The Impact of Divided Success on a Costs Decision
In A.P. v. L.K., 2019 ONSC 4230, Justice Akbarali was asked to make a costs decision with respect to a motion for a publication ban and sealing order. The motion was brought by the mother to seal the court records in light of the considerable media interest generated by the parties' dispute as to whether their children should be vaccinated. The father appealed the Arbitrator's decision to not order the vaccination of the children. In order to fund his appeal, he set up a gofundme.com page and courted a number of media outlets to sensationalize the proceedings. In doing so, the parties' and their children's identifying information were made public, causing the mother to seek confidentiality protections for the children.
The Parties' Positions
The mother was partially successful at the motion and thus argues that she is entitled to costs in the amount of $18,922.64. The father argues that there should be no costs of the motion or, alternatively, that costs should be payable to him. He claims that he made efforts to protect the children and obtained the media's cooperation in not publishing their identities. In addition, he consented to the publication ban that was granted on the motion and only resisted the sealing order, which was not granted. Lastly, the father alleged that the time spent by the mother's counsel in relation to the motion was excessive.
Pursuant to Rule 24 of the Family Law Rules, the successful party on a motion is presumptively entitled to costs, subject to the factors set out in Rule 24(12). Full recovery is only warranted in certain circumstances, such as bad faith, or besting an offer to settle under Rule 18(14).
In a typical family law case, the parties take adverse positions on issues that could have been resolved between them. However, this case is different because even if the parties were in agreement about the order that should issue, the motion would have been necessary nonetheless due to the positions taken by the media with respect to the publication ban and sealing order. Moreover, parties seeking a sealing order or a publication ban must convince the court that it is appropriate to depart from the open court principle in their case and the order cannot simply be made on consent. Any court proceeding is public unless subject to an order, and an order for confidentiality protections require notice of the proceedings to be given to the media.
While the mother was successful at the motion, so was the media. The court declined to seal the file and allowed the publication of some information, such as the children's ages. The court could not conclude that the father's behavior caused or increased the mother's costs. Rather, the mother's costs were incurred to respond to the media's arguments and would have been necessary in any event, given the media's involvement in the proceedings.