Court File and Parties

Court File No.: FC-17-1241 Date: 2020-04-22 Ontario Superior Court of Justice

Between: V.L., Applicant And: M.L., Respondent

Counsel: Gil D. Rumstein, for the Respondent Eric Letts, for the Applicant Pamela Barron, Office of the Children’s Lawyer

Heard: By written Submissions

Costs Decision

Audet J.

Decision on Costs

[1] Following the release of my trial decision in the above-noted matter on December 20, 2019, I invited the parties to make submissions on costs in the event that they were unable to resolve the issue. Having now received both parties’ submissions, this is my decision on costs.

[2] The main issue in this nine-day trial was the parenting of the parties’ 13-year-old son, U.L. More specifically, I was asked to decide which parent should have custody of U.L. and whether he should resume access with his father.

[3] This legal proceeding went on for two and a half years, with several court appearances including four interim motions heard by myself over the course of two years to deal with parenting issues. Given the very poor state of U.L.’s relationship with his father, and his refusal to have contact with him, I remained seized of all motions as of July 2017 and worked with the parties and their counsel in an attempt to try and gradually re-integrate U.L. into his father’s life, in a manner consistent with his best interests. Those attempts were not successful and as a result, the matter ultimately proceeded to trial.

[4] At a settlement conference held before trial, the parties were able to resolve property and spousal support issues. At the eleventh hour, the parties were also able to reach an agreement on child support issues. In addition to parenting, which was the key issue at trial, there remained two secondary issues to be decided; the responsibility for the management of U.L.’s property in Sri Lanka and the mother’s request for a restraining order. Almost no trial time was spent on those two issues.

[5] It is not disputed that the mother was the successful party in this trial. By virtue of my decision, she was granted sole custody of U.L. and the father’s parenting time with him was left at the sole discretion of the mother. While I did not grant the mother the restraining order that she was seeking, I significantly restricted the father’s ability to make inquiries and to seek information directly to third party professionals (including his school) with regards to U.L. The father was also granted decision-making authority regarding one specific property in Sri Lanka in which U.L. has an interest, but not a blanket authority to deal and manage all of his property in that country. It is clear that the mother, overall, was the successful party in this trial.

[6] Neither party is claiming that the other behaved unreasonably or in bad faith.

[7] The mother seeks her costs on a full indemnity basis in the amount of $85,000, to account for her success at trial in view of the offers to settle that she made. Her costs since the beginning of this court proceeding total $125,767.98, which include HST as well as $14,773.41 in disbursements. Essentially, the mother is seeking close to her full costs for the entire proceeding, after deduction of the sum of $16,649.18 to account for fees spent on the settled property and support issues, and the single motion for which costs were adjudicated, leaving a total of $94,345.38, which she reduces down to the round figure of $85,000, all inclusive.

[8] Subrule 18(14) of the Family Law Rules, O. Reg. 114/99 support an award of costs on a full indemnity basis when the following criteria are demonstrated:

1. If the offer relates to a motion, it is made at least one day before the motion date.
2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
3. The offer does not expire and is not withdrawn before the hearing starts.
4. The offer is not accepted.
5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer.

[9] The mother’s first offer to settle was made on August 15, 2019, only weeks before the trial was set to begin. She made two subsequent offers on September 2 and on September 25, 2019. The mother’s first offer to settle was not more favourable to her than the result she achieved at trial. Her offer to settle was not severable and included terms of financial issues which were ultimately resolved for less than she had offered.

[10] However, her September 2, 2019 offer to settle was clearly more favorable to the father than the outcome he achieved at trial on remaining unsettled issues. While the language may have differed slightly from the order that I ultimately made (access being left at U.L.’s discretion vs. at the mother’s discretion taking U.L.’s wishes and preferences into account; the father being under an obligation not to create debts in U.L.’s name and being offered the right to purchase U.L.’s Sri Lankan property for a set amount vs. the father being granted the right to manage the one Sri Lankan property in U.L.’s name but remaining liable for any debts associated thereto, etc.), in its essence, her offer as a whole would have resolved the remaining issues in the same manner as I ultimately resolved them, with the added benefit to the father of imposing on the mother the obligation to continue to pursue therapeutic counselling for U.L. 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).

[11] In addition, I find that while the mother’s September 25, 2019 offer to settle was not a final offer to settle, if accepted by the father, it would have provided him with a much more favourable result than the outcome he achieved at trial. In that offer to settle, the mother, in consultation with the various professionals involved in U.L.’s life, proposed to adjourn the trial for several months during which the parties, in conjunction with those professionals and U.L.’s OCL lawyer, would implement a detailed reunification plan in one last attempt to re-instate some contact between U.L. and his father. I find that, although her offer would not have resulted in a final order, at least it would have given the father one last chance to try and re-establish a relationship with U.L., a chance which I did not give him at trial.

[12] The father also made offers to settle throughout the course of this proceeding, dated August 30, 2017, August 26, 2019 and September 8 and 9, 2019 respectively. None of his offers would have provided the mother with a more favourable outcome than the one she achieved at trial.

[13] Accordingly, I find that the mother is entitled to at least her full costs from September 2, 2019 to the end of the trial based on the offers to settle that she has made.

[14] The mother was represented by three different lawyers during the course of this proceeding; Ms. Campbell who charged a total of $31,000 from June 2017 to June 2018; Mr. Cross who charged a total of $21,291 from September 2018 to March 2019; and Mr. Letts who represented the mother at trial and charged a total of $58,631.

[15] The father takes no issue with the amount of fees charged by Ms. Campbell. However, he argues that, during the time of her representation, he was the party who was most successful in establishing appropriate interim orders. I agree with the father’s submission on this point. Throughout that period, the parties were engaged in obtaining interim and procedural orders pertaining to all issues in the case in an attempt to move the case forward and to put temporary parenting arrangements into place. Costs were awarded for the motion held on December 27, 2017 on parenting and other issues (the father was awarded $2,000 in costs), and costs for the motion heard on January 31, 2018 in the amount of $1,000 were awarded to the father, the payment of which was to be decided at a later date. The balance of the time during which Ms. Campbell was retained was spent dealing with disclosure and other issues related to matters that were ultimately resolved prior to trial. In my view, no costs should be awarded to the mother for that period of time.

[16] The father takes issue with the amount of legal fees charged by Mr. Cross between September 2018 to March 2019 ($21,293), which he finds excessive in light of what he paid his own lawyer ($13,000) for the same steps in the case. It is the father’s submission that during that period of time, and contrary to his own lawyer, Mr. Cross did not have to draft motion materials, provided no facta or case research with respect to disputed issues on motions, was away on holidays for a number of court appearances, and spent much of his time on property related issues. The father’s counsel, Mr. Rumstein, charged a total of $13,000 for the same steps in the case. I agree with the father on this point.

[17] I find that the success achieved by the parties during the period of time that the mother was represented by Mr. Cross was mixed. The mother was successful in suspending access during the August 2018 hearing; the father was successful in obtaining a court-ordered therapeutic reunification process at the October 2018 hearing; various temporary issues were resolved at the November 15, 2018 case conference; the father’s motions to reinstate access on April 25 and July 2, 2019, were both unsuccessful, and; the father was successful in obtaining the mother’s consent to the imputation of an income upon her for child support purposes after filing a motion compelling her to comply with undertakings in July 2019.

[18] The father takes no issue with the amount of legal fees charged by Mr. Letts. However, he argues that they should be discounted by $5,000 to account for the time that he spent on the Sri Lanka property issue. As I stated earlier, there was mixed success at trial between the parties and very little time was spent on this issue. In addition, if accepted by the father, the mother’s offer to settle dated September 2, 2019 would have provided him with control over all of U.L.’s Sri Lanka property, not just one parcel as I ordered at trial.

[19] For all the above reasons, I find that the mother is entitled to her full costs from September 2, 2019 to the end of trial, and to her partial indemnity costs from the beginning of Mr. Letts’ retainer to September 2, 2019 (his legal fees for that period of time, exclusive of HST and disbursements, totaled $9,148.75).

[20] I decline to make an award of costs in relation to various professionals retained by the parties (the cost of which was shared equally by them) to deal with parenting issues, namely; Ms. Barron (private child counsel), Dr. Weinberger (parenting assessment), and Ms. Crawley (reunification therapist). Those professionals were key in assisting the parties, U.L., and this Court, to gain insight into this family’s very complex dynamics.

[21] I also decline to make an award of costs to cover the flight taken by the mother’s sister to travel from Sri Lanka to Ottawa to attend trial. Her physical presence was not necessary, and her testimony could have been arranged through other means.

[22] Having regard to the other disbursements incurred by the mother, which I find reasonable, and my conclusions on her entitlement to costs, I order the father to pay the mother the all-inclusive amount of $50,000 in costs for this proceeding.

Electronically signed by Audet J. Released: April 22, 2020