COURT FILE NO.: FC-18-2265
DATE: 22/11/2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SHAWN OREMUSH
Applicant
– and –
DESTINY JANE HICKEY
Respondent
Christian Pilon, for the Applicant
John E. Summers, for the Respondent
HEARD: in writing.
COSTS decision
Audet J.
[1] The trial in this matter was held over 11 days and resulted in a lengthy decision released on October 14, 2021. The main issues to be decided were parenting and child support in relation to the parties’ nine-year-old daughter, Briegha. If the parties were unable to settle the issue of costs, I gave them leave to file written submissions.
[2] The mother is seeking costs in the amount of $65,655.63 comprising of:
Partial indemnity costs in the amount of $4,000 for the work completed prior to the mother’s April 19, 2021 Offer to Settle (totalling $7,627.50[^1]);
Full indemnity costs in the amount of $59,664 for the work completed after the mother’s April 19, 2021 Offer to Settle which included trial preparation and the trial itself;
Full indemnity costs in the amount of $1,991.63 for the work completed after receiving my trial decision (including attempts to settle the issue of costs and the preparation of costs submissions).
[3] The father seeks his costs on a full indemnity basis for the entirety of this proceeding, which amount to $114,575.22.
[4] The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 set out that 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.
[5] Costs can be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice (British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, 2003 S.C.C. 71, paragraph 25).
[6] In my view, neither party is entitled to an award of costs. While I am of the view that the mother should be entitled to her costs for the trial itself, given that she was the successful party and in light of the offers to settle that she made in April and May 2021 to avoid a trial, in the end I conclude that her egregious conduct throughout the course of this proceeding, including during the trial itself, disentitles her to any award of costs at all.
[7] By virtue of my final decision, the mother was awarded sole decision-making responsibility for the child, after a meaningful consultation process is followed, with the exception of certain specific areas restricting her from making unilateral decisions (relocation, change of school and name changes); the father was granted increased parenting time (but not the equal time-sharing that he was seeking as an alternative to his claim for primary care); and the father was required to pay child support arrears in the amount of $9,414 as well as increased ongoing child support.
[8] There is no question that the mother was more successful at trial than the father, particularly in light of the fact that the father changed his position, roughly a month before the trial began (and after three years of litigation), to seek sole-decision making responsibility and primary care of the child. Those were entirely new claims, as all along he had mainly sought to enforce the terms of the existing final order.
[9] Although the mother’s Offer to Settle dated April 19, 2021 was more advantageous to the father than the result he achieved at trial in some respects (the mother was prepared to agree to joint decision-making responsibility and to waive child support entirely), in many ways it fell significantly short of providing the father with all of the safeguards that my final order provided him with to be able to maintain a meaningful relationship with his daughter. The same can be said of the mother’s May 6, 2021 Offer to Settle, even though at that time the mother was offering an equal time-sharing arrangement during the school months (not the summer months), so long as the child was attending school in-person. Nonetheless, at the very least the mother did try to avoid the unnecessary costs of a trial by making meaningful offers which contained real compromises.
[10] However, the mother throughout the course of this entire proceeding, behaved in such an unreasonable manner, and showed such bad faith, that in my view she has disentitled herself from any costs she might have otherwise been entitled to receive. In particular:
This entire litigation was initiated in November 2018 as a result of the mother’s unilateral and wrongful denial of parenting time, in breach of an existing final court order made on consent in 2015. Once parenting time was re-established by this Court in the winter of 2019, the litigation continued to be fueled by the mother’s ongoing interferences in court-ordered parenting time in favour of the father, including one more complete denial of parenting time which lasted for almost six months;
The mother failed to abide by various court orders requiring her to provide documentary disclosure;
The mother made very serious (and false) allegations against the father for the purpose of justifying (after the fact) her breaches of court orders and to support her claims at trial;
The mother lied under oath during the trial;
The mother fabricated evidence to support her claims during the trial;
The mother destroyed evidence during the trial while under a clear court order refraining her from doing so.
[11] The mother’s conduct throughout this proceeding was so egregious, that I was tempted to award some costs to the father to compensate him for the fees incurred in this entire proceeding which would have been entirely avoided, in my view, if the mother had only respected the terms of the 2015 Parenting Order.
[12] However, I find that the father has also behaved unreasonably in ways which also disentitle him from an award of costs. In particular, his decision to amend his pleadings one month before the trial (and after three years of litigation) to seek sole decision-making responsibility and primary care of the child, when the child had been in her mother’s primary care for eight years (almost her entire life), was questionable at best.
[13] Secondly, his failure to make any offer to settle throughout the course of this litigation was not reasonable. His refusal to settle, at the very least, the issue of past child support (which was very simple) and his refusal throughout this proceeding to voluntarily adjust it or to contribute to the child’s special expenses, was unreasonable.
[14] In my October 2021 decision, I found that the father had an “all-of-nothing” approach to this litigation which made matters worst. Less than a year before this trial was held, the mother retained new counsel who extended a hand and made efforts to try and settle the case. Unfortunately, the father (and/or his counsel) completely refused to engage. While I understand that the father may have had legitimate doubts about the mother’s genuineness and/or willingness to follow a new court order reached on consent, he ought to have known that a final order obtained at the end of a full-blown trial would offer no increased guarantee of compliance. From the moment the father amended his pleadings to seek sole decision-making responsibility and primary care of the child, he was firmly entrenched in his position and unwilling to discuss settlement. In those circumstances, he ought to have known that if he was unsuccessful at trial, he would have to cover his own legal fees in full, if not those of the mother’s.
[15] For all the above reasons, I have concluded that it would not be appropriate for me to award costs to the father.
[16] The father was awarded costs at three different court appearances during this litigation ($15,000 by Shelston J. on May 6, 2019; $3,000 by Shelston J. on April 19, 2021; and $1,500 by myself on May 25, 2021). These cost awards remain payable in full by the mother and they may be set-off against any arrears of child support owing by the father to the mother as of October 14, 2021, being the date at which my trial decision was released.
[17] Both parties raised issues in relation to my October 2021 decision; the mother raises the issue as to whether the cost of an educational assessment is considered “therapy” in accordance with my decision, and the father raises an issue in relation to the calculation of his client’s child support arrears. Since these issues appear disputed, I invite the parties to schedule a brief appearance before me to discuss these issues, should they be unable to agree.
Madam Justice Julie Audet
Released: November 22, 2021
COURT FILE NO.: FC-18-2265
DATE: 22/11/2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SHAWN OREMUSH
Applicant
– and –
DESTINY JANE HICKEY
Respondent
CostS decision
Audet J.
Released: November 22, 2021
[^1]: All amounts are inclusive of HST.