Court File and Parties
Court File No.: FC-17-2045 Date: 2022/02/15 Superior Court of Justice - Ontario
Re: Susan Patricia Pickard, Applicant -and- Geoffrey Arthur Wood, Respondent
Before: Anne London-Weinstein J.
Counsel: Katherine Cooligan, for the Applicant Respondent, Self - Represented
Heard: In Writing
Costs Endorsement
1A motion for contempt was scheduled to be heard on December 10, 2020. The matter was adjourned at the request of the Applicant to February 8, 2021. On February 8, 2021, the Respondent, who was the moving party on the contempt motion, did not attend the motion. The mother brought a motion seeking substantial indemnity costs in the amount of $44,732.89.
2A brief review of the history of this matter is necessary for context.
3The parties, when married, lived in Bracebridge, Ontario. After the parties separated, the two children lived with the mother and spent weekends with their father due to his work schedule as a trucker. Shortly after the separation, the mother brought an application for custody and for permission to move with the two girls to Ottawa for employment purposes.
4At the conclusion of the trial, Justice Bale ordered joint custody and permitted the mother to move to Ottawa with the children. The father was granted access and the girls had parenting time with their father on alternating weekends, and for two weeks each year in July and August. Christmas vacation and March break were split evenly.
5The father had parenting time with the children at his home in Bracebridge, which is about five hours away from the girls’ home in Ottawa. The girls spent ten hours in the car on access weekends between Friday at 6:00 p.m. and Sunday at 6:00 p.m.
6Since the mother’s move to Ottawa, the girls have become teenagers. They have their own activities and friends.
7The girls’ reluctance to travel to Bracebridge to see their father and an erosion in the communication between the parties led the Applicant to bring a Motion to Change the 2014 Final Order of Justice Bale. She sought sole custody of the girls and an order that parenting time to the father be on a “to be determined” basis. The father responded by bringing a motion seeking sole custody of the children.
8The parties attended a case conference on March 2, 2018. The Office of the Children’s Lawyer (“OCL”) was requested. The mother was granted permission to bring a motion on an expedited basis to suspend the father’s parenting time.
9The mother brought that motion in April of 2018. The motion material alleged emotional abuse and yelling by the father, his partner, and his mother. The matter was adjourned to permit the father time to retain counsel and respond.
10Ms. Ahmad-Yousef was appointed to conduct a series of interviews with the mother, father, children and interested third parties. She was assisted by Janet Claridge, an OCL clinician. Disclosure was provided on October 29, 2019.
11The children continued to see their father. However, on June 5, 2020 one of the girls, MW, disclosed physical abuse by her father to her psychologist Dr. Nedecheva. She alleged that her father grabbed, pushed, shoved, and hit her. Dr. Nedecheva contacted the Children’s Aid Society (“CAS”). On June 8, 2020, the CAS opened an investigation into the allegations.
12The Ontario Provincial Police (“OPP”) then opened an investigation into the allegations. No charges were laid. Dr. Nedecheva indicated that one of the girls had concerns about being forced to attend visits with her father and was worried about being hit by him again. In July of 2020, she clarified to Dr. Nedecheva that she had been hit multiple times by her father, was afraid to see him on visits and was afraid of being alone with him.
13Dr. Nedecheva recommended that given MW’s anxiety and the events divulged in the therapy sessions, any decision regarding MW’s parenting time with her father should be made by giving weight to MW’s wishes.
14In July of 2020, the mother brought a motion during the suspension of regular in-court operations due to COVID-19. She sought a variety of relief including the temporary suspension and/or supervision of the father’s access, and orders for the disclosure of CAS and OPP records and therapeutic intervention for the family.
15In the context of that motion before Justice Shelston, Janet Claridge swore an affidavit on August 6, 2020 to provide the court with the children’s views and preferences. Ms. Claridge confirmed in that affidavit that MW reiterated the allegations of abuse, and that both girls were refusing to meet with their father. Ms. Claridge also raised concerns regarding the independence of the girls’ expressed preferences, as well as concerns regarding the consistency of those expressed preferences.
16The mother claimed that her previous counsel advised her to withhold access after the CAS advised her that it could no longer support the suspension of access.
17Justice Shelston found that the motion lacked urgency, except for the issue of the father’s access. Justice Shelston declined to suspend the father’s access.
18Justice Shelston conducted a case conference on September 17, 2020. He ordered that the father may file an urgent motion for contempt of court and other relief regarding custody and access to the children. The matter was before me on the contempt motion on December 10, 2020. As of the date of that motion, the father had not had access to his children since June 7, 2020. The father sought an order finding the mother in contempt of the final order of Justice Bale dated July 25, 2014, granting him access every second weekend.
19Justice Shelston granted the father leave to bring a contempt motion and granted the mother leave to bring a motion for a Voice of the Child Report. The matter then proceeded to the contempt motion before me on December 10, 2020.
20At the December 10, 2020 motion, Ms. Ahmed-Yousef, on behalf of the children, indicated that the girls did not wish to see their father in Bracebridge generally, and specifically they had no desire to spend Christmas with their father.
21I deferred the ruling on the contempt motion for 90 days. I ordered that the father and children immediately engage in reunification counselling with a mutually agreed upon counsellor in Ottawa.
22I ordered that the children have parenting time with the father every second weekend in Ottawa for 10 hours. The matter returned before me on February 8, 2021. The mother confirmed that the parties had retained the services of reunification counsellor Victoria Hasbani.
23Ms. Hasbani wrote to counsel on January 12, 2021 advising that she would begin virtual intake meetings with the father and the mother and would like to offer in-person sessions with MW and BW followed by family meetings.
24The mother had her intake interview with Ms. Hasbani on Thursday, January 21, 2021 and drove MW and BW to meet with Ms. Hasbani for their intake meeting. The father had his intake session with Ms. Hasbani on Sunday, January 24, 2021.
25The mother reported that the children were anxious before their first meeting with their father but were willing to meet him.
26The father visited the girls from about 11:00 a.m. to 2:00 p.m. on December 19, 2020 and from 9:00 a.m. to 4:00 p.m. on December 20, 2020. The visits were arranged to not interfere with the children’s activities. The father visited the children on the weekend of January 2-3, 2021. A third visit took place on the weekend of January 16-17, 2021. Due to COVID-19 restrictions, the visits took place in a hotel room and no activities were scheduled outside of the hotel room. COVID-19 restrictions impacted the activities that could be carried out during those visits.
27At that time, the father requested that the final order of Justice Bale resume. The father has been unemployed since June 2020 and was in receipt of CERB benefits, and then the CERB-EI as of October 2020. The father maintains that he is paying child support based on an income of $38,000 per year, alongside s.7 expenses and that he could not afford to attend two trips to Ottawa per month, plus his share of the reunification counselling, plus his own living expenses.
28Ms. Ahmad Yousef, on behalf of the children, indicated that the children were not happy to see that their father’s girlfriend had attended the visit of December 17, 2020. Further, the girls did not want to see their father at his home in Bracebridge until counselling had taken place. They were firm in that view.
29I indicated in my ruling of February 12, 2021 that while I was sympathetic to the father’s financial situation, I was not willing to order these teenage girls to travel to Bracebridge to see their father prior to meaningful progress with the reunification counselling. I found that it was in the best interests of the children to see their father, but not in their best interests to be forced to attend access visits in Bracebridge at this point in time. The young women both have strong views regarding being forced to travel to Bracebridge.
30I found that it would be premature to determine the issue of contempt at that point in the proceedings and I declined to do so. I ordered the contempt motion to be adjourned to be dealt with at the Motion to Change. At that time, I noted that one of the important factors to be considered was the impact that a finding of contempt against the mother would have on the girls. At that point, the girls had just begun to see their father again and were taking reunification counselling.
31On October 22, 2021, the matter was back before me on the contempt motion. The father did not attend the motion and did not file any material. He is no longer seeing the children. I dismissed the contempt motion. Ms. Pickard, counsel for the mother, submitted cost submissions.
32I am advised by Ms. Pickard that the father has not seen or communicated with the children, despite my order for parenting time and the parties’ retention of a reunification therapist. He did not notify the children as to why he would not be participating in the reunification process.
33The father also failed to respond to repeated requests from the reunification therapist Victoria Hasbani, which resulted in Ms. Hasbani closing the family’s file. I had ordered the family to participate in reunification therapy.
34I reviewed Ms. Hasbani’s report in detail. The father did not respond to emails from Ms. Pickard and from the mother herself, as they tried to confirm whether he intended to exercise his right to parenting time.
35The parties conducted a case management conference before Justice Shelston on August 6, 2021. The father suddenly indicated that he intended to relinquish all parenting rights over the children. Justice Shelston made a final order. The only matter which remains to be decided is the issue of costs.
36Subsequent to the appearance before Justice Shelston, the father incurred significant child support arrears. He has refused to comply with Justice Shelston’s order for financial disclosure.
Legal Analysis Regarding Costs
37I dismissed the contempt motion as the father did not appear to argue it. As the successful party on the contempt motion, the mother is presumptively entitled to her costs pursuant to Rule 24(1) of the Family Law Rules, O. Reg. 114/99:
Rule 24(7) Absent or unprepared party If a party does not appear at a step in the case, or appears but is not properly prepared to deal with the issues at that step or otherwise contributes to that step being unproductive, the court shall award costs against the party unless the court orders otherwise in the interests of justice.
Setting costs amounts (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 rule 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.
38The Applicant argues that the work, time, energy and money required to combat the father’s claims on the motion were significant and this was thrown away once the father abandoned the motion. The Applicant argues that I should sanction the father’s behaviour and his lack of insight. The Applicant seeks costs on a substantial indemnity basis.
39The Respondent is unemployed and cited limited finances as a reason for being unable to attend Ottawa to spend time with the girls. It is important that access to justice not be barred to those who have limited financial resources.
40The conduct of the parties is a relevant factor to be considered when assessing costs. In the circumstances of this case, while the father failed to attend the motion, his conduct was otherwise understandable. The mother did not facilitate the girls spending time with their father. Given the terms of Justice Bale’s order, the mother was required to do so. As a result of the fact that the father did not see his children for an extended period of time, he brought the contempt motion, which was judicially approved to proceed by Shelston J.
41The Applicant argues that the father also sought a $10,000 award against her for failing to facilitate his parenting time with the children. The Applicant argues that the Respondent’s request for a punitive $10,000 claim is evidence that the children’s best interests were a peripheral concern of his. The Applicant argues that the contempt motion was primarily about enforcing the Respondent’s “rights” under Justice Bale’s final order and about punishing the mother.
42I do not agree with this characterization of the Respondent’s motives. When the Applicant moved away with the children, it was contemplated by Justice Bale’s order that they would spend regular time with their father in Bracebridge. However, as the children became teenagers, they naturally developed a strong network of friends, and are involved in sports and social events, which they prefer to attend rather than spending about ten hours every weekend travelling back and forth from Ottawa to Bracebridge. I found the actions of both parents to be understandable in the circumstances, although there must be cost consequences for the Respondent’s failure to attend the contempt motion.
43The Respondent wanted to spend time with the children in Bracebridge. This had been the normal routine when the children were younger. When I declined to order the girls to travel to Bracebridge, the Respondent had only attended one session with the reunification therapist on January 24, 2021 by video. He did visit the girls in Ottawa, but costs prohibited him from attending Ottawa on a regular basis to spend time with the girls.
44The Applicant’s actions in this case are also understandable. She was not enforcing the children’s visits with their father in Bracebridge despite the fact that Justice Bale’s court order was valid and in effect. However, the girls were teenagers at that time; they had their own lives and friends and they did not want to travel to Bracebridge to see their father every weekend. One of the children alleged physical violence by the father. No charges were ever laid. The bottom line is that I cannot fault the Applicant for not complying with an order that her teenage children had no interest in following.
45In relation to the Respondent’s motion for contempt and a punitive financial award, I note that he received leave to bring that motion. He also was without the benefit of counsel, who may have dissuaded him from seeking a punitive cost award against the children’s mother. He had not seen his children for an extended period of time. He maintained that he was being falsely accused of violence towards one of the girls.
46I have no bill of costs from the father. The mother’s counsel submitted a detailed list of costs incurred in defending the contempt motion.
47The mother and father both made an offer to settle. In assessing the offers to settle, I note that the Applicant’s offer was for video access only. The Respondent wished to have in-person parenting time at his home in Bracebridge. I ordered in-person access in Ottawa and reunification therapy before the girls could attend Bracebridge to spend time with their father. The father conceded the need for reunification counselling after the OCL made this recommendation, but only on the condition that his parenting time resume in Bracebridge before counselling commenced. I agree with the submission that the Applicant’s position was more aligned with the best interests of the children. However, that position involved the Respondent not being able to see his children in person at all. I understand why he did not wish to agree to those terms and in my view, his position, while not ultimately endorsed by the court, was not unreasonable at the time it was made.
48While, as a general principle, a court should not go behind a bill of costs to scrutinize each entry, a court must make an order that is fair and reasonable. In considering what is fair and reasonable, I have also considered that in a family proceeding, prohibitive costs should not bar litigants from participation in matters which will impact their relationships with their children. The overall objective of a costs order is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant. Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), at para. 26. In the circumstances of this case, the costs submitted exceed what an unsuccessful party might reasonably expect to pay in the circumstances of this family case. To order costs on this basis would neither be reasonable, nor fair.
49Ms. Cooligan submits that she spent 51.5 hours preparing this motion at a rate of $570 per hour. Counsel who is a 2020 call spent 23.3 hours at a rate of $265.00 per hour and another lawyer with a 2020 rate of $240 an hour and a 2021 rate of $275 per hour spent 8.5 hours preparing the motion. A law clerk spent 1.5 hours at a rate of $215 per hour working to prepare the motion. Payment on a substantial indemnity basis, as requested, would result in an order of $44,732.89. I accept that this matter has been ongoing for a considerable period of time. However, while the possible sanctions facing the mother were consequential, the legal issues, in my respectful view, were not overly complex.
50Further, given the policy concerns of litigants being barred from participation in matters that impact their relationships with their children due to the prohibitive costs of litigation, I find it appropriate to exercise my discretion in this matter by imposing costs which are more in line with what the father might be able to actually pay. He is no longer seeing his children, and I am advised he is unemployed and not paying child support. Costs are awarded in the amount of $25,000.
Disposition
51Costs awarded to the Applicant mother in the amount of $25,000 on a partial indemnity basis.
Anne London-Weinstein J.
Date: February 15, 2022