Neither side achieved what they asked for but, on balance, the Applicant was the successful party. Both children remained in his care. While supervised access by the Respondent was not ordered, terms were put in place to ensure future compliance.

[49] I do not agree with the Respondent’s submission that there was divided success on custody and access. The Respondent did not get what she sought as it relates to custody and living arrangements. She wanted both children to live with her. Alternatively, she wanted Kasia to live with her and visit her father as and when she wished.

[50] Kasia was about to turn 17 when my decision was released. Allowing Kasia to decide where and with whom she wants to live after she finishes high school is not a measure of success for the Respondent; rather, it simply reflects Kasia’s age and the fact that she will be going into post-secondary schooling anyway. Frankly, if Kasia was only 14, the order would not have contained an option for Kasia to choose.

[51] I agree with the Respondent and find that, on balance, she was successful on spousal support and s. 7 expenses.

[52] Both sides enjoyed some measure of success on the issue of child support.

[53] Having regard to all of the issues, the evidence adduced and my findings at trial, I find that the Applicant was the successful party in this trial. The limited success obtained by the Respondent can and will be taken into consideration in fixing the quantum of costs.

[54] The Applicant is presumptively entitled to his costs of the trial. The Respondent submits that the Applicant did not act reasonably and should be deprived of his costs.

[55] In my reasons, I expressed at para. 52 my concern that the Respondent’s right to interim supervised access was frustrated by the insistence of Applicant’s counsel that she obtain counselling or demonstrate insight into her behaviour and how that might have caused an over-alignment in the children. That was not a term of the order of Bondy J.. The Respondent did not have access with the children for roughly two years although, she is, in part, responsible for not seeing the children in that period.

[56] I was also concerned by the Applicant’s failure to pay the agreed upon equalization in a timely manner. Applicant’s counsel submitted a technical and, in my view, somewhat disingenuous excuse for that failure. It is my view that the Applicant delayed in making that payment so as to have a fund against which to apply cost awards against the Respondent and/or child support payable to him.

[57] I do not agree, however, that the Applicant should be entirely deprived of his costs. I am satisfied that such behaviour can and should be considered in determining the quantum of costs. Depriving him of any costs would be disproportionate to the wrongful conduct.

[58] The Applicant’s Bill of Costs for the trial is on a full cost recovery basis. I observe that the Respondent’s conduct throughout has been far from exemplary. She also made unfounded and highly prejudicial assertions against the Applicant. In my reasons at trial, I found that:

1. The Respondent consistently failed to adhere to court orders, even orders to which she consented (para. 88);
2. She changed her evidence at trial concerning discovery of Kasia’s diary to cast herself in a better light (para. 116);
3. She asserted that Brian’s sole motivation in this litigation was to punish her and he made good on his threat to her to take everything including the children. That threat was never made nor did he act so as to punish her (para. 157);
4. She falsely accused him of violence against Kasia to justify Kasia’s alleged fear and anger toward him (para. 86);
5. She exposed Kasia to the litigation (para. 220);
6. She involved the children in adult conflict (para. 232);
7. She wanted Kasia to see her father in a bad light and for that purpose, brought her to court to see him in handcuffs (para. 234);
8. She informed Kasia of court dates when custody and access were to be addressed (para. 235);
9. She accused the Applicant of poisoning doctors, nurses and counsellors against her (para. 240); and
10. She frustrated the Applicant’s access with the children (para. 242).

[59] I do not agree that the Respondent’s unreasonable conduct merits an award of full recovery costs having regard to my concerns about his conduct expressed above. In my view, something less than full recovery is fair and reasonable in this case.

[60] The Applicant seeks costs of $69,700 plus HST for fees, $988.30 inclusive of applicable HST for disbursements, and a further $5,500 for preparation and attendance on June 5, 2019 for argument. I will address the June 5 attendance first.

[61] Closing submissions were scheduled for 2 p.m. on June 5, 2019. Ms. Faddoul did not attend. There were urgent phone calls from her to the court advising that she was unaware of the date, and her progress trying to reach the courthouse. The matter was eventually adjourned to June 27, 2019 for argument when it became clear that she would not arrive in Sarnia until well after 5 p.m.. This was far from the first occasion in the history of this matter where Ms. Faddoul was late and court time was wasted.

[62] There is no satisfactory reason offered for the failure to attend on June 5, 2019. I agree that some costs are appropriate for same; however, the amount sought strikes me as excessive. Some of the preparation done would still have been relevant and helpful when the matter was argued on June 27. I fix the amount for June 5, 2019 at $1,500 plus HST payable by Ms. Faddoul. I see no reason why her client should bear the burden of paying for Ms. Faddoul’s failure to attend.

[63] Turning to the balance of the trial and the factors in R. 24(12), I find:

1. The issues raised in this matter, especially as they relate to custody and access, were of moderate complexity because of the history of suicidal ideation by Kasia and the history of proceedings;
2. The issues were very important to the parties. This was hard-fought family litigation with very serious allegations going both ways;
3. I have addressed both parties’ respective conduct above;
4. The only offer to settle was made by the Respondent and she was unsuccessful. The offer made was not severable;
5. It was entirely reasonable for the Applicant not to make an offer to compromise when previous Minutes of Settlement were breached almost before the ink was dry;
6. The disbursements incurred are modest and reasonable;
7. The time spent by counsel appears reasonable and proportionate to the issues involved. I observe that the Respondent did not submit her dockets nor provide an indication of time spent or hours billed.;
8. Mr. McFadyen’s hourly rate is appropriate to his experience; and
9. Counsel fees claimed include $6,000 for each day of trial and preparation time in addition.

[64] Both sides knew coming into this trial that there was a risk of an adverse cost award. In fixing the amount for costs, I have taken into consideration the need to postpone the start of the trial from September 4, 2018, the division of success on some issues, and the reasonable expectations of the parties in addition to the factors in the preceding paragraph. The amount claimed for trial costs strikes me as too much.

[65] I fix the costs at trial payable by the Respondent to the applicant at $47,500 inclusive of disbursements and HST.

Justice R. Raikes Date: April 22, 2020