COURT FILE NO.: FC 1387/13-05
DATE: 2023/08/11
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: C.T., Applicant
AND:
M. M. M., Respondent
BEFORE: MITROW J.
COUNSEL: Erin O’Leary for the Applicant
William R. Clayton for the Respondent
Paul Van Meppelen for the Office of the Children’s Lawyer
HEARD: Written submissions filed
COSTS ENDORSEMENT
INTRODUCTION
[1] The issue before me is to deal with the costs of this proceeding on a final basis. Procedurally, a brief explanation is required as detailed below. For convenience, I refer to the applicant as “the father” and to the respondent as “the mother.”
[2] The “originating process” is the father’s motion to change issued in April 2021. In July 2021, the motion to change was amended to clarify that the relief sought was to enforce the father’s parenting time set out in two final orders and a subsequent arbitration award. As a consequence of the amendment, the father was not seeking a variation of parenting time.
[3] On December 14, 2022, I heard an all-day special appointment motion brought by the father. This date had been set on the return of the motions on October 25, 2022, at which time directions were given as to oral questioning and the filing of further material. The father’s motion was dismissed pursuant to the decision released on January 9, 2023. Written costs submissions were permitted, and received, the last being the mother’s reply submissions dated February 14, 2023. On December 14, 2022, (and also on October 25, 2022) a motion brought by the mother was before the court. However, this motion was for some procedural relief, was a very minor component of the special appointment hearing and plays no role in quantifying costs.
[4] On March 30, 2023, and prior to a decision being made regarding costs of the motions heard on December 14, 2022, this proceeding came back before me, at which time the father advised the court that he wished to withdraw his motion to change. An order was made that day, on consent, that the father’s motion to change was withdrawn. That order also provided that I was seized with determining the costs of this proceeding on a final basis. The order made on March 30, 2023, also provided for further costs submissions in relation to the motion to change, and that these costs submissions would be considered in addition to costs submissions already received regarding the special appointment motions.
[5] The additional costs submissions have been received, the last being the mother’s reply dated June 5, 2023.
[6] Pursuant to the order made on March 30, 2023, counsel for the Office of the Children’s Lawyer (“OCL”) was released from any further participation in this matter.
[7] In these reasons I deal first with the motions heard December 14, 2022; then I deal with the costs consequences of the father’s withdrawal of the motion to change.
COSTS OF THE MOTIONS HEARD DECEMBER 14, 2022
[8] I agree with the mother’s submission that she was the successful party on the father’s motion, as the father’s motion was dismissed, and as such the mother is presumptively entitled to her costs: r. 24(1), Family Law Rules, O. Reg 114/99.
[9] Also, in opposing the relief sought by the father, the mother’s “success” is evident when comparing her position on the motion with the order made by the court: see MC v. MAC, 2020 ONSC 3845 (Ont. S.C.J.), at paras. 38 – 44, and Malec v. Malec, 2020 ONSC 761 (Ont. S.C.J.), at para. 22, both cases cited by the mother on the issue of how success is determined. The OCL did not seek costs on the motions and neither party sought costs against the OCL.
[10] To provide some context for the father’s motion, the following is noted:
a) The parties’ two children, both age 13, when the motion was heard, had been in the mother’s primary care since the parties separated in 2012;
b) The mother had “sole custody” since the separation agreement was signed in March 2013;
c) The final order made in April 2016 continued primary residence with the mother, gave the mother final say regarding major decisions, and set out the father’s parenting time;
d) The final order made in November 2017, made a minor adjustment to pick-up times; and
e) In February 2020, an arbitration award rejected the father’s request for week-about parenting time and to share decision-making responsibility, and instead provided some increase in the father’s parenting time.[^1]
[11] Multiple court appearances followed before me resulting eventually in two orders for reconciliation counselling; the first order was made on July 8, 2021 (“the July 2021 order”), and the second order was made on November 18, 2021 (“the November 2021 order”).
[12] The reconciliation counselling pursuant to the July 2021 order did not proceed as the therapist withdrew. This development generated some adjournments and eventually the parties agreed that reconciliation counselling would be conducted by the London Family Court Clinic (“LFCC”) prompting the November 2021 order made on consent. However, after conducting intake interviews, the LFCC withdrew its services at the end of January 2022.
[13] With no ongoing reconciliation process, and no ongoing parenting time, the father brought his motion. He sought an order on an interim basis removing both children from the mother and awarding to the father primary care and sole decision-making responsibility to allow the father to enrol the children into a therapeutic program to repair his relationship with the children, and in the meantime suspending all parenting time with the mother and contact with the maternal relatives.
[14] This relief was opposed strenuously by both the mother and the OCL. Leave for oral questioning had been granted, and extensive oral questioning took place including oral questioning of Dr. Dilys Haner from the LFCC and Mr. Thompson, a registered social worker, who had provided affidavits regarding his interviews with the children in his capacity as a “social work assist.”
[15] The mother seeks costs in the amount of $42,977.74 for fees, disbursements and HST. She characterizes these costs as full indemnity and compares these costs with “partial indemnity” in the amount of $29,664.84. Although the mother makes reference to various scales of costs, there are no prescribed scales of costs in the Family Law Rules.
[16] Under the Family Law Rules, judges are not constrained to the scales of costs found in the Rules of Civil Procedures, R.R.O. 1990, Reg. 194, since no scales of costs are mentioned in the Family Law Rules: Beaver v. Hill, 2018 ONCA 840 (Ont. C.A.), at para. 9.
[17] In Sims-Howarth v. Bilcliffe, 2000 CarswellOnt 299 (Ont. S.C.J.), Aston J., at para. 4, noted that the traditional scales of costs in the Rules of Civil Procedure are no longer applicable, and that under the Family Law Rules the court must fix costs at some figure between a nominal amount and full recovery. The conclusion of Aston J. that “the Family Law Rules demand flexibility in examining the list of factors in r. 24(11) [now r. 24(12)] without any assumptions about categories of costs” was approved in M.(C.A.) v. M.(D.), 2003 CanLII 18880 (ON CA), 2003 CarswellOnt 3606 (Ont. C.A.), at para. 42.
[18] While the mother characterizes the relief sought by the father as “draconian”, the father submits that the mother was withholding the children, that attempts at reconciliation counselling had failed and that the father acted reasonably in bringing his motion after having pursued less intrusive measures.
[19] The father’s bill of costs shows $20,293.11 for fees and HST. The father submits that each party should be responsible for his or her own costs.
[20] Although the father’s motion was dismissed, it is noted that the order provided for a process for email communication between the father and the children, and pursuant to the order this case was placed on the May 2023 trial sittings to be heard on an expedited basis and peremptory on all parties.
[21] Given that the mother was successful and is presumptively entitled to costs, I would reject the father’s submission that each party should pay his or her own costs. In quantifying the costs, I consider the factors in r. 24(12).
[22] Given the conflicting evidence on the father’s motion, it is not possible to make findings that either party acted unreasonably. This would require findings of fact and credibility to be made by a trial judge, and this includes the issue of Dr. Haner withdrawing the services of the LFCC, in part, allegedly because of the inappropriate behaviour of the mother and her partner, which both the mother and her partner denied.
[23] The time spent by each counsel was similar (55.6 hours for the mother’s counsel and 49 hours for the father’s counsel). The primary reason for the difference in fees relates to the hourly rate. The mother’s counsel has been practicing since 1972 and the father’s counsel has been practicing since 2011.[^2] While some evidence from the oral questioning was relevant and helpful, I do find that overall, the extent of cross-examinations of all the affiants was excessive; in particular the extent of the cross-examination of Dr. Haner on the lengthy letter that she had provided was unnecessary as portions of that letter resembled an opinion, and as such were not relevant given that Dr. Haner was not conducting an assessment and had not interviewed the children.
[24] Neither party made an offer to settle. Before the absence of an offer to settle can properly be used against a party, the situation must be one where it is realistic to expect offers to settle to be made; where issues could not be settled in a practical way, then the absence or presence of offers to settle should not play a material role in determining the appropriate quantum of costs: Beaver v. Hill, supra, at para. 15.
[25] The mother relies on the foregoing to explain why no offers to settle were made. While this case may fall within the category where the father’s motion could not have been settled in any practical way, it is noted that a litigant who fails to make an offer can never benefit from r. 18(14) which provides for a presumptive entitlement to costs, including full recovery of costs from the date the offer was served.
[26] The father’s motion was an important motion with significant potential impact on the parties and the children if the order sought was granted.
[27] In the present case, the mother seeks a costs order to indemnify her for all her legal fees incurred in the father’s motion.
[28] In setting the amount of costs, r. 24(12) includes a reference not only to “proportionality” but also includes a reference to “reasonableness.” A helpful and instructive guide as to reasonableness can be found in Davies v. Clarington (Municipality), 2009 ONCA 722 (Ont. C.A.), at para. 52, where it was stated that rather than engaging in a purely mathematical exercise, the judge should reflect on what the court views as a reasonable amount of costs that should be paid by the unsuccessful party, rather than any exact measure of the actual costs incurred by the successful litigant.
[29] I find that a proportionate and reasonable range of costs to be paid by the father falls in the range of $20,000 to $25,000. I fix the mother’s entitlement to costs in the amount of $22,500 all inclusive.
COSTS OF THE MOTION TO CHANGE
a) Positions of the Parties
[30] Each party has submitted a bill of costs for the motion to change. The submissions of each party stated that neither party included in his or her bill of costs any of the costs relating to the motions heard December 14, 2022.
[31] The mother’s bill of costs totals $48,514.29 on a “full indemnity” basis and $32,896.12 on a “partial indemnity” basis. Both amounts are inclusive of fees, disbursements and HST. The mother seeks a costs order of $45,000 regarding her costs of the motion to change.
[32] The father’s bill of costs for the motion to change totals $19,647.43 inclusive of fees, disbursements and HST. The father submits that there should be no order as to the costs of the motion to change.
[33] The approach of both parties was to allocate to the “main proceeding” – in this case, the father’s motion to change – all costs incurred with the exception of the motions heard on December 14, 2022.
[34] The withdrawal by the father of his motion to change triggers the application of r. 12(3):
Costs payable on withdrawal
(3) A party who withdraws all or part of an application, answer or reply shall pay the costs of every other party in relation to the withdrawn application, answer, reply or part, up to the date of the withdrawal, unless the court orders or the parties agree otherwise
[35] While r. 12(3) does not specifically refer to a “motion to change”, r. 2(1), dealing with definitions, includes in the definition of “application”, a “document that starts a case”, and therefore would include the father’s motion to change. Both parties agree that r. 12(3) applies.
[36] The mother submits that she should be compensated for all her costs in the motion to change as she was forced to defend the proceeding brought by the father. She argues that it was the children’s decision to refuse to see the father in March 2021, and that she did what she could to convince the children to attend on visits but was unsuccessful. The mother submits that she cooperated with the appointment of the OCL, and that she participated in the reconciliation counselling process as ordered. She argues that the father has the onus to convince the court why costs should not be ordered against him, and she cites Sierra v. Sierra, 1993 O. R. (3d) 161 (Ont. C.A.), at para. 103, where the court held that under r. 12(3) that for the withdrawing party to avoid costs flowing from the withdrawal, that party must persuade the court to make an order avoiding or minimizing costs. The mother denies that she was in breach of any court order or arbitration award, and she submits that there was no obligation on her to commence any proceeding to change the provisions dealing with the father’s parenting time.
[37] The father has a diametrically opposed narrative. He argues that the mother failed to take any meaningful steps to ensure that the children attended for visits; that the mother absolved herself from all responsibility by saying it was the children’s decision not to attend visits; that the father took all reasonable steps, including prior to commencing litigation, to exercise his parenting time; that after he issued the motion to change, the father focused on a clinical solution as evidenced by the two orders for reconciliation counselling.
[38] It is the father’s position that his efforts were focused on enforcing existing orders including an arbitration award, rather than varying the parenting provisions. He argues that the onus to change the parenting schedule was on the mother and that she failed to take any steps to do so. The father submits that it was reasonable for him to commence the motion to change in the circumstances and that he should not be penalized in costs for making efforts to see the children in the face of the mother’s refusal to change the parenting schedule. The father relies on the decision of Aston J. in B.L. v. M.L., 2003 CanLII 1948 (Ont. S.C.J.), where the court exercised its discretion under r. 12(3) and ordered no costs when the application was withdrawn.
b) Discussion
[39] The lawyers for each party spent a similar amount of time. The difference in fees, as discussed earlier, is attributable to the differences in the hourly rates.
[40] In B.L. v. M.L., supra, the applicant had withdrawn her claim for custody of her four-year-old granddaughter. The respondent mother sought costs of almost $6,000 representing full indemnity. In dismissing the request for costs, Aston J. considered as a factor, the reasons that the case was started, and found that the applicant had a genuine and reasonable belief that the child needed to be rescued from an unstable environment, and that during the currency of the litigation, that the mother had taken various steps to address the issues that had concerned the applicant and that the applicant had withdrawn her application in a timely fashion after circumstances had changed.
[41] In the present case, the reason for the father commencing his motion to change is a relevant factor to consider. The motion to change sought to enforce existing parenting provisions in circumstances where the children were not seeing the father.
[42] As the mother correctly submits in her reply, “the genesis of the children’s decision to stop seeing the [father] remains unclear and a matter of dispute.” What was clear is that no parenting time was occurring despite two orders and an arbitration award. There was no dispute that until approximately mid-March 2021, that the parenting time was occurring. Both children turned age 12 in March 2021.
[43] During the course of the initial adjournments, an attempt was made pursuant to an order to exchange the children at a neutral location but that proved to be unsuccessful as the children still refused to see the father. At that point in the proceeding, the father’s focus was to find a clinical solution. The July 2021 order for reconciliation counselling resulted after motions brought by each party were argued. The father wished to pursue reconciliation counselling and sought an immediate order to that effect. The mother’s position was that reconciliation counselling at that point was premature, but the mother did submit, in the alternative, that she was prepared to engage in reconciliation counselling if her initial position was rejected.
[44] The subsequent withdrawal by both court-ordered therapists, as discussed earlier, was not within the control of either party.
[45] I find that it was reasonable for the father to bring a motion to change to enforce the existing parenting schedules and to pursue reconciliation counselling.
[46] After the LFCC withdrew, the father was faced with two failed attempts at reconciliation counselling due to circumstances outside of his control. Indeed, neither of the two court orders for reconciliation counselling were able to run their course given the withdrawal of the court-ordered therapists. At this point, it was not surprising that the father elected to bring his motion for relief which was characterized by the mother as the “nuclear option” in her reply submissions. However, the father’s failure in that endeavor has left him subject to a costs order as discussed earlier.
[47] During the course of the motion to change until the point of withdrawal by the LFCC, there was much effort made by both parties to pursue a clinical approach to address a very difficult situation.
[48] When the father’s motion was dismissed in January 2023, with the potential of a looming expedited trial date in May 2023, I find that the father acted in a timely manner to withdraw his motion to change. This result is a sad and a most discomforting conclusion. No meaningful progress was made in over two years of litigation. This is not a “win” for the mother, but rather a reluctant conclusion by the father that at this time no meaningful benefits can be achieved by continuing the litigation.
[49] I concur with the father’s position that he ought not to be penalized for taking the reasonable steps that he did to enforce the parenting schedule. I conclude that in the circumstances it is proper, just and reasonable for each party to pay their own costs of the motion to change.
[50] I do need to mention a point that neither party addressed in their respective costs submissions. The July 2021 order for reconciliation counselling gave each party the opportunity to make costs submissions. Both parties did provide written costs submissions and the costs order dated November 23, 2021, was made. It is noted that both parties incorrectly included the time spent on the motions leading to the July 2021 order in their costs calculations on the motion to change.
[51] Further, the costs order provided as follows: (a) that costs of the motions are fixed at $5,500 inclusive of HST and disbursements; and (b) that the issue of who is entitled to receive those costs, if anyone, is left to the trial judge or, if there is no trial, then to the judge who disposes of this case on a final basis.
[52] In the circumstances and considering that neither party made any submissions as to the payment of the $5,500, I find that neither party should pay $5,500 or any part thereof to the other.
ORDER
[53] I make the following final order:
Subject to paragraph 2 of this order, each party shall be responsible for his or her own costs of the motion to change brought by the applicant.
Regarding the motions heard on December 14, 2022, the applicant shall pay to the respondent her costs of the motions fixed in the amount of $22,500 inclusive of disbursements and HST, and payable on November 1, 2023.
“Justice Victor Mitrow”
Justice Victor Mitrow
Date: August 11, 2023
[^1]: See endorsement dated January 9, 2023, paras. 11 - 14 [^2]: The hourly rates for mother’s counsel for “full indemnity” and “partial indemnity” were $595 and $398.65 (67%); and the hourly rate for the father’s counsel was $275.