Tremblay v. Tremblay, 2011 ONCJ 724

Timmins Registry No. 98-09(00) DATE: 2011·III·23 CITATION: Tremblay v. Tremblay , 2011 ONCJ 724 ONTARIO COURT OF JUSTICE BETWEEN: ) ) LAURA TREMBLAY ) Bernard R. Gosselin ) Applicant ) ) — AND — ) ) ) MICHEL TREMBLAY ) Sylvano A. Carlesso ) Respondent ) ) ) ) Justice R.e.w. carr: Background: [ 1 ] This is an application for costs following the resolution of an outstanding family law proceeding in the Ontario Court of Justice by way of minutes of settlement. [ 2 ] Laura Tremblay and Michel Tremblay are the biological parents of Courtney and Gavin Tremblay.

Courtney was born September 14 th , 1999 and Gavin was born May 27 th , 2004. The parties married in 1996 and separated February 19 th , 2007. [ 3 ] Each retained counsel. The terms of separation were agreed to and reduced to writing in a separation agreement dated October 1 st , 2007. [ 4 ] Paragraph 4.1(

a) and (

b) of the separation agreement had to do with custody and access and they read as follows: “4.1 – Both Michel and Laura will have joint custody of the children wherein the children will reside with Michel and Laura on the basis of the following two week schedule: (

a) The children will be with Michel from Friday evening to Monday morning, from Wednesday evening to Friday morning, and from Monday evening to Wednesday morning. The children will be with Laura during the balance of the time. The parent having the children on the weekend immediately followed by a Statutory Holiday Monday will have the children the extra day, until the Tuesday morning; (

b) The children’s primary address will be Laura’s address.” [ 5 ] Laura Tremblay became unhappy with the above-mentioned parenting arrangements and she, in June of 2009, brought an application in the Ontario Court of Justice to vary paragraph 4.1 of the separation agreement. [ 6 ] Ms. Tremblay applied to the court for an order for sole custody of the children with specified access to the respondent. She asked for costs. Ms. Tremblay’s solicitor throughout the proceedings from their origin has been Mr. Ben Gosselin. [ 7 ] Mr. Tremblay responded with an answer asking the court for an order that Ms.

Tremblay’s application be dismissed with costs. He advanced a claim of his own for sole custody of the children with access to Ms. Tremblay. He asked for costs. Mr. Tremblay has been represented in these proceedings by Mr. Sylvano Carlesso. [ 8 ] Ms. Tremblay claimed that the respondent father’s work

schedule had changed so that he was no longer able to be with the children before and after school. She further alleged that the parties were not getting along – communication was difficult and the respondent was not cooperating. Gavin, who has cerebral palsy, “needs a calm environment” which he was not getting with the respondent. The parties were not consulting with each other and were making separate appointments with different dentists and doctors,

she said. Ms. Tremblay further alleged that Gavin needed therapy two times per day and this did not occur when he was in the respondent’s care. Courtney was depressed due to the conflict and she had gained weight, alleged Ms. Tremblay. [ 9 ] Ms. Tremblay alleged in her application and supporting affidavits that the respondent was drawing the children into the matrimonial mess by discussing email correspondence between himself and Ms.

Tremblay with the children and by warning Courtney not to discuss with her mother anything that occurred in his home. [ 10 ] The respondent generally denied the allegations and added some of his own; of course, the same being directed towards Ms. Tremblay. He alleged that the stress/tension and acrimony in the family was the fault of Ms. Tremblay and that she was pressuring Courtney to resist the involvement of the respondent’s girlfriend in her life. Courtney was instructed by her mother, according to the respondent, not to hug his girlfriend and not to allow her to make breakfast for the children.

He says that he has “done everything to cooperate with Laura.” [ 11 ] He further alleged that Ms. Tremblay was influencing the children in the dispute and that she was “not able to provide a proper home environment for the children’s welfare and for that reason I am asking for custody of the children.” [ 12 ] Both parties continued with the same resolve and determination to pursue sole custody, and to quote from the respondent in his settlement conference brief dated January 22 nd , 2011: “It would seem that the position of the parties is entrenched.

Neither one of them is prepared to modify the arrangements so that they lose time with their children. This means that this case can be settled only through trial.” [ 13 ] Ms. Tremblay brought an application for an order to appoint the OCL. She asked for costs. At the same time, a motion for questioning was brought by the respondent father.

He asked for costs. [ 14 ] Justice Lambert’s ruling dated November 6 th , 2009 is most instructive and I am of the view that a recitation of the salient parts of his order is of the essence given that it captures, I think, not only the substance of the litigation but the spirit and tone as well. It reads in part as follows: “Notwithstanding the clear intent of the separation agreement that both parents play an active role in the lives of the children, both are now attacking each other’s ability to parent.

Both parents are now seeking sole custody of the children given the sudden loss of ability on the other’s part to adequately parent these children…This is gearing up to be a high-conflict case with, as usual, the children being caught in the middle. Whether this is turning into a high-conflict case because of the parties or positions taken by counsel remains to be seen. I open a parenthesis here to remind the parties that there may be serious repercussions on the children and in terms of costs payable if unnecessary steps are taken in this litigation.

I urge the parties to keep the best interests of the children in mind when instructing their counsel. [ 15 ] The questioning of the parties took place over two days in January of 2010 – the 19 th and 20 th , to be precise. [ 16 ] The parties procured, on consent, an order on February 4 th for disclosure of “all clinical notes and records of all service providers involving care and management of the children”. This order followed negotiations at a settlement conference commenced February 1 st , 2010.

The settlement conferences continued and were reconvened on the following dates: February 19 th , April 26 th , May 10 th and June 21 st , 2010. [ 17 ] In the meanwhile, and pursuant to the consent of the parties, I conducted an interview with Courtney on June 14 th , 2010. The parties ultimately agreed to resolve the matter in accordance with Courtney’s view and wishes. [ 18 ] I met with Courtney in order to determine her perspectives, views and preferences. She spoke to what she perceived the best interests of herself and her younger brother.

I made observations and notes after assuring the child that I would disclose to her parents only what she would have me disclose and that what she said in confidence would be so kept. The memo which I drafted for my own reference hopefully reflected that reality. [ 19 ] The memo read in part as follows: “Courtney presented as a 10-year-old child…She is a bright, engaging girl who is fully aware of the dispute between her parents. She’s aware of the legal issues and the dynamics of the contest that involve herself and her younger six-year-old brother, Gavin.

She is aware of the fact that this case does present challenges in that the existing order for custody which has been in effect since 2007 and was made on consent, will no longer likely continue given that neither parent is in favour of the status quo. “Courtney made it very clear that she loves both her mother and her father and that she gets along with his girlfriend and her mother’s boyfriend, Glen. She indicated, however, that she is in the middle of this dispute and she doesn’t like it, and she finds that she is often the messenger and she doesn’t like that.

She is exposed to the parties being rude to each other such as hanging up the phone on each other and refusing to talk further or refusing to forward emails back to each other and this disturbs her. She said that not only does she love both parents but they are both good parents and that she can’t be away from either of them for too long a period. Courtney “is fairly strong in her opposition to living with her mother and having liberal access to her father.

Likewise, she does not wish to live with her father and have liberal access to her mother…She thought that one week without seeing either parent would be too much.

When we suggested that she and her brother could visit with the other parent on Wednesdays perhaps from after school until 7:30 p.m. she brightened up and thought that that would be not only a good compromise but that might be the best solution in that she would see more of her parents, it would mean less moving, not every three days…especially as she moves on in her education and gets a bit older, but it would also allow her to see the other parent on Wednesdays which would facilitate the current good relationship that she has with both parents.

“She says that her brother has complained about the constant moving back and forth and that he would also be favourablydisposed, in her opinion, to one week with dad followed by one week with mom with the Wednesday evenings available for visits withthe other parent. She said things such as, ‘It’s impossible to choose’ between her parents and that she does not wish to be pressured as topreferring one over the other for two reasons.

First of all, she didn’t want to hurt their feelings, but more importantly, she couldn’t makethat decision because she believes that she loves them both equally and believes that they are equally good parents. “Her strong recommendation to me, therefore, was that she and her brother spend one week with her dad visiting with her momduring that week on Wednesday evenings from school until 7:30 followed by the reverse, that is one week with her mother and visitingwith her father on those nights. “Insofar as the father’s girlfriend is concerned and the mother’s boyfriend, she likes them both but she wanted me to stress thatshe does not see them nor will she ever see them as being a substitute parent.

They will be classified as friends and friends only and thatis the way it should be.” [20] In

summary, Courtney loves both parents equally and values them both as being good parents. She did not wish to choosebetween them for these very reasons, but she has been caught in the crossfire and there is no doubt in my mind, although she did not statethis, that she has been hurt by the actions and attitudes of each of her parents during this litigation. [21] Fortunately, it was her reasoned and mature perspective that carried the day insofar as resolution is concerned and ultimatelyfound its way into the final minutes of settlement. [22] I do not intend to say more about Courtney’s opinion.

Suffice it to say that the parties – her mother and father, hopefully, willlearn a little about the collateral damage that is inflicted upon children when parents hurl grenades of invective, insult and blame at eachother. The Issue: Costs [23] The respondent is asking the court for an order for costs. [24] Mr. Carlesso has submitted a document entitled “Cost Outline of the Respondent” as follows: “1.

The Respondent, Michel Tremblay, provides the following outline of the submissions to be made at the hearing in supportof the costs the party will seek if successful: Fees (as detailed below) $37,500.00; Taxes on fees: $1,937.50; Disbursements (as detailedbelow) $2,882.48 Total, $42,319.98. 2. The total hours spent on this file is 75 hours at the rate of $500.00 per hour. The details are as follows:” The details which follow capture the involvement of Mr.

Carlesso on a day-to-day basis but are not particularized insofar as thehours for each day are concerned with the exception of the two days for questioning in January of 2010 – 9:30 a.m. to 5:00 p.m. inclusive– 7 ½ hours. [25] Mr. Carlesso is a seasoned lawyer with over 30 years experience. He is one of the leading litigation lawyers in northeasternOntario. [26] Mr. Carlesso argues that his client should be entitled to costs because the application was ultimately unsuccessful. [27] Ms.

Tremblay asked to vary the existing separation agreement such that the parties would no longer share the joint custody andthat she would have sole custody of the children. The regimen in place was varied on consent but only slightly, argues Mr. Carlesso, andhe is right. [28] Instead of the children changing residences every three or four days, they now do so on a weekly basis with a mid-week visit tothe other parent. [29] The respondent relies upon Rule 24(1) of the Family Law Rules. The relevant provisions of

section 24 read as follows: “Section 24(1) Successful Party Presumed Entitled to Cost – There is a presumption that a successful party is entitled to costs ofemotion, enforcement, case or appeal.

(4) Successful Party Who Has Behaved Unreasonably – Despite subrule (1), a successful party who has behaved unreasonablyduring 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.

(5) Decision On Reasonableness – In deciding whether a party has behaved reasonably or unreasonably, the court shall examine(

b) the reasonableness of any offer the party made.

(10) Costs To Be Decided At Each Step – Promptly after each step in the case, the judge or other person who dealt with thatstep shall decide in a

summary manner who, if anyone, is entitled to costs, and set the amount of costs. [30] It is important to note the following principles which have emerged from the decided cases pursuant to Rule 24. [31] In the case of Hensel v Hensel (ON SC), [2008], 52 R.F.L. (6th) 324, S.C.J., the court in considering Rule24(11)(

f) said, “A person setting the amount of costs shall consider subrule 24(11) (f) ‘any other relevant matter’ and

section 131 of the C.J.A.to conclude that the court had a wide discretion when deciding the issue of costs.”

[32] In C.A.M. v D.M., (ON CA), [2003] O.J. No. 3707, Justice Rosenberg for the Ontario Court of Appealheld, “Although subrule 24(1) creates a presumption that a successful party is entitled to costs, the court retains a residual…discretion tomake an award of costs that it sees fit.” Justice Rosenberg went on to say, “…I think it is arguable that a successful party may not obtain a costs award in his or herfavour even in circumstances not falling within subrule 24(4).

There may be circumstances aside from the unreasonableness of thesuccessful party’s conduct that rebut the presumption…Thus, while subrule 24(11) enumerates a number of factors that must be takeninto account, the person setting the amount of the cost is directed to take into account ‘any other relevant matter’...

In fixing costs, thecourts cannot ignore the best interests of the child and thus cannot ignore the impact of a costs award against a custodial parent thatwould seriously affect the interests of the child.” [33] In Islam v Rahman, 2007 ONCA 622 , [2007] O.J. 3416, 41 R.F.L. (6th), the Ontario Court of Appeal held, “Rule 24(10) of the Family Law Rules provides that the judge who deals with a step in a case shall decide who, if anyone, isentitled to costs.

If a party who has served an offer to settle the case as a whole wishes that fact taken into consideration in relation to aparticular step, it is incumbent on that party to raise that issue with the judge who deals with that step. In this case, various steps weretaken (e.g. motions, conferences) in relation to which either there was an endorsement that there be no order as to costs or the issue ofcosts was not addressed.

In the absence of a specific order for costs in favour of the respondent, the trial judge should have disallowedcosts claimed by the respondent in relation to such steps.” [34] In McSwain v McSwain [2010] ONCJ 539, Justice Zisman held that “…the meaning of a step in the case included more thanthe day in which the motion was actually argued.

The numerous attendances for adjournments of the motion to permit filing of additionalmaterials and for other reasons can all be included as part of the ‘single step’ of bringing and then arguing the motion for temporaryrelief.” [35] In the event of no order for costs being made “promptly” at the conclusion of each step “by the judge who dealt with that step”in the process and absent compelling reasons to exercise discretion in favour of an applicant for costs, costs must be denied. [36] The relevant subsections of Rule 18 read as follows: “Rule 18(14) – A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer wasserved and full recovery of costs from that date, if the following conditions are met: 1.

If the offer relates to a motion, it is made at least one day before the motion date. 2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial orhearing date. 3. The offer does not expire and is not withdrawn before the hearing starts. 4. The offer is not accepted. 5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer. Subrule 18(15) – The burden of proving that the order is as favourable as or more favourable than the offer to settle is on theparty who claims the benefit of subrule (14).

Subrule 18(16) - When the court exercises its discretion over costs, it may take into account any written offer to settle, the dateit was made and its terms, even if subrule (14) does not apply.” [37] Insofar as Rules 18(14) and (16) are concerned, Mr.

Justice Ashton in the case of Osmar v Osmar (ON SC), [2000] 8 R.F.L. (5th) 387 summarized the import and affect of Rule 18 as follows: “The new Family Law Rules provide a marked departure in some respects from the Rules of Civil Procedure and from priorcase law in family law proceedings…Modern cost rules are designed to foster three fundamental purposes: (1) to indemnify successfullitigants for the costs of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants”;and “Rule 18(16), therefore, invites consideration of any and all offers to settle, as does Rule 24(5).

Offers to settle become theyardstick by which to measure ‘success’ and are significant in considering both liability for costs and the amount of those costs.” [38] Clearly, the questioning of the parties in January of 2010 was a step in the proceeding as were the subsequent settlementconferences – four in number. [39] The only offer to settle of the respondent was an offer to settle that requested sole custody of the children with himself, and toquote once again from his settlement conference brief, “It would seem that the position of the parties is entrenched.

Neither one of themis prepared to modify the arrangements.” [40] It would appear, therefore, that, technically speaking, the respondent may not be in a position to succeed with respect to hisclaim for costs by virtue of Rule 24(10) which mandates that “promptly [emphasis mine] after each step in the case the judge or otherperson who dealt with that step shall decide in a

summary manner who, if anyone, is entitled to costs and set the amount of costs.”Remember, as well, that the respondent did not achieve a result better than or equal to the offer to settle presented as per Rule 18(14). [41] Ultimately, the case was settled based on the sincere reflections of Courtney who had already been caught in the crossfire and

no longer wished to be so involved. [ 42 ] The factor, therefore, which ultimately will carry the day in this case is contained in Rule 24(11)(f) “any other relevant matter” and that is the best interest of the child. If I were to proceed with an order for costs in this case, no doubt the child, Courtney, would hear about it and would assume the mantle of responsibility for adding fuel to the flames of this already difficult situation and this should not happen. [ 43 ] I am not finding fault at all with the respondent in his request for costs.

But for a consideration of the child’s input, the result may well have been different. Because I find no fault with him, it goes without saying that costs should not be awarded against the respondent for bringing this application. Released: 23 March 2011 Signed: Justice Ralph E.W. Carr