This recent decision by Justice Fryer of the Superior Court of Justice is a well written decision that provides a very good summary of the law of costs. However, it also serves as a caution to family law litigants as to the costs of litigation, and reminds litigants that even if they feel as though they were largely successful with respect to the outcome of the case, this does not necessarily mean that they will be receiving their costs of the litigation on a full indemnity basis.
Eustace v Eustace, 2016 ONSC 8191
It is not common that we see costs awarded against the Office of the Children’s Lawyer (OCL). In this case, Emery J. finds that the OCL weighed too heavily in favour of the mother’s position, which ultimately prolonged the trial.
The parties had one child who primarily lived with the father and his parents, and lived with the mother and her parents almost every weekend. Both parties brought motions for sole custody. The father’s motion was granted and the mother’s motion was dismissed. The father’s motion was granted because of the strong bond, love, affection and emotional ties shared between the father, his parents, and the child. The child also had a strong bond with the mother, but there was little evidence of a connection between the child and the mother’s parents. Additionally, the child expressed that he would like to remain with his father and paternal grandparents. It was found that the father and his parents provided a stable home environment for the child, provided him with the necessities of life, and tended more to the child’s serious allergies. The father also enrolled the child in extra-curricular activities and encouraged his various interests.
The Court found that the mother was focused on the father’s conduct toward her rather than providing a detailed parenting plan for her sole custody motion. The OCL conducted an assessment which focused on the father’s past conduct toward the mother, making it evident that the assessors favoured the mother. Ultimately, Emery J. found that it was in the child’s best interests for the father to have sole custody, with the mother exercising access every other weekend.
Following the custody order, both parties sought costs of the trial. The father also sought an order to join the OCL as a party liable to pay the costs of the trial. The father claimed that the OCL unreasonably favoured the mother’s position, causing the trial to last 24 days.
In determining whether the OCL should be held liable for costs, Emery J. found that the OCL favoured the mother’s position because the father refused to allow the child to participate in the clinical and counselling process of their assessment. Emery J. also found that counsel for the OCL took an adversarial position to the father and the child.
It was also found that the OCL ignored the general rules of fairness by not seeking further assistance of the court before trial to obtain the cooperation of the father in order to complete its investigation. As a result, this lead to a very long trial that required the father to incur significant expenses. The judge made a distinction between ordering costs on the basis of conduct versus fairness; noting that the OCL’s conduct was not reprehensible, but rather the OCL acted unfairly by favouring the mother’s position.
Justice Emery found that the OCL’s involvement lengthened the trial by fortifying the mother’s position, thus increasing the trial length by 20%. As a result, Justice Emery found the OCL jointly and severally liable with the mother for approximately 20% of the costs and disbursements, to the extent of $20,000.