COURT FILE NO.: FC-19-1222
DATE: 2021/04/28
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: J.D., Applicant
AND
N.D., Respondent
BEFORE: Mackinnon J.
COUNSEL: Sarah Giamberardino, for the Applicant
Tanya Davies for the Respondent
HEARD: In Writing
costs ENDORSEMENT
[1] Written submissions have been made for costs of a motion and cross motion started in November, 2019 and completed in November, 2020, and for an intervening urgent motion.
[2] The respondent father brought the November 2019 motion to address his parenting time. It only proceeded on a few limited issues and resulted in a temporary without prejudice parenting order. Another date was scheduled for February 2020. That date dealt with evidentiary issues arising from the motion materials. (2020 ONSC 1674). The substantive issues in the motion were then set to be heard in April but the COVID-19 public health crisis intervened, resulting in the temporary suspension of regular sittings of the court.
[3] Before the original motions had been re-scheduled by the court, the mother brought an urgent motion asking for the removal of the father’s overnight parenting time. This motion was dismissed. (2020 ONSC 2448).
[4] The father’s original motion for increased parenting time was rescheduled to be heard in July 2020. The mother’s position was that the status quo should remain in place. The father’s request to lengthen his Tuesday and Thursday evening access was allowed. The balance of his motion was adjourned until an in process section 30 assessment was complete. (J.D. v N.D., 2020 ONSC 4637).
[5] The original motion was heard almost a year to the day after it had been first scheduled, on November 17. By then the assessment had been received. Reasons for deciding the motion are found at 2020 ONSC 7965. The children’s primary residence continued to be with the mother. The father’s parenting time was increased to include a mid-week overnight and alternate weekends from Saturday morning until Monday morning. A further increase in his parenting time would take place at the end of June, subject to the final determination of the trial judge being available by that time.
[6] The predominant issue throughout was the nature and duration of the father’s parenting time, in particular overnights. He was the more successful party and is presumptively entitled to costs. The mother submits that his costs should be reduced due to his unreasonable and bad faith conduct. She submits that the overall outcome should be an award to her of some $18,000.
[7] The father submits that the overall outcome should be an award to him of some $30,000.
[8] Both parties have referred to the following provisions of Family Law Rules, O.Reg. 114/99 as am, r 24(4)(8) and (12) in support of their submissions:
(4) Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs. O. Reg. 114/99, r. 24 (4).
(8) If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately. O. Reg. 114/99, r. 24 (8).
(12) In setting the amount of costs, the court shall consider,
(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:
(i) each party’s behaviour,
(ii) the time spent by each party,
(iii) any written offers to settle, including offers that do not meet the requirements of rule 18,
(iv) any legal fees, including the number of lawyers and their rates,
(v) any expert witness fees, including the number of experts and their rates,
(vi) any other expenses properly paid or payable; and
(b) any other relevant matter. O. Reg. 298/18, s. 14.
[9] Counsel organized their submissions in reference to each appearance date. That approach shall be adopted here.
November 2019 motion and cross motion
[10] The motion and cross motion were adjourned but the court did make a number of orders on individual issues. Both parties claimed costs in relation to this event, claiming success on particular issues.
[11] The respondent had scheduled the motion for 90 minutes. His affidavit consisted of 145 paragraphs with 48 exhibits attached. It included significant evidence later determined to be inadmissible. Applicant’s counsel added a cross motion and proposed adjourning the motions to a three hour hearing and utilizing the scheduled date to argue admissibility issues. Respondent’s counsel at the time would not agree to the adjournment. The presiding judge did adjourn the motions, stating three hours should have been scheduled and factums were required. He did deal with some issues on consent and others by his order.
[12] The time requested for the motion was clearly inadequate. Neither the court, the litigants or the primary objective of the FLRs were well served by the respondent’s refusal to consider the applicant’s suggested procedure. Rule 2 (2)(3)(4) provide:
(2) The primary objective of these rules is to enable the court to deal with cases justly. O. Reg. 114/99, r. 2 (2).
(3) Dealing with a case justly includes,
(a) ensuring that the procedure is fair to all parties;
(b) saving expense and time;
(c) dealing with the case in ways that are appropriate to its importance and complexity; and
(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. O. Reg. 114/99, r. 2 (3).
(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective. O. Reg. 114/99, r. 2 (4).
[13] In my view the success the father had in achieving an overnight visit with the children and in securing a change in children’s counsellor is outweighed by the inadequate scheduling for his motion in relation to the volume and content of his materials, made more unreasonable by his counsel’s refusal to proceed as proposed by opposing counsel.
[14] He also claimed costs in relation to the choice of person who would conduct the section 30 assessment. He did not succeed in this regard. Nor can he claim success on several aspects of the mother’s cross motion, which were not reached due to the shortage of time.
[15] The applicant did have some success. Some disclosure was ordered. She was allowed to have the matrimonial home re-appraised, but the judge left the father able to choose one of three named appraisers she suggested. The judge also endorsed the first available of two assessors put forward by the mother after delivery of the motion materials. The father’s proposed assessor was not included in the order. This was an important ruling but the mother’s success on it is offset by her lack of success in maintaining Ms. Boivin as the children’s counsellor.
[16] Based on the comparative partial and divided success of each party the mother is not entitled to costs for this day either, with the exception of $1,000 awarded for securing the adjournment the father did not consent to. Costs related to preparation of motion materials will be considered below in connection with the actual determination of the motions almost one year later.
February 27, 2020
[17] This date was devoted to the evidentiary issues arising from the motion materials. The mother was the successful party. In particular, the illegal recording the father had made of the mother and children, and several other of his legal but surreptitious recordings were all ruled inadmissible.
[18] The ruling at 2020 ONSC 1674 includes the following paragraph:
[47] Before leaving this section, I note that the father’s motion was originally scheduled to be heard on November 21, 2019. It proceeded in part on that day. Insufficient time had been scheduled for the motion. Problems were noted with the method of proof of the surreptitious recordings and the mother’s objections to them. A new date was obtained which was entirely occupied by submissions on these evidentiary issues. The substantive motion is now scheduled for April 2. These dates illustrate the way in which illegal and surreptitiously obtained material can prolong a case and increase the costs of litigation to the litigants.
[19] The illegal recording of the mother was egregious and warrants sanction by costs.
[20] The father agrees the mother was successful “on the written endorsement” in relation to the evidentiary issues, but in reduction of her costs submits that the court gave verbal directions to her to move forward with the choice of the children’s counselor. This did happen but, in my view, has no bearing on the costs consequences associated with the outcome of the evidentiary hearing. The father also opposes the disbursement incurred by the mother to have her vehicle checked for an illegal recording device after she learned that he had illegally recorded her and the children in the family vehicle.
[21] FLRs r 24(12)(a)(vi), (b) and (18) speak to expenses and any other relevant matter:
(12) In setting the amount of costs, the court shall consider,
(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:
…(vi) any other expenses properly paid or payable; and
(b) any other relevant matter. O. Reg. 298/18, s. 14.
(18) The court may make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including a lawyer’s fees. O. Reg. 418/18, s. 1.
[22] The applicant acted reasonably in incurring this expense which was only necessitated by the respondent’s illegal conduct in pursuit of his motion. In my view this expense is properly included in the mother’s Bill of Costs either as an expense of carrying on the case or as another relevant factor within the scope of r 24(12)(b).
[23] In the result I allow the mother’s costs on a partial recovery basis, plus $1,000 to sanction the illegal recording. I include the challenged disbursement of $1,195.29, for a total of $5,380.
Urgent motion April 8, 2020
[24] This motion was brought by the mother to stop the father’s overnight access. It was dismissed. The father was successful and is presumptively entitled to costs. The mother submits his costs should be reduced to zero because she was justified in bringing the motion having regard to what the children told her and because of the respondent’s conduct in unreasonably denying knowledge of what a therapeutic interview was. These submissions amount to re-arguing the facts of the motion and are not persuasive.
[25] The respondent’s Bill of Costs includes fees for a consultation by his lawyer at that time with a senior counsel. This amount is not properly included in a Party and Party Bill.
[26] The motion included cross examinations of each parent and an evidentiary argument on the admissibility of a therapist’s letter tendered by the mother. The father seeks full indemnity costs on the basis that the mother acted in bad faith in moving on the statements she said the children made to her. I do not make the finding of bad faith. There was no finding that the statements were not made or were fabricated by the mother, rather at 2020 ONSC 2448 [85]:
“On the totality of the evidence now available E.’s statements are not sufficiently reliable to establish her father as the person who has exposed her to inappropriate information about sexual matters that is well beyond her years and stage of development.”
[27] Accordingly, I fix the father’s costs in relation to this motion at $3,850 inclusive of fees and HST.
Motion July 28, 2020
[28] This was the motion date re-scheduled by the court to replace the date in April that had been cancelled. The father’s parenting time was increased as asked on Tuesdays and Thursdays but the balance of his requests for additional parenting time were adjourned until the assessment was completed. The exchange location was tweaked as he requested. In considering the parenting issues the court found that the mother had not complied with an important term of a previous order namely that if any further statements with sexual content were made, the mother shall not ask the child anything about it but shall forthwith advise CAS and the children’s physician in writing of what was said so that they could decide what if any steps to take in response. This order was made in response to evidence suggesting the mother may have influenced the children and the difficulty this created in providing trained and neutral investigators with the opportunity to elicit information directly from the child independently of parental influence.
[29] The mother admitted she was in breach of this aspect of the order but explained that the children continued to make sexualized disclosures, were not in therapy or being seen in the community, and the CAS was slow to investigate. The mother could have returned to court for directions or for a change to the order; non-compliance was not an option. The respondent relies on her non-compliance to claim substantial indemnity costs. I agree the conduct should be sanctioned. He also relies on his offer which included the tweak to the exchange location. It did, but the “tweak” was one small part of a larger offer which he did not match.
[30] The mother claims costs in reference to her cross motion. She was awarded section 7 expenses of $1,321.50. Her coverage under the respondent’s medical plan was restored. She did not achieve the child support she sought for the month of August 2019. This was deferred because she had not yet made the related disclosure she had previously been ordered to make.
[31] The father is awarded costs of $3,000. This represents partial recovery, augmented to sanction the mother’s non-compliance with an important order, with a small offset for the success she had on two of three financial issues she put before the court.
October 6, 2020
[32] The father claims $ 1,598.39 in relation to the above dated endorsement, which was directed to the ongoing, unresolved issue of who would be the children’s counsellor. This endorsement was made as part of the court’s case management functions. The associated costs are not related to a specific pre-trial conference or motion, rather are part of the costs of the case to be dealt with after final determination of the substantive issues.
November 17, 2020
[33] The respondent was successful on this, the actual determination of the motion he had launched the previous year. His parenting time was increased on a temporary basis consistent with some of the recommendations in the section 30 assessment but limited to the shorter term because the case was expected to go to trial in May 2021. The applicant correctly notes that he was not fully successful because he did not obtain the accelerated timing for the increases to his parenting time that he sought. She was more successful on Christmas schedule for 2020. Nonetheless the respondent’s success cannot be understated. The mother had assiduously opposed any overnight parenting time over the course of the previous year. The assessment did not support the mother’s position in that regard, and the father did achieve an immediate increase in his overnight parenting time, with a second increase to take place late in June.
[34] The Bill of Costs submitted for the respondent for this hearing on a standalone basis only was very modest, coming to a total of $3,514 in comparison to that of the applicant which exceeded $10,000. The only new material was the section 30 assessment. In reaching my decision I did not repeat the review of materials and conclusions reached in my previous endorsements, rather adopted, and relied upon them in my consideration of the father’s motion on November 17, 2020 and the mother’s opposition to it. As noted above the costs incurred by the respondent for the preparation of the admissible portions of his original motion materials have yet to be considered. After a detailed review of his Bill of Costs for November 2019 I determine that $6,400 is a fair allowance for this. Together with the fees incurred for November 2020, and awarding substantial recovery having regard to the protracted nature of the proceedings and the father’s success on the issue that drove the litigation, I fix this aspect of his costs at $8,600 inclusive of fees, disbursements and HST.
Conclusion
[35] In the result the amount of costs payable to the respondent by the applicant is $9,070.
Date: April 28, 2021
COURT FILE NO.: FC-19-1222
DATE: 2021/04/XX
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: J.D., Applicant
AND
N.D., Respondent
BEFORE: Mackinnon J.
COUNSEL: Sarah Giamberardino, for the Applicant
Tanya Davies, for the Respondent
Costs ENDORSEMENT
Mackinnon J.
Released: April XX, 2021