BARRIE COURT FILE NO.: FC-19-323-01 and FC-20-1200-00

DATE: 20211006

SUPERIOR COURT OF JUSTICE - ONTARIO

BARRIE COURT FILE NO.: FC-19-323-01

RE: Abby Trottier (a.k.a. Abby Sarah Mailloux), Applicant

AND:

Owen Heaslip, Respondent

COUNSEL: Ryan Duval, for the Applicant

Victoria Hanton, for the Respondent

BARRIE COURT FILE NO.: FC-20-1200-00

RE: Janet Mailloux and Shelley Trottier, Applicants

AND:

Owen Heaslip and Abby Trottier, Respondents

COUNSEL: Lynn Burgess, for the Applicants

Victoria Hanton, for the Respondent Owen Heaslip

Ryan Duval, for the Respondent Victoria Hanton

BEFORE: The Hon. Madam Justice S.E. Healey

HEARD: By written submissions

COSTS ENDORSEMENT

[1] This court has now read and considered the costs submissions of the parties relating to the motions heard by this court on August 26, 2021.

[2] Considering “success” holistically - in terms of the relief requested, the evidence, the positions advanced by the parties during argument, any offers to settle or settlement overtures, the findings and the orders made – Janet Mailloux and Shelley Trottier were wholly successful, and Abby Mailloux was successful but for her request to have Owen Heaslip do all driving.

[3] The real issue on both motions was whether a professional supervision service was still required for contact to occur between Wilder and any of his maternal family, including his mother. This court disagreed with Owen’s position on this fundamental aspect of the motions, and all resulting orders followed from there.

[4] In taking the position that he did, I agree with his counsel that Owen was not acting in bad faith as that term has been defined in the case law. However, r. 24(12)(a)(i) requires the court to consider the reasonableness and proportionality of each party’s behaviour.

[5] Abby took a reasonable position in asking for supervision by her family given: 1) the last position communicated by the Society; 2) the bond between the maternal family and Wilder and the history of Janet and Shelley acting as significant caregivers for Wilder; 3) the observations of Brayden of the overall positive contact between Wilder and Abby and members of her family; and 4) the evidence provided by Abby of having taken some steps toward rehabilitating herself. Her request for Owen to do all driving, when she has never yet put herself in a position to pay child support, was unreasonable. There should be a resulting reduction in her costs award because the outcome was not in her favour on this point.

[6] Janet and Shelley took a reasonable position in asking for independent time with Wilder given the history of his relationship with them.

[7] Owen took an unreasonable position in contemplating that the only permissible contact between Wilder and his mother and grandmothers should be through a professional supervision service. This outlook is even more unreasonable when one considers that the approaching seasonal change would make meeting in a park uncertain and/or uncomfortable, that he was aware that there were no supervisors through Brayden available to travel to the location of Abby’s residence, and that Covid placed restrictions on the number of people who could attend at Brayden’s premises at any one time.

[8] Although one rationale provided by Owen for his position was that the Society had changed its mind about the suitability of supervisors within the family, the position of the Society was no longer ambiguous as of March 17, 2021, as explained in paragraphs 73 and 74 of my endorsement. Owen’s position was also unreasonable because he had acted arbitrarily in cutting off contact between Wilder and Wilder’s grandmothers, without regard to the effect that this abrupt termination of contact would have on Wilder. He also rationalized his position on the basis that the paid supervisors could better intervene, or better assess Abby’s mental health. For the reasons explained at paragraphs 83 to 85 of the endorsement, that justification has no merit. Finally, there was compelling evidence on the motion that Owen has inflicted harm on Wilder by exposing him to extreme adult conflict, generated by Owen. To thereafter take a position that it is only the other parties who pose a threat of harm to Wilder was completely unreasonable.

[9] In summary, parties must be very careful to consider the reasonableness of their position before resulting to a motion. Once they “go down that road” they cannot insulate themselves from the resulting cost consequences.

[10] Owen asked that this Court award costs in his favour because the page limits of exhibits were grossly exceeded by the other sides’ material. The number of pages of exhibits was an issue raised by Owen’s counsel from the outset of argument of the motions. The number of pages of exhibits clearly contravened the Practice Direction. In retrospect, I am to be faulted for failing to more strictly enforce the Practice Direction, and resolve to do so in the future. But to sanction the offending parties now would be unfair given the earlier permissive ruling. Further, I determined that I was unable to get a complete picture of the Society’s involvement with these parties by considering only those excerpts from the notes that Owen was able to attach to his affidavit. In fairness to all parties - including Owen - I requested and reviewed those records in their entirety. No party’s interests were left unserved on these motions due to the page restrictions. I do not find that to be a valid basis to reduce costs or to award costs to Owen, as he seeks. It must be remembered that the amount of pages filed is secondary to the more relevant consideration, which is that these motions are unlikely to have been brought if Owen had been able to move away from his position that all other parties should conform to his point of view.

[11] Owen also submits that it was unnecessary to have both counsel attend each motion, and that he should not be penalized for the additional time incurred by each counsel. These motions were ordered to be heard together. As my endorsement stated, both motions had to be considered in conjunction. As these were essentially time-sharing motions, the outcome of one would be affected by the outcome of the other. As intertwined motions, it was reasonable for counsel for both Abby, Janet and Shelley to attend on each. It is not a sound reason to reduce the cost order.

[12] Having considered the remaining factors in r. 24(12)(a)(ii)-(vi) and (b), and the parties’ evidence of time spent, fees and disbursements, I find that a reasonable and fair amount for Owen to pay to the other parties for these motions is:

(i) to Abby Mailloux, the amount of $8,500;

(ii) to Janet Mailloux and Shelley Trottier, the amount of $10,000.

[13] This Court orders that Owen Heaslip shall pay costs of these motions fixed in the amount of $8,500 to Abby Mailloux and fixed in the amount of $10,000 to Janet Mailloux and Shelley Trottier. Order to issue accordingly.

HEALEY J.

Released: October 6, 2021