COURT FILE NO.: FS-17-90706
DATE: 2021 07 02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
E.M.B.
Jared Teitel and Kristen Normandin, for the Applicant Father
Applicant
- and -
M.F.B.
Karmel Sinclair, for the Respondent Mother
Respondent
HEARD: May 10-14, 17-21, 25-28; June 1, 2021
REASONS ON COSTS
MANDHANE J.
OVERVIEW
The parties seek costs in relation to a three-week trial and related pre‑trial motions: EMB v. MFB, 2021 ONSC 4264. The sad reality is that this matter has already financially crippled these parents. Despite the relative simplicity of the legal and factual issues, both parties now claim costs exceeding $200,000. To justify these exorbitant amounts, the parties point to voluminous correspondence between counsel, preparation and attendance at six pretrial motions, and conflicting evidence regarding the Father’s ability to care for the child.
To properly exercise my discretion under s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, I must consider and apply Rule 24 of the Family Law Rules, O. Reg. 114/99 to answer the following questions:
a) Should costs be apportioned between the parties?
b) Did either party behave unreasonably such that they should be deprived of some or all of their costs?
c) How much should be paid in costs, by whom, and on what terms?
- Given the parties’ equal success at trial, their unreasonable behaviour, and the Child’s best interests, I order that no costs be payable by either party.
Should costs be apportioned between the parties?
The parties achieved equal success at trial and costs should be apportioned equally between them: Family Law Rules, Rule 12(6).
The Father asked for joint parental decision-making, overnight parenting time on alternating weekends, a predictable holiday schedule, week-about parenting time in the summer, and daily Facetime calls. He resisted any conditions on his parenting time related to alcohol abstinence, testing, or monitoring. He proposed exchanges at a gas station in Halton region.
The Mother sought sole parental decision-making responsibility. She asked me to order that the Father have six hours of supervised parenting time weekly, that that she have Facetime calls during his parenting time. She asked that the Father be ordered to continue using an alcometer before and during his parenting time. She was only agreeable to introducing overnight parenting time after the Father completed alcohol abuse programming. She proposed that exchanges take place at her house.
Success was equal between the parties. While granting the Mother sole parental decision-making responsibility, I ordered full and complete information sharing and a robust opportunity for the Father to participate in events related to the Child’s religious, school, and extracurricular life. I granted the Father a substantial increase in unsupervised parenting, while requiring him to monitor his blood alcohol level and participate in alcohol abuse programing. I granted the Father’s request for daily Facetime calls and refused the Mother’s request for the same.
Did either party behave unreasonably such that they should be deprived of some or all of their costs?
As outlined in detail in my reasons for decision, both parties behaved unreasonably and should be deprived of at least some of their costs: Family Law Rules, Rule 24(4), (5). Much of the pre-trial correspondence, motions, and trial evidence was unnecessary and disproportionate to the issues at hand. There is simply no reason that the total costs of this matter should have exceeded $75,000 to $100,000.
The Father set the tone for the litigation by launching these proceedings less than a month after separation and before attempting to resolve the parenting issues amicably. He did not engage the Mother in good faith to resolve the parenting issues or suggest that they participate in informal or formal mediation. The Father’s unilateral decision to move to London also complicated issues and required motions to vary his parenting time. The Father never once hesitated to run-up legal costs that he knew neither he nor the Mother could afford.
The Father’s position at trial on his alcohol abuse was unreasonable and resulted in at least a week of wasted trial time. Despite his own admissions about problematic drinking, the Father maintained that he should not be subject to any conditions on his parenting that would mitigate against the risks to the Child associated with his daily use of alcohol. He even opposed a term that would have required him to abstain from the use of alcohol when caring for the child.
The Mother also behaved unreasonably. Most egregiously, on two occasions, the Mother engaged in “self-help” and breached this Court’s temporary parenting time orders. This resulted in costly motions to restore the Father’s parenting time. In relation to the pre-trial motions, there is a clear pattern of the Mother forcing the Father to bring a motion and then agreeing to minutes of settlement at the eleventh hour. The Mother’s decision to retain six different lawyers throughout the course of this matter also resulted in increased costs and delays due to adjournment requests.
At trial, like the Father, the Mother took unreasonable positions that wasted at least a week of court time. For example, the Mother continued to insist at trial that the Father and his sister had inappropriately touched the Child despite police and CAS investigations which found to the contrary. The Mother’s failure to properly disclose various notes, records, and recordings in advance of trial unnecessarily complicated the evidentiary issues and wasted court resources: E.M.B. v. M.F.B, 2021 ONSC 3691.
However, the most troubling aspect of the Mother’s conduct has been her steadfast refusal to grant the Father access to information about the Child or increase his parenting time with the Child. This tendency is most obviously illustrated by her refusal to accept any aspect of the Father’s numerous, severable offers to settle, which would have granted her sole parental decision-making authority, and the Father less parenting time than was ultimately ordered by this Court.
How much should be paid in costs, by whom, and on what terms?
Given the parties equal success at trial, their overall unreasonable conduct, and the best interests of the child, I find that neither party should be ordered to pay costs: Family Law Rules, Rule 24(12).
Both parties are of limited financial means and have already been financially crippled by this litigation. Given their lawyer’s desire to be paid and their own limited financial means, I have no doubt that the Mother and Father will face many negative financial consequences for years to come because of their conduct during this litigation.
However, in deciding not to award costs, I placed the most weight on the devastating negative impact of any potential cost award on the Child: M. (A.C.) v. M. (D.) (2003), 2003 CanLII 18880 (ON CA), 67 O.R. (3d) 181 (C.A.). At present, despite being employed full-time, the Father sold his home to fund this litigation and has had trouble securing stable housing. Any costs awarded against him would limit his ability to secure permanent housing which is necessary and appropriate as his parenting time with the Child is expanded.
The Mother is currently unemployed and living with her parents. She used a significant portion of her equalization payment to hire private investigators to substantiate her allegations about the Father’s use of alcohol. To pay off the costs previously awarded against the Mother by this Court, the Father agreed to off-set her costs payments against his child support obligations. As a result, the Father is not currently paying child support to the Mother. If I ordered further costs against the Mother, it is likely that the Child would not receive regular child support payments for a long, long time into the future. This is not an acceptable outcome given the Child’s right to support and the Mother’s very limited means.
The best outcome for the Child is the one that allows each parent to put this litigation behind them, dig themselves out of the deep financial hole caused by this matter and allows the Child to benefit from ongoing child support payments.
ORDER
I am satisfied that an order that each party pay their own legal fees is consistent with the overall goals of costs awards: Serra v. Serra, 2009 ONCA 395, at para. 8.
No further costs shall be ordered against or be payable by either party.
Mandhane J.
Released: July 2, 2021
COURT FILE NO.: FS-17-90706
DATE: 2021 07 02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
E.M.B.
Applicant
- and -
M.F.B.
Respondent
REASONS ON COSTS
Mandhane J.
Released: July 2, 2021