N.B. v. A.B. and D.M., 2021 ONSC 3467

COURT FILE NO.: FS-20-42910

DATE: 2021 05 11

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: N.B., Applicant

AND:

A.B., Respondent

AND:

D.M., Respondent

BEFORE: Chozik J.

COUNSEL: Alla Koren, for the Applicant

Matthew J. Armstrong, for Respondent A.B

Ron Shulman and Laura Paris, for Respondent D.M.

COSTS ENDORSEMENT

[1] On March 5, 2020, one of the Respondents, D.M, brought two motions. The first motion was for a finding that Respondent A.B. was in contempt of court for failing to abide by the order of Kurz J. dated January 16, 2020. The second motion was for a variety of relief including a change to the parenting schedule and primary residence of his and A.B.’s daughter, E. (age ten at the time). D.M. also asked that A.B.’s parenting time of E. be supervised.

[2] The Applicant, N.B., joined D.M. in the second motion and sought the same relief with respect to his child with A.B., A. (age 4 ½ years at the time).

[3] Both motions were brought on the regular motions list. At the conclusion of the hearing, I granted the second motion in part. I ordered that A.B have supervised access to the children at least three times per week for a maximum of four hours. A.B consented to undergo a psychiatric assessment.

[4] Several other issues, including partition and sale of the matrimonial home, involvement of the Office of the Children’s Lawyer (“OCL”), and a s. 30 custody and access assessment were adjourned to an urgent case conference (the third conference for these parties).

[5] I stayed the contempt motion. I did not deal with the multitude of allegations made by D.M. and N.B (jointly, “the fathers”) against A.B. I did not make any findings that A.B breached a court order. A civil contempt motion engages quasi-criminal procedures and cannot usually be heard on a regular motion list.

[6] Costs of the March 5, 2020 motions were reserved. It was anticipated that a long motion would be scheduled after the case conference to deal with any outstanding issues. A long motion date had been set for June 2020 but was then vacated. Instead, since March 5, 2020, there have multiple steps in this litigation that have resulted in a total of 14 orders in roughly 12 months. On December 2, 2020, Kurz J. heard the parties’ submissions on costs for those other steps. In his costs endorsement dated December 9, 2020, Kurz J. declined to award any costs to any party.

[7] In that costs endorsement, Kurz J. suggested that it may be appropriate for me to determine the costs of the March 5, 2020 motions. I was also asked to determine costs for two minor procedural steps that preceded that motion. The first was for the parties to obtain a report from the Halton Children’s Aid Society (“CAS”). The second was for the parties to obtain records held by the Halton Regional Police (“the police”).

[8] I have reviewed the parties’ submissions on costs for the March 5, 2020 motions and steps to obtain the third-party records. I have also reviewed the parties’ bills of costs.

Positions of the Parties on Costs:

[9] The fathers seek costs against A.B. on a full indemnity scale in the aggregate amount of nearly $75,000.

[10] D.M. seeks full recovery costs of $46,000. He argues that the issues on the motion were extremely important as they involved the best interests of the children. He submits that he was clearly successful as A.B.’s parenting time was changed from equal time with shared custody, to supervised and limited parenting time. He notes that the motion also resulted in A.B. consenting to undergo a psychiatric assessment, which she adamantly opposed until the motion was heard. D.M argues that the third-party records were necessary. He seeks costs of $6,354 for the steps to obtain those records.

[11] D.M. acknowledges in his written costs submissions that invoking the contempt remedy was extreme. He argues that it was justified given the severity of A.B.’s breaches of the court order and the concerns for the children’s best interests. He asserts that the contempt motion did not change the evidence or the arguments put forward. He argues that the contempt motion was brought solely because of A.B.’s unreasonable and unilateral behaviour in breaching Kurz J.’s Order.

[12] D.M. relies on various events after the March 5, 2020 hearing in support of his claim for full indemnity costs. He notes that there have been 14 separate orders in this case, with A.B. being largely unsuccessful at each stage. He states that there is “no end in sight” to the litigation, that A.B. is “the author of her own misfortune” and that he “cannot continue to pay the price.” D.M claims that A.B. acted in bad faith and continues to litigate recklessly. He submits that a message must be sent to her that “if she wishes to litigate in this reckless manner and refuses to put the children’s interest before her own, she will bear the full cost of such action”.

[13] N.B. seeks full recovery costs of $30,500. He submits that, as the successful party, he is presumptively entitled to costs. He submits that, although the contempt motion was stayed, its main goal was achieved: supervised access was imposed.

[14] Both fathers emphasize that A.B.’s conduct of the litigation has been combative and unreasonable. They ask the court to order full indemnity costs because her conduct with respect to the children was so troubling and traumatizing.

[15] A.B. submits that her partial indemnity costs for the March 5, 2020 motions and third-party records were $14,500. She submits that the father’s costs of $74,920.37 for a one-hour motion brought jointly are unreasonable, unfair, disproportionate, and would have a chilling effect on her ability to litigate.

Analysis:

[16] No party is absolutely entitled to costs in any case. Under s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C. 43, the court retains wide discretion in ordering costs and in determining quantum. Discretion as to costs is always guided by reasonableness and proportionality: Berta v. Berta, 2015 ONCA 918, at paras. 92-95; Frick v. Frick, 2016 ONCA 799.

[17] Rule 24 of the Family Law Rules, O. Reg. 114/99, sets out the factors to be considered in awarding costs. The importance and complexity of the proceedings, as well as each party’s behaviour, the time spent and any written offers to settle must be considered. Under r. 24(12), the court is required to look at the reasonableness or unreasonableness of each party’s conduct during the dispute. Rule 24(5) sets out the factors against which reasonableness of the conduct is to be assessed.

[18] Successful parties are presumed to be entitled to costs unless there is a good reason to rebut the presumption, such as bad behaviour. A “successful party” does not necessarily mean the party who won the issues. It can mean the party who made a favourable offer that would have eliminated the need for extended litigation. Under r. 18 (14) of the Family Law Rules, a party who makes a favourable offer may be entitled to costs on a “full recovery” basis.

[19] Modern costs rules are designed to foster three purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants: Serra v. Serra, 2009 ONCA 395, at para. 8. To ensure that cases are dealt with justify under subrule 2(2) of the Family Law Rules, R.S.O. 1990, Reg. 194 costs must be proportionate to the issues and the results.

[20] There is no provision in the Family Law Rules that addresses a general approach of “close to full recovery costs.” Rather, indemnification of a successful party is a secondary consideration and “proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs”: Beaver v. Hill, 2018 ONCA 840, at para. 12.

[21] In this case, A.B. does not dispute that the fathers were successful on one of their motions. They were successful in obtaining an order that changed the children’s respective primary residences, the parenting schedule, and imposed supervised access. As the successful parties, the fathers are presumptively entitled to partial indemnity costs. However, the balance of the issues raised in that motion including possession of the matrimonial home, involvement of the OCL and a s. 30 assessment were reserved to a case conference. The contempt motion was stayed. I must take these factors into account in assessing the reasonableness and proportionality of the costs claimed from this hearing.

[22] The motion before me with respect to the children involved high stakes. There was evidence from which I concluded that the children, particularly E., was in distress because of A.B.’s conduct.

[23] However, and notwithstanding the importance of the issues, I am of the view that the quantum sought by the fathers is unreasonable and disproportionate having regard to the significance and complexity of the issues, as well as the other factors under r. 24(12). A combined cost of $74,920.37 is not reasonable for what was, in the end, a one-hour motion. In saying this I recognize that the work involved in decanting and presenting a motion in a compressed time may involve more preparation than a less-organized and extended hearing.

[24] The proceedings were unnecessarily complicated by D.M.’s contempt motion. The contempt motion was unnecessary and ill conceived. Contempt is a remedy of last resort: Hefkey v. Hefkey, 2013 ONCA 44, at para. 3; Chong v. Donnelly, 2019 ONCA 799, at para. 9. Because of its seriousness and quasi-criminal nature, it must be invoked cautiously and with great restraint. It is not, and ought not, to be used by litigants merely as a mechanism for enforcing judgments. Here, that is exactly how D.M. sought to invoke it.

[25] Given the complex emotional dynamics in family law disputes and the desirability of avoiding further escalation of the conflict between the parties, a cautious approach to contempt is required: Jackson v. Jackson, 2016 ONSC 3466, at para. 56. In Amid v. Houdi, 2016 ONSC 2849, at para. 22, the court observed that civil contempt is available in family law cases only “where no other adequate remedy is available, yet a contempt motion is frequently the first reaction in high conflict family law cases.” The court observed that “bringing a contempt motion as a routine enforcement mechanism or as a pre-emptive strike is a dangerous litigation strategy that can easily backfire.” Doing so, often makes the case more difficult that necessary.

[26] In this case, less than two months after Kurz J. made an order, D.M. sought to have A.B. found in contempt. There was no evidence of what other remedies (if any) were explored. No effort to consider or pursue less draconian remedies is apparent. All parties incurred significant costs in putting forward and responding to the allegation of contempt. Given the seriousness of an allegation of contempt, it is entirely to be expected that a party will respond vigorously.

[27] The contempt motion obviously could not proceed on a regular motion date, where parties are limited in their oral arguments to less than 60 minutes. On a contempt motion, where there is a conflict as to materials facts in the affidavits, there should be a viva voce hearing: Fischer v. Milo, [2007] O.J. No. 3692 (S.C.). There was significant conflict in the affidavit evidence in this case. A contempt proceeding also requires a two-stage process: (1) a fact-finding or liability stage, followed by (2) a sentencing stage. None of this can be accommodated on a regular motion list.

[28] In my view, the contempt motion was unreasonable and unnecessary. It added fuel to an already high-conflict situation. It unreasonably and unnecessarily raised the stakes and the costs of the March 5, 2020 motion. A party who proceeds precipitously with allegations of contempt ought not be rewarded with a generous (or any) costs award. This is especially so when, as both fathers acknowledge in their submissions on costs, the same objective could be, and was, achieved otherwise.

[29] With respect to the third-party records, it is not clear to me that there was a formal motion for CAS records. In his January 16, 2021 endorsement, Kurz J. reviewed a history of the litigation between D.M. and A.B. in the Ontario Court of Justice and made reference to the January 1, 2020 incident involving the police.[^1] Kurz J. directed the CAS to provide the court with a report setting out its involvement with this family, its findings, and its recommendations.

[30] The January 21, 2020 endorsement of Kurz J. makes clear that he received an email from the CAS indicating that the report could not be ready within the time frame set by Kurz J. The CAS investigation was ongoing. There was not the typical order to produce third party records, but rather a “report” to the court.

[31] The police records were obtained by the parties pursuant to an order dated January 22, 2020 I made, with the written consent of all the parties. In my view, if there were any costs associated with these two procedural steps, those costs were, or ought to have been, minor. Motions to obtain third party records are straightforward. They need not complicate proceedings and can usually be obtained on a 14B motion, even on an expedited basis. The costs of $6,354 claimed by D.M. for these two “motions” are excessive and unreasonable.

[32] There were no offers exchanged by the parties.

[33] I do not agree with the fathers’ submission that A.B.’s conduct with respect to the children is, at this stage, a significant consideration on the issue of quantum or scale for the March 5, 2020 motion. The conduct at issue under r. 24(12) is her litigation conduct, not her parenting.

[34] I reject the fathers’ submission that A.B. should bear costs on a full indemnity scale. Her conduct of the motion before me or the two procedural steps to obtain the third-party records was not unreasonable. She did not oppose production of the third-party records. She defended the motion to change the primary residence of the children, her parenting time, and the imposition of limited and supervised access. She was entitled to defend it. Considering the way in which the contempt motion was bundled with it, she had no choice but to defend it. She was not successful on the motion. She is liable for partial indemnity costs. I see no additional reason to punish her or send a message to her arising out of her conduct of the March 5, 2020 motion.

[35] Her subsequent actions, and the costs of all the subsequent steps taken by the parties in this litigation were dealt with by Kurz J. In his December 9, 2020 costs endorsement, Kurz J. found that unnecessary conflict in this case was fueled by the parties and the inability of counsel to work together. The lack of civility threatened that this litigation would get out of control if it had not already do so. He found that success was divided and ordered the parties to bear their own costs.

[36] I decline to take A.B.’s litigation or other conduct after the March 5, 2020 hearing into my assessment of costs for the motion I heard. Kurz J. has already taken that into consideration when he decided not to award any costs to the parties. I also echo the concerns articulated by Kurz J. The emails between counsel attached to the cost submissions before me show that their communications border on the unprofessional. None of the parties should be rewarded with costs for how this litigation is being conducted.

[37] I decline to order costs on a full or substantial indemnity scale as there is simply no basis to do so.

[38] With respect to quantum, on a partial indemnity basis, D.M. claims costs totalling $23,449.94. He claims that 80 lawyer hours were spent on the March 5, 2020 motion, plus 16 hours for the CAS and police records motions, and 4.4 hours to prepare the costs submissions. Five different lawyers in the firm worked on the motion.

[39] In my view, such an expenditure of resources is unreasonable and disproportionate for what was scheduled as a one-hour motion and two minor unopposed procedural steps to obtain records held by third parties.

[40] N.B.’s claims, on a partial indemnity basis are approximately $16,827.96 (60% of $28,046.60). He claims just over forty-eight hours of preparation time by a lawyer for what was scheduled as a one-hour motion, in addition to six hours for the attendance at court. A portion of this time was spent on reviewing and responding to the contempt motion specifically. It also includes travel time, for which A.B. should not be responsible. N.B. claims disbursements totalling $1,873.77.

[41] D.M.’s and N.B.’s bills of costs reflect that the fathers respective counsel worked collaboratively, to some extent, on these motions. However, this does not seem to have translated into a saving of time or money, as it should have. There is no reasonable explanation for why six lawyers had to work on this one motion. The total cost of more than $42,000 even on a partial indemnity scale is excessive.

[42] I find that A.B.’s costs of $14,500 are more reflective of what a losing party could reasonably expect to pay as costs on a motion like this one. I note that N.B.’s costs, if taken on a partial indemnity scale, approach this amount. However, those costs are for one party; costs for multiple parties will obviously be more. I am of the view that a reasonable and proportionate amount in the circumstances of this case is $20,000.

[43] A.B. is ordered to pay costs to the fathers totalling $20,000. This amount shall be apportioned equally between D.M. and N.B. A.B. shall pay costs award forthwith. It may be paid from A.B.’s share of any funds held in trust at this time from the sale of the matrimonial home.

Chozik J.

Date: May 11, 2021

[^1] This is the same incident, a recording of which, was adduced on the March 5, 2020 motion, which led me to conclude that limited supervised parenting time had to be imposed.