The underlying Trial of this matter on a parenting issue was heard by Brooker J. The Decision was issued on October 31, 2018, and further Applications concluded in August of 2019. Brooker J. retired before submissions were made on the issue of Costs. Kenny J. authored the current reasons on Costs.

The mother sought solicitor and her own client Costs from the start of the litigation in 2012 until its conclusion in August 2019. $400,000.00 in Costs had already been paid to her pursuant to an interim Order. She sought further reimbursement for Costs for experts and for legal counsel for the children as well as the Application for Costs. The father argued that success was mixed and that each party should be responsible for their own Costs. In the alternative the father argued that Costs should be awarded on Column 1 of Schedule C with a reduction to reflect mixed success. He also sought the return of advance Costs he had paid the mother.

The Court noted that Rule 10.29, subject to the Court’s discretion under Rule 10.31, states that a successful party is presumptively entitled to a Costs Award against the unsuccessful party. Rule 10.33 provides a list of factors for the Court to consider, after which the Court can use its discretion to award any amount of Costs it considered appropriate.

The Court noted that it was important that the reason for litigation was kept in perspective. An incident occurred in September 2012 where the mother was hospitalized as the result of a drug overdose (which Brooker J. had found to be an accident). While the mother was in the hospital the father obtained an ex parte Order granting him custody of their five children. From that point forward it was an uphill battle for the mother to obtain any time with the children until the Trial Decision, and the differences in financial resources of the parties was stark. The parties consented to a PN 8 report that was issued in 2013 recommending that the mother have primary parenting and that the father undergo psychiatric and psychological therapy. Regardless, the litigation continued. After 19 days of Trial the Court ordered a PN 7 report which indicated that the father should not be the primary parent with respect to the children. It also indicated that the father coached the older children on what to say and to lie to their lawyer. The children, however, had not lied and had instead told their lawyer everything, including the truth of their father’s actions. The report was received by the parties in December of 2017 and the litigation. In the Trial Decision issued October 2018 the mother was awarded primary parenting of all the children. Kenny J. found that the mother was wholly successful.

The father argued that the interim Orders that dealt with Costs could not be revisited and that the Orders that were silent on Costs should not now attract Costs. Kenny J. found that for the Orders that were silent on Costs, Costs would follow the outcome of the Trial.

Justice Kenny noted that the father had forced, manipulated, and threatened his own children into lying for him to the Court, the experts, the doctors, their teachers, the police and their own counsel. The conduct of the father and his manipulation of the children propelled the litigation for over 7 years. The matter was originally set for Trial in 2014 but was delayed due to the father’s actions. Kenny J. noted that the mother had no choice but to agree to a PN 8 to prove that what the father was saying was not true. Further, legal counsel for the children was extremely helpful to the Trial Judge.

Based on the conduct of the father during the litigation, the delay caused by the father, the complete success of the mother, and the efforts of the father to deceive or defeat justice amongst numerous other factors, Kenny J. found that this was an appropriate case for solicitor-client Costs. Kenny J. awarded the mother $424,000.00 in solicitor-client Costs.