Lewis v. Adesanya, 2014 ONCJ 384

Court File and Parties

Court File No.: D50337/10 Date: 2014-08-06

Ontario Court of Justice

Between:

Tanice Natasha Lewis Acting in Person Applicant

- and -

Akeem Adesoga Adesanya Respondent

Counsel: Bola Adetunji, for the Respondent

Heard: In Chambers, by written submissions

Justice S.B. Sherr

Costs Endorsement

1On July 7, 2014, I released my reasons for decision after hearing the applicant's (the mother) motion to change child support in this case. I ordered the respondent (the father) to pay the mother $20,937 for retroactive child support and $1,393 per month for ongoing child support.

2The parties were given permission to make written costs submissions and both made them.

3The mother represented herself on the motion to change. She has asked the court to award her costs of $1,799.33. The father has asked that no order for costs be made.

Fundamental Purposes of Costs

4The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395 stated that modern costs rules are designed to foster three fundamental purposes, namely: to partially indemnify successful litigants for the cost of litigation, to encourage settlement and to discourage and sanction inappropriate behaviour by litigants bearing in mind that the awards should reflect what the court views is a fair and reasonable amount that should be paid by the unsuccessful party.

5Sub-rule 2(2) of the Family Law Rules (all rules references in this decision relate to these rules) adds a fourth fundamental purpose for costs: to ensure that the primary objective of the rules is met – that cases are dealt with justly. This provision needs to be read in conjunction with rule 24. Sambasivam v. Pulendrarajah, 2012 ONCJ 711.

Presumption of Costs and Success

6Subrule 24(1) creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. Sims-Howarth v. Bilcliffe. To determine whether a party has been successful, the court should take into account how the order compares to any settlement offers that were made. Lawson v. Lawson. The position each party took at trial should also be examined.

7Neither party made an offer to settle. The mother was the successful party based on the positions taken on the motion. The father offered to fix support arrears at only $139.34. He also sought to have ongoing support based on an income of $140,000 per annum. His income was fixed at $160,000 per annum.

8The father did not rebut the presumption that the mother is entitled to costs.

Determining the Amount of Costs for Self-Represented Litigants

9The next step is to determine the amount of costs that should be awarded to the mother, given that she is self-represented.

10In making this decision, I considered the factors set out in sub-rule 24(11), which reads as follows:

24(11) A person setting the amount of costs shall consider:

(a) the importance, complexity or difficulty of the issues;

(b) the reasonableness or unreasonableness of each party's behaviour in the case;

(c) the lawyer's rates;

(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;

(e) expenses properly paid or payable; and

(f) any other relevant matter.

11I also considered the following principles in determining costs for self-represented litigants that were set out by Justice George Czutrin in Jordan v. Stewart, 2013 ONSC 5037:

(a) A self-represented litigant does not have an automatic right to recover costs. The matter remains fully within the discretion of the trial judge. Moreover, self-represented litigants, be they legally trained or not, are not entitled to costs calculated on the same basis as those of the litigant who retains counsel. The self-represented litigant should not recover costs for the time and effort that any litigant would have to devote to the case. Costs should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer to conduct the litigation, and that as a result, they incurred an opportunity cost by foregoing remunerative activity;

(b) Parties who litigate against a self-represented person should not be able to ignore the potential for costs. The court retains the discretion to fashion an award of costs that is fair and reasonable in the circumstances of the case before it;

(c) Where one party is represented by a lawyer and the other is not, the hourly rate that the represented litigant's lawyer is entitled to claim on an assessment of costs should inform the reasonable expectations of both parties as to the costs that they will likely be required to pay if unsuccessful. Otherwise, litigants represented by lawyers would be less circumspect with regard to their conduct and their response to the opposing party's efforts to settle because that party is a self-represented litigant;

(d) It is near impossible to come up with an objective way of fixing an in-person party's hourly rate or the amount of time they spent, not at the court, doing what we might otherwise consider lawyer's work;

(e) Ultimately, the overriding principle in fixing costs is "reasonableness";

(f) Courts addressing costs should consider Bills of Costs certified by lawyers who have provided assistance, even if not on the record throughout the case.

Application of Factors

12The case was important for the parties. There was some complexity to the case as a retroactive support analysis had to be conducted.

13Neither party made an offer to settle. This is unreasonable behaviour. I repeat my comments made in paragraphs 4-5 of Klinkhammer v. Dolan and Tulk, 2009 ONCJ 774 where I wrote:

4 It was surprising that there were no formal offers to settle in this case. It is reflective of the polarity of the parties. It should be a fundamental step in any family law case to serve at least one offer to settle. Parties and their counsel now have a mandate under subrule 2(4) of the rules, to promote the primary objective of the rules; to deal with cases justly (subrule 2(2)). Dealing with a case justly includes taking steps to save time and expense (subrule 2(3)). Offers to settle play an important role in saving time and expense in a case. They are an important vehicle in promoting settlements, focus the parties and often narrow the issues in dispute.

5 There are consequences in the rules for not making or accepting reasonable offers to settle. Subrule 18(14) sets out the costs consequences of not accepting an offer to settle that is as good as or better than the final result. When determining the reasonableness of a party's behaviour in the case, clauses 24(5)(b) and (c) of the rules direct the court to examine the reasonableness of any offer made, withdrawn or not accepted. This does not preclude the court from examining the failure of a party to make an offer to settle.

14I also considered that the father failed to advise the Director of the Family Responsibility Office that the mother had refunded a $1,500 payment to him, resulting in her receiving less support for a period of time. This was unreasonable behaviour. The mother was awarded this amount on the motion to change.

15Subrule 24(10) sets out that costs are to be determined in a summary manner after each step in the case by the presiding judge. A "step" in the case is one of the discrete stages recognized by the rules such as a case conference, settlement conference and the like. Husein v. Chatoor, 2005 ONCJ 487. The trial judge should not deal with requests for costs that were addressed or should have been addressed at these prior steps in the case. Islam v. Rahman, 2007 ONCA 622.

16The mother claimed costs for time spent for prior steps in the case. She also claimed costs for time spent on the access issues. The access issues are being dealt with separately by the case management judge. The balance of the time (and compensation for this time) claimed by the mother was very reasonable. She lost time from work preparing her court documents, preparing for the motion to change and attending on the motion to change. This is all time that a represented litigant would not need to spend on a case.

17The mother did an excellent job in presenting her case. The time spent preparing her case was very worthwhile.

18The mother made reasonable claims for parking and postage costs. She also included a claim for $90 because her car was towed while she was filing documents at court. This is not a reasonable expense.

19The father can afford to pay the costs that will be awarded. He is earning $160,000 per annum.

20I have also considered both Boucher et al. v. Public Accountants Council for the Province of Ontario and Delellis v. Delellis and Delellis. Both these cases point out that when assessing costs it is "not simply a mechanical exercise." In Delellis, Aston J. wrote at paragraph 9:

However, recent cases under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended have begun to de-emphasize the traditional reliance upon "hours spent times hourly rates" when fixing costs....Costs must be proportional to the amount in issue and the outcome. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant.

Order

21Taking into account all of these considerations, an order shall go that the father shall pay the mother's costs fixed in the amount of $1,200, inclusive of fees and disbursements. They shall be paid by the father within 60 days.