Leduc v. Leduc, 2023 ONSC 526

Court File and Parties

COURT FILE NO.: FC-22-513 DATE: 2023/01/19

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

BRIANNA LARISSA LEDUC Applicant – and – CATHERINE LEDUC and JACQUES LOUIS LEDUC Respondent

Counsel: David Danielson, for the Applicant Bruno Sharpe, for the Respondent Jacques Louis Leduc Catherine Leduc – not appearing

HEARD: in writing

Endorsement

Overview

1On December 6, 2022, the court granted relief sought by the applicant Brianna Larissa Leduc. The respondent Jacques Louis Leduc, who is the applicant’s father, was represented by counsel. The respondent Catherine Leduc, who is the applicant’s mother, did not attend nor did she file any responding documents. She was duly served as evidenced by the Affidavit of Service filed.

2I invited the applicant to provide written costs submissions. I have now considered the costs submissions and for the reasons that follow, I award the amount of $7100 costs payable by the mother.

Background

3The applicant, who is 20 years old, is claiming damages against her mother as a result of the family violence and abuse she suffered when she resided with her mother. She left her mother’s home in May 2019. She had minimal contact with her father.

4The applicant alleges a consistent pattern of coercive control that the mother exerted over the applicant, including threatening to kill her, forcing her to wear diapers when she was a teenager, physically assaulting the applicant, psychologically harming the applicant and coercing the applicant into making false allegations against her uncle to the Children’s Aid Society of Ottawa.

5She is also claiming child support, payment of s. 7 special and extraordinary expenses from her parents.

6The applicant is currently attending university and has limited financial means.

Relief granted at the motion

Procedural orders

7The court granted an order that the applicant’s claims found in schedule to s. 21.8 of the Courts of Justice Act will be heard and determined with the other claims which are not scheduled claims. The Family Law Rules shall apply to the entirety of the combined case. The court determined that it is expedient and in the interest of justice that all claims be heard and determined together as they involve the same parties and will save time and cost and expense if heard together.

8As stated by Justice Pazaratz in Constantini v. Constantini 2013 ONSC 1626 at para 24, it is preferable that other claims such as tort claims be dealt with at the same time.

“A consolidated action has the advantage of saving litigation costs and court time; ensuring consistency in the outcomes; and allowing a tort judgment to be factored into the overall financial result”.

9With respect to pleadings, the Court deemed that the Answer filed by the father will be deemed to include a motion to change the final order of Justice Robertson dated March 15, 2016 (Final Order) as between the parents.

Child Support

10The court ordered that the father’s obligation to pay child support pursuant to the Final Order be suspended.

11After the applicant left the mother’s residence, the father continued to pay child support. The mother refused to consent to the termination of payment of child support by the Family Responsibility Office (FRO).

12The applicant is no longer under the charge of the mother and therefore, based on the available evidence before me, the mother should not be entitled to continue to receive child support from the father.

13On consent of the father, the court ordered that commencing January 1, 2023, the father would pay child support in the amount of $648 per month to the applicant based on an annual income of $88,965.

14The applicant continues to be a dependent child who is in full time educational studies. She is entitled to be supported by her parents.

15Therefore, the court ordered that commencing January 1, 2023, the mother would pay child support in the amount of $709 per month based on the mother’s imputed income of $76,050 without prejudice to the applicant to claim an adjustment at trial.

16Under the Family Law Act s. 31(1), every parent has an obligation to provide support for her unmarried child who is a minor or is enrolled in a full-time program of education.

17In accordance with the reasoning of Justice Sherr in Ball v. Broger 2010 ONCJ 557, where a child has deeply conflictual relationship with the mother and that she left home because of the toxic relationship, the child can still be entitled to receive child support. The applicant’s departure from the mother’s home was not free and voluntary but rather due to the hostile environment in her mother’s care.

18At this early stage of proceeding, and without any answer or evidence from the mother who has chosen not to participate in these proceedings, the court finds that on a prima facie basis, the applicant has met the test to show that it was an involuntary withdrawal.

19Next, the court finds that the table amount is appropriate under s. 3(2)(a) of the Guidelines for the applicant who is the age of majority. The applicant has modest means to support herself. The father who has chosen to participate is prepared to pay close to the table amount based on his income.

20The court will order child support payable by the mother. She has not filed any financial materials. Therefore, the court will be required to impute income.

21The court provided oral reasons as to why it imputed income to the mother.

22In summary, the court found that the mother was a trained nurse with many years of experience and there is no evidence of illness or any other reason for her being unable to work full time.

23In accordance with Drygala v. Pauli, and s. 19 of the Guidelines the court can impute income if a payor parent is underemployed or unemployed and has not justifiable reason for not working, such as for educational pursuits.

24There is evidence before the court that she had employment as a nurse for many years and is in a position to work as a nurse.

25As a salary grid was presented in evidence by the applicant, the court was able to make a determination of imputed income.

26The court declined to order s. 7 special and extraordinary expanses on a retroactive basis as the court requires more receipts, analysis and a detailed application of the case law in respect of retroactive child support expenses.

27However, on an ongoing basis, the parents do continue to have an obligation to assist the applicant with her post-secondary education. Based on the material filed and the imputed income of the mother and the declared income of the father, and the fact that the applicant should also take financial responsibility for some of her own education, the court ordered the mother to pay $414.05 per month towards s. 7 special and extraordinary expenses.

Advance costs

28The court ordered the mother to pay an advance of costs in the amount of $10,000 to the applicant in respect of her tort claims.

29The Family Law Act claim is being funded through Legal Aid Ontario. The civil claim is not.

30Rule 24(18) of the Family Law Rules provides that the court can award advance costs. It reads as follows:

(18) The court may make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including a lawyer’s fees. O. Reg. 418/18, s. 1.

31As Justice Horkins stated in CMM v. DGC 2015 ONSC 1815, the purpose of an award of advance costs is to level the playing field. The applicant should not have to rely on the generosity of counsel to assist her in the civil claim. In CMM, Justice Horkins awarded $50,000 so that the child could pursue her claims.

32The court should take judicial notice of the reasonable range of anticipated legal fees. See Benzeroual v. Issa and Farag 2017 ONSC 3655.

33In this case, the applicant seeks the modest amount of $10,000, to take this matter to an uncontested trial as the mother has chosen not to participate.

34There is evidence that the mother owns property and has worked for most of her life and therefore has assets. I find that the mother can financially advance this small amount of money to assist the applicant in pursuing her civil claim.

Disclosure of documents of non-parties

35The applicant was granted production of documents pursuant to Family Law 19(11) which provides:

19 (11) If a document is in a non-party’s control, or is available only to the non-party, and is not protected by a legal privilege, and it would be unfair to a party to go on with the case without the document, the court may, on motion with notice served on every party and served on the non-party by special service,

(a) order the non-party to let the party examine the document and to supply the party with a copy at the legal aid rate; and

(b) order that a copy be prepared and used for all purposes of the case instead of the original. O. Reg. 114/99, r. 19 (11).

36The applicant states that the documents are relevant as the mother’s workplace conduct will corroborate the mother’s aggressive personality and abusive persona in the home environment which targeted the applicant.

37Given the mother’s failure to participate in the proceeding, the applicant requires some documentation regarding the mother’s behaviour and conduct that became a pattern of abusive. It would be unfair for the applicant to proceed to a trial without the documentation.

38The Attorney General (AG) who represents the Correctional Service of Canada holds records of disciplinary actions involving the mother including any workplace reports, grievance proceedings and witness statements. The order has been drafted in consultation with AG counsel and on consent. The AG reserves the right to redact records to protect privacy rights and protect young person’s records will not be produced or anything that would compromise enforcement interests and the documents will only be used for this proceeding and not be reproduced and will be treated as confidential. The applicant may ask for further documents in the future and the AG may move for directions. There are no costs.

39The non-party, Attorney General of Canada (AG), attended and did not take a position with respect to the disclosure being sought pertaining to the mother’s employment records.

40The non-party, the Royal Ottawa Health Care Group, attended and did not take a position with respect to the disclosure being sought pertaining to mother’s employment records while working there.

41With respect to the Royal Ottawa Health Care Group, it will disclose records with respect to the mother’s employment there, but it will not disclose privileged documents.

42In addition, the disclosure will provide the mother’s employment income which will assist in the determination of child support and s. 7 special and extraordinary expenses.

43As stated in MM-A, PA MD and AD v. EL v. Kunuwanimanno Child and Family Services, Attiwapiskat First Nation 2020 ONSC 4597, where Justice Tellier discussed some of the factors that a court ought to consider when determining whether it would be unfair for a party to carry on a case without production of document known as the Stavro factors which are summarized below:

a) Importance of the documents in the litigation – will show her income and provide an insight into her behaviour and pattern of hostility in the workplace

b) Whether production is necessary to avoid unfairness; production will provide the applicant with some evidence to gain insight to the mother’s history; the documents are not available from the mother as she has chosen to not participate.

c) Position of the parties, - no one opposed the motion, the mother has chosen not to participate

d) Availability of the documents – the non-parties indicate that it will take some time but they are accessible

e) Relationship of the non- parties to the parties – there is no relationship with the other parties in the litigation.

Restraining Order

44The court granted a restraining order against the mother. The applicant’s affidavit sets out in extensive details the abuse and terror she lived under while with her mother. She lives in fear of her and recently the mother contacted her.

45Section 46 of the Family Law Act provides:

46 (1) On application, the court may make an interim or final restraining order against a person described in subsection (2) if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody. 2009, c. 11, s. 35.

46The applicant has brought this claim forward and made some serious allegations against the mother. The applicant has experienced a long history of severe family violence.

47Obviously, she is in fear as a result of what has occurred to her, the recent contacts she has had from her mother and the possible fallout when the mother obtains copies of endorsements and orders that are being made in her absence.

48The court finds that the applicant has reasonable grounds to continue to fear for her own safety and hence a restraining order is justified.

Costs

49On consent, there will be no costs as between the applicant and the father.

50For oral reasons given, the court ordered the mother to pay to the father the amount of $1500 costs.

51The applicant is claiming $2,313.68 for the civil claim and $6,279.98 for the Family Law Act claim.

52The mother chose not to participate and did not provide financial disclosure. Nevertheless, the mother was served with all material, including this motion, despite being in default.

Legal Principles

53In Mattina v. Mattina, 2018 ONCA 867, the Ontario Court of Appeal stated that modern costs rules are designed to foster four fundamental purposes (1) to partially indemnify successful litigants; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants and; (4) to ensure that cases are dealt with justly. (Rule 2(2) of the Family Law Rules).

54There is a presumption of costs in favour of the successful party. An award of costs is subject to: the factors listed in Rule 24(12).

Analysis

55The applicant was successful in obtaining a large part of her requests found in her notice of motion.

56The court finds the account submitted for the Family Law Act claim to be fair and reasonable as:

• The hourly rate of $225 per hour is reasonable for a junior member of the Bar;
• The issues were complex which dealt with imputation of income and calculations of post-secondary expenses;
• The issues were very important to the applicant as they dealt with litigation relating to her financial welfare; and
• The sum of $6279.98 for the services is reasonable.

57The court finds that costs should be awarded on a substantial indemnity basis and therefore on the Family Law Act, the court awards the amount of $5600 (inclusive of HST) to the applicant.

58With respect to the civil claim the court finds that the account is reasonable as the issues of damages for alleged past abuse are important and the issues of production of non-parties involved some complexity and involvement of non-parties.

59The court finds a fair and reasonable amount of costs is $1500 (inclusive of HST) for the civil claim.