COURT FILE NO.: FC-15-1602-1
DATE: 20201021
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SHANNON KENDRA MARCHAL (POISSON/MULLOY), Applicant
AND
ALLAN PAUL MULLOY, Respondent
BEFORE: Madam Justice Heather J. Williams
COUNSEL: Self-Represented Applicant
Self-Represented Respondent
HEARD: In writing
costs endorsement
[1] While, unfortunately, not unique in the realm of family law cases, this application was nonetheless notable for the intensity of the conflict between the parents. Before the trial, the parties had made 14 trips to the court house in Ottawa for various hearings. The application’s continuing record was comprised of 11 binders.
[2] Success at trial was divided. The father was primarily successful on the parenting issues; the mother was primarily successful on the financial issues.
[3] The mother was represented by a lawyer throughout much but not all of the litigation and at the trial but is now self-represented. At trial, a lawyer represented the mother on the basis of a limited scope retainer; I was grateful for the lawyer’s participation. The father was represented by lawyers from time to time during the litigation but represented himself much of the time and was self-represented at the trial.
[4] I have read and carefully considered the father’s costs submissions, the mother’s costs submissions and the father’s reply costs submissions.
The Father’s Position
[5] The father seeks partial indemnity costs, inclusive of disbursements and HST, in the amount of $15,083.00.
[6] The father argues that he was the more successful party at the trial. He says that he devoted a significant time and effort to the litigation, including trial preparation and his attendance at the trial. The father says that he acted reasonably at all times, but the mother did not. In this regard, the father notes that the mother refused to accept the report and recommendations of the Ontario Children’s Lawyer and alleged bias on the part of the OCL investigator. The father also alleges that the mother acted in bad faith, in particular, by making unsubstantiated complaints about his to the Children’s Aid Society.
[7] The father says that the issues at trial were important but not particularly complex.
[8] The father noted that the trial had been adjourned twice at the request of the mother; he did not strenuously argue that the mother’s adjournment requests were without foundation.
[9] The father says that he made reasonable offers to settle, including four offers in writing. He acknowledges that the trial decision was more favourable to him than his offers in some respects and less favourable in other respects.
[10] The father arrived at the $15,083.00 he is requesting by calculating how much a lawyer would charge for the hours he spent preparing for and attending the trial, based on a modest hourly rate, and by subtracting the amount he would have earned for the same number of hours in his own job. The father requests 40 per cent of that amount, which worked out to $12,000.00 and then added HST and disbursements.
The Mother’s Position
[11] The mother argues that the father should be ordered to pay her costs on a partial indemnity basis.
[12] The mother argues that, over the course of the litigation, she has been the more successful party.
[13] The mother argues that the application would not have been necessary in the first place if the father had complied with an early separation agreement the parties had signed. The mother also argues the father failed to comply with court orders, including orders relating to financial disclosure.
[14] The mother argues that the father’s priority throughout had been the financial aspects of the litigation and that he was ultimately unsuccessful on the financial issues.
[15] The mother also argues that she has acted reasonably and made efforts to settle the issues out of court. She says that she was always respectful of the court. She argues that the father behaved unreasonably, both in and out of court and that he also acted in bad faith.
[16] The mother argues that a successful party may be deprived of all or part of their costs or ordered to pay all or part of the unsuccessful party’s costs.
[17] The mother argues that the issues are trial were both important and complex.
[18] The mother argues that, unlike the father, she was represented by a lawyer through most of the proceedings. The mother incurred $90,370.93 in fees and disbursements while represented. She estimates the value of her time and disbursements while representing herself at $9,300.00.
Analysis
[19] Costs awards are intended to serve four fundamental purposes:
to partially indemnify successful litigants;
to encourage settlement;
to discourage and sanction inappropriate behaviour by litigants; and
to ensure that cases are dealt with justly under Rule 2(2) of the Family Law Rules. (Mattina v. Mattina, 2018 ONCA 867.)
[20] Rule 24(1) of the Family Law Rules creates a presumption of costs in favour of the successful party. Rule 24(4) provides that a party who have behaved unreasonably may be deprived of costs, even if successful, or ordered to pay the unsuccessful party’s costs. Reasonableness is determined through an examination of 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 made and any offer that was withdrawn or not accepted: Rule 24(5.) If a party has acted in bad faith, the court is to decide costs on a full recovery basis and order the party to pay them immediately. (Rule 24(8).)
[21] With respect to the reasonableness of the parties’ conduct, the father should have conceded the debt owed to the mother’s parents and his obligation to contribute to the extraordinary expenses of the children sooner than he did. However, the financial issues took up little trial time in relation to the parenting issues.
[22] I consider the conduct of the mother in respect of the parenting issues to have been unreasonable and to have added unnecessarily both to the duration of the litigation and the level of conflict between the parties. This conduct included the mother’s reports to the CAS, referred to above. It included the mother’s refusal to consider additional or alternative parenting time for the father, even on an occasional basis, such as on Father’s Day or to permit the children to attend events involving the father’s family. It also included the mother’s refusal to accept the opinions expressed by professionals or judges who suggested that it would be in the best interests of the children for the father to be more involved in their lives. For example, at trial, the mother argued that the report of the OCL investigator was biased in favour of the father. In my reasons for decision, I clearly rejected this argument and said that I found the report to be comprehensive and thoughtful. In her costs submissions, the mother repeated and enhanced her allegation against the OCL investigator by alleging that the investigator’s relationship with the father was more than just professional and that, consequently, the investigator was biased and unfair to the mother. The mother alleged that the OCL investigator and the father had “demonstrated highly unprofessional behaviour” in court, by making gestures to one another and using first names. The mother appears to have formed this impression because when the Court Services Officer asked the father for the name of the OCL investigator when he said he was going to call her as a witness, he provided only the investigator’s first name. I assisted him by providing the CSO with the investigator’s last name. In her testimony, the investigator did indeed refer to the father by his first name at times but also referred to the father’s partner, the mother and the mother’s husband by their first names, typically when quoting the parties’ son. There were no inappropriate gestures exchanged by the father and the investigator and no basis in evidence for the mother’s allegation of bias.
[23] Both parties made offers to settle. Offers to settle have been described as “the yardstick with which to measure success” and as being “significant both in considering liability and quantum.” (Osmar v. Osmar (2000) 2000 20380 (ON SC), 8 R.F.L. (5th) 387 (Ont. S.C.J.)) Neither of the parties obtained a result at trial that was as favourable as or more favourable to them than the terms of an offer to settle they made. However, the offers made by the father showed a greater willingness to compromise on the issues on which he was ultimately unsuccessful than did the offers of the mother.
[24] Where the court concludes that success was divided, it may award costs to the party who was more successful on an overall global basis or on the primary issue, subject to adjustments that it considers appropriate having regard for the lack of success on secondary issues and any other factors relating to the litigation history of the case (Gomez-Pound v. Pound, [2009] O.J. No. 4161 (O.C.J.); Boland v. Boland, 2012 ONCJ 239, [2012] O.J. No. 1830 (O.C.J.)).
[25] Although success at trial was divided, I consider the father to have been more successful than the mother. I consider the parenting issues, decision-making authority and parenting time to have been the primary issues. I base this conclusion on the importance of these issues, objectively and to the parties, the width of the gap between the parties’ positions in respect of the issues, the time that was devoted to these issues at the trial and the number of paragraphs of my reasons for decision devoted to the parenting issues (63 paragraphs) compared to the number of paragraphs devoted to the extraordinary expenses, child support and the father’s obligation to repay loans from the mother’s parents (40 paragraphs.)
Disposition
[26] I have considered the conduct of the parties, the offers to settle, the divided success at trial and that the father was successful on the primary issues. I have also considered that the father, who was self-represented, is seeking approximately $15,000.00 in partial indemnity costs and that the mother is seeking partial indemnity costs based on full indemnity costs of about $100,000.00 ($90,370.93 in legal fees and disbursements while represented and time and disbursements of $9,300.00 while self-represented.)
[27] I have concluded that the fair and reasonable result in this case is for each party to bear their own costs. In other words, neither party shall be awarded or ordered to pay costs in respect of this matter.
Date: October 21, 2020
COURT FILE NO.: FC-15-1602-1
DATE: 20201021
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: SHANNON KENDRA MARCHAL (POISSON/MULLOY), Applicant
AND
ALLAN PAUL MULLOY, Respondent
BEFORE: Madam Justice H.J. Williams
COUNSEL: Self-Represented Applicant
Self-Represented Respondent
Costs ENDORSEMENT
Madam Justice H.J. Williams
Released: October 21, 2020