ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
J.F.R.
Applicant
– and –
K.L.L.
Respondent
Olivia Bonham-Carter for the Applicant
Melanie Battaglia for the Respondent
COURT FILE NO.: FC-21-175
DATE: 06/09/22
HEARD: August 26, 2022, with additional written submissions on September 2, 2022
DECISION ON MOTION FOR INTERIM ORDER
Justice Sally Gomery
[1] For eight years after the breakdown of the parties’ marriage in January 2012, their son M. divided his time equally between them. Each Monday after school, he went home to his father J.F.R.’s house, where he stayed until Wednesday morning. After school that day, he returned to his mother K.L.L.’s house. He spent alternate weekends with each parent. This was the schedule that M.’s parents, the parties to this application, agreed upon in their separation agreement, and the schedule followed by M.’s sister until 2019, when she began to come and go more freely between the two households. The parties deviated from the 50/50 schedule between 2015 and 2018 but never abandoned it.[^1] There was no suggestion that the parenting schedule in the separation agreement did not work for M. or that he or the parties were unhappy with it.
[2] At the beginning of the Covid-19 pandemic in March 2020, M.’s parents decided that he should stay with one of them to minimize the risk of infection. M. spent the next six months with his mother and did not see his father. By October 2020, Mr. R. believed that M. could resume travelling back and forth between the two households without serious risk of contracting Covid-19. Ms. L. was reluctant, however. M. saw his father only three times over the next few months. Ms. L. permitted M. to begin overnight visits with Mr. R. again only in March 2021, after legal counsel became involved.
[3] M. currently lives primarily with his mother. He spends every second weekend with his father, as well as one weeknight every week. Over the summer, he has sometimes had an extended weekend visit with Mr. R., returning to his mother’s house on Tuesday. But M. unquestionably spends significantly less time with his father than he did at any time in the eight years prior to the pandemic. Ms. L. contends that this change is in M.’s best interests, because transitioning from one house to the other upsets him. Mr. R. disagrees. He has brought an application to reinstate the parenting schedule in place up until March 2020. In the motion currently before me, he seeks an interim order for the same relief.
[4] This parenting dispute resembles many others, except in one respect. M. is 24 years old. He is a sociable and physically active person with many of the same interests, dreams, and ambitions as any other young man his age. Because he is developmentally delayed, however, he cannot live independently.
[5] Mr. R. argues that M. meets the definition of a child under the Divorce Act and that, pending a final determination of this application, the court should restore the status quo, that is, the parenting schedule in place from 2012 to 2020. Ms. L. disagrees. Because M. is an adult, she does not think that the court can or should dictate how much time he should spend with either parent. Alternatively, Ms. L. takes the position that no interim order should be made because there is no clear evidence about what M. wants. In the further alternative, she says that it is in M.’s best interests to reside primarily with her.
[6] For the reasons that follow, I am granting Mr. R.’s motion for interim relief, with costs.
Analysis
[7] The outcome of this motion depends on the answers to three questions:
(i) Do I have jurisdiction to make the order that Mr. R. seeks?
(ii) If so, should I make a parenting order with respect to a developmentally delayed adult person?
(iii) What, if any, interim order is appropriate in this case?
(i) Do I have the jurisdiction to make the order sought?
[8] Mr. R. applies for an order under s. 16.1 of the Divorce Act, R.S.C. 1985, c. 3 (2d Supp.), subsections (1) and (2) of which provide as follows:
Parenting order
16.1(1) A court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by
(a) either or both of the spouses; or
(b) a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent.
Interim order
(2) The court may, on application by a person described in subsection (1), make an interim parenting order in respect of the child, pending the determination of an application made under that subsection.
[9] Section 16.2 provides that parenting time may be allocated by way of a schedule and that, unless the court orders otherwise, the person to whom parenting time is allocated has exclusive authority to make during that time, day-to-day decisions affecting the child.
[10] Under s. 2 of the Divorce Act, the court of competent jurisdiction in Ontario is this court, the Superior Court of Justice. A “spouse”, for the purpose of s. 16.1 and s. 16.2, includes a former spouse. A “child of the marriage” includes both minor and adult children:
2(1) In this Act,
child of the marriage means a child of two spouse or former spouses who, at the material time,
(a) is under the age of majority and has not withdrawn from their charge, or
(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.
[11] On its face, s. 16.1 of the Divorce Act unambiguously gives this court the power to make parenting orders with respect to an adult child who meets the definition of a “child of the marriage”. In Perino v. Perino, 2009 41900 (ONSC) (“Perino 2009”), at paras. 8 and 13, Justice Corbett held that a custody and access order could be made under the Act in respect of an adult. In Ross v. Ross (2004), 2004 BCCA 131, 2 R.F.L. (6th) 200 (B.C.C.A.), an application judge held that granting a parenting order in respect of a disabled adult child would infringe his rights as an adult, and that the court therefore did not have jurisdiction under the Divorce Act to make such an order. The B.C. Court of Appeal overturned this decision based on the clear language of the Act.
[12] Ms. L. contends that, even if M. technically meets the definition of a “child of the marriage”, my ability to make orders with respect to him is confined to support orders. She relies on the definitions of children in Ontario statutes governing parenting and support of the children of unmarried couples. Under the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (CLRA), which governs parenting orders, a child must be a minor. Pursuant to 2020 amendments to the Family Law Act, R.S.O. 1990, F.3, which governs support orders, the definition of a child resembles that in the Divorce Act. As a result, if the parties had never married and Mr. R. was applying under the CLRA, M. could not be subject to a parenting order under Ontario law. Ms. L. argues that the more limited definition in the CLRA acknowledges the inappropriateness of making a parenting order with respect to an adult child, and that it should inform my finding on jurisdiction under federal legislation.
[13] The Ontario legislature’s decision to change the definition of child in the Family Law Act, but not the CLRA, does not allow me to disregard the plain language of the federal legislation that governs this application. The Divorce Act does not define a “child of the marriage” differently for the purpose of parenting orders and support orders. This presumably reflects a deliberate legislative choice to give this court the power to make parenting orders with respect to individuals over the age of 18 who remain under their parents’ charge because they are “unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life”.
[14] Ms. L. says that there is no firm authority in Ontario to make a parenting order with respect to an adult disabled person, as the caselaw focuses on support orders. This is incorrect. Corbett J. ultimately decided not to make a “general custody order” in Perino v. Perino, 2012 ONSC 32 (“Perino 2012”), a case involving extreme parental alienation. He did however order access between Marisa Perino, a cognitively impaired adult, and her mother, having earlier found, in Perino v. Perino, 2008 11048 (ONSC) (“Perino 2008”) that he had the jurisdiction to make such an order.
[15] The court accordingly has the jurisdiction to make a parenting order with respect to an adult child who meets the definition of a “child of the marriage” in the Divorce Act. Based on evidence relied on by both parties, M. is unquestionably such a child. He remains in his parents’ charge and cannot withdraw from it due to his disability.
[16] M.’s needs were recently assessed by Developmental Services Ontario, a provincial agency that administers support programs for developmentally challenged adults. Both parties have attached the February 18, 2022 DSO report to their affidavits.[^2] The assessor describes M.’s personality, abilities, challenges, and ambitions based on interviews with M., his parents, and support workers involved in his care. The assessor concludes that M. requires “constant supervision and support to protect his health and safety at all times”. He needs to be supervised when eating food and prompted for basic hygiene. He is dependent on others to get around outside the home, as he cannot navigate the public transit system by himself or drive a car, and he may wander off if he is unaccompanied. Although he graduated from a high school program for individuals in his situation, he does not have a job nor immediate prospects of any full-time paid employment. M. needs help taking medications and managing chronic medical conditions, including sleep apnea, genetic heart abnormalities, a hearing impairment, and ear infections. M. does not know how to seek help in the case of an emergency, for example by calling 911. He requires behavioural supports to prevent emotional outbursts, potential assaults or injuries to those around him, property damage, stealing, nonaggressive but inappropriate sexual behaviour, substance abuse, food bingeing, and compulsive or impulsive behaviour. As Ms. L. acknowledges in her June 17, 2022 affidavit, “M. cannot be left alone, given his limitations”.
[17] In light of this uncontradicted evidence, I conclude that I have the jurisdiction, under the Divorce Act, to make the order sought by Mr. R.
(ii) Should I make a parenting order with respect to a developmentally delayed adult person?
[18] Ms. L. contends that, for substantive, philosophical, and procedural reasons, I should not make a parenting order with respect to a 24-year-old man, even if he has serious cognitive limitations. As stated in her written submissions:
While a person living with a disability may require financial supports from the government and/or their parents to meet their needs, this does not mean that they should be stripped of all decision-making capabilities. To impose a “parenting schedule” for an adult such as M. would set a harmful precedent that would have the effect of potentially depriving individuals living with disabilities their right to live with dignity, autonomy and independence to the level of their respective capabilities.
[19] Ms. L.’s argument rests on two premises that I reject. The first is that a parenting order should focus primarily on a child’s chronological age as opposed to the full range of criteria informing their best interests. The second is that, in this particular case, the court is being asked to impose a parenting schedule on someone who would otherwise be at liberty to make his own unconstrained choices about where to live.
[20] With respect to the first premise, any parenting order made under the Divorce Act must be based solely on the best interests of the child who is subject to it. Section 16 of the Act sets out this principle and the specific factors that the court must consider in making an order:
Best interests of the child
16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
Primary consideration
(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
Factors to be considered
(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
[21] Section 16(3) requires the court to take into account each’s child’s age, maturity, cognitive level, activities, and preferences, as well as their family circumstances. Although the definition of a “child of the marriage” at s. 2 of the Act distinguishes between minor and adult children, the same considerations prevail in determining their best interests, although the weight that a court may give to various criteria depends on the specific circumstances of the case. As a general rule, a child’s stated views and preferences are given more weight as they get older. This deference to their choices reflects both their maturity and their physical autonomy. This does not mean, however, that their stated choices are the only criteria, or necessarily the most important criteria, once they reach a certain age. The best interests test requires the court to consider the whole person and their specific situation.
[22] If I were to accept Ms. L.’s argument, in determining the best interests of a developmentally delayed adult, I would have to focus on their age and stated views and preferences to the exclusion of other factors. I would have to disregard other important criteria informing their physical, emotional and psychological safety, security and well-being, such as their specific needs; the history of their care; the nature and strength of their relationship with family members at each household; their cultural, linguistic, religious and spiritual upbringing and heritage; and the educational and social opportunities available to them with either parent.
[23] The narrow test urged by Ms. L. would, ironically, require me to ignore much of the wonderful complexity of a person like M. I do not see how this would respect his dignity or respect who he is as an individual.
[24] The other premise underlying Ms. L.’s argument is that, if I were to make a parenting order with respect to M., I would violate his autonomy to make his own choices. This presupposes that M. currently has such autonomy. He does not, based on the evidence before me. The reality is that he now follows a schedule imposed unilaterally by his mother instead of the schedule that both parents agreed to many years ago. M.’s parents love him and arrange for activities that interest him, such as kayaking. They undoubtedly attempt to accommodate his views and preferences. But, from a practical perspective, M. does not make his own decisions about where he is going to go or who he is going to spend time with. He cannot travel independently or arrange for transportation without help.
[25] I am therefore not being asked to decide whether or not to impose a parenting schedule on M., but rather whether it is better for the court, as opposed to his mother, to make that decision for M.
[26] In the circumstances, I see little danger of setting a harmful precedent by making a parenting order for M. He would not be stripped of decision-making or deprived of autonomy that he currently enjoys. This does not mean that it would necessarily be appropriate for the court to make a parenting order for any other developmentally delayed adult child. It also does not mean that M.’s views and preferences, insofar as they can be ascertained, will not be very important in making a final order.
[27] Ms. L. argues that, even if it is legally and philosophically appropriate to make a parenting order with respect to an adult child, I should not do so here, because M. has not had a chance to participate in this proceeding. M. does not benefit from the government-funded support that a minor child could have in a divorce proceeding or an adult might have in capacity proceedings. If he were a minor, the court could seek the assistance of the Office of the Children’s Lawyer (OCL) to obtain his views and represent his interests. The OCL’s mandate does not, however, extend to adult children. Furthermore, in Perino 2008, at para. 33, the court accepted the position of the Office of the Public Guardian and Trustee (PGT) that, because the proceedings in that case were divorce proceedings, it was not appropriate to appoint the PGT as a guardian for the adult disabled child involved in that case. Given the unavailability of OCL and PGT resources in proceedings like these, Ms. L. argues that it would be preferable to determine M.’s living arrangements under the Substitute Decisions Act 1992, SO 1992, c 30 (SDA).
[28] I agree that M.’s views and preferences may ultimately be given significant weight. As Justice Corbett stated eloquently in Perino 2012, at para. 96, with respect to Marisa Perino:
Marisa is now 24, and no doubt it is important for her own sense of self-worth, and her exercise of autonomy that she be able to voice her views and preferences and to have those views and preferences taken seriously. Simply because a person faces intellectual challenges does not mean that they should be infantilized.
[29] As the Perino case illustrates, however, it is possible to ascertain a disabled child’s views and preferences without the assistance of the OCL or the PGT or separate legal representation for an adult child. In Perino 2009, at para. 50, Corbett J. removed Marisa Perino as a party to a proceeding, finding that she did not need to directly participate in it. He later exercised the parens patriae jurisdiction to appoint a lawyer for her, who retained a social worker to ascertain her views. Following a trial in 2012, he ordered that contact be resumed between Marisa and her estranged mother. He acknowledged, in a passage directed to Marisa, that “this judgment is not entirely what you say that you want right now”, because he had determined that her stated preference was not in her best interests; Perino 2012, at paras. 9 and 10.
[30] I am not persuaded that a proceeding under the Substitute Decisions Act would give M. more dignity, autonomy, or substantive rights than a proceeding under the Divorce Act. As observed by the Divisional Court in Abrams v. Abrams, 2009 2798, at para. 56, an application for a declaration of incapacity under the SDA “is an attack on the citizen’s autonomy and, in the events of a finding of incapacity … results in the abrogation of one or more of the most fundamental of her rights: the right to sovereignty over her person and the right to dominion over her property”. An SDA proceeding could have a much greater impact on M.’s ability to control his own destiny or day to day activities.
[31] Ms. L. argues that, in the context of an SDA proceeding, a court might not conclude that M. requires full guardianship, or any guardian at all, given that s. 55(2) requires the court to consider if there is an alternative order that is less restrictive of the person’s decision-making rights than the appointment of a guardian. The relative advantages and disadvantages of an SDA order are academic, however. No SDA proceeding has been brought, even though Ms. L. advised Mr. R. of her intention to do in the summer of 2021.
[32] With respect to prospective proceedings, I express no opinion on how the existence of a parenting under the Divorce Act could affect the court’s jurisdiction in an SDA proceeding, if at all. This question was not argued before me and would be speculative at this point in any event.
[33] Ms. L. cites Simons v. Crow, 2020 ONSC 5940, at para. 38, where Bale J. stated that the SDA “governs decision making for adults deemed incapable of understanding information or unable to appreciate foreseeable consequences of decisions relating to personal care”. This passage must be read in context. In the preceding paragraphs, Bale J. noted that the Divorce Act, unlike the CLRA provisions then in force, do not distinguish “between a minor child of the marriage and an adult child of the marriage in relation to custody, access, and support”, allowing courts to address custody and access for adult children in divorce proceedings. Implicit in this passage is that, had the proceeding before Bale J. been commenced under the Divorce Act, she would not have had to consider the SDA.
[34] Finally, Ms. L. contends in her August 19, 2022 affidavit that third party agencies, such as the local agency that provides support for M., “certainly will not accept any type of family court order given that M. is an adult”. She provides no support for this proposition. I have not observed any reluctance on the part of government agencies to comply with orders issued by the Superior Court of Ontario.
[35] I conclude that there is no substantive, philosophical, or procedural reason why I should not make a parenting order in this case under s. 16.1 of the Divorce Act.
(iii) What order is appropriate in this case?
[36] Ms. L. contends that I should not make an interim parenting order because there is no clear evidence of M.’s views and preferences, and her evidence is that his best interests are served with the current parenting arrangement. She says that she has observed behaviour by M. since March 2020 that leads her to believe that he is happier since he started living primarily with her. In her view, M. finds transitioning from one house to the other to be stressful and he acts out as a result.
[37] Mr. R. disputes these observations. In the DSO report, M. is quoted as saying that he likes spending time with both his mother and his father. Mr. R. points out that Ms. L. did not raise any concerns about the impact of shared parenting on M. over the many years they had a 50/50 parenting schedule. He maintains that some of the behaviours mentioned by Ms. L. have been longstanding. In Mr. R.’s view, to the extent that M. is less happy than he was before, this is because he spends less time with his father than he used to, and he was cut off from many activities and routine social interactions during the Covid-19 pandemic.
[38] Parents who have unilaterally changed a parenting schedule invariably justify their decision by arguing that the change is in the child’s best interests. Courts are generally skeptical about this type of justification and order a return to the status quo ante until a final determination on a parenting order can be made: see, for example, McPhail v. McPhail, 2018 ONSC 735, at paras. 15 to 17; and Gray v. Canonico, 2020 ONSC 5885, at paras. 39, 40, and 49 to 53, and the caselaw cited therein. Condoning a unilateral change, even at an interim stage, often means accepting a parent’s disregard for the court’s prior orders. It also sets up a situation where the parent who has unilaterally changed the parenting schedule can later claim that a change back to the prior schedule would be disruptive for the child.
[39] As a result, where a parent has unilaterally changed a parenting schedule, courts generally require a return to the pre-existing schedule on an interim basis. I see no reason why I would take a different approach in this case. I see no reason why M.’s age makes this case distinguishable for other cases, when it comes to this issue.
[40] Because the pre-March 2020 parenting schedule was not the result of a court order, Ms. L. contends that the parties were free to modify it, and that the caselaw on self help remedies does not apply. In my view, it makes no difference whether the longstanding 50/50 parenting arrangement was the result of a separation agreement or a court order. The parties’ agreement is evidence that his parents, based on their knowledge of M.’s needs, views, and preferences, should spend an equal amount of time with each parent. I do not see why I would give this negotiated schedule less consideration, or different consideration, than a consent order that had the same effect.
[41] Finally, Ms. L. says that the current arrangement is the product of the parties’ decision that the old schedule no longer met M.’s needs. The evidence does not bear this out.
[42] Mr. R. agreed to suspend the 50/50 parenting arrangement as a result of the Covid-19 pandemic. As a person with Downs Syndrome, M. is particularly vulnerable to infection and serious illness. In his April 2022 affidavit, Mr. R. says that he and the respondent agreed that “this would be the schedule only for a few weeks as that is initially how long I believed the COVID-19 pandemic would last”. Ms. L. does not deny this. By October 2020, Mr. R. thought it would be safe to resume the 50/50 parenting schedule, assuming that extra heath and safety precautions were taken. He contacted Ms. L. about picking M. up for the weekend. Ms. L. responded that M. already had plans with her but that an “outdoor visit” could be arranged.
[43] I have some sympathy for Ms. L.’s initial reaction to Mr. R.’s initial effort to resume parenting time with M. For unexplained reasons, Mr. R. did not attempt to arrange any meetings outdoors with M. over the summer of 2020 and had only occasional phone conversations with him. It may have been reasonable for Ms. L. to propose some casual visits before the parties returned to the 50/50 schedule. I reject, on the other hand, Ms. L.’s suggestion that Mr. R.’s request to see M. had a financial motive. The evidence shows that both parties have been deeply engaged parents.
[44] After his attempt to arrange an overnight visit was rebuffed, Mr. R. retained a lawyer who wrote to Ms. L., demanding a return to a 2-2-5-5 parenting schedule. As a result, she agreed to let M. spend time with Mr. R. on three occasions between October 16 and December 9, 2020. In mid-December 2020, Mr. R. tested positive for Covid-19. After quarantining for three weeks, he contacted Ms. L. about picking M. up for the weekend. She refused, notwithstanding a letter from his physician stating that he was no longer infectious, and notwithstanding M.’s potential exposure to Covid-19 through contact with his sister, who had been travelling between the two households. As a result, Mr. R. did not see M. again for several months. It was only in mid-March 2021, after lawyers were once again involved, that Ms. L. agreed that M. could once again begin spending every second weekend with his father.
[45] In his July 2022 affidavit, Mr. R. says that he accepted limited time with M. as of March 2021 because it was better than not time at all. He says he never abandoned his position that the parties should return to the shared parenting schedule that had been in place from the time of separation in 2012 until March 2020. I accept this.
[46] There is no evidence that either party contemplated that the suspension of the shared parenting arrangement in March 2020 would be permanent. There is no compelling evidence that M. would prefer to live with his mother full-time and only visit his father every second weekend and occasional weeknights. There is no expert evidence, or any evidence at all aside from Ms. L.’s own assertions, that the shared parenting arrangement has ever been, or would be, detrimental to M.’s physical, emotional, and psychological safety, security, and well being.
[47] Based on this evidence, the court cannot condone Ms. L.’s unilateral alteration of the agreed-upon and longstanding parenting schedule by permitting her to continue to impose her preferred schedule until Mr. R.’s application can be heard. I therefore conclude that an interim parenting order should be made that restores a 50/50 parenting schedule.
[48] Mr. R. seeks an order restoring the old 2-2-5-5 parenting schedule or, in the alternative, a week on, week off schedule. He has made the latter proposal in response to Ms. L.’s stated concern that M. has difficulty coping with frequent transitions from the parties’ respective residences.
[49] I have some difficulty accepting Ms. L.’s evidence on M.’s ability to cope with transitions. As mentioned earlier, she did not mention any concerns about this until recently. Over this past summer, she set a schedule that had M. travelling back and forth between the parties’ homes several times every week. When I asked her the hearing which of the proposed interim orders she would prefer, she declined to express a preference.
[50] Accepting that fewer transitions are easier for all parties involved, I order that the parties implement a week on, week off, parenting schedule, on the terms proposed in Mr. R.’s alternative draft order.
[51] M.’s views and preferences should be obtained, to the extent possible, before a final order is made. I order the parties to jointly retain a social worker or psychologist, experienced in dealing with individuals with serious development delays, to interview M. to attempt to elicit his views and preferences. This interview shall take place within the next six months. Pending a final hearing, I order the parties to refrain from making any direct attempt to ascertain M.’s views and preferences, or to influence the assessment, by talking to him about this proceeding or by telling him what they would like the outcome to be.
Costs
[52] At the end of the hearing, I asked the parties to file written cost submissions so that I could dispose of this issue when I rendered this decision. I did not review these submissions until I decided on the outcome of the interim motion.
[53] Mr. R. seeks substantial indemnity costs of $25,188.60 or, in the alternative, a blend of partial and substantial indemnity costs totaling $24,208.56. He served a formal offer to settle the motion on May 10, 2022, on the basis of an interim order restoring the 2-2-5-5 parenting schedule in the parties’ separation agreement. Ms. L. agreed in principle to a 50/50 parenting schedule on July 28, 2022. The parties were ultimately unable to settle the motion, however, due to Ms. L.’s insistence that she would not agree to a consent order for any parenting schedule, as it was her position that this court did not have jurisdiction to make such an order. She also refused to confine the issue on the motion to the jurisdiction issue, which would have had the effect of reducing preparation costs and the time required for the hearing. Mr. R. argue that Ms. L.’s refusal to narrow the issues to be argued was unreasonable and entitles him to substantial indemnity costs. In the alternative, since he contends that he is entitled to recover partial indemnity costs to the date of the offer and substantial indemnity costs as of May 10, 2022.
[54] Ms. L. argues that no costs should be awarded on the motion or, alternatively, that costs should be reserved to the trial judge. In the further alternative, she says that costs should be fixed at $5,000. She argues that Mr. R. behaved unreasonably by insisting on arguing the motion, even though she agreed to re-instate a 50/50 parenting schedule while adjourning the motion, which would have allowed him to bring it back before the court if she failed to comply with their agreement.
[55] I find that Ms. L. was unreasonable in refusing Mr. R.’s proposed consent settlement order. In her negotiations with him, she effectively conceded that M.’s interests would be served, at least for the time being, with a return to a 50/50 parenting schedule. She did not want an order that would compel her to respect this arrangement, however. If her reason for not agreeing to a consent order was her conviction that the court did not have jurisdiction to issue it, she could have agreed to narrow the issues to be argued. Instead, she forced Mr. R. to argue all issues on this motion.
[56] In her cost submissions, Ms. L. revisits the arguments she made about the merits of the motion. I have explained, at length, why I did not accept those arguments. Ms. L.’s sincere conviction that her views should have prevailed is not a basis for this court to abandon the usual cost principles. Based on these principles, Mr. R. is entitled to partial indemnity costs to the date of his offer, and substantial indemnity costs thereafter.
[57] Having said this, I do not accept all of the costs claimed by Mr. R.. The hourly rate charged by his counsel ($195) is more than reasonable. The number of hours recorded, on the other hand, is high. Mr. R.’s counsel points out that this was hard-fought motion with some novel issues, the outcome of which was important to all parties; that she had to assist Mr. R. in preparing a last-minute affidavit to respond to Ms. L.’s second affidavit; and that counsel engaged in time-consuming settlement negotiations over the last six months. Even taking these factors into account, spending nearly 150 hours in connection with a two-hour motion is not reasonable.
[58] I conclude that Mr. R.’s reasonable costs on this motion are $18,000.
Disposition
[59] The motion for an interim order is granted, with $18,000 in costs to Mr. R.. The draft alternative order he proposed should be amended to include the directions with respect to the joint retainer and the prohibition on the parties from speaking to M. directly about this case, referred to in paragraph 51 above.
Justice Sally Gomery
Released: September 6, 2022
COURT FILE NO.: FC-21-175
DATE: 06/09/22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
J.F.R.
Applicant
-and-
K.L.L.
Respondent
REASONS FOR JUDGMENT
Justice Sally Gomery
Released: September 6, 2022
[^1]: Between 2015 and 2018, Ms. L.’s work took her outside of Perth, where the parties live. The parties disagree about whether she actually moved away or simply took extended business trips, and the impact of her travelling on the time she spent with M.. It is undisputed, however, that the parties complied with the agreed upon 50/50 parenting schedule before and after this period.
[^2]: The version attached to Ms. L.’s affidavit is not the original report but a modified version that was produced in response to comments she made. The modifications have no bearing on observations in the DSO report set out in this paragraph.