Court File and Parties

COURT FILE NO.: FD76/19 DATE: October 13, 2023 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: J. S. A., Applicant AND: J. R. A., Respondent

BEFORE: MITROW J.

COUNSEL: Hamoody Hassan for the Applicant Anthony H. Little, K.C. for the Respondent

HEARD: Written submissions filed

Costs Endorsement

[1] The parties have provided their written costs submissions pursuant to the trial judgment dated May 11, 2023. For convenience, I refer at times to the applicant as “the father” and I refer at times to the respondent as “the mother.”

[2] The written costs submissions consist of the father’s submissions and the mother’s responding submissions. Although permitted to do so, the father elected not to file reply submissions.

[3] In his written submissions, the father refers to post-trial events alleging that the mother has relocated and that she has a new partner. Updated form 35.1 and form 35.1A affidavits from the mother were forwarded from the father’s lawyer’s office to the court’s judicial assistant.

[4] If a party intends to rely on facts or evidence occurring subsequent to the conclusion of a trial, then it is incumbent on that party to bring a motion, on notice, seeking leave from the court to consider additional evidence. The father failed to do so. Accordingly, in dealing with the costs issue, I give no consideration to the alleged post-trial events referred to by the father, and I have not reviewed the updated form 35.1 and form 35.1A affidavits apparently served by the mother as those affidavits were not evidence properly before the court.

[5] This was a nine-day trial. The significant issues centered around the final parenting order to be made regarding the parties’ child, born in February 2016. The only other issue at trial was child support and this was a very minor issue as noted in more detail below.

[6] The father submits that he is the successful party. He claims costs in the amount of $105,000 all-inclusive on a “full recovery basis” or in the alternative, “partial recovery costs” in the amount of $75,000. In addition, a further $7,500 all-inclusive is requested for post-trial work.

[7] The mother submits that “the results are mixed” and that each party should bear his or her own costs. The child’s primary place of residence and decision-making responsibility were the two main parenting issues that dominated the trial.

[8] The primary residence issue was created because soon after separation, the mother moved with the child to Innisfil, while the father remained in London. For over three years, prior to trial, the parenting schedule was week-about pursuant to an interim order.

[9] The week-about arrangement became more complicated when the child started school. For much of junior kindergarten and senior kindergarten, school was virtual but for grade one, the child was registered for school in each parent’s location. Consequently, the child attended school, during alternating weeks in either Innisfil or London, depending on which parent the child was with.

[10] Both parties agreed that this arrangement was no longer in the child’s best interests. The father proposed the child’s primary residence should be with him and that the child should attend school permanently in London. The mother proposed that the child’s primary residence should alternate on an annual basis, meaning that the child would alternate annually between attending schools in Innisfil and London. In their respective proposals, the parties did not differ materially, if at all, as to the schedule of weekend parenting time with the other parent during the school year. For the summer months, each party proposed week-about parenting time.

[11] The trial judgment rejected the mother’s proposal and awarded primary residence to the father with the child to attend school in London.

[12] On the issue of decision-making responsibility, neither party was successful. The father proposed that the parties confer regarding decision-making responsibility, including major decisions, but with the father to have the final decision-making responsibility. The mother’s proposal for decision-making responsibility contained wording very similar to the father’s proposal, except that the mother would have final decision-making responsibility.

[13] The trial judgment awarded joint decision-making responsibility to the parents. The child was required to continue to attend an English program in a public school determined by the father’s residence, with any change from a public school or from a non-English program, including French immersion, to be made only on the consent of both parties. The issue of French immersion was canvassed at trial. The father did favour French immersion, but the mother was opposed because of her concerns regarding the child’s speech issues for which the mother had arranged appropriate child-focused intervention. Given the foregoing, a final order was made at trial that it was in the child’s best interests that any decision regarding French immersion shall require the consent of both parties. The trial judgment did note, however, that it was not clear from the evidence whether the child was still eligible to attend a French immersion program as the child was completing grade one and had always been in an English program.

[14] The trial judgment provided for a process to address disputes regarding decision-making responsibility, with the parties having to return to court if their dispute could not be resolved.

[15] The issue of child support became somewhat moot as the father elected not to request child support given that the mother’s income consisted of benefits pursuant to the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched. B, (“ODSP benefits”). The final order dismissed the father’s claim for child support on a without prejudice basis to his right to claim child support in the event that the mother’s employment situation should change.

[16] I find that overall, the father was more successful than the mother and that he is presumptively entitled to costs: r. 24(1). However, I also take into account that success was divided: r. 24(6). From the father’s perspective, while he was successful on the issue of primary residence, he was not successful on the issue of decision-making responsibility. Neither was the mother, and therefore, she would not be entitled to her costs on that issue.

Factors – R. 24(12)

a) Each Party’s Behaviour

[17] Pursuant to r. 24(4), a successful party who has behaved unreasonably during a case may be deprived of all or part of that party’s own costs or ordered to pay all or part of the unsuccessful party’s costs.

[18] I find that the father has behaved unreasonably. The trial judgment was critical of the father’s conduct in terminating the parties’ lease, leaving the mother with no place to live, while the father made arrangements to live with his parents who resided in London. The father’s conduct was described as “unjustified”, “self centered” and not in the child’s best interests. [Reasons for judgment reported at A. v. A., 2023 ONSC 2558, at paras. 19 – 20].

[19] Findings were made at trial that the father engaged in family violence: that he damaged property; that his anger constituted psychological abuse; that he was physically abusive to the mother; and that his actions in terminating the lease, and leaving the mother with her limited financial resources with no place to live, constituted financial controlling behaviour amounting to financial abuse. [Ibid, reasons for judgment at para. 135].

[20] The mother too engaged unreasonable behaviour. She deliberately failed to disclose for a period of approximately one year that she was living with the child at her partner’s residence in Innisfil. Initially on separation, she had resided with her mother and stepfather in Innisfil. The court made a finding that the mother intended to deceive the father as to her true address. The mother engaged in self-help by moving with the child to Innisfil. The court made a finding that this conduct was neither reasonable nor in the child’s best interests. In November 2020, the mother was convicted of impaired driving as a result of an incident that occurred in July 2020. On that occasion, the mother had driven with the child from Innisfil to the exchange location in Guelph. The father observed the mother to be impaired when the father attended at the exchange location. Police were called and the mother was arrested.

[21] Given the mother’s history of issues with alcohol, including a previous impaired driving conviction, the final order imposed a number of conditions including proscribing use of alcohol by the mother.

b) Fees and Time Spent by Each Party

[22] The father has filed a costs outline. The actual lawyer hourly rates of $375 ($250 for “partial indemnity”) are reasonable given the experience level of counsel. Mr. Hassan, who was trial counsel, has over 40 years experience. Although $105,000 all-inclusive is claimed, this represents a reduction from the actual amount of a little over $122,000 shown in the costs outline.

[23] The father submits that including trial, he has actually paid $155,932.65, and that this amount was after his actual fees and disbursements were reduced by $62,250.

[24] The total lawyer time for the father shown in the costs outline is a little over 250 hours. Clerk time totals 95.5 hours, but at a modest hourly rate of $65. However, the 47.8 hours that the clerk docketed for attending the trial is not included in the clerk’s hours and was not added to the fees in the costs outline. Also, the costs outline does not include three interim motions and case and settlement conferences.

[25] The mother’s counsel, Mr. Little, K.C., is a senior and very experienced member of the bar. No specific details have been provided regarding the time spent by the mother’s counsel. The mother submits that she is of limited financial resources, that her legal services were covered by Legal Aid Ontario without contribution and that the nature of the account as settled by Legal Aid Ontario is privileged information and cannot be disclosed.

[26] The mother further submits that for all the time spent by the father’s counsel and staff at the rates outlined by the father, that “one might easily anticipate” that a similar amount of time at comparable rates would have been required by the mother’s counsel.

[27] The mother’s submissions ignore r. 24(12.2):

24(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

[28] It is not a breach of solicitor-client privilege for a party to advise the court as to the time spent and the hourly rates. It is not necessary to provide a copy of the actual account, and even if the account has been provided, then any confidential information, for example, detailing specific discussions between counsel and a client, can be redacted.

[29] I take into account that the mother took no issue with the fees and disbursements claimed in the father’s costs outline. I find that the time spent as indicated in the father’s costs outline including the hourly rates, fees and disbursements, are reasonable.

[30] I consider also that the issues at trial were important to both parties. I do not regard the issues at trial as being complex.

c) Offers to Settle

[31] The father served three offers to settle. The first offer was in October 2021, the second offer was in October 2022, and the third offer was dated November 8, 2022, being two weeks prior to trial.

[32] The mother served only one offer dated one day before trial. The mother should have made more effort in providing an offer to settle earlier during the case.

[33] The parties’ offers mirrored their positions at trial, although on the issue of decision-making responsibility, the father’s first offer was more generous providing that in the event of a disagreement that the mother would have final decision-making responsibility regarding schooling and religion and the father would have final decision-making responsibility regarding health and extracurricular activities.

[34] The father’s offers were reasonable. Although the mother’s plan for the child to live with each party during alternate years was not accepted by the court, it cannot be said that the mother’s offer was unreasonable or that she acted unreasonably in presenting such a plan. The fact that a parent’s plan is not accepted by the court does not, per se, mean that a parent has acted unreasonably. The mother was seeking to preserve a lengthy existing interim court-ordered status quo where the child had been spending equal time with each parent.

[35] Although none of the offers engaged the costs consequences set out in r. 18(14), all the offers still can be considered pursuant to r. 18(16): see Feng v. Philips, 2006 ON SC 13769, 2006 CarswellOnt 2608 (Ont. S.C.J.), at para. 28, and DeJong v. DeJong, 2014 ONSC 1942 (Ont. S.C.J.), at paras. 14 – 15, both cases relied on by the father.

Decision

[36] The father’s costs outline made reference to r. 57.01 and “partial indemnity”, both of which are referred to in the Rules of Civil Procedure and which have no application in family law matters. In Beaver v. Hill, 2018 ONCA 840 (Ont. C.A.), at para. 9, it was held that judges are not constrained to the usual scales of costs found in the Rules of Civil Procedure since no scales of costs are mentioned in the Family Law Rules. While the father incurred significant legal expenses compared to his annual income of $55,400 as disclosed at trial, I find that the father’s entitlement to a costs award must take into account the divided success and his unreasonable behaviour.

[37] Although r. 24(4) allows the court to order a successful party to pay all or part of the costs of the unsuccessful party, this is not a case where the father should pay any of the mother’s costs given the mother’s unreasonable behaviour, and considering also that the mother does not claim costs from the father. However, I do find that pursuant to r. 24(4) that the father’s unreasonable behaviour merits a material reduction in costs, after also taking into account divided success pursuant to r. 24(6).

[38] Rule 24(12)(b) allows the court to consider “any other relevant matter”, and this includes taking into account the financial situation of the parties in setting the amount of the costs award: M.(C.A.) v. M.(D.), 2003 ONCA 18880, 2003 CarswellOnt 3606 (Ont. C.A.), at para. 42.

[39] In her submissions, the mother has pointed to her minimal ODSP income. I do consider however, Blanchard v. Walker, 2012 ONCJ 799 (Ont. C.J.), at para. 43, relied on by the father, that the financial means of an unsuccessful party should not be used to shield that party from costs, particularly where the unsuccessful party has behaved unreasonably.

[40] After considering the factors in r. 24(12) in the context of reasonableness and proportionality and after considering divided success and the unreasonable behaviours of both parties, I find that a modest costs award is just and reasonable. I fix the father’s entitlement to costs in the amount of $7,000 with time to pay as ordered below.

Order

[41] The respondent shall pay to the applicant his costs of this proceeding fixed in the amount of $7,000 inclusive of HST, payable in the amount of $175 per month commencing November 1, 2023, until paid in full.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: October 13, 2023