Court File and Parties

COURT FILE NO.: FS-20-018690-0000 DATE: 20231005 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

KATHLEEN SHIPTON Applicant – and – AAMIR SALEEM SHIPTON Respondent

Counsel: Michael Tweyman, for the Applicant David Tobin and Christina Hinds, for the Respondent

HEARD: February 21, 22, 23, 24, March 1, and April 28, 2023

Supplementary Reasons for Judgment – Costs

AKAZAKI, J.

[1] Following the trial of this application, I dismissed the application for relocation of the child of the marriage from Toronto to Ennis, Ireland. The Applicant’s main reason for the relocation was frustration of her career in optometry caused by the circumstances of the marriage. She had intended to obtain Canadian qualifications. Due to the Respondent’s mental health disability arising from a car accident, she was required to take on locum work in the U.K. His continued post-traumatic depression caused strains and conflict in the marriage, and she left for Ireland for a period of time. On her return, the parties reconciled and had the child. She then decided to return to Ireland and started the proceeding.

[2] I decided that if the consequence of the short marriage to the Applicant’s professional and economic well-being was the delay in obtaining Canadian registration as a Doctor of Optometry, alleviating that barrier and detriment was really an issue of compensatory spousal support. The Applicant had completed her optometry training in Ireland at the top of her class, and the evidence was not disputed that she was a highly skilled optometrist who encountered little difficulty in finding employment. Apart from other factors regarding the best interests of the child, the career rationale favoured remaining in Toronto if the Applicant were compensated by a spousal support order facilitating the qualification for registration. As a further consequence of restoring the career expectations of the Applicant when she married the Respondent and moved to Toronto, I ordered periodic spousal support to end after a period after the completion date for the upgrade courses. The ability to restore the career trajectory therefore lay at the core of the resolution of this family law dispute.

[3] Had this been a spousal support case, she would clearly have been the successful party. As a legal problem, the evidence she led about her career made it abundantly clear that relocating the child and severing the bond with the father to pursue a step back in her career was a wholly unreasonable path to follow when a better career awaited her in Toronto. I understand the Applicant’s argument that success was somewhat divided, because the court recognized the need for additional spousal support beyond the willingness of the Respondent to pay. But the case justifying the compensatory spousal support undermined her request for relocation of the child.

[4] There can be no doubt that the focus of the trial and the conduct of the entire case was an ultimate showdown over relocation. For her part, the Applicant provided cursory information about the financial and time barrier to obtaining the Canadian degree, because of her resolve to undo the move to Canada. Her evidence therefore fell short of establishing a real frustration to her professional career and economic condition, if a better career awaited after she completed the training course with targeted financial support from the Respondent. Her case for a career barrier simply provided evidence for the additional support. The Respondent was successful in the litigation. While the monetary scope of the litigation may have been different, the importance to the Respondent of keeping his parenting time with the child was similar to the dynamic in Bell Canada v. Olympia & York Developments Ltd., where the defendant was the successful party, even though the plaintiff recovered some of its damages claim:

In the present situation, if this plaintiff had made a claim in contract for only $25,000 against this defendant, I am confident that there would have been no lawsuit and no trial whatsoever; and no costs would have been incurred.

[5] The Applicant fought the application and hired highly respected lawyers to counter a legal team of similar caliber on his wife’s side. For both parties, relocation was the main issue. His lawyers have submitted a bill of costs seeking $97,897 in partial recovery costs. The Respondent’s submission that this amount is out of proportion to the expectations of the parties. Her costs would be in the order of $48,000. But quite apart from the amount, she submits that the costs should be reduced to nil or to $10,000, in order not to detract from the purpose of the trial decision.

[6] The parties earned modest professional incomes prior to their immigration to Canada. They had some property and income during the marriage. I was privy to the parties’ financial statements as part of the factual matrix and continuing record at the trial. I do agree with counsel for the Applicant that if she were to face a costs award against her in the magnitude sought by the Respondent, in addition to her own legal expenses, the purpose of the judgment would likely be frustrated. Nevertheless, she chose to pursue a remedy that would break up the family entirely instead of one that would properly compensate her for the delay in resuming her career trajectory. The task for this court is to craft a costs remedy that reflects the fact that the Applicant put the Respondent to considerable litigation costs, without undermining the support order that will allow the Applicant to resume her career trajectory and to become self-sufficient for support purposes.

[7] Before continuing the analysis of the effect of the costs award, I will determine quantum. I agree with counsel for the Applicant that many of the steps leading to the trial entailed motions and conferences in which the costs were expected to be shouldered by the parties evenly. I did, however, find that the initial stage of the proceedings entailed leveraging allegations of abuse that, under the scrutiny of trial, proved unfounded. A considerable amount of legal work went into the issue of onus on the relocation application. She argued that the father bore the onus of opposing the relocation, because he had comparatively less parenting time. The Applicant engaged police and emergency motions court in order to confine the Respondent’s parenting time to time-limited supervised access, even though they had shared the parenting duties until the start of proceedings. The Respondent ran into family justice’s conservative approach to expansion of parenting from a supervision order. The Applicant must bear the sole responsibility for having made allegations of coercive control and family violence that proved to be purely strategic in nature. Having regard to reasonable expectations and the Respondent’s relative success on the main issue, I award the Respondent $70,000 in costs, inclusive of disbursements and HST.

[8] The avoidance of the effect of a costs award reversing the just resolution of a case would fall into the category of “any other relevant matter” under subrule 24(12). The underlying discretion under s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, has also provided the basis for deferral of costs to relieve hardship, especially in circumstances where the economic fortunes of the payor are to improve in the near future: McLaughlin v Royal Bank of Canada, 2016 ONSC 5014, at para. 14. Accordingly, I order that the costs payable by the Applicant shall be deferred in a manner tracking her self-sufficiency per para. 164 of my trial reasons: deferred to the earlier of (a) December 31, 2026, or (b) three months after Kathleen Shipton obtains full-time employment as an Ontario Doctor of Optometry, either as an employee or as a self-employed practitioner. I appreciate it will be unlikely that she will have amassed the funds to pay the costs by that time. However, she will have the ability to finance the costs award at that time or to negotiate a payment schedule that tracks her professional income once she is established.

Akazaki, J. Released: October 5, 2023

Supplementary Reasons for Judgment – Support Calculations

COURT FILE NO.: FS-20-018690-0000 DATE: 20231005 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: KATHLEEN SHIPTON Plaintiff – and – AAMIR SALEEM SHIPTON Defendant

AKAZAKI, J.

Released: October 5, 2023