Ulch v. Hicks, 2011 ONCJ 245

Windsor Registry No. 588/03 DATE: 2011·IV·29 CITATION: Ulch v. Hicks , 2011 ONCJ 245 ONTARIO COURT OF JUSTICE BETWEEN: SABRINA MARIE ULCH, Applicant, — AND — DAVID ALLAN HICKS, Respondent. Before Justice Barry M.

Tobin Reasons for Judgment released on 29 April 2011 CIVIL PROCEDURE — Costs — Jurisdiction — Costs generated on matters not associated with prior steps in case — Almost 7 years ago, court had awarded custody of 2 girls (now 16 and almost 11 years old) to mother, with access to father who was required to make child support payments — About 5 years later, mother applied to vary ongoing child support and sought significant retroactive child support payment — Father responded by seeking variation in terms of access — Six months later, older girl moved into father’s home; younger girl followed her example 14 months later — In meantime, case proceeded through numerous adjournments, conferences, interlocutory motions and motions for interim relief — At none of these steps was issue of costs raised except for access motion made 5 months ago where motion judge awarded costs against mother as result of her unreasonable behaviour — Three months ago, parties filed minutes of settlement on all issues except costs and asked court to rule on costs — Motion judge noted that parties had been perfectly able to have requested costs at each court appearance and at conclusion of each step in this case but failed to do so — For those steps before court, subrule 24(10) [costs to be determined in

summary manner after each step in case by presiding judge] of Family Law Rules now barred any determination of costs — Thus, motion judge could only deal with costs that arose from activity that related to case as whole but that was not specifically attributable to particular step in case — However, for those steps in case that were not before court, parties had settled all substantive issues in minutes of settlement where motion judge was unable to find that one party was more successful than other — In pursuit of this settlement process, motion judge was unable to find that mother had demonstrated “bad faith”, as there was no evidence that she had any ulterior motives or had intended to deceive or to mislead — Admittedly, she had behaved unreasonably on access issue which was subject of separate motion outside settlement process, but she had already been punished in costs on that issue — Motion for costs dismissed.

STATUTES AND REGULATIONS CITED Child Support Guidelines , O. Reg. 391/97 [as amended],

section 7 . Family Law Rules , O. Reg. 114/99 [as amended], clause 14(6) ( e.2 ), subrule 24(10) and Form 14B. CASES CITED Cole v. Cole and Howell (No. 3) , 2007 ONCJ 198 , 157 A.C.W.S. (3d) 349, [2007] O.J. No. 1762, 2007 Cars​well​Ont 2823 (Ont. C.J.). Islam v. Rahman , 2007 ONCA 622 , 228 O.A.C. 371, 41 R.F.L. (6th) 10, [2007] O.J. No. 3416, 2007 Cars​well​Ont 5718 (Ont. C.A.). Kardaras v. Kardaras (No.2) , 2008 ONCJ 616 , [2008] O.J. No. 5721 (Ont. C.J.). Proulx v. Viau , 2009 ONCJ 159 , [2009] O.J. No. 1661, 2009 Cars​well​Ont 2215 (Ont. C.J.). Serra v. Serra , 2009 ONCA 395 , 66 R.F.L. (6th) 40, [2009] O.J.

No. 1905, 2009 Cars​well​Ont 2475 (Ont. C.A.). Wilson v. Brilliant and Lorimer , 2007 ONCJ 277 , 172 A.C.W.S. (3d) 965, [2007] W.D.F.L. 4902, [2007] O.J. No. 2514, 2007 Cars​well​- Ont 4092 (Ont. C.J.).

Janice L. Wood ............................................................................. counsel for the applicant mother Tamara K. Stomp ......................................................................... counsel for the respondent father JUSTICE B.M. TOBIN: 1: INTRODUCTION [ 1 ] Ms. Sabrina Marie Ulch, the applicant, brought a motion to change the order of Justice Douglas W. Phillips, dated 24 April 2004. [ 2 ] The parties entered into minutes of settlement that resolved all issues in this case, except costs. [ 3 ] The issue of costs was addressed by way of written submissions. [ 4 ] The respondent seeks costs from the applicant on the basis that: (

i) the applicant was not successful in any of her claims, and (ii) the applicant acted in bad faith or in an unreasonable manner. [ 5 ] The applicant resists this request and requests that each party bear his or her own legal costs of this case.

She denies that she was unsuccessful in her claims and that she acted in bad faith or unreasonably. 2: FACTS [ 6 ] The parties began living together in 1992 and separated in the year 2000. [ 7 ] The applicant and the respondent are the parents of two children; Sommer Dawn Hicks (“Sommer”, born on 14 December 1994) and Brianna Marie Beth Hicks (“Brianna”, born on 12 May 1999). [ 8 ] Pursuant to the order of Justice Phillips dated August 2004, the applicant mother was granted custody of both children. The respondent father was granted access to the two children as follows: (

i) supervised access at the Windsor Supervised Access Centre for a minimum of three (3) hours each week, commencing on 12 March 2004 or as soon as the access centre can arrange same; (ii) unsupervised access may be arranged on mutual consent of the parties; and, (iii) telephone access to the respondent father in accordance with the children’s wishes. [ 9 ] The order of 24 August 2004 also provided that the respondent pay child support to the applicant for the two children of the relationship based on anticipated income of $30,000. [ 10 ] The applicant served a motion to change dated 24 April 2009 upon the respondent, seeking a change in ongoing child support and a retroactive child support payment.

The applicant pleaded that the respondent obtained full-time employment.

She wanted the court to impute an annual income to the respondent of $70,000. [ 11 ] The respondent resisted the motion and sought a change in the terms of access. [ 12 ] On 15 October 2009, Sommer moved from the applicant’s home and started to live with the respondent. [ 13 ] On 3 December 2010, Brianna moved from the applicant’s home and started to live with the respondent. 3: LITIGATION HISTORY [ 14 ] The litigation history of this case is as follows. [ 15 ] On 24 April 2009, the applicant had issued a motion to change a support order, returnable on 9 June 2009.

The motion asked that the order of Justice Phillips dated 24 April 2004 be varied to impute income of $70,000 per annum to the respondent, effective 1 January 2005 and that child support arrears be fixed. The motion also asked for lump-sum child support to the applicant retroactive to 1 January 2005. [ 16 ] On the first return date, 9 June 2009, the matter was adjourned to 5 August 2009, to be spoken to. The applicant was ordered to serve and file a responding affidavit to the request of the respondent to vary access.

The respondent was ordered to serve and file copies of his 2006-2008 income tax returns. [ 17 ] On 5 August 2009, an order for intervention by the Office of the Children’s Lawyer was made and, on consent, the case was adjourned for a case conference on 7 October 2009 at 2:00 p.m.

[ 18 ] On 7 October 2009, the case conference was initiated but the parties were not ready. The case was adjourned until after examinations to 10 November 2009 “to roadmap interlocutory process and then

schedule another case conference.” [ 19 ] On 10 November 2009, the case was adjourned to await the results of the investigations by the Office of the Children’s Lawyer.

The case adjourned to 24 November 2009 to fix a date for interlocutory motions and to assess the next litigation step. [ 20 ] On 24 November 2009, the case was adjourned to 13 January 2010 to argue the interim motion. [ 21 ] On 20 and 24 December 2009, orders by way of Form 14B [1] motions were made on consent to extend times to file material. [ 22 ] On 13 January 2010, a temporary order was made on consent and “without prejudice” with regard to child support payment. [ 23 ] On 25 March 2010, the interim motion was argued.

The motion to change was adjourned to 29 April 2010. [ 24 ] On 14 April 2009, at 2:00 p.m., reasons on the interim motion were released by Justice Phillips, outlining terms of access for the father. No costs were awarded. [ 25 ] On 29 April 2010, the settlement conference was scheduled to be convened. The case was adjourned to a trial management conference on 15 June 2010. [ 26 ] On 15 June 2010, a trial management conference was convened on the motion to change.

The case was then adjourned to the assignment court of 28 September 2010. [ 27 ] On 26 July 2010, the respondent moved for an order respecting the conduct of the trial of the motion to change. [ 28 ] On 28 September 2010, the case was adjourned to the trial list for the week of 22 November 2010. [ 29 ] On 30 November 2010, the case was adjourned to the trial list for the week of 24 January 2011. [ 30 ] On 9 December 2010, the respondent brought a Christmas access motion.

Costs were sought and ordered against the applicant in the amount of $750 all inclusive. [ 31 ] On 26 January 2011, the minutes of settlement were filed and written submissions on costs were requested. 4: LAW [ 32 ] Subrule 24(10) of the Family Law Rules , O. Reg. 114/99, as amended, provides:

(10) Costs to be decided at each step.— Promptly after each step in the case, the judge or other person who dealt with that step shall decide in a

summary manner who, if anyone, is entitled to costs, and set the amount of costs. [ 33 ] The effect of subrule 24(10) is that it is incumbent on a party who wants costs at a particular step in the case to raise that issue with the judge dealing with the issue at that step. If the issue of costs of that step was never addressed, the trial judge may not deal with it. See Islam v. Rahman , 2007 ONCA 622 , 228 O.A.C. 371, 41 R.F.L. (6th) 10, [2007] O.J. No. 3416, 2007 Cars​well​Ont 5718 (Ont. C.A.). [ 34 ] In Cole v. Cole and Howell (No. 3) , 2007 ONCJ 198 , 157 A.C.W.S. (3d) 349, [2007] O.J.

No. 1762, 2007 Cars​well​Ont 2823 (Ont. C.J.), it was pointed out that only the judge at the particular step in the case could have the first-hand observation of the preparations by the parties and their lawyers for that step, could have heard submissions by the lawyers and could have determined the state of preparation and the reasonableness of each party’s position during that step. [ 35 ] To ask the trial judge, often months and years later, to assess costs for those earlier appearances was not only placing an unfair burden on the trial judge but would be directly contrary to subrule 24(10). [ 36 ] In Serra v.

Serra , 2009 ONCA 395 , 66 R.F.L. (6th) 40, [2009] O.J. No. 1905, 2009 Cars​well​Ont 2475, the Ontario Court of Appeal confirmed that the current cost rule is intended to foster three fundamental purposes, one of which is to encourage settlement. When parties get prompt feedback about the real cost of litigation at each step of their case, it serves as a valuable reality check and as persuasive inducement to engage in negotiations with a view to settlement. See Wilson v. Brilliant and Lorimer , 2007 ONCJ 277 , 172 A.C.W.S. (3d) 965, [2007] W.D.F.L. 4902, [2007] O.J. No. 2514, 2007 Cars​well​Ont 4092 (Ont.

C.J.), per Justice Bruce E. Pugsley; and Proulx v. Viau , 2009 ONCJ 159 , [2009] O.J. No. 1661, 2009 Cars​well​Ont 2215 (Ont. C.J.), per Justice Yvon Renaud. [ 37 ] As a case evolves, some costs may arise as a result of activity that relates to the case as a whole but that is not specifically attributable to a particular step in the case.

For example, the time spent on initial interviews with a client, preparing for and conducting oral questioning, review and preparation of pleadings and assisting a client to complete the intake form from the Office of the Children’s Lawyer covers categories not associated with any prior step in the case. Subrule 24(10) does not preclude the trial judge from awarding costs for this category of work and it will often be appropriate for the trial judge to do so, as he or she will have the benefit of evaluating the value of this work with the context of the final result. See Kardaras v.

Kardaras (No.2) , 2008 ONCJ 616 , [2008] O.J. No. 5721 (Ont. C.J.); and Wilson v. Brilliant and Lorimer , supra .

5: DECISION [ 38 ] At paragraph 12 of her submissions, counsel for the respondent states: Note that there is no specific provision for costs for settlement conferences, case conferences, trial management conferences, etc . However, it is normal in an assessment of costs of the “case” that all of the foregoing be taken into account, and thus the only real place to do that is at the end of the case. [ 39 ] This appears contrary to subrule 24(10) and the decision of the Ontario Court of Appeal in Islam v.

Rahman , supra . [ 40 ] The parties were able to request costs at each appearance and at the conclusion of each step in the case for costs. [ 41 ] In this case, costs were sought and ordered in respect of a motion that was brought on 9 December 2010. The respondent was awarded costs on the basis of the position taken by the applicant.

No costs were ordered with respect to the interim motion argued on 25 March 2009. [ 42 ] I find that, with respect to this case, the only entitlement to costs arises from those actions not specifically referable to a step in the case that was before the court. [ 43 ] As the parties settled all of the issues raised in the case, I am not in a position to find that one party was successful and therefore presumptively entitled to costs. The minutes of settlement filed reflect acceptance of the children’s change in living arrangements.

Child support payable by the applicant was based upon the table amount and her estimated annual income. Special and extraordinary expenses are to be shared in accordance with

section 7 of the Child Support Guidelines , O. Reg. 391/97, as amended, as the expenses arise from time to time. The applicant is obliged to keep the children covered under her medical plans and provide ongoing financial disclosure. [ 44 ] The respondent submits that the applicant acted unreasonably in the she “kicked [the children] out of the house and refused contact with them” when she found out they had contact with their father. The respondent characterizes the applicant’s actions as being motivated by hate and vindictiveness. She wanted to ban the children from their father.

In the end, she did not accept the reality of the children’s wishes until the eve of trial. [ 45 ] The applicant submits she was not unreasonable in her dealing with her daughters. With respect, I find that she did act unreasonably toward the respondent and the children. When she found out that the children had contact with the respondent, she ended her contact with them. The children of necessity began living with the respondent. [ 46 ] I am not able to find that the applicant acted in bad faith in this case as the term has been interpreted in the case law.

Ulterior motives, intention to deceive or mislead are not evidenced in this case. [ 47 ] I accept the applicant’s submission that the negotiations that lead to the final resolution of the case were “extensive and difficult” because of the change in circumstances that occurred while the case was ongoing. [ 48 ] Both parties served offers to settle. I cannot find that the offers were unreasonable when served in the context of the changing circumstances of this case. [ 49 ] In

summary, I find that the proper order on this case be that there be no order for costs because: (

i) for those steps that were before the court, subrule 24(10) applies, and (ii) for those steps that were not before the court, the parties settled all of the substantive issues by minutes of settlement. Neither party was more successful than the other. With respect to the applicant’s unreasonable behaviour concerning the children, a cost award was made against her. [ 50 ] Therefore, an order shall issue that no costs shall be paid by either party to the other except for those ordered on 9 December 2010.