COURT FILE NO.: FC-18-000479-0000
DATE: August 28, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE, FAMILY COURT
BETWEEN:
Holly Anne Marie Chamberlain Applicant
S. Daniel Baldwin, for the Applicant
– and –
Donald Chamberlain
Respondent
Jeff Rechtstaffen, for the Respondent
HEARD: May 27, 2020, In Writing
ruling ON COSTS
NICOLE TELLIER, J.
OVERVIEW AND PARTIES’ POSITIONS
[1] The applicant mother, Holly Chamberlain, (the “mother”) seeks costs from the respondent father, Donald Chamberlain (the “father”) arising from the case conferences held on November 25, 2019, May 20, 2020 and May 21, 2020. She relies on Rule 17(18) of the Family Law Rules, O. Reg. 439/07, s. 1 (“FLRs”), in support of her claim for the payment to her in the sum of $11,167.69, on a substantial indemnity basis or $8,486.09, on a partial indemnity basis, both inclusive of HST. She points to father’s delayed or incomplete compliance with financial disclosure orders as the cause for less than productive conferences.
[2] The respondent father argues the request is meritless and unjustified. He concedes delayed disclosure but says the delay can be explained. All the disclosure sought relates to the child support issue, specifically the quest for a fair determination of father’s income under the Provincial Child Support Guidelines, O. Reg. 391/97.
CONFERENCING HISTORY
[3] A review of the conferencing history is necessary to contextualize the basis for the cost claim before the court. There have been multiple attendances before me thus far, the last two occurring with fresh counsel on board. The parties bring to the court the full gamut of family law issues including parenting, property, child support and spousal support.
[4] At the first case conference on June 21, 2019 the parties entered into final Minutes of Settlement, on the issues of property, retroactive and prospective spousal support and retroactive child support. This was achieved by allowing the mother to retain the family residence and abutting farm and the transfer of various farm and recreational vehicles to her. They also consented to a temporary, without prejudice order that provides a parenting schedule and child support on a deemed income, subject to retroactive adjustment, following an income determination.
[5] It became evident that the parenting issues are a source of conflict and the father’s financial circumstances are such that reliance on his income tax return alone to determine income for child support purposes would likely be unfair. He owns and operates a large poultry trucking operation and is a shareholder in two other small corporations. The consent order required the father to obtain and deliver an income report from a chartered business valuator (“CBV”) within 60 days, before the next conference date, scheduled for September 11, 2019. A great deal was accomplished that day.
[6] By letter dated September 6, 2019, father’s counsel asked mother’s counsel for an adjournment because the income report was not completed; he believed a conference would not be productive. Mother’s counsel objected as there were parenting issues to be discussed, disclosure was being sought directly, consent to third party disclosure from the CAS was being sought, he wanted the court’s oversight regarding the overdue income report and parts of the property deal remained undocumented and incomplete.
[7] The respondent’s late confirmation dated September 9, 2020 indicates an adjournment of the conference is contested, while acknowledging parenting issues had recently been brought to his attention. Counsel did not explain the delay or undertake to meet any new deadline, having missed the one he consented to. Counsel’s attached letter states he didn’t want to drive from Toronto to Belleville for an unproductive conference. He could have asked for a teleconference pursuant to Rule 14(8) of the FLRs. He could have filed a 14B motion pursuant to Rule 14(10) of the FLRs, to ask the court to consider his adjournment request. Instead father and his counsel simply failed to attend the continued case conference. He hired no local counsel as agent to address the court. I ordered costs in the sum of $1500.00 for the “no show”, $1000.00 less than what the applicant warned the respondent he would be seeking.
[8] Counsel for mother brought a draft order to the case conference seeking a new deadline for the delivery of the income report, with the payment of $12,500 to mother to assist in retaining her own professional to produce a report, if he failed to comply. The court cannot now confirm whether this draft order was on notice to the respondent as case conference briefs do not form part of the permanent record. I granted the order, with the payment being to the credit of the action. The father was granted a lengthier extension than the one sought by mother.
[9] I also made a disclosure order in keeping with what had been sought in the mother’s case conference brief, which I considered to be relevant and proportionate, in all of the circumstances. I dispensed with the father’s consent if mother pursued non-party disclosure from the CAS, in aid of arriving at a final parenting agreement.
[10] I set November 25, 2019 as the next conference date on the expectation the income report would be available by the extension, as ordered. At the conference on November 25, 2019, the income report was still unavailable and some disclosure remained outstanding. As noted in the endorsement of that date, counsel for the respondent father did not demonstrate a good grasp on the status of his client’s disclosure, including whether certain documents were in his possession, the possession of his client, in the possession of his client’s bookkeeper, in the possession of the CBV, or whether they had been provided to opposing counsel. Father himself was unsure of the status of his disclosure obligations. This took considerable time to sift through, as did the exercise of going through fresh requests.
[11] Breaks were taken so that phone calls could be made. Authorizations and directions were prepared by mother’s counsel for father’s execution to facilitate mother’s ability to access financial information directly. Time was taken to address the outstanding steps necessary to conclude the property deal. There was a discussion about the timing of the payment of the $12,500, still owing under my previous order, since the income report was not delivered by the extended deadline. The resolution of all of these issues was memorialized in a lengthy consent endorsement.
[12] During this conference the parties also addressed some parenting issues, particularly the need for their daughter to receive counselling and how that might be dealt with in the context of litigation, to protect her privacy and the integrity of the therapeutic process. Ultimately, a consent was achieved on this issue as well.
[13] At the end of this conference, counsel for the mother sought costs in the sum of $3500, grounded in lack of preparedness, and the failure to obey the previous orders regarding disclosure and the delivery of the income report. I adjourned this to the next event, which was a settlement conference scheduled in March 2020. Due to the corona virus pandemic, that settlement conference was rescheduled to May 20, 2020.
[14] The order requiring a payment of the $12,500 if a future further delay occurred, so mother could secure her own expert advice, was made on September 21, 2020. It was never appealed. While the provisional payment order was originally made in father’s absence, the timing of the payment was addressed by the court that day, as he was not in compliance with the terms of the order that triggered the payment.
[15] Father subsequently took the position that the provision for payment of the $12,500, within 72 hours on Friday, November 29, 2019, as stipulated in my endorsement, was not on consent. He took steps to dispute the order arising from that conference. He sought leave to obtain the transcript for the November, 2019 conference, in aid of this set-aside effort pursuant to subrule 25(19).
[16] At the conference held on May 20, the court did not have the benefit of the father’s CCB. Notably, counsel for father did not know whether he had ordered the transcript or whether he had even received my order granting his request for it. The conference was adjourned to the next day so this could be sorted and I could read father’s brief in preparation for the conference.
[17] At the May 21, 2020 conference there was a lengthy discussion about the parenting issues, with everyone having the benefit of the CAS Summary Report. I gave a recommendation and opinion in relation to a final resolution on parenting.
[18] It became apparent that father’s counsel had received my order granting leave for him to order the transcript back in early March 2020; two months later, he had not done so. The consent arising from the May 21, 2020 conference also addresses that issue.
[19] The income report, now finally produced, was discussed and a further disclosure order was agreed to, arising from a preliminary review of that report. Some of the previous disclosure, such as two authorizations and directions to be executed by father, remained outstanding. Counsel for mother asked for costs in the sum of $10,000 for all three conferences. Given the quantum being sought, I directed the parties to provide the court with some guidance on the law under this rule and requested a Bill of Costs.
ANALYSIS
[20] The principle of early, full and frank disclosure is foundational to the family justice system. Disclosure permits parties to make informed decisions about settlement. Many of the Family Law Rules are directed at the parties’ financial disclosure obligations. The Rules provide the court with an array of remedies when parties thwart their obligations under them or under a court order.
[21] Case management is also foundational to the family justice system. Through a series of conferences, the parties exchange information and positions, clarify the issues, narrow the contested terrain, always working towards settlement under the guidance and direction of the court. This only works if all parties follow the rules, provide the necessary disclosure for meaningful analysis and negotiation and come to conferences prepared, including prepared to compromise.
[22] The father’s approach to these obligations and this process was counter-productive. The production process has been arduous, costly, and delayed. Delay invariably works contrary to the children’s best interests; it keeps the conflict between the parties going. Father’s approach has deprived the applicant of a timely resolution of all of their family law issues. It has required greater court oversight and resources. A co-operative and organized approach would have promoted efficiencies and reserved resources. Rule 2 demands no less of all parties, their counsel and the court, in the joint enterprise of dealing with cases justly.
[23] Mother seeks costs under Rule 17(18) of the Family Law Rules which provides:
(18) Costs shall not be awarded at a conference unless a party to the conference was not prepared, did not serve the required documents, did not make any required disclosure, otherwise contributed to the conference being unproductive or otherwise did not follow these rules, in which case the judge shall, despite subrule 24 (10),
(a) order the party to pay the costs of the conference immediately;
(b) decide the amount of the costs; and
(c) give any directions that are needed. O. Reg. 114/99, r. 17 (18); O. Reg. 235/16, s. 3; O. Reg. 298/18, s. 12 (4); O. Reg. 535/18, s. 5 (4).
[24] As highlighted by the court in Bourgeoius v Bourgeois, 2011 ONSC 345 at para. 11, the mandatory language embodied in the rule connotes a deliberate policy choice to:
… treat conferences as significant judicial events, and not merely a series of assisted courthouse negotiations. The strain on judicial resources during certain periods and within certain jurisdictions can limit the availability of the court but, it in no way limits the obligation on parties to be prepared for scheduled conferences.
[25] The purpose of this cost rule is twofold. First, it aims to compensate the party whose progress towards resolution is impeded by the other party’s lack of preparedness or compliance with the rules, with an attendant increase in fees. Second, it serves to sanction the non-compliant party and deter others from engaging in the same conduct.
[26] I have no hesitation in concluding mother is entitled to costs. Her counsel’s Bill of Costs includes his time, as well as that of his clerks, leading up to the conferences, his time at the conferences and other tasks ancillary to those conferences. What the Bill of Cost does not reflect is that the November conference was not a complete waste of time, as evidenced by the lengthy consent endorsement. Likewise, in May, time was spent on parenting issues, as well as father’s motion to set aside portions of the operative orders, a motion now abandoned by fresh counsel. The income report, now finally available, led to some discussion. The Bill of Costs also includes considerable time between November 26, 2019, the date of the conference, to March 23, 2020 that is hard to relate to conduct captured by the rule.
[27] All this warrants a reduction in the hours that properly fall within the ambit of the rule. I find a reduction in counsel’s time from a total of 32.7 hours to 20 hours to be fair. A reduction in the clerk’s hours from 21.1 hours to 5 hours is appropriate. This has the effect of reducing the substantial indemnity quantum to $5700.00 and reducing the partial indemnity quantum to $4335.00. The rates are reasonable. The claimed disbursements lack explanation.
[28] In considering which scale of costs is appropriate, I see no reason to depart from compensation on a substantial indemnity basis, having regard to the important role this cost rule serves in the overall scheme of disclosure, case conferencing, compliance with court orders, and in promoting the objectives of Rule 2.
CONCLUSION
[29] Based on the foregoing, I make the following order.
The respondent father shall pay the mother costs in the sum of $5700.00, plus HST at 13% for a total of sum of $6441.00.
This shall be paid within 30 days, that is, no later than September 27, 2020.