Court File and Parties
COURT FILE NO.: 19-5
DATE: 2021/10/18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
James Jeffrey Arbuckle Applicant
– and –
Angela MacLeod Respondent
Halia Michalko, Counsel for the Applicant
Respondent is self-represented
HEARD: October 6, 2021
Leroy, J.
COSTS RULING
Introduction
[1] The parties were married on May 20, 2000. They separated December 30, 2005 and were divorced June 16, 2009. They have two children, Erin born May 2, 2003 and Shannon born March 5, 2005. Erin is diagnosed with Koolen-de Vries syndrome. Until recently, both children have always lived with the respondent.
[2] The parties signed a separation agreement in October 2010. It covered decision-making for the children and parenting time. The parenting time schedule was correlated to the applicant’s work schedule which required that he be unavailable for two weeks per month. The agreement provided that when the work schedule changed, that would constitute a material change in circumstances affecting parenting-time arrangements.
[3] Corollary issues in relation to spousal support and property were resolved in divorce proceeding brought in 2007 and settled by agreement in May 2010.
The Context
[4] This application was initiated on January 7, 2019. Mr. Arbuckle sought an equal parenting- time regimen in respect to Shannon, an accounting of s. 7 expenses incurred by the respondent after government subsidies for Erin’s benefit, an order for production of children’s counselling files and an order for production of notarized copies of the children’s OHIP and production of their SIN cards to facilitate Mr. Arbuckle’s plan to open bank accounts for the children.
[5] The applicant alleged that the respondent disregarded his role as co-parent. The respondent cited various circumstances indicating applicant’s choice to abdicate an active parenting role.
[6] Shannon followed the parenting-time schedule provided in the separation agreement up to the date this application was brought. The respondent agreed to “tweak” Shannon’s schedule but initially was not amenable to week-about. The respondent sought commitment from the applicant to engage with both girls.
[7] The father’s relationship with Erin failed in December 2011. The respondent was amenable to reunification counselling on condition that the applicant’s intentions were genuine. She consented to appointment of the OCL for a VOC report.
[8] The respondent too sought a review of child support, including special and extraordinary expenses.
[9] The reunification process took time to get off the ground. Understandably, the respondent was protective of Erin’s sensibilities vis-à-vis the applicant. Shannon began residence with her parents on a week-about basis.
[10] My first contact with the file was on January 6, 2021at which time by agreement Shannon’s time with her father was formalized week-about exchange on Wednesdays. Erin’s time with her father was scheduled to be Wednesdays from school to 4:00 p.m. The beginning of the s. 7 expense review process was included in the order.
[11] The motion was adjourned to April 16, 2021 to accommodate the production process set out in the January order and to measure the efficacy of the parent-time schedule with father established for Erin.
[12] Counsel for the Applicant quantified the applicant’s legal fees to that date as:
- Up to January 6 - $12,835 HST and disbursements included
- For the April 16 attendance - $10,644 HST and disbursements included.
[13] This file did not get to a settlement conference.
[14] Child support: Mr. Arbuckle expressed concern without evidence about the reliability of the respondent’s T4. The respondent agreed to waive underpaid child support of $20 per month through 2021.
[15] Mr. Arbuckle insisted that the respondent was double dipping s. 7 expenses incurred for Erin’s care, the gist being that the respondent was government subsidized for horseback riding and figure skating fees but claimed the gross against the applicant for his equal contribution. Mr. Arbuckle said he “thought” the respondent was deceiving the Court. The respondent agreed to authorized release of subsidy records.
[16] The parent-time schedule for Erin was amended to accommodate her pandemic-related class schedule changes.
[17] Mr. Arbuckle expressed the opinion without evidence that Erin had not been to a dentist for 9 years. The respondent acknowledged that regular dental scheduling over the provincial pandemic shutdown was interrupted but denied the 9-year hiatus. She agreed to notify the applicant of upcoming dental appointments in timely fashion, subject to Erin’s views as adult after her 18th birthday.
[18] Mr. Arbuckle averred that the respondent was in breach of earlier orders for the production of notarized copies of the children’s birth certificates and health cards. The respondent said she could not locate Erin’s birth certificate and had ordered a new one. It must be remembered that Shannon is high functioning, that she carries her health card with her and she was living with the applicant week-about at the time.
[19] Mr. Arbuckle insisted that he would not be responsible for contribution to extra-curricular activities, save for horseback riding and figure skating unless he agreed in writing before the expense was incurred. He asked the respondent to contribute to proposed driver education expenses for Shannon.
[20] The order summary provided for various aspects of dependent support and for the release of MCSS records as they pertained to Erin’s subsidized activities for the years 2017 – 2020.
[21] Given that the only live issue related to quantification of MCSS subsidy, costs were reserved. The motion was adjourned to June 15.
[22] The release forms submitted to the respondent over-reached the time period I established. Ms. MacLeod amended the form authority commencement to January 1, 2017. The applicant averred that she breached the last order for production. In any event, I understand the amended release form had been submitted but that MCSS had not responded in time for the return. The motion was adjourned to July 23 – the Court was notified that the sought-after productions were outstanding, and the motion was put over to October 6.
[23] As noted in the substantive endorsement from October 6th, the MCSS productions were ambiguous in relation to the amounts and activities subsidized. The backdrop is that the respondent was since separation and is the moving force for all matters pertaining to Erin. I accepted as fact that Ms. MacLeod pursued every available subsidy.
[24] The facts are that the applicant abdicated his parental role in decision-making in relation to Erin dating back to 2011 in favour of the respondent.
[25] The relentless ad hominem attack on Ms. MacLeod’s integrity and diligence on this and other fronts was uninformed and unhelpful.
[26] I was particularly taken by Mr. Arbuckle’s “opinion” stated in paragraph 8 of his affidavit dated September 29, 2021 – “I do not believe it is fair or appropriate for me to be required to pay for section 7 expenses that were eligible for coverage through the SSAH program but were not reimbursed due to the mother’s “failure” to submit eligible receipts and maximize the amount of approved coverage offered through the SSAH program.” That is a significant change in position from “the Respondent lies to the court when she denies subsidy for the pertinent time period” and illustrated the idiom about talking from both sides of his mouth.
[27] Mr. Arbuckle’s position from the beginning is that s. 7 arrears should be set at zero. They were set at $9,000 payable forthwith.
[28] Mr. Arbuckle’s demand for a notarized copy of the children’s SIN cards was meritless. As the Court noted, it is the number that is pertinent. The card itself is redundant. Shannon worked several part time jobs and has ready access to the number. Ms. MacLeod provided the numbers directly during the discussion.
[29] The first paragraph of the Applicant’s draft order provided for immediate delivery of a notarized copy of Shannon’s health card. The fact is Shannon carries her health card on her person and she has been living in the Arbuckle home one half of the time since last year. That Mr. Arbuckle has not procured his own copy directly via Shannon is astonishing and affects the Court’s assessment of the applicant’s sincerity.
[30] Finally, Ms. MacLeod lamented Mr. Arbuckle’s recent cancellations of Erin’s scheduled weekly parenting time. Mr. Arbuckle assigns the cancellations to work demands. Erin took the risk of bridging a lengthy estrangement with her father. She is extremely vulnerable. That she may perceive another abandonment is a dreadful prospect.
[31] Ms. MacLeod from the beginning did not trust Mr. Arbuckle’s sincerity in attempting reunification through counselling. Reluctantly, she proceeded and paid one half of the counselling fees. Obviously, it is better for Erin to enjoy a safe secure relationship with her father. Mr. Arbuckle doesn’t seem to appreciate how important security in their relationship is to Erin.
Principles
[32] Rule 24 provides that the successful party is presumed to costs.
[33] Divided success requires a comparative analysis. Most family cases have multiple issues. Not all issues are equally, time consuming or expensive to determine. A party’s modest success on minor issues does not significantly impact the costs sought by the party who was successful on issues that were the subject of 85% of the hearing. The Court might want to consider:
- How many issues were there?
- How did the issues compare in terms of importance, complexity and time expended?
- Was one party predominantly successful on more of the issues?
- Was either party more responsible for unnecessary legal costs?
[34] Often a party’s position will mutate through the litigation. The Court must consider how, when and why a party’s position changed through the course of the litigation to assess relative success as well as the reasonableness of a party’s behaviour.
Discussion
The Issues
[35] The only contested issue before me related to MCSS subsidy and the assertion of respondent’s double dipping. Ms. MacLeod was compliant.
[36] I undertook case management of the file because it was immediately apparent that as lengthy and pejorative as the applicant’s affidavit content at each attendance the issues were largely abstract, magnified by emotional reasoning and easily resolved through minimal discussion and application of critical thought. As the result the file resolved on a final basis without trial or settlement conference.
Importance and complexity
[37] It was an accounting process.
Success
[38] Mr. Arbuckle met with little success on any of the myriad notional issues raised. He lost on the s. 7 arrears issue. Although Ms. MacLeod dragged her feet engaging in the reunification process out of concern for the applicant’s sincerity in becoming a meaningful part of Erin’s life, she did her part.
Responsibility for increased legal costs
[39] Reference is to the wise words of Justice Kurz in Alsawwah v. Afifi, 2020 ONSC 2883:
104 Family litigation is far too corrosive of once-loving relationships and far too soul destroying for emotionally scarred litigants to be exacerbated by an unnecessary war of invective. Yet far too often that is just what occurs. Litigants feel that they can leave no pejorative stone of personal attack untilled when it comes to their once loved one. Many lawyers, feeling dutybound to fearlessly advocate for their clients, end up abetting them in raising their discord to Chernobyl levels of conflict.
105 Often those parties and their lawyers forget that once the war is over, the financially and emotionally drained family still has to pick up the pieces. And the children whose best interests are ostensibly the central concern of their parents’ struggle, can leave their field of battle scarred for life.
[40] In my view, it was the applicant’s relentless attack on the respondent’s character proliferating through his materials that drove his legal fees. Far better to stick to the facts as known and impose discretion when expressing emotionally driven opinion.
[41] No offers to settle were communicated to the court.
Conclusion
[42] The parties shall bear their own costs.
The Honourable Mr. Justice Rick Leroy
Released: October 18, 2021
COURT FILE NO.: 19-5
DATE: 2021/10/18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
James Jeffrey Arbuckle Applicant
– and –
Angela MacLeod Respondent
costs ruling
The Honourable Mr. Justice Rick Leroy
Released: October 18, 2021