Court File and Parties
Court File No.: FC-09-1314-01 Date: 2021-11-04 Superior Court of Justice - Ontario
Re: Rejean Paul Justin Quesnelle, Applicant And: Rachel Marie Todd, Respondent
Before: The Honourable Mr. Justice J.P.L. McDermot
Counsel: Stephen Eaton, for the Applicant Lynn Burgess, for the Respondent
Heard: By Written Submissions
Costs Endorsement
[1] This litigation began in May, 2018 and it mostly involved the Applicant Father’s parenting time to his two daughters, Alina and Ava, who were then 11 and 9 years old. Those children had lived with their mother, the Respondent, since the parties separated in 2009. The Applicant had parenting time under a separation agreement dated April 12, 2010 that included every second weekend from Friday to Sunday. Leading up to the commencement of this litigation and because of resistance to overnight access by the girls, he was not getting the parenting time that he had bargained for.
[2] The father did not only seek the parenting time that he was entitled to under the agreement; he claimed shared parenting and alleged parental alienation. He said that the children should live with him on a shared basis for their protection. The mother said that the girls were fed up with their father’s anger issues and the way they were treated in the father’s residence. The children maintained that they wished to have daytime visits only without overnights and this litigation ensued.
[3] The children’s feel the same today. The matter was settled on the basis of Dan Musselman’s investigative report which reiterated the children’s views and preferences (including their perceptions as to how they were treated during access) and he recommended day visits only unless the children asked for overnights. That was how the matter was settled at the end of the day.
[4] Resolution of this matter was difficult and long and this is reflected in the costs sought by both parties to this matter. The Respondent seeks costs of $50,996.33 (including $10,458.36 for out-of-pocket costs for the costs of the assessment and reunification therapy). The Applicant says that he should be paid $59,988.57 in costs or alternatively, that no costs should be payable by either party.
[5] I agreed to consider the costs of this proceeding when I conducted a settlement conference on April 19, 2021. Several discreet issues including costs could not be settled at the conference, and I referred this matter to a Judicial Dispute Resolution hearing (“JDR”) where the matter was finally settled other than costs.
Result
[6] For the reasons set out below, I have determined that the Applicant shall pay the Respondent $15,000 in costs and $5,000 in disbursements for a total of $20,000, payable within 60 days.
Entitlement
[7] Rule 24(1) provides that costs follow the event: the rule presumes that costs will be awarded to the successful party. There are, however, exceptions that are relevant to the costs issues in this matter: if a successful party has acted unreasonably, then that party may not be entitled to costs or the unsuccessful party may receive costs: r. 24(4) of the Family Court Rules.[^1] As well, if an offer was made by a party which was not accepted, and that party beats his or her offer at the end of the day, then r. 18 mandates that the court order costs in favour of the party making the offer.
[8] Ms. Todd says that these proceedings were a waste of time. She notes that the Applicant Father claimed shared parenting but was left, at the end of the day, with an order that the children have day access only, exactly the position that he was in at the beginning of the litigation. She notes that she now has decision making authority over the children, a step down for the father who had joint custody under the separation agreement. She says that she has expended more than $50,000 in legal fees and expenses as a result of unnecessary litigation instigated by the Applicant and she seeks reimbursement for those costs.
[9] Mr. Quesnelle says that the litigation resulted from the mother’s unreasonable behaviour throughout. He also says success should be reflected by the offers to settle that he made, not the pleadings. He says that he is willing to forego a costs order, but if there is to be an award, he should be paid his costs which are nearly $60,000.
[10] Neither party alleges bad faith behaviour by the other within the meaning of r. 24(8).
[11] Modern costs rules are designed to foster four fundamental purposes:
(1) to partially indemnify successful litigants;
(2) to encourage settlement,
(3) to discourage and sanction inappropriate behaviour by litigants and;
(4) to ensure that cases are dealt with justly under subrule 2(2) of the Family Law Rules.
See: Mattina v. Mattina, 2018 ONCA 867.
[12] Regarding the last criterion, the touchstone for a costs award are the twin goals of reasonableness and proportionality: see Beaver v. Hill, 2018 ONCA 840 and Sambasivam v. Pulendrarajah, 2012 ONCJ 711.
[13] This matter was mostly settled leading up to the JDR hearing. By the time of the settlement conference before me, there were only three discreet matters left outstanding; the children’s autonomy, s. 7 expenses and transportation for parenting time and those were resolved at JDR.
[14] Notwithstanding the fact that the matter was settled, costs may still be addressed and ordered against an unsuccessful party: see Scipione v Scipione, 2015 ONSC 5982.
[15] The issues raised by the parties’ costs submissions are as follows:
a. Who was the successful party (including the effects of the offers to settle)?
b. Was there unreasonable behaviour by either of the parties?
Who Was the Successful Party in this Litigation?
[16] The Respondent says that she was clearly successful in this litigation. She says that the Applicant brought this matter before the court badly, serving both an application and a Notice of Motion which had nearly 30 claims for relief. That motion did not proceed and the parties entered into temporary Minutes of Settlement. Ms. Todd submits that the Applicant requested shared care of the children and in the end, he never even came close.
[17] More importantly, Ms. Todd notes that at the beginning of the litigation, because of the behaviour of Mr. Quesnelle and his wife, the children were already refusing to spend overnights at their father’s home. She says that her position was borne out by the assessment conducted by Daniel Musselman and that pursuant to the final settlement Mr. Quesnelle was still not receiving overnight parenting time and she had final say over major decisions, a step down from the Separation Agreement which gave the parties “joint custody” of the children. She says that the Applicant embarked upon fruitless litigation based upon unsubstantiated allegations of parental alienation and that her position was confirmed by that final result. She says that she was clearly the successful party and that the Applicant should therefore bear her costs in this matter.
[18] Mr. Quesnelle says this litigation was necessary as a result of the Respondent’s refusal of parenting time leading up to the motion. He notes that he made numerous offers to settle which he says were ignored by the Respondent and that the matter was largely settled on the basis of his offer made on August 28, 2020 and that this should be the measure of success in this matter, not the positions of the parties at the beginning of the litigation.
[19] Settlement is a matter of compromise and success is therefore difficult to measure when a matter is resolved by the parties. However, as pointed out by Pazaratz J. in Scipione, the question of “who got what they asked for?” shouldn’t be so complicated [para. 5 and 6].
[20] For these people, as indicated by the costs submissions on the offers made by these parties, the devil was in the details. By the time that the parties had arrived at the Settlement Conference on December 18, 2020, where most matters (but not all) were settled, the parties had each served comprehensive and severable offers to settle after having met with Daniel Musselman, the assessor appointed by the parties. Portions of each party’s offer were included in the final Minutes signed on December 18, 2020.
[21] But those details are not what this litigation was about. The Applicant asked for shared parenting, a substantial change from a lengthy status quo. Notwithstanding eventual agreement (after the assessment) on that major issue, these people were both deeply entrenched. Even though the parties had agreed on primary residence and parenting time early on in November, 2019 (after the assessor had reported his final results to the parties on October 31, 2019), they could not agree on the details. The fact that they needed a hearing before a JDR judge over two or three discreet issues speaks volumes.
[22] The father argues that these details were important as reflected in the terms of his offer to settle which eventually ended up in the final Minutes of Settlement. To determine success, however, the court must, as is often the case in determining costs after a trial, review the issue from the perspective of the major issues before the court rather than reviewing details surrounding the settlement of those issues. There is ample case law to suggest that where success is difficult to determine or allegedly divided, then the court should “award costs to the party who was more successful on an overall global basis” (Jackson v. Mayerle, 2016 ONSC 1556, para. 66 and 67, per Pazaratz J.).
[23] It is clear that in the present case, the major issue concerned the Applicant’s parenting time with the children. He was upset because the parenting time had reduced to daytime visits only and were refusing overnight access and he blamed the Respondent for this. He determined that because of the allegations of “alienation”, that he should have shared care of the children even though there was little or no evidence that this was in the best interests of the children. All of this is clear from his own costs submissions where he blames the Respondent for the parenting time ending in April, 2019 and where he says:
As of March 31, 2018, the children abruptly terminated their access visits with no explanation. Perceiving this as a deliberate act on Ms. Todd's part, and given the total denial of parenting time, the AF had no choice but to resort to the court process resulting in the AF's Motion returnable May 10, 2018.[^2]
[24] If one listens to Daniel Musselman’s assessment, this was not a “deliberate act” by Ms. Todd. This was supported by the fact that she had texted Mr. Quesnelle on April 26, 2018 prior to the commencement of these proceedings:
So ... Alina said she's not going to be able to do the sleep over. She is open to go out for the day but not sleep. Let me know what day(s) you would like to take them out?
You can talk to her today, however, I don't think pressuring her or making her feel bad is going to help at this point. You should try to take them out without the sleepover pressure so she can be comfortable with it again. If you keep refusing the days she will drift further away ... just sayin[^3]
[25] For Mr. Quesnelle to wrongly “perceive” the cessation of visits to be a “deliberate act” resulted in this litigation commencing badly. Commencement of proceedings with a motion prior to a case conference has been discouraged for years by the Family Law Rules unless the motion is urgent: see r. 14(4), (4.2) and Rosen v. Rosen, 2005 CanLII 480 (ON SC), [2005] O.J. No. 62 (S.C.J.). This motion was clearly not sufficiently urgent to proceed without a case conference and litigants are encouraged not to commence proceedings with a motion because it can raise the temperature and acrimony of the proceedings through hostile allegations contained in affidavits. In the present case, there was clearly no good reason to bring the motion considering the texts from Ms. Todd offering day access only and this was exactly what the parties agreed to in the temporary settlement at the motion on May 10, 2021.
[26] Added to this is the fact that the Applicant “upped the ante” by demanding shared care in his application for the purpose of “protective separation”. That claim increased the costs and complexity of this proceeding substantially. The fact that the Applicant was deadly serious about this claim was confirmed by Daniel Musselman’s investigation where the Applicant continued to advocate for shared care of the children notwithstanding clear views and preferences by the girls for exercising day access only. In addition, the Applicant was living in North York and working in Oakville while advocating shared care when the children lived with their mother in Midland, a two hour drive away; when confronted by this impractical position by Mr. Musselman, the Applicant said that he would move to Midland only once he was granted shared care. He later moved to Innisfil, Ontario, still an hour away from the children and their schools and he felt that this would permit shared care even though the children would have still had to spend two hours on the road every day to go to and from school when in his care. This position, eventually abandoned after the assessment, was driving much of this litigation leading up to the investigation.
[27] In addition, according to the investigation conducted by Daniel Musselman, the Applicant was largely responsible for the children’s views regarding overnight parenting time. Mr. Musselman, after extensively interviewing the children and the parties (as well as the parties’ collaterals), concluded that the children’s views and preferences were independent and largely based upon treatment that they received from the Applicant and his wife.
[28] Therefore, on the essential issue as outlined in the text message of the Respondent sent on April 26, 2018, prior to the commencement of these proceedings, there has been no change on the Applicant’s parenting time, the major issue before the court. The offers, all of which were attempts to negotiate the details of the parenting plan, were supplementary to that major issue which was settled early on. The Applicant brought these proceedings to substantially change that parenting time without any basis in fact. It is therefore difficult to justify why he should not pay the Respondent’s costs of responding to those proceedings.
Offers to Settle
[29] One justification for the Respondent to pay the Applicant’s costs arises, according to Mr. Quesnelle, from the offers to settle made by him throughout the proceedings.
[30] According to the Applicant Father’s costs submissions, he made seven offers to settle. Four of those were on specific issues or motions brought by him in the proceedings; they are not relevant to the final settlement in this matter. However, he says he made two comprehensive or “global” offers to settle, all of which were severable. These offers were dated November 11, 2019 and August 28, 2020. Most issues were settled on December 18, 2020 at the Settlement Conference and then Mr. Quesnelle finally served an offer dated May 10, 2021 in advance of the JDR concerning what he says were the remaining outstanding issues (children’s autonomy and summer parenting time).[^4]
[31] Mr. Quesnelle acknowledges that Ms. Todd made two offers which were in response to the offers made on November 11, 2019 and August 28, 2020. He says that these offers were confused and lacked clarity as to which provisions were being accepted and which were not. They actually appear to be responses or counter-offers to the Applicant’s offers dated November 11, 2019 and August 28, 2020 and they were obviously prepared by Ms. Todd when she was unrepresented by counsel.
[32] There was a final offer prepared by counsel and made by the Respondent Mother on December 15, 2020. The matter was largely settled three days later by final Minutes of Settlement filed at the Settlement Conference (I did little on that day as my endorsement says that the conference was not held).
[33] Each party says that their respective final offers prevailed at the December 18 Settlement Conference. However, that assertion is not black and white for either side as elements of each parties’ offers were incorporated into the Minutes signed that day. For example, in his costs submissions, the Applicant Father says that his offer prevailed regarding joint decision making. That is misleading, as the final order provided for a right of consultation, with the mother having the ultimate right to make the final decision in the event of disagreement, a provision in her offer. A second example is mobility: the Applicant Father offered that the mother be restricted from moving more than 85 kilometers from Base Borden and he notes that the final order provided that she could only move outside that radius upon giving 60 days’ notice. Mr. Quesnelle fails to mention that the 60 days’ notice clause was contained in the Respondent Mother’s offer.
[34] In Beaver v. Hill, supra, Nordheimer J.A. says that an offer to settle, to affect an award of costs, must “contain a true element of compromise” [para. 15]. Here the parties went beyond that maxim. It is apparent to me that the parties negotiated the terms of the December 18 minutes through their various exchanges of their respective offers. In fact, one can follow the progress of the litigation and the parties’ negotiations through a review of the Applicant’s offers to settle and the Respondent’s response to those offers.
[35] It is telling that the first comprehensive offer by the Applicant was made on November 11, 2019 after Dan Musselman had announced the final results of his investigation to the parties on October 31 of that year. Prior to this, Mr. Quesnelle was earnest in his claim for shared custody of the children but once he knew that this was impossible, he began to make offers. Those offers confirmed that primary residence would remain with the Respondent and that the Applicant’s parenting time would not, for now, include overnights. Those were, as noted above, the primary issues in this litigation; the remainder were details arising from that parenting arrangement as well as financial issues.
[36] The Respondent’s “offer” made on November 24, 2019 purports to address the specific clauses in the Applicant’s November 11 offer. It was produced by the Respondent while unrepresented and was a counter-offer responding to the Applicant’s offer and it is clearly an attempt by her to negotiate an agreement. It is unknown what happened to that response or whether it was the basis for subsequent discussions between the Respondent and the Applicant. I note that the Respondent had stated on November 24 that she agreed with para. 10, 14 and 16 of the Applicant’s offer and that might have been the basis for a final agreement on those points alone as the Applicant had served a fully severable offer. It does not appear that the Applicant took that position.
[37] Again, when the Applicant made an offer on August 28, 2021, the Respondent sent a response to his offer.[^5] Again, it is apparent that this document was prepared by the Respondent as an unrepresented litigant. And again, the Respondent agrees to certain clauses which, as a response to a fully severable offer, could have formed the basis for an agreement on those points (para. 1, 2, 23, 30, 31 and 34). It is again unknown whether discussions ensued as a result of the offer and counter-offer or whether Minutes prepared concerning the portions of the Applicant’s offer that were accepted by the Respondent in her response.
[38] The Applicant says in his costs submissions that the responses by the Respondent were confusing and incomplete. I disagree. It was apparent to me in both instances what the Respondent was and wasn’t willing to agree to, and she also counter-proposed on certain of the clauses she did not agree to. Again, I reiterate that it is unknown whether anyone picked up the phone to discuss these issues with the Respondent.
[39] The Respondent made a final formal offer to settle on December 14, 2020, prior to the December 18 Settlement Conference. This again responded to the Applicant’s November 11, 2020 Offer to Settle. From reviewing the costs submissions, the two offers to settle and the final Minutes signed at the Settlement Conference, it is impossible to determine whose offer “carried the day”. It is also apparent that the two offers, that of August 11, 2020 and that of December 14, 2020, were offers made by both parties with the intent of negotiating a final agreement. The parties negotiated the terms of a settlement with reference to the two offers. It is impossible to determine whether one party or the other prevailed based upon the two offers that were submitted.
[40] Therefore, even though the offers were severable, there is no basis for making a costs award under r. 18(14) of the Family Law Rules. Firstly, portions of the offer were accepted by the Respondent as noted above and r.18(14)4 does not apply. As well, it is impossible to determine whether either party obtained “an order that is as favourable as or more favourable than the offer” within the meaning of r. 18(14)5. For the same reason, I cannot determine whether to take either offer into account under r. 18(16). Based upon the offers and the results both at the December 18 Settlement Conference and the JDR, success was truly divided.
[41] Even if I could determine whose offer prevailed, I disagree with the Applicant’s position that only the offers, and not the positions of the parties as reflected by the pleadings, take precedence in determining costs. In taking that position, Applicant’s counsel relies upon O’Brien v. O’Brien, [2009] O.J. No. 5149 (S.C.J.).
[42] In that case, a cohabitation agreement gave the applicant wife a one-half interest in any home owned jointly by the parties. The respondent in that case changed his mind and refused to comply with the agreement, resulting in the applicant commencing the proceedings for equalization. The matter was settled prior to trial subject to costs: each party claimed more than $100,000 in costs.
[43] It is correct that Justice G.E. Taylor in that case declined to go behind the terms of the settlement and determined that the “most important factor in determining both entitlement to and quantum of costs is the reasonableness and timeliness of the parties’ respective settlement offers” [para. 9]. However, in saying this, Taylor J. was commenting, not on the initial position of the parties, but on the allegations by the respondent husband in that case of unreasonable behaviour on the part of the applicant wife.
[44] In fact, the ratio of O’Brien is actually closer to the position of the Respondent than that of the Applicant as reflected by the following statement of Taylor J. [at para. 21]:
I therefore conclude that the applicant is entitled to costs of this proceeding. She was required to commence this Application because of the position of the respondent on a number of issues. The ultimate settlement indicates that she was justified in commencing the Application.
[45] In other words, where the applicant in that case had to commence proceedings because of the respondent’s unreasonable position at the commencement of the proceedings, she was entitled to the costs of those proceedings. The present case is similar as the Respondent was forced to respond to unreasonable claims being made by the Applicant.
[46] And in any event, the present case is distinguishable from O’Brien. In that case, the court found that “the final settlement was much closer to the settlement position of the applicant than to that of the respondent” [para. 11]. That is not the situation in the present case as the parties’ fundamental positions were both similar to the recommendations of the assessor. It was the details that they could not agree upon. And neither party can say that their position as reflected in the offers (or the responses to the offers) were substantially closer to that of the other to the final result.
[47] Atkinson v. Houpt, 2017 ONCJ 316, also a case cited by the Applicant, is actually much closer to the present case. In that case, the father of the children lived in Picton while the children lived in Toronto. He claimed shared care of the children, and said that he would maintain an apartment in Toronto where he would reside during his parenting time. The OCL recommended that the mother have sole custody of the children subject to weekend access to the father.
[48] O’Connell J. did say that the offers were important in determining the successful party, but again this was in the context of allegations of unreasonable behaviour, which she described as secondary to the issue of success. Describing the settlement as a “capitulation” by the father, and describing his demand for shared care as “unrealistic”, O’Connell J. determined that litigation success should be measured against the originating pleadings:
The mother was entirely successful in this litigation, which was commenced by the father. In the Final Minutes of Settlement, the mother obtained even greater relief than what she had sought in her answer and amended answer to the father's application. The father's parenting time was decreased. The mother was granted sole custody. The father's application to reduce his child support also failed, and child support was in fact increased. [para. 47]
[49] That is similar to the present case where the father’s position deteriorated as a result of this proceeding.
[50] The offers therefore do not affect my determination above, which is that ultimately the parties litigated unreasonable requests made in the Application over the course of three years, and nothing really changed in the end. Neither party’s offer was demonstrably closer to the final result than the others. Ultimately the Respondent was the successful party in this litigation and she is, prima facie, entitled to her costs of this proceeding.
Was There Unreasonable Behaviour on the Part of the Respondent?
[51] Even if the Respondent is seen as being the successful party in this matter, Mr. Quesnell suggests that she be deprived of costs because of her unreasonable behaviour.
[52] Under r. 24(4), a successful party can be deprived of costs or ordered to pay the losing party’s costs where his or her behaviour is found to be unreasonable. See also Berta v. Berta, 2015 ONCA 918.
[53] Mr. Quesnelle says that the Respondent’s behaviour was unreasonable on a number of fronts. He says that she arbitrarily terminated parenting time to the Applicant leading to the commencement of this litigation and later unreasonably withheld parenting time during the initial outbreak of COVID. He also says that she failed to make financial disclosure on a timely basis. He complains that the mother failed to agree to an alternative dispute resolution process, such as a collaborative process or mediation, which would have avoided this litigation. Finally, Mr. Quesnelle says that the mother failed to respond to his offers on a timely basis, necessitating continued litigation.
[54] The Respondent’s behaviour was, at times, unreasonable. It is less than clear, however, that all of the Applicant’s allegations of unreasonable behaviour are completely accurate. For example, in response to the suggestion that the Respondent terminated parenting time at the commencement of proceedings is incorrect as the Respondent had, as noted above, previously texted the Applicant about the children’s hesitancy in attending overnight access. Based on the messages, it appears that the Applicant was willing to accept nothing less than overnight access.
[55] Regarding the complaint that Ms. Todd was unwilling to enter into mediation or a collaborative process, it must be remembered that the Applicant was claiming shared parenting to children who did not even want to see him for overnights and where the parties lived hours away from each other. There is little point in entering into mediation or ADR when there is no possibility of agreement because the parties are immovable and far apart. This was the case up until November, 2019 as, until then, the Applicant was seriously pursuing a shared custody claim through two assessments with Daniel Musselman and there was therefore little to discuss. This lack of common ground is confirmed by the fact that the Applicant made no comprehensive offer to settle until there was a possible agreement based upon the assessor’s recommendations and his capitulation on the issue of shared care.
[56] As well, the suggestion[^6] that the litigation might have been at an early end had the Respondent responded on a timely basis to the Applicant’s offer of November 11, 2019 is demonstrably false: In fact, the Respondent, although unrepresented, did respond on November 26, 2019 to that offer as indicated by the Applicant’s own costs submissions[^7] with a counter-offer which accepted several of the severable clauses in the Applicant’s offer.
[57] There was also unreasonable behaviour on the part of the Applicant. He began this proceeding seeking shared care of the children, groundlessly claiming that the Respondent was “aliening (sic.) the Children from him through numerous inappropriate and concerning actions that have taken place over the years”.[^8] In fact, the assessor found that the children did not want to go on overnights with the Applicant because of his own actions and eventually the actions of his wife. Daniel Musselman writes that,
Ms. Todd has supported Mr. Quesnelle's relationship with the children despite his poor parenting decisions, talking negatively to the children about her, his negative reactions to her efforts to inform him and help him understand the children's concerns, his angry outbursts towards her and hurtful words, and for all her efforts Mr. Quesnelle accuses her of alienating the children from him and threatens to remove the children from her care. Mr. Quesnelle's relationship issues with the children have been the result of his own behaviour and attitude towards the children and their mother.[^9]
[58] It is also clear that the Applicant’s claim for shared custody of the children was unreasonable, considering that the Applicant lived in another municipality two hours away from the Respondent and the children. He said that if he was granted shared care, he would move closer, but Mr. Musselman’s response to this was clear:
This line of thought clearly demonstrated Mr. Quesnelle's lack of commitment to his plan, to increasing his involvement with the children, and what he reported he believed was best for the children. If he believed that he would need to reside closer to the children to make his plan work, and be more involved in the children's daily lives, why would he not have done so already? Instead, based on his choices, he continued to reside at a distance that did not support shared care. This Assessor has no choice but to acknowledge that his current choice of residence does not support his plan for a shared care arrangement. His current choice of residence only supports his role as an access parent.[^10]
[59] In his costs submission, the Applicant says that he was not really serious about claiming shared custody of the children but only did so “just in case”. He claimed that the litigation process was at fault, stating that “If there is blame, it would more likely lie at the feet of our adversarial system which compels litigants to take harsh positions early on without the benefit of a complete picture.”[^11] He said that he would only have pushed the issue had the assessment shown parental alienation.
[60] This statement was misleading at best, and disingenuous at worst. Mr. Quesnelle claimed that there was parental alienation in his Application, a claim that Ms. Todd had to respond to in her Answer. The assessment makes it apparent that Mr. Quesnelle was deadly serious about his claims for shared care and parental alienation; otherwise, why would Daniel Musselman have spent so much time addressing that issue? In addition, Mr. Quesnelle contributed to the adversarial nature of the justice system by bringing a motion prior to a case conference without any demonstrable urgency to that motion within the Rosen criteria. Mr. Quesnelle blames Ms. Todd for protracting this litigation; however, the litigation was his responsibility alone and he began this litigation badly and aggressively.
[61] The Respondent may have behaved unreasonably in this litigation at times, but so did the Applicant. And in the present case, the Applicant’s claim for shared care and his claims of parental alienation were without foundation and ill-founded. The refusal of the Respondent to enter into mediation or other ADR is understandable when confronting claims which reflected some sort of alternate reality considering the children’s views and preferences and the distance that the Applicant lived from the children’s home and school. Where the Applicant himself acted unreasonably and aggressively in the case, he cannot complain about unreasonable behaviour on the part of his opponent.
[62] I do not find there to be unreasonable behaviour on the part of the Respondent which would displace her entitlement to the costs of this proceeding.
Result
[63] I therefore find that the Respondent was the successful party in this litigation considering the claims made by the Applicant and based upon the Applicant’s eventual capitulation. The offers to settle do not clearly reflect success by either party and I am left with the pleadings and the situation at the beginning and at the end of the litigation to measure success. I also take into account the fact that the Respondent was unrepresented when responding to the Applicant’s offers to settle; however, contrary to the suggestions of the Applicant in his costs submissions, she did respond. And the way that the Applicant proceeded with the litigation, with a non-urgent and aggressive motion prior to a case conference and in pressing unreasonable and unfounded claims, constituted unreasonable litigation behaviour especially when the Respondent had approached the Applicant regarding the children’s hesitancy in attending parenting time just a month prior. The assessor found that this hesitancy was the responsibility of the Applicant himself, and had nothing to do with alienating behaviour.
[64] I therefore find that the Respondent is entitled to her costs of this proceeding.
Quantum of Costs
[65] Costs are based upon the factors set out in subrule 24(12) of the rules which reads as follows:
24(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 r. 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.
[66] The Respondent Mother claims full recovery costs of $50,996. Of this, $10,458.36 was her share of the assessment and reconciliation therapy. The remaining amount, $40,537.97, is for legal fees and disbursements.
[67] In his costs submissions, the Applicant complains about the Respondent having been unrepresented throughout portions of this proceeding, something that he says cost him money in legal fees and disbursements. However, based upon the Respondent’s costs submissions, that has actually saved him some money: None of the Respondent’s costs while self-represented are being claimed although she could have done so as an unrepresented litigant: see, for example, Fong v. Chan 1999 CanLII 2052 (ON CA), [1999] O.J. No. 4600 (C.A.), Izyuk v. Bilousov, 2011 ONSC 7476 and Browne v. Cerasa, 2018 ONSC 2242.
[68] Full recovery costs are the exception rather than the rule. They are only granted where good reason is given for full recovery, such as beating the terms of an offer to settle under r. 18 or bad faith behaviour under r. 24(8). Nothing of that nature is present here.
[69] There was unreasonable behaviour on the part of the Applicant, a fact to be taken into account under r. 24(12). However, his capitulation once the assessor weighed in and his subsequent offers are also relevant to the costs award. Justice O’Connell in Atkinson v. Haupt, supra, took this approach, only awarding costs for the period of time that the father took an unreasonable position of shared parenting when living in another community; once the assessor’s report came in, the father became “reasonable” and no costs were assessed thereafter.
[70] As well, the Respondent also indulged in unreasonable behaviour regarding disclosure and regarding her refusal to provide parenting time during COVID.
[71] There is therefore no compelling reason to award full recovery costs in this matter.
[72] Regarding the costs of the assessment and reunification therapy ($10,458.36), there were no invoices or statements outlining the details of this expense. The Respondent is entitled to reimbursement for the assessment as this is a disbursement concerning the litigation. In her costs submissions, Ms. Todd says that she provided $8,000 to the assessor for preparation of the report[^12] and Mr. Quesnelle complains of her delay in paying the initial retainer of $4,000 to the assessor, so I know that the disbursement was incurred. There is, however, no breakdown of the amount that she claims. I have no specifics regarding the costs of the reunification therapy and, because the therapy is for the benefit of the children, I would have thought that this was a s. 7 expense which was settled at the JDR.
[73] I note that the Applicant’s costs of the assessment were not claimed in his Bill of Costs.
[74] I also have concerns about the quantum of the costs claimed. For example, in the Bill of Costs, Ms. Burgess claims 15.5 hours of preparation time for the JDR plus 6 hours of her law clerk’s time. That strikes me as excessive for a one day hearing, where a good portion is spent in a conference prior to the hearing and oral examination of the parties is limited. It is also concerning that Ms. Burgess claimed 3 hours for preparation of a case conference brief in July, 2018 when the endorsement of Olah J. dated July 24, 2018 states that no brief was filed or made available to her by the Respondent; the brief prepared on behalf of the Respondent was apparently not provided to the court.
[75] I find Ms. Burgess’ hourly rate and that of her law clerk appropriate considering Ms. Burgess’ seniority and the nature of the work, including the fact that she was forced to come in and out of the file by the Respondent. Those increased costs are, however, the responsibility of the Respondent and not the Applicant.
[76] However, assessment of the amount of costs is not merely a mathematical calculation: see Delellis v. Delellis, 2005 CanLII 36447 (ON SC), [2005] O.J. No. 4345 (S.C.J.). That case confirms that the court must fix an amount that is “fair and reasonable” under all of the circumstances: see also Farjad-Tehrani v. Karimpour 2009 CarswellOnt 2186 (S.C.J.) at para. 32, as aff’d by 2010 ONCA 326 at para. 4.
[77] Proportionality is obviously important to this process: see Beaver v. Hill, supra. In the present case, the Applicant was seeking to change a long-term status quo without justification. In addition, once the parties had finally settled the issues of primary residence and parenting time, they were still unable to agree on issues of the children’s autonomy, transportation and s. 7 expenses. At least one of those issues if not more had to be addressed by a ruling by Wildman J. at the JDR and it appears, based upon the offer made by the Applicant, that success was divided at the JDR.
[78] I therefore discount the Applicant’s claim for costs for the JDR.
[79] I therefore allow the Respondent her costs of this proceeding in the amount of $15,000 plus an additional $5,000 towards her contribution towards the assessment. Therefore, the Applicant shall have her costs of this proceeding fixed in the total amount of $20,000 inclusive of HST and disbursements. Those costs are payable within 60 days.
McDermot J.
Date: November 4, 2021
[^1]: O. Reg. 114/99.
[^2]: Applicant’s Cost Submissions, para. 12.
[^3]: Respondent’s costs submissions dated July 14, 2021, Tab G.
[^4]: I note that only one of the issues in this offer was conferenced by me on April 19, 2021 and then sent to JDR, which was the age of the children’s autonomy. According to my endorsement, I did not appear to conference summer parenting time. The offer says that the children would not have autonomy concerning their parenting time with their father at any age while the parties agreed at JDR to the children having autonomy over their visits with their father at age 16. The other issues conferenced by me and sent to JDR, s. 7 expenses and parenting time transportation, were not mentioned in the May 10 offer.
[^5]: Found at Tab 47 of the Applicant Father’s Costs Submissions. In his costs submissions, the Applicant says that there was no response to his August 28, 2020 offer; however, the document at Tab 47 seems to be just that: a response to the August 28 offer.
[^6]: At paragraph 82 of the Applicant’s costs submissions.
[^7]: See paragraph 65(a) to the Applicant’s costs submissions and Tab 46 attached to those submissions.
[^8]: Application at Tab 1 of the Continuing Record, Para. 6 under the heading “Important Facts Supporting my Other Claims”.
[^9]: Assessment of Daniel Musselman found at Tab N to the Respondent’s costs submissions, p. 41.
[^10]: Ibid., pp. 39 – 40.
[^11]: Applicant’s costs submissions, para. 18.
[^12]: See para. 41 of the Respondent’s Offer to Settle dated December 15, 2021.