COURT FILE NO.: FC-17-FO000286-0000

DATE: June 8, 2022

ONTARIO

SUPERIOR COURT OF JUSTICE, FAMILY COURT

BETWEEN:

Anna McLellan Applicant

• and -

Ryan Birbilis Respondent

John Mastorakos, for the Applicant

Cheryl Lean, for the Respondent

Nicole Tellier J.

RULING ON COSTS

OVERVIEW AND PARTIES’ POSITIONS

1This cost ruling arises from an 11- day trial regarding the parenting arrangement for the parties’ child. The applicant mother seeks an order for costs fixed in the amount of $10,000 inclusive of HST and disbursements. She also asks that the father be prohibited from bringing a motion to vary the final order unless the costs are paid in full or he first obtains leave of the Court. The respondent father submits costs of $2000 is the appropriate sum.

ANALYSIS

General Principles

2As set out by the Ontario Court of Appeal in Mattina v. Mattina, 2018 0NCA 867 at paragraph 10, modern cost rules are aimed at fostering four fundamental principles, namely: to partially indemnify successful litigants; to encourage settlement; to discourage and sanction inappropriate behavior by litigants; and to ensure cases are dealt with justly.

Parties Funded by Legal Aid

3The Legal Aid Services Act, 1998, S.O. 2020, C. 11 provides:

Costs order by court unaffected by legal aid services

12(1) The Costs awarded in any order made in favour of an individual who has received legal aid services are recoverable in the same manner and to the same extent as though awarded to an individual who has not received legal aid services

Costs payable to Corporation

12(3) Costs ordered by a court to be paid to an individual in a proceeding in which the individual received legal aid services are, to the extend of the legal aid services provided to the individual in the proceeding, the property of the Corporation and shall be paid to the Corporation.

4It is well established law that the fact that a successful party is represented under a legal aid certificate is not a relevant consideration in fixing costs. The relevant billing rate to determine costs is the private rate of the lawyer for the successful litigant. See Ramcharitar v. Ramcharitar, 2002 53246 (ONSC) at paragraphs 23 and 25; W. v. K. 2019 ONSC 3341 at paragraph 20. This principle applies even where both parties are funded by Legal Aid Ontario. See Foran v Foran 2001 CarswellOnt 386 (ONSC) at paragraph 16.

Rule 24(1): Success

5The cost analysis begins with a consideration of the outcome. Pursuant to Rule 24.1 of the Family Law Rules a successful party is presumptively entitled to costs. Indeed, success is the pre-eminent factor. See Biant v Sagoo, 2001 28137 (ONSC) at paragraph 16.

6At trial the mother sought sole decision- making responsibility based on the parents’ poor communication as well as their mutual mistrust. The father sought an order for joint-decision making or, alternatively, an order for so called parallel decision-making responsibility, with mother having responsibility for the child's education and father having responsibility for all health decisions.

7This case entailed family violence perpetrated by the father on the mother and the court made findings in that regard. The court considered the application of the principles set out in Kaplanis v. Kaplanis, 2005 1625 (ONCA) to the facts here. The court also considered section 24(3)(j) (ii) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 and concluded that neither joint-decision making nor parallel decision-making regimes were workable here. The mother was successful on this issue.

8The father was seeking to expand his parenting time to include overnight parenting time. The mother's position on this issue was consistent with the recommendation clinician from the Office of the Children’s Lawyer, namely that before father's parenting time could be expanded to include overnight, he must obtain a psychiatric assessment and follow any treatment recommendations.

9There was considerable evidence on this issue. The father testified that he accepted the recommendation of the OCL to engage in a psychiatric assessment when it had been made more than two years prior to the trial but had been unsuccessful in achieving a referral. He sought to rely on an email, from his family physician, which was inadmissible hearsay, in support of this contention. His position was that overnight parenting should be ordered, while he continued to pursue the psychiatric referral recommended years earlier.

10Ultimately the family physician testified. With the benefit of this evidence, as well as a review of extensive clinical notes and records from other healthcare providers, and father’s testimony, the court concluded that the father could have secured this referral prior to trial, notwithstanding existing barriers to accessing both psychiatric assessment and treatment services. On this issue, the court adopted the approach advanced by the mother and the OCL clinician and held that father’s participation in a psychiatric assessment and treatment is a condition precedent to the future consideration of overnight parenting time. The court ruled that once the father could demonstrate, with objective reporting from his treating mental health care provider(s), that he is fully compliant with treatment recommendations and has sustained the management of his mental health care, with positive outcomes, his parenting time could be reviewed to consider overnight parenting time. Mother was successful on this core contested issue.

11The court accepted the mother’s proposed schedule for the expansion of father’s parenting time over that of the father. The mother was granted the ability to change the transfer location should father revert to engaging in conflict at the exchanges in front of the child. Father's request to attend activities during mother's parenting time was denied; rather he was given one evening per week at which he was to take the child to an activity selected and paid for by him. Lastly, the mother was given the ability to choose whether to attend parent/teacher interviews jointly or separately. In sum, the mother was successful on all aspects of the parenting plan that was before the court for its consideration.

Rule 24(4) and (5): Conduct of the Successful Party

12Rule 24(4) operates to disentitle a successful party to costs if that party behaved unreasonably during the case. Not only might the successful party be deprived of some or all of his or her costs but may also be required to pay all or part of the unsuccessful party’s costs.

13Rule 24(5) directs the court in assessing reasonableness to review the successful party’s offers, their reasonableness, and any offer they withdrew or failed to accept.

14Father submits that the mother acted unreasonably because she made unfounded allegations that their child may have been sexually interfered with by his partner. Mother sought to tender child hearsay which she had shared with the child protection agency in the spring of 2019, some of which was admitted. An investigation ensued but the CAS did not verify any inappropriate sexual touching and closed their file. The mother testified that she accepted that no sexual impropriety was verified and wanted to put it behind her. Following these events, father's parenting time had moved from supervised to unsupervised and had expanded.

15The court's judgment concludes that mother’s protective stance in relation to the father's parenting was not malicious or unreasonable. Rather it was borne out of her genuine concern for their child's emotional and physical safety, in the context of father’s long standing mental health challenges and angry outbursts.

16Neither party submitted offers to settle with their cost submissions, as they were directed to do. Mother’s submissions indicate that she sent an offer to settle prior to trial proposing that the father work towards overnights, provided an adequate safety plan was in place, with adequate overnight accommodations and an overnight supervisor. She also states father’s offer was for joint decision-making and shared parenting. It was reasonable for the mother to insist on safety. It was also reasonable for her to reject father’s shared parenting proposal. Based on the forgoing, I find that the mother’s conduct was reasonable throughout these proceedings and therefore does not adversely impact her entitlement to costs or their quantum.

Section 24 (12) Factors

17Section 24(12) provides the framework for setting quantum as follows:

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. O. Reg. 298/18, s. 14.

Supporting materials

(12.1) Any claim for costs respecting fees or expenses shall be supported by documentation satisfactory to the court. O. Reg. 298/18, s. 14.

Same, opposing party

(12.2) A party who opposes a claim for costs respecting fees or expenses shall provide documentation showing the party’s own fees and expenses to the court and to the other party. O. Reg. 522/21, s. 9.

18Issues raised by parents or caregivers about children and the court’s task in crafting a parenting order that determines the child’s best interests are of the utmost importance in family law. The complexity of these issues and determinations obviously varies in any given case.

19The allegations of family violence were at times admitted and at times denied. The contested terrain also included the impact of that family violence on parenting. Regrettably, cases involving family violence are all too common. They are not necessarily legally complex; the new family violence provisions create a useful framework for the court’s analysis. There were allegations by each parent that the other suffered from mental health challenges that impacted their ability to parent. These were also denied.

20The complexity in this case arose largely because the father presented evidence regarding his mental health status in an incomplete and disorganized fashion. He did sign consents for the OCL to obtain health records to assist in their clinical investigation. And he did tender evidence regarding his past efforts in therapy. But the father testified that his previous mental health diagnoses by psychiatrists were incorrect and that his self- diagnosis of post- traumatic stress disorder should inform the analysis. He sought to have the court make a finding that his failure to get a psychiatric assessment by the time of trial as recommend by the OCL was systemic rather than a result of his own inaction, on the basis of inadmissible hearsay.

21The father ought to have called his family physician as a participant expert on his own initiative. This was the context in which the court deemed it necessary to require his family physician’s participation as trial, that is, to fill in critical evidentiary gaps. Accommodating this unplanned witness unnecessarily complicated and lengthened the conduct of the trial. It added to the complexity of the court’s determination of the father’s current mental health status, his insight, his motivation in relation to therapy and the court’s overall risk assessment.

22Additionally, the father acted unreasonably in the following ways, all of which had the effect of lengthening the preparation of the trial for mother’s counsel and the trial itself:

a. He sought joint decision-making authority in a case where the parties barely speak.

b. Alternatively, he sought parallel decision-making authority, with a view to him having responsibility for health decisions, when there was considerable evidence he had not looked after his own health; he objected to the child’s participation in therapy; and he had been uninvolved in the management of the child’s heath since birth;

c. He either denied or minimized the allegations of family violence, even in the face of corroborating evidence, including police reports.

d. As elaborated above, he sought to have this parenting time increase to include overnights, even though he had not acted on the recommendation of the OCL clinician or his own family doctor regarding the need for diagnostic clarity and treatment.

e. He failed to admit facts, subsequently proven at trial; and

f. He waited until after the trial began, before making an obvious concession in relation to the continuation of the child’s primary residence with mother.

23Counsel for the mother docketed just shy of 255 hours, which included over 100 hours during the 11-day trial. Counsel presented her evidence in an organized and efficient fashion.¹ Her cross-examinations were focused and proportionate. The documentation she tendered was admitted and was helpful in determining the issues. The court notes from mother’s costs submissions that she did not bill for consultations with senior counsel, which would have been appropriate. Counsel for the father did not provide a Bill of Costs as required by Rule 24(12.2). On the evidence and submissions before me, I conclude that all of the time spent was necessary.

24Based on the mother's billing rate of $350 per hour, which is reasonable given her year of call, her total fees on a full indemnity scale amount to just under $90,000, excluding disbursements. All of her disbursements in the sum of $2286.83 were necessary and reasonable.

25In Beaver v. Hill, 2018 ONCA 840, at paragraph 12, the Court of Appeal for Ontario held that proportionality and reasonableness are the touchtone considerations to be applied in fixing the amount of costs. The court goes on to reject the notion that full recovery or close to a full recovery approach is appropriate in most cases. On that analysis, and before considering the father’s ability to pay, the court would have discounted the total costs, by 20%, resulting in a cost award of $72, 000 plus disbursements of $2286.83 for a total sum $74, 286.88 plus HST for a total sum of $83, 944.17. In my view, the discount to achieve partial indemnity should be directly related to the overall success and reasonableness of the entitled party, as compared to the overall reasonableness and conduct of the unsuccessful party. Hence, I would employ a modest discount here.

Ability to Pay

26Father submits that this is a case for a nominal cost award. He cites C.A.M. v. D.M., 2003 18880 (ONCA) at paragraph 42 for the proposition that:

In fixing costs, the courts cannot ignore the best interests of the child and thus cannot ignore the impact of a costs award against a custodial parent that would seriously affect the interests of the child.

That, however, was not in a consideration in this case. The mother is not the custodial parent.

27In this case, the party against whom a cost award is to be made is not the custodial parent either. Nonetheless, the father’s ability to pay is a factor for the court's consideration and any award may adversely affect his compliance with his child support obligations.

28Courts have repeatedly cautioned litigants that they cannot rely on their impecuniosity to shield themselves from cost sanctions, particularly when they have taken an unreasonable position or acted unreasonably in the conduct of the trial. See for example Gobin v. Gobin, 2009 CarswellOnt 3452 ONCJ. See also Sang v. Suteu, 2016 CarswellOnt 4572 ONCJ, where an unsuccessful parent whose only income was social assistance was ordered to pay costs in the sum $68,522.00, at a minimum rate of $500 monthly.

29The mother’s request for an award of $10, 000 inclusive of fees, disbursements and HST on both clearly acknowledges the father's inability to pay an amount that is more commensurate with mother’s success and the court's analysis on the factors that inform quantum. I have no hesitation in concluding that it is an appropriate amount, bearing in mind all of the factors the court is directed to consider, including the father’s limited means.

30Neither party made submissions in relation to a possible installment plan. I have given the father a total of 4.5 years to satisfy his cost obligation.

Rule 1(8)(e)

31This rule confers discretion on the court to make an order that a party is not entitled to any further order from the court, without leave, if that party fails to obey an order. Mother asks that as a term of any cost order, the court prohibit the father from bringing any motion to vary the operative parenting order unless the costs are paid in full, or he first obtains leave of the court.

32Given the high level of conflict between the parents, which has no doubt affected their child, it is appropriate in this case to impose a preliminary hurdle that the father must overcome as an incentive for him to pay the costs promptly and as a disincentive for him to engage in future litigation. That said, there may be a parenting concern which require the court’s attention. Therefore, this term shall only apply to the first $2,000 of the award. It remains open to mother’s counsel to argue that even if the sum of $2000 has been paid, the court ought not to hear from father in some future proceeding, on the basis that some of the costs remain outstanding.

CONCLUSION

Based on the foregoing I make the following order:

1. The father shall pay costs to the mother the sum of $10,000 inclusive of disbursements and HST.

2. The sum of $2000 is payable no later than July 8, 2022.

3. The father is prohibited from initiating or participating in any new proceeding if he is default of this first installment, without leave of the court

4. Commencing August 1, 2022 and on the 1st of each and every month thereafter, the father shall pay $150 monthly until the costs are paid in full.

Footnotes

1. 1Counsel at trial was Ms. Candice Pilgrim, Mr. John Mastorakos came on record following the trial.