Court File and Parties

COURT FILE NO.: FS-16-88027-00 DATE: 2024 02 08 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Christina Mary Czernuszka (Young), Applicant Rebecca Ying, for the Applicant

- and -

Wayne John Larry Stephan Young, Respondent Andrew Kania, for the Respondent

Office of the Children’s Lawyer Molly C. Leonard, for the OCL

HEARD: In Writing

FAMILY LAW TRIAL ON PARENTING ISSUES ONLY: DECISION ON COSTS

Endorsement

[1] Pursuant to the endorsement of Ricchetti RSJ, the issue of parenting was bifurcated and sent to trial in advance of the financial issues.

[2] On September 22, 2023, I released my reasons for decision in this family law trial. This is my decision on costs.

[3] On the last day of trial, September 18, 2023, in accordance with the Trial Management Conference (TMC) endorsement of Mandhane J., I gave directions to the parties for the next steps for the financial issues. I am not seized of the financial issues.

Cost Materials Reviewed

[4] I reviewed both the bills of costs and cost submissions filed by the parties in court at the conclusion of trial, as well as the offers to settle, submissions and further submissions provided after release of my trial decision.

Time Period Considered

[5] As indicated, the parties had both parenting and financial issues in dispute. The trial dealt only with the parenting issues.

[6] The parties, at my direction, therefore restricted their submissions to their costs for the parenting issues and for the period from the TMC (January 26, 2023) to the end of the trial held September 11-18, 2023.

[7] The TMC endorsement does not reserve costs to the trial judge. Accordingly, this decision will not allocate costs for TMC preparation or attendance.

Parties’ Positions at Trial and Trial Outcome

[8] At trial, the parties’ children were 15 (daughter) and 14 (son) years old. They resided with the Applicant Mother. Weekly in-person parenting time between the children and the Respondent Father had resumed approximately 14 months prior to trial.

[9] At trial, the Respondent Father asked the court to find that the Applicant Mother had alienated the children from him, and to order the children into his sole care for 90-days, during which they would have restricted contact with their Mother. Thereafter, the children would live alternating weeks with each parent and the parties would have joint decision-making.

[10] The Applicant Mother sought an order continuing the interim arrangement in which both children had parenting time with the Respondent Father for a few hours each week, but not overnight. She proposed that the time could be expanded to include overnights if the children wished to do so. She opposed joint decision-making.

[11] The children were represented by OCL counsel at trial, who led evidence of their current views and preferences.

[12] The OCL position on behalf of the children was to continue the interim arrangement referenced above, which the children enjoyed and wished to continue, but without any requirement that the amount of time they spent with their Father must increase over time, nor that they were required to move toward an overnight schedule with him.

Cost Position of Parties

Office of the Children’s Lawyer Costs

[13] On agreement of all parties, costs were neither sought by the OCL nor claimed against it by the parent parties.

Applicant Mother’s Position and Costs Claimed

[14] The Applicant Mother’s full recovery costs are $105,607.22, comprised of two categories: $65,003.25 for the period of January 2023 to the start of trial; and $40,680.00 from the start of the trial to the end of trial.

[15] The Applicant Mother argues that she was fully successful in obtaining an order to continue the interim parenting time which was working well for the children. The court did not accept the Respondent Father’s contention that she had alienated the children, and also awarded her sole decision-making.

[16] The Applicant Mother breaks down her costs submissions into halves on the basis that she incurred 50% for the decision-making issue, and the other 50% to litigate the issue of the children’s parenting time with their Father. She seeks full indemnity costs on the decision-making 50% of costs from January 4, 2023. She also seeks full indemnity costs on the parenting time 50% of costs following March 20, 2023, on the basis that her proposal was accepted by the Father on an interim basis at that time.

[17] The Court does not accept the Applicant Mother’s proposal to allocate costs on a 50/50 division basis. The focus of the trial was what parenting time was in the children’s best interests, and included determination of whether alienation was found such that a 90-day primary parenting reversal was appropriate. Joint decision-making was found by the court to be precluded by the parents’ inability to communicate. Sole decision-making therefore necessarily closely followed the primary residence and parenting time findings and conclusion.

[18] I therefore find that given the intertwined nature of the two parenting issues, it is appropriate to consider the Applicant Mother’s costs for the parenting issues as a whole, not in percentages.

Respondent Father’s Position and Costs Claimed

[19] The Respondent Father’s bill of costs for preparation and trial totalled $60,694.56. He submits that neither parent was successful, as the OCL was the successful party.

[20] The Father seeks full recovery of his own costs from the Applicant Mother “regardless of Justice McSweeney’s parenting order”.

[21] In support of his position, the Respondent points to the Applicant Mother’s non-compliance with previous parenting orders. He also argues that the Applicant Mother “tried to get [him] charged” on two occasions, and “succeeded” with respect to the “X-Box” incident with the parties’ younger child.

[22] The evidence at trial regarding the X-Box incident was that the Respondent Father was charged by police in November 2020 with assault on the son, J. The trial took place in May 2023. Both children were called as witnesses. The Respondent was found not guilty.

[23] The Respondent Father also relies on his offers to settle and accompanying submissions, considered later in this decision. He argues that the Applicant Mother’s refusal of overnight parenting time and restricting in-person parenting time, in all the circumstances, should disentitle her to any costs, and should be found unreasonable within the Family Law Rules framework such that she should be required to reimburse his full indemnity costs, despite his lack of success at trial.

Legal Framework for Costs in Family Law Cases

[24] The Ontario Court of Appeal summarized the cost principles applicable to family law disputes in Mattina v. Mattina, 2018 ONCA 867, at paras. 9-17, as follows:

Section 131(1) of the Courts of Justice Act, provides that cost orders are in the discretion of the court. Rule 24 of the Family Law Rules sets out a framework for awarding costs for family law cases in the Family Court of the Superior Court of Justice, in the Superior Court of Justice and in the Ontario Court of Justice. Although the Family Law Rules do not expressly govern costs awards in the Court of Appeal, they have been used to guide this court’s analysis on costs in family law disputes.

This court has held that modern family cost rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement, and; (3) to discourage and sanction inappropriate behaviour by litigants. Rule 2(2) adds a fourth fundamental purpose: to ensure that cases are dealt with justly. And Rule 24(12), which sets out factors relevant to setting the amount of costs, specifically emphasizes “reasonableness and proportionality” in any costs award.

The Family Law Rules are a marked departure from some aspects of the Rules of Civil Procedure. As such, case law pertaining to costs decided under the Rules of Civil Procedure should be approached with some caution.

Rule 24(1) creates a presumption of costs in favour of the successful party of a motion, case, or appeal. And the presumption that a successful party is entitled to costs applies equally to custody and access cases.

Consideration of success is the starting point in determining costs. This presumption does not, however, require that the successful party always be entitled to costs. An award of costs is subject to: the factors listed in r. 24(12), r. 24(4) pertaining to unreasonable conduct of a successful party, r. 24(8) pertaining to bad faith, r. 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party.

Rule 24(12) sets out a list of factors the court shall consider in determining an appropriate amount of costs:

(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

i) each party’s behaviour,

ii) the time spent by each party,

iii) any written offers to settle, including offers that do not meet the requirements of rule 18,

iv) any legal fees, including the number of lawyers and their rates,

v) any expert witness fees, including the number of experts and their rates,

vi) any other expenses properly paid or payable; and

(b) any other relevant matter.

The Family Law Rules only expressly contemplate full recovery costs in specific circumstances, e.g. where a party has behaved unreasonably, in bad faith or has beat an offer to settle under r. 18(14).

Rule 24(4) addresses the situation in which a successful party has behaved unreasonably:

Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs.

Rule 24(5) provides guidance on how to evaluate reasonableness:

In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

b) the reasonableness of any offer the party made; and

c) any offer the party withdrew or failed to accept.

[Citations omitted.]

Analysis

Who Was the Successful Party?

[25] The Respondent Father submits that the OCL was the successful party. In considering this submission, I note that no costs are being sought by or against the OCL. Therefore, since only the parent parties seek costs against each other, the court’s task is to determine relative success as between the parent parties.

[26] The Applicant Mother was successful in obtaining the parenting time and decision-making orders she sought. These were the central issues. However, her draft order filed at commencement of trial contained additional categories of relief which were not ordered by the Court, including an order for reunification counselling and an order permitting her to change the children’s names without the Respondent’s consent.

[27] The Respondent Father was not successful on any of the orders sought in his draft order. The Court did not find that the children were alienated as he argued. The Court did not order alternating weeks of shared parenting, with or without a transitional sequestered period in his primary care. To the contrary, the Court concluded that the positive relationship reported by the children in their current parenting time with their Father would be adversely affected if his parenting proposal were to be implemented.

[28] The Court does not accept Father’s position that he should be entitled to trial costs in any event because Mother failed to comply with court orders prior to trial. The circumstances between these parties were complicated as set out in my trial decision, in particular relating to the extended delay in adjudication of the Father’s criminal trial at which the children were required to testify.

[29] The Father’s contempt motion, seeking findings and consequences for breach of orders which was adjourned sine die prior to trial, was advanced by him nonetheless until the start of trial, and at that time was withdrawn. I have found that the trial was necessary. Both parties had counsel and were therefore aware of their risk of costs in the event they did not succeed at trial nor beat an offer to settle.

[30] In conclusion regarding relative success, I characterize the Court’s decision as substantial success for the Applicant Mother at trial. She is therefore presumptively entitled to costs.

Were Any “As or More Favourable” Offers Made per Rule 18(14)?

[31] The Father did not make any offers to settle to which Rule 18(14) applies. His offers are therefore considered further below as a factor relating to efforts made by him to resolve the issues without the necessity of a trial.

[32] The Mother argues that she is entitled to substantial indemnity costs from March 20, 2023 on the basis of her offer of March 13, 2023. In that offer, in the section headed “Parenting decision-making Severable Part 1” she proposed essentially continuing the children’s parenting time with the Respondent Father, consistent with the position of the OCL ordered in the trial decision. In this regard she obtained an order as favourable as the parenting and decision-making parts of her offer.

[33] The Applicant’s offer of March 13, 2023 was in two sections – by its terms, the Respondent Father had to accept the entire Part 1 section, comprised of 14 paragraphs. In order to benefit from the automatic full recovery in Rule 18(14), the Applicant must have obtained an as or more favourable outcome than all the categories of relief listed in Part 1.

[34] Paragraph 12 required the Father to agree that “the children shall continue to be enrolled in joint reunification counseling with Ricardo Theoduloz or an equivalent agreed-to professional, and the Respondent Father shall be responsible for same fees, after application of any insurance benefits by both parties, and the parties shall participate in same counselling as directed by the family professional.”

[35] In its decision following trial, the Court did not direct the reunification counselling sought by Mother, nor require both parents to also attend “if directed by the family professional”, nor was Father ordered to pay fees as described in Mother’s offer.

[36] I therefore cannot find that the Applicant Mother obtained at trial an outcome “as favourable as” her offer to settle from March 13, 2023. She is therefore not entitled by operation of Rule 18(14) to an enhanced scale of cost recovery from its date.

[37] Her costs are therefore considered on a partial indemnity scale.

[38] In determining an appropriate, reasonable and proportionate cost award, I have considered factors including the following:

a) Both parties made successive offers to settle, and attempted settlement in discussions which continued during the trial outside of court hours;

b) Both parents, as found in my trial decision, have contributed to their conflict and to their communication impasse over the years, such that for cost purposes regarding the parenting trial, both ultimately required an adjudicated outcome to address their parenting conflict;

c) The trial was ultimately necessary as both parents proposed that the court order the children to do things that were not consistent with the OCL’s position (ie. therapy focused on “reunification” sought by Mother; a week-about parenting schedule sought by Father).

d) Both parties took steps or positions at different times which required argument and rulings and thus lengthened the trial (e.g. the Applicant proposing at the start of trial to call witnesses without having provided the required will-say statements; the Respondent counsel seeking to introduce “without prejudice” communication of Applicant counsel);

e) The hourly rate charged by both parties’ counsel was reasonable;

f) The hours claimed by the Applicant were high, and higher than the Respondent’s;

g) The Applicant’s hours included 10 hours for the TMC for which costs were not reserved; and

h) The Father persisted until the first day of trial of seeking a contempt order against the Mother despite the contempt having been adjourned sine die, requiring the Mother to expend resources and prepare evidence to address that issue.

[39] Accordingly, taking into consideration these factors, I have adjusted downward the number of hours claimed by the Applicant. I also consider the significant importance of the issues to both parties and the amount the unsuccessful party would reasonably have expected to pay.

[40] Having done so, I consider that a fair and just cost award in favour of the Applicant for the period January 26, 2023 to the end of the trial September 18, 2023 is the sum of $45,000, inclusive of fees, disbursements and HST.

[41] The parties had not by the date of this trial resolved their financial issues. I am not seized with the financial or other issues in this application.

[42] With the release of this cost award the parties are encouraged to utilize a DRO or other assistance to resolve their remaining issues without further adjudication.

Order

[43] Costs fixed in the amount of $45,000 are payable by the Respondent Mr. Young to the Applicant Ms. Young.

McSweeney J. Released: February 8, 2024