Court of Appeal for Ontario
Judges: Epstein, Lauwers and van Rensburg JJ.A.
Parties
Between
Vincenzo Mattina Applicant (Appellant)
and
Raffaella Mattina Respondent (Respondent)
Counsel
Martha McCarthy, Maureen Edwards and Lauren Hanna, for the appellant
Salvatore Garcea and Gloria Nardi-Bell, for the respondent
Hearing
Heard: June 25, 2018
On appeal from: the order of Justice Randolph Mazza of the Superior Court of Justice dated September 26, 2017, with reasons reported at 2017 ONSC 5704 and the costs order dated April 3, 2018.
Costs Endorsement
Overview
1This is a costs decision arising from a custody and access appeal. The subjects of the appeal are three children: S, N, and A. The children were 17, 15 and 10 at the time the appeal decision was released.
2The father's appeal to this court was dismissed. The parties made written submissions on costs of the appeal to this court and the costs of a previous attempt to appeal to the Divisional Court.
3We have considered these submissions and would award the mother her costs fixed at $25,000.
Litigation History
4A brief history of this proceeding puts the costs issues in perspective.
5The father commenced this action in June 2013. In the course of the application, on consent of the parties, the court ordered a custody and access assessment under s. 30 of the Children's Law Reform Act, R.S.O. 1990, c. C.12. After the production of the initial assessment followed by an updated assessment, the application was placed on the trial list.
6For various reasons, the hearing of the application was delayed. When the father learned that it was unlikely the matter would be heard by June 2017, he brought a motion seeking sole interim custody of the children for 90 days (with no access to the mother during this period) and an order directing that during this period of interim custody, the parents and children participate in a program known as Family Bridges. In the alternative, the father sought an order for a directed trial on custody and access. In response, the mother brought a summary judgment motion seeking sole custody of the three children, with access to the father at the discretion of the children.
7In September 2017, the motion judge granted summary judgment in the mother's favour. First, he dismissed the father's motion in relation to S, because within a few weeks of the release of the decision, S would turn 18 and would no longer be within the court's jurisdiction. The motion judge went on to give sole custody of N and A to the mother. He ordered that access and communication between the father and N would be at N's discretion; access and communication between the father and A would be at A's discretion in consultation with the mother. The motion judge awarded costs to the mother fixed in the amount of $80,636 plus HST.
8The father appealed the decision to the Divisional Court. The Divisional Court held that it did not have jurisdiction over the matter and transferred the appeal to this court, on an expedited basis. The costs of the attendance before the Divisional Court were "adjourned to the court hearing the appeal": see Mattina v. Mattina, 2018 ONSC 1569, 11 R.F.L. (8th) 69, at para. 63.
Analysis
General Legal Principles
9Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that cost orders are in the discretion of the court. Rule 24 of the Family Law Rules sets out a framework for awarding costs for family law cases in the Family Court of the Superior Court of Justice, in the Superior Court of Justice and in the Ontario Court of Justice. Although the Family Law Rules do not expressly govern costs awards in the Court of Appeal, they have been used to guide this court's analysis on costs in family law disputes: Family Law Rules, r. 1(2); Selznick v. Selznick, 2013 ONCA 35.
10This court has held that modern family cost rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement, and; (3) to discourage and sanction inappropriate behaviour by litigants: Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, at para. 8; Fong v. Chan (1999), 46 O.R. (3d) 330 (C.A.), at para. 22. Rule 2(2) adds a fourth fundamental purpose: to ensure that cases are dealt with justly: Family Law Rules, r. 2(2); E.H. v. O.K., 2018 ONCJ 578, at para. 8; Sambasivam v. Pulendrarajah, 2012 ONCJ 711, at para. 37. And Rule 24(12), which sets out factors relevant to setting the amount of costs, specifically emphasizes "reasonableness and proportionality" in any costs award.
11The Family Law Rules are a marked departure from some aspects of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. As such, case law pertaining to costs decided under the Rules of Civil Procedure should be approached with some caution: Frick v. Frick, 2016 ONCA 799, 132 O.R. (3d) 321, at para. 11; E.H. v. O.K., at para. 34.
12Rule 24(1) creates a presumption of costs in favour of the successful party of a motion, case, or appeal: Berta v. Berta, 2015 ONCA 918, 128 O.R. (3d) 730, at para. 94. And the presumption that a successful party is entitled to costs applies equally to custody and access cases: Britt v. Britt, [2000] O.J. No. 5981 (S.C.), at para. 9.
13Consideration of success is the starting point in determining costs: Sims-Howarth v. Bilcliffe (2000), 6 R.F.L. (5th) 430 (Ont. Sup. Ct.), at para. 1. This presumption does not, however, require that the successful party always be entitled to costs: M.(C.A.) v. M.(D.), at para. 40. An award of costs is subject to: the factors listed in r. 24(12), r. 24(4) pertaining to unreasonable conduct of a successful party, r. 24(8) pertaining to bad faith, r. 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party: Berta v. Berta, at para. 94.
14Rule 24(12) sets out a list of factors the court shall consider in determining an appropriate amount of costs:
(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:
(i) each party's behaviour,
(ii) the time spent by each party,
(iii) any written offers to settle, including offers that do not meet the requirements of rule 18,
(iv) any legal fees, including the number of lawyers and their rates,
(v) any expert witness fees, including the number of experts and their rates,
(vi) any other expenses properly paid or payable; and
(b) any other relevant matter.
15The Family Law Rules only expressly contemplate full recovery costs in specific circumstances, e.g. where a party has behaved unreasonably, in bad faith or has beat an offer to settle under r. 18(14).
16Rule 24(4) addresses the situation in which a successful party has behaved unreasonably:
Despite subrule (1), a successful party who has behaved unreasonably during 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.
17Rule 24(5) provides guidance on how to evaluate reasonableness:
In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,
(a) the party's behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
(b) the reasonableness of any offer the party made; and
(c) any offer the party withdrew or failed to accept.
18Rule 24(8) discusses the cost consequences for a party who has acted in bad faith:
If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.
The Parties' Positions
(1) The Costs of the Appeal to the Court of Appeal
The Father
19The father's position is that each party should bear his and her own costs of the appeal. At most, argues the father, the mother should have her costs restricted to the actual attendance before this court, and on a reduced scale.
20In support, the father argues that the appeal concerned matters of the utmost importance. The father contends that he acted reasonably whereas the mother was uncooperative and took irresponsible positions and thereby delayed the proceedings. He submits that the mother contributed significantly to the high-conflict dynamic of this dispute. He submits that calling her "successful" would sanction such conduct and would be contrary to public policy.
21Finally, while acknowledging the current trend away from awarding no costs in custody and access cases, the father submits that the policy rationale underlying the historical approach best applies here.
The Mother
22The mother, relying on r. 57.01 of the Rules of Civil Procedure and r. 24 of the Family Law Rules, submits that she should be awarded her full indemnity costs of this appeal. The mother relies on the parties' motivations. Hers was the best interests of the children whereas the father's was to win custody and/or access.
23The mother submits that her lawyers charged reasonable rates and worked in a cost-effective manner. Based on the parties' earlier Bills of Costs, the father had to have been aware that his lawyers' services cost almost twice as much as the mother's. It is reasonable to conclude that the mother's Bill of Costs is within the range of costs the father would be ordered to pay if he were unsuccessful. The mother also points out that the father did not submit a Bill of Costs for services at the Court of Appeal.
24The mother further contends that the father's unreasonable behaviour increased costs dramatically. Among other things:
the father misled the court on a number of occasions;
despite consenting to an order to not file any further materials in the appeal without consent, the father brought a motion on less than 36 hours' notice, to serve and file an Amended Notice of Appeal, and;
the father put unreasonable deadlines on the mother and did not respond to reasonable questions.
(2) The Costs of the Appeal to the Divisional Court
The Father
25The father submits that there should be no costs related to the parties' preparation and attendance before the Divisional Court. The appeal routes in custody and access cases are not straightforward. He calls the costs incurred as they related to the Divisional Court appeal "an institutional loss" that should not attract cost consequences.
26Further, the mother should have raised jurisdictional concerns sooner. It would be unfair for the father to be penalized by a costs award because the motion judge at the Divisional Court made an error in assuming jurisdiction and the mother failed to take steps to remedy that error.
The Mother
27The mother submits she is entitled to full indemnity costs of the proceedings before the Divisional Court. The mother contends that it was unreasonable for the father to appeal, as the appeal had no merit. Second, the mother says that even if the appeal had merit, the father appealed to the wrong court. Instead of conceding the point, once the error was pointed out to him, the father held fast to his position, wasting time and money.
28Finally, two motions the father brought before the Divisional Court demonstrate his pattern of unreasonable behaviour throughout the appeal process. The father "lost" both motions but the parties bore their own costs resulting in $10,000 additional costs to the mother.
Application of the Principles
(1) The Costs before the Court of Appeal
a. The Mother Was Successful on Appeal and Is Entitled to Costs
29The father raised four distinct issues on appeal: the motion judge erred in proceeding by way of summary judgment, the motion judge erred in failing to attach sufficient weight to the s. 30 assessment, the motion judge erred by failing to consider the best interests of the children and the maximum contact principle, and finally, his s. 7 and s. 11(b) Charter rights were infringed: Mattina v. Mattina, at paras. 9-10. This court dismissed all four grounds of appeal. The mother is accordingly presumptively entitled to her costs.
b. Applying the r. 24 Framework Suggests the Mother Should Have 60-70% of Her Appeal Costs Indemnified
30There is evidence of unreasonable conduct by the father in this appeal. It was unreasonable for him to continue on appeal to take the position that the only explanation for the rift with his children was parental alienation. Furthermore, the father continued to take an obstructionist approach to the litigation. For example, he insisted on relying on affidavits from motion materials used in the Divisional Court in violation of the parties' consent order about the manner for filing further materials. The father had to have known that this conduct would increase the mother's costs.
31That said, the mother's conduct also impeded resolution. By way of example, we point to her refusing to schedule an expedited hearing before the Divisional Court and her refusing to allow the father to file additional appeal materials.
32As to the time invested by each party, we note that a combined total of nearly 77 hours by mother's counsel was spent preparing for this appeal. A large portion of this preparation time appears to have been spent on the mother's need to respond to the father's motion to file an amended notice of appeal, fresh factum and further book of authorities. Although the mother was unsuccessful on that motion, we are of the view that it is reasonable for preparation time to be included in the mother's cost award, given the father brought the motion with fewer than 36 hours' notice, in violation of a consent court order, and that the mother's counsel made a reasonable proposal that would have avoided the necessity for such a motion.
33We are persuaded by the mother's submission that the father would have been aware of the fact that his lawyers' services cost almost twice as much as hers. The father would have also been aware of the high cost of litigation based on the motion judge's costs order. It is reasonable to conclude that the father would have foreseen having to pay the mother's costs and that these costs could be significant.
34In our view, the mother's presumptive entitlement to costs has not been rebutted.
35Having considered the reasonableness and proportionality of the relevant factors, in our view the mother should receive 60-70% of her costs.
(2) The Costs before the Divisional Court
a. Confusion Surrounding Family Appeal Routes
36This court has repeatedly commented on the fact that this province's family law appeal routes are confusing for the public, counsel, and institutional litigants: Christodoulou v. Christodoulou, 2010 ONCA 93, 75 R.F.L. (6th) 266; Marchildon v. Beitz, 2012 ONCA 668, 23 R.F.L. (7th) 316; Priest v. Reilly, 2018 ONCA 389. In particular, this court in Christodoulou noted the cost implications of this confusion at para. 35:
The inconsistency in current appeal routes can be confusing for the public, for counsel and for institutional litigants. It can also create an inequality in access to justice between litigants whose disputes at first instance are heard in provincial courts versus superior courts – the former must incur the costs and delays of two appeals in order to reach the Court of Appeal while the latter must incur the cost and delay of only one.
37This case illustrates once again the unnecessary costs parties bear as a result of this confusion. We therefore echo this court's plea in Priest v. Reilly (at para. 6): "It has been over eight years since MacPherson J.A. in Christodoulou specifically invited legislative reform in this area. This is a serious access to justice problem that must be remedied."
38Given this legislative deficiency, it would be unjust in our view for the father to pay the mother's costs associated with the appeal before the Divisional Court. The father's behaviour throughout this case is in our view sufficiently addressed by the costs awards for the remainder of the proceedings.
Disposition
39The mother seeks full recovery of her costs in the sum of $67,224.95. Of this sum, $25,887.50 is attributed to fees and disbursements associated with the Divisional Court appeal. This amount should be subtracted from the total amount claimed, leaving $41,377.45 for the mother's fees and disbursements for the appeal before this court. In her Bill of Costs, the mother has included $1,914.95 for disbursements associated with the Divisional Court appeal, which were omitted in the Divisional Court Bill of Costs. This amount should be excluded leaving the mother with a Bill of Costs totalling $39,462.50.
40Based on the above analysis, it is reasonable in our view to award the mother 60-70% of her costs. We therefore order the father to pay the mother her costs fixed in the amount of $25,000.
"Gloria Epstein J.A."
"P. Lauwers J.A."
"K. van Rensburg J.A."
1Rule 24(12) was updated in July 2018 and the new rule applies: Cobb v. Long Estate, 2017 ONCA 717, at para. 84.
