COURT FILE NO.: FC-17-1670

DATE: 2021/11/05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Roberta Miller

Applicant

– and –

Charles Scott Alexander Miller

Respondent

Odette Rwigamba, Counsel for the Applicant

Alison Southern, Counsel for the Respondent

HEARD: In Writing

ENDORSEmeNt on COSTS

Justice Engelking

Background

1A trial was held from February 3 to 7, 2020. My decision was released on February 10, 2020. In it, I did not make a final order as to parenting but put a temporary order in place and required the parties to return before me for an update/continuation on June 16, 2020. The June 16, 2020 date did not occur as a hearing due to the disruption of the COVID-19 pandemic. However, a case conference was held on that date. There was also a motion regarding the appropriate school program for Shelby held on August 25, 2020 and a further case conference on August 26, 2020. As the issues of decision-making authority and parenting time remained outstanding as of that date, a further two days of trial were scheduled, which were to occur on November 3 and 4, 2020. By Minutes of Settlement dated October 9, 2020, the parties resolved all outstanding issues with the exception of costs from the original trial. At paragraph 30 of the Minutes, the parties agreed that there would be “no costs payable commencing February 11, 2020, with the exception of costs that have already been ordered by the Court during this time.”

2The parties agreed to provide written submissions to the court regarding the issue of costs prior to February 11, 2020 and have done so. This is my decision on those costs.

3Mr. Miller seeks an order for costs of $110,000, on a full indemnity basis. He submits that he was the successful party at trial, and is, therefore, presumptively entitled to an order for costs, that he made reasonable offers to settle and Ms. Miller acted unreasonably.

4Mr. Miller sought to have Ms. Miller’s income imputed to at least $55,000, a finding that her behaviour constituted parental alienation, an order of sole custody of the children with no contact with Ms. Miller for a period of six months, with the reunification counsellor, Victoria Hasbani, to then determine the appropriate changes to parenting arrangements.

5Ms. Miller sought an order of sole custody of the children, with primary parenting time with her and time with Mr. Miller as her sole discretion, which she then changed at trial to scheduled time with Mr. Miller. Ms. Miller also sought a finding that her income for support purposes would be her Line 150 CRA income (approximately $35,000).

6I found that Ms. Miller’s income for support purposes was to be imputed to $50,000, and that her behaviour did constitute parental alienation, but that the children were to remain in her temporary primary care with specified parenting time with Mr. Miller to be reviewed at a later date.

7Mr. Miller was, thus, successful in having income imputed to Ms. Miller, but for a slightly lesser amount than he sought, and entirely successful in obtaining a finding that Ms. Miller was alienating the children from him.

8He was also partially successful on the issue of decision-making. Although he did not obtain an order of sole custody (or decision-making authority) at trial, he has only sought that relief as a result of and to remedy Ms. Miller’s alienating behaviour. In his Amended pleadings of November 2019, Mr. Miller sought a reviewable order for sole custody, with sole care of the children and no contact with Ms. Miller for six months. Mr. Miller submits that his ultimate goal was to obtain/maintain shared decision-making authority with Ms. Miller, which I ordered pending the continuation of the trial. Mr. Miller was not successful, however, in obtaining the order he sought at trial, which was for sole custody and exclusive parenting time.

9Until he amended his pleadings in November of 2019, Mr. Miller also sought parenting time on alternate weekends and holidays. His position at trial was that he would ideally like shared parenting time with the children. But, again, what he sought at trial was exclusive parenting time with the girls for at least six months, to then be adjusted to include Ms. Miller. He was, thus, not successful in either obtaining an order for exclusive parenting time or for shared parenting time.

10Mr. Miller served several Offers to Settle on Ms. Miller. The financial issues (but for child support and section 7 expenses) were resolved between the parties along the way, so I have not referred to them in my review of the offers. The first Offer to Settle from Mr. Miller was made by way of a letter from his counsel dated September 28, 2017, prior to the commencement of the proceedings, in which he proposed shared custody and parenting time for him every second weekend from Friday at 5:30 p.m. to Monday morning, one overnight per week and shared holiday time, with Mr. Miller paying child support to Ms. Miller and proportionate sharing of s.7 expenses. Although this offer was by way of letter from Mr. Clayton, it was signed by Mr. Miller.

11Mr. Miller’s next Offer to Settle was dated January 31, 2018. Again, he proposed shared custody, access every second weekend and one overnight a week, as well as two consecutive weeks of summer holidays each with other holidays to be shared. Again, child support would be payable by him and s. 7 expenses would be shared proportionately.

12Mr. Miller’s third offer was dated January 4, 2019 and it contained reduced parenting time for him to every Sunday from 10:00 a.m. to 6:00 p.m. for six weeks to be followed by access every second weekend from Saturday at 10:00 a.m. to Sunday at 6:00 p.m. and a specified holiday schedule.

13Mr. Miller’s fourth Offer to Settle was dated October 17, 2019 and contained four severable parts. It revoked all previous offers made by Mr. Miller. It did not deal with the issues of custody (decision-making authority) or access (parenting time), but again, Mr. Miller was to pay child support in accordance with his annual income and s. 7 expenses were proposed to be split on a 40/60% basis.

14Mr. Miller’s next offer of November 24, 2019 amended the s.7 division of expenses to 35/65% basis. It also revoked his previous offers. His offer of December 16, 2019 revoked previous offers with respect to child support, and proposed a set off amount of if the children were going to be in his care 40% of the time or more.

15Mr. Miller’s seventh Offer to Settle dated January 10, 2020, revoked all previous offers made by him. It was a three-part, severable offer. In it, Mr. Miller proposed that Ms. Miller’s annual income be imputed to $50,000. He also proposed that he would have sole decision-making authority for the children, who would reside with him with no contact with Ms. Miller for a minimum of two months, after which her parenting time might resume in a supervised setting, depending on the recommendations of a reunification counsellor.

16Mr. Miller’s eighth (and final) offer dated January 24, 2021 was similar to the seventh, but with amended wording regarding decision-making while the children were in his sole care. It also revoked all previous offers made by Mr. Miller.

17It is Mr. Miller’s position that he is entitled to costs on a full recovery basis from the date of his first offer of September 28, 2017, as my order was as or more favourable to him on the issues of decision-making and parenting time than his offer, which he submits that I am entitled to consider pursuant to Rule 18(16) of the Family Law Rules¹.

18However, Rule 18(14) paragraph 3, provides that a party is entitled to full recovery costs from the date of an offer, unless the court orders otherwise, if “the offer does not expire and is not withdrawn before the hearing starts”. All previous offers of Mr. Miller were revoked by him upon serving subsequent offers. The only offer in effect at the time of trial was his eight and final one, and the outcome of the trial was less favourable to Mr. Miller in relation to decision-making authority and parenting time than was this offer.

19Having said that, Mr. Miller submits that Ms. Miller acted in bad faith, or alternatively, unreasonably as per Rule 24(5) of the Family Law Rules, which provides:

24(5) In deciding whether a party has behaved unreasonably, the court shall examine,

(a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle,

(b) the reasonableness of any offer the party made; and

(c) any offer the party withdrew or failed to accept. –Rule 24(5).

20Ms. Miller’s position is that she was the more successful of the two parties at trial, in that the children remained in her primary care with continuing work with the reconciliation counsellor and increasing access to Mr. Miller. She submits, moreover, that she provided an Offer to Settle to Mr. Miller dated January 22, 2020 which for joint-decision making but for the final decision to rest with her if an agreement was not reached, primary residence of the children to remain with her and access to Mr. Miller every second weekend and every Wednesday from after school until 6:30 p.m., along with specified holiday access. Ms. Miller submits that, but for the issue of the imputation of income to her, her offer was as favourable to Mr. Miller as was the outcome of the trial. Ms. Miller initially claimed that she is entitled to full indemnity costs of $22,148.28, or in the alternative, cost on a partial indemnity basis in the amount of $14,64.28. In response to Mr. Miller’s submissions, she latter revised that to $96,579.00 on a full indemnity basis or $63,742.14 on a partial indemnity basis.

The Law

The Law

21The Ontario Court of Appeal has held that the Family Law Rules on costs are “designed to foster three fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement, and; (3) to discourage and sanction inappropriate behaviour by litigants.”²

22Rule 24(12) of the Rules sets out a list of factors the court shall consider in determining an appropriate amount of costs, including that there be reasonableness and proportionality in any costs award.³ Factors to be considered include each parties’ behaviour, their time spent, any offers to settle, legal fees, expert witness fees and any other properly paid expenses.⁴ Rule 18(14) provides that there are cost consequences to not accepting an offer if the criteria in that rule are met.⁵

Analysis

Analysis

23While it may seem on the face of it that the outcome of the trial was as or more favourable to Ms. Miller than her Offer to Settle of January 22, 2020, or that she was the more successful party at trial because the children remained in her primary care, that is not the case. Indeed, as I indicated in my trial decision, I found Ms. Miller to have alienated the children, in particular the older child, E., from Mr. Miller. Ms. Miller’s offer was of little value to Mr. Miller if she was, by her words and deeds, preventing the children from having a meaningful relationship with him to that point. As I found in my decision at paragraph 77: “These were simply parents who separated and needed to make sensible arrangements for their children.” It was Ms. Miller who prevented that from happening, for four years. Indeed, it was because of Ms. Miller’s actions that I made only a temporary order on the parenting issues. I indicated at paragraph 75 of my decision that the parties would be required to appear before me in four months time to review the progress made, “and in particular whether R.’s narrative has changed, and I will make a determination at that time as to whether a change of custody may be in the best interests of the children pursuant to Section 16 of the Divorce Act⁶.”

24Based on the findings I made at trial, Ms. Miller’s behaviour “in relation to the issues from the time they arose” was unreasonable. Mr. Miller ought not to have had to go to trial to obtain parenting time with his daughters; and it ought not to have taken four years to happen. As I indicated in my decision, Mr. Miller’s passivity contributed to the time it took, but it was Ms. Miller’s behaviours which necessitated the hearing. Because of her superficial compliance with court orders to that date, moreover, which I found as a fact in the trial, her Offer to Settle without the assurance of any follow through would have been of little comfort or value to Mr. Miller.

25Costs are an exercise of discretion, and I exercise mine to find that Mr. Miller is entitled to an order of costs for the trial. This is in keeping with the purposes outlined by the Court of Appeal in Mattina, particularly to foster settlement and to sanction inappropriate behaviour. When considered in their fullness, the parties’ costs are comparative ($110,000 for Mr. Miller to $96,000 for Ms. Miller). Averaging them out and awarding them on a partial indemnity basis would lead to an outcome of approximately $60,000.

26I, therefore, order Ms. Miller to pay costs to Mr. Miller in the sum of $60,000 inclusive of HST and disbursements for the trial of this matter. Such costs shall be paid within 60 days of today unless the parties otherwise agree on a payment schedule in writing for Ms. Miller to pay them over time.

Engelking J.

Footnotes

1. 1O. Reg. 114/99 as am
2. 2Mattina v. Mattina, 2018 ONCA 867, paragraph 10
3. 3Rule 24(12), Family Law Rules, O.Reg. 114/99, as am.
4. 4Ibid.
5. 5A party is entitled to costs on a full recovery basis if the offer was made at least one day before the motion, did not expire or was not withdrawn, is not accepted and the order made is as or more favorable than the offer.
6. 6R.S.C. 1985, c.3 (2nd Supp), as am.