Court File and Parties

COURT FILE NO.: FC-20-168 DATE: 2020/09/10

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: I. S., Applicant AND T. C., Respondent

BEFORE: Mackinnon J.

COUNSEL: Jodi R. Fleishman, for the Applicant Lisa Sharp, for the Respondent

HEARD: In Writing

Costs ENDORSEMENT

[1] The applicant seeks costs for the June 4 motion, the urgency determination and for two case conferences held prior to the motion. He claims complete success. The amount he seeks is $22, 689.79 on a partial indemnity basis. The respondent submits there should be no award of costs or alternatively costs should be awarded against her in the amount of $3,000, but not payable until support has been determined by the court.

[2] For reasons that follow I find the applicant is entitled to costs of $19,500, with terms of payment addressed below.

[3] The applicant is clearly the successful party. I disagree that the respondent achieved divided success. The only issue determined regarding the section 30 assessment was how it would be paid for. I did not adopt the respondent’s proposal for payment. Nor did she obtain decision making for Jaeden’s mental health issues. These were to be dealt with by parental agreement or court order. The respondent was not successful in obtaining an order that access would be as recommended by Dr. Matheson. The other terms she points to as representing divided success were not terms she had requested, rather were ordered by the court on its own initiative.

[4] The respondent correctly submits the presumption that a successful party is entitled to costs does not mean costs shall be awarded. She makes a number of submissions directed to rebutting this presumption. First, she submits that as she is the custodial parent the court should find it is not in the best interests of child to award costs against her. This overlooks the fact that primary residence and significant decision making authority was transferred to the applicant because the respondent was not acting in the child’s best interest in restricting access and influencing the child against his father.

[5] Second, the respondent referred to two decisions to support her submission that the particular challenges she faced during the COVID-19 crisis should explain her behaviour and mitigate her exposure to costs. In Trudeau v. Auger, 2020 ONCJ 197 the mother brought an urgent motion to suspend the father’s access based on their child being vulnerable with underlying issues placing him at high risk if infected by the virus. The motion was dismissed. The judge recognized the mother’s sincere concerns and outlined future events that might justify suspending access. Costs were not ordered having regard to the novel questions raised, the limited financial resources of both parties and the financial hardship anticipated to be caused by COVID-19.

[6] Smith v. Bowen, 2020 ONCJ 212 was also a ruling on costs of an urgent motion brought to address COVID-19 related issues. The father refused to return the child after access citing his belief there would be more health concerns for the child with the custodial grandmother. He was ordered to return the child. Duty counsel on the grandmother’s behalf sought full recovery costs of the motion payable to Legal Aid Ontario. The judge stated she normally would have ordered costs against the father but “on this one occasion only” would not, giving him the benefit of doubt, presumably on account of uncertain health information related to the pandemic.

[7] These decisions do not assist the respondent. The Trudeau and Smith cases do not say that unreasonable parenting behaviour will not be sanctioned by costs during the COVID era. Rather costs were not awarded against parties who although unsuccessful had acted out of health concerns at a time of considerable uncertainty as to what should be done to appropriately protect their child’s health and safety from the virus. COVID-19 related issues were peripheral in the case at bar. The key issue was whether the respondent had been influencing the child against the father, starting from well before the public health crisis emerged.

[8] Third, the respondent submits her financial situation is such that an award of costs would be devastating to her. The financial situation of either party can be considered in setting the amount of costs. In C.A.M. v. D.M., 2003 CanLII 18880 the mother had unsuccessfully sought to change custody from the father to herself. The Ontario Court of Appeal found the father was entirely successful, the mother was completely unsuccessful, and her conduct had been unreasonable. The court held at para [45]: “I do not see that the mother’s financial circumstances are a reason to deprive the father of his costs. This was money he had to pay to defend this litigation that would otherwise have been available, at least in part, for the care of the child.” This decision does not assist the respondent.

[9] In another Court of Appeal decision, Murray v. Murray, [2005] O.J. No. 5375 the trial judgment was overturned because the trial judge’s legal analysis had been flawed. The Court declined to award costs against the unsuccessful party for that reason and stating that on a proper analysis she may succeed at a second trial. The Court also referred to trial evidence showing that she was a candidate for social assistance, living in impoverished circumstances with a complete lack of financial resources. In its view a costs award would have a devastating effect and likely destroy any chance she may have to achieve financial self-sufficiency. I do not agree that the respondent faces the same dire circumstances as did Ms. Murray.

[10] The respondent also referred to Savoie v. Richard, 2004 CanLII 47793 (ON SC) and Hassan v. Garib, 2018 ONSC 1670. In Savoie the unsuccessful parent was a stay at home mother with no income of her own except for $500 per month child support and the Canada Child Tax Benefit. Costs were fixed against her at about one third of the total costs of the successful party.

[11] In Hassan the mother had been unsuccessful in opposing the return of the child to the United Kingdom under the Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Can. T. S. 1983 No. 35 (“Hague Convention”). The substantive issues of residential parenting and the property and financial issues between the spouses would all be dealt with by the U.K. court. The Ontario judge fixed costs against the mother in the amount of $3,000 out of the $15,000 which had been sought, payable only after all issues were determined in the U.K. The reasons given were that the mother was almost impecunious, had to find the means to return to the U.K. and would be financially devastated by a higher award of costs.

[12] None of these cases support an award of no costs against the respondent. She has not been impecunious. Until May 2019 she was fully employed in her field, earning at an annual rate of about $81,000. She has provided a brief doctor’s note which states that due to multiple medical conditions she has been unable to work since May 2019.

[13] Starting in August 2019 the respondent has received $4,800 per month from a settlement with her former employer. Since January, 2020 the applicant has been paying $2,347.88 per month towards the respondent’s living expenses. The final payment from her former employer was made in August 2020, at which time the respondent also lost her health benefits.

[14] The respondent says she is looking for work but has not provided information about her job search. She is well educated and should be well positioned to obtain employment given her qualifications and work history. The respondent does worry she may not find work because of her health issues and stress. In that event she may apply to the Ontario Disability Support Plan and Legal Aid Ontario.

[15] The respondent’s financial statement shows $31,000 in her RDSP as of May 8. The applicant believes she has at least $15,000 of equity in the matrimonial home which he would free up for her by refinancing the home with her consent. Her debts at date of separation were $43,740 and are now likely higher having regard to borrowing to fund the section 30 assessment and outstanding legal fees.

[16] The applicant has been earning at a reduced rate on account during the pandemic. He expects to earn $81,000 in 2020. He has debts of about $100,000 not including the mortgage on the matrimonial home which is registered in his name. The equity in it appears to be about $100,000. Considering what he has contributed to her expenses this year there has been little difference in their income positions so far this year. Neither is likely to have a significant net worth at the end of this case. The key difference between their financial positions right now is that the respondent has not yet re-employed.

[17] Based on the facts and the case law reviewed I conclude that financial circumstances do not warrant a reduction in the amount of costs to be paid but do merit terms of payment.

[18] The next issue raised by the respondent is whether the applicant may recover for costs of the urgency determination and the two case conferences. Costs of these events were not fixed or deferred for future determination. The respondent relies on Family Law Rules r 24(10) and M.P.M. v. A.L.M., 2020 ONSC 3491 in support of her position that those costs are not recoverable now.

[19] The applicable FLRs are r 17 (18) and (18.1), and r 24 (10 and (11):

17 (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).

17 (18.1) Subrule (18) does not prevent the court from awarding costs in relation to the conference at a later stage in the case, if costs are not awarded at the conference. O. Reg. 298/18, s. 12 (5).

24 (10) Promptly after dealing with a step in a case, the court shall, in a summary manner,

(a) determine who, if anyone, is entitled to costs in relation to that step and set the amount of any costs; or

(b) expressly reserve the decision on costs for determination at a later stage in the case. O. Reg. 298/18, s. 14.

(10.1) Revoked: O. Reg. 298/18, s. 14.

24 (11) The failure of the court to act under subrule (10) in relation to a step in a case does not prevent the court from awarding costs in relation to the step at a later stage in the case. O. Reg. 298/18, s. 14.

[20] Contrary to the respondent’s submission rules 17(18.1) and 24(11) specifically do allow costs for a step to be awarded at a later stage of the case. The paragraph she relies on in M.P.M. v. A.L.M., 2020 ONSC 3491 stating that a trial judge should not order costs in relation to an earlier step where costs were not awarded or where there was silence on the issue was based on two decisions of the Ontario Court of Appeal, both rendered before the amendment to the FLRs in July 2018 which added r 17(18.1). In my view the rule supersedes those cases on this particular point.

[21] There is some case law suggesting that costs may only be awarded for a case conference if the criteria in r 17(18) are met. The plain language of that rule is directed to not awarding costs at a conference unless the stipulated bad behaviour is present, in which case the option set out in sub rule 24(10)(b) is not available. The language used in r 17(18.1) is different. There the words are “costs in relation to the conference”. This is an important difference. Read together these sub rules provide for when costs may be awarded at the conference and that in other circumstances costs in relation to the conference may be awarded at a later stage.

[22] Whereas r 17(18) sets up a non-rebuttable presumption (costs shall not be awarded at a conference unless…), the language in sub rule (18.1) is not consistent with any presumption for or against the award of costs in relation to a conference at a later stage, provided only that they were not ordered at the conference. One might infer from the fact that no costs were awarded at the conference that the presiding judicial officer concluded that the criteria of r 17(18) were not met, but that does not insert a presumption into r 17(18.1). The general principles of costs including those in r 24 would guide the determination of costs authorized by that sub rule.

[23] The trial judge in M.P.M. said that if there was jurisdiction to make a costs order in relation to earlier steps it would be impossible for him to make a just determination at such a late stage. That is not the case here where the urgency determination was entirely directed at the applicant’s ability to bring his motion and where the case conferences were directed almost entirely to preparing the motion by ordering necessary productions, organizing and narrowing materials to be used and setting the timetable. Some consents were reached and endorsed, for counselling and for an assessment. In my view costs for these three events, so closely connected to the motion in which the applicant was successful can and should be considered at this time when costs of the motion are determined.

[24] Neither party served a formal settlement offer. The applicant did make three attempts to settle via correspondence. Two of the proposals he made were more favourable to the respondent than the outcome of the motion. The respondent was intransigent.

[25] Some of the respondent’s litigation conduct was unreasonable. I will only refer here to the failure to make timely disclosure as requested by a letter dated April 8, omissions of pertinent facts in connection with the urgency determination and findings made in the June 29 endorsement with respect to her involvement of the child in the conflict between the parents. The respondent asks the court to accept her mental health issues, and the many stressors she is under by way of explanation for any unreasonable conduct. So doing would not make the behaviour any less unreasonable.

[26] I find the hourly rates charged by the applicant’s counsel reasonable and proportionate to the issues at stake. Lengthy materials were delivered by both sides, including factums and books of authorities. The applicant’s overall fees incurred are lower than those of the respondent, perhaps due to her changes of counsel.

[27] The fees were appropriately claimed on a partial basis calculated at 60 % of the full bill to the applicant. The only departure I make from the amounts submitted are with respect to some of the time spent in relation to the urgency determination, the case conferences and drafting of the order.

[28] For these reasons I fix the costs payable to the applicant from the respondent at $19,500 inclusive. Payment of the award is stayed until the respondent obtains employment, the amount of an equalization payment owing to her by the applicant is determined, and/or her claim for spousal support is determined.

J Mackinnon J.

Date: September 10, 2020

COURT FILE NO.: FC-20-168

DATE: 2020/09/10

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: I. S., Applicant

AND

T.C., Respondent

BEFORE: Mackinnon J.

COUNSEL: Jodi R. Fleishman, for the Applicant

Lisa Sharp, for the Respondent

ENDORSEMENT

Mackinnon J.

Released: September 10, 2020