Court File and Parties

Date: May 3, 2019 Court File No.: D51590/10

Ontario Court of Justice

Between:

T.S. Applicant

-and-

P.L. Respondent

Counsel:

• Pamila Bhardwaj, for the Applicant
• Acting in Person, for the Respondent

Heard: May 2, 2019

Justice: S.B. Sherr

Endorsement

Part One - Introduction

1On May 2, 2019, the court gave oral reasons dismissing the respondent's (the father's) motion to find the applicant (the mother) in contempt of the access provisions of the January 4, 2019 order of Justice Carole Curtis (the final order).

2The mother seeks her costs of $4,746, inclusive of fees, disbursements and HST.

3The father submitted that the costs claimed are excessive.

Part Two – Legal Considerations

4The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 set out that modern costs rules are designed to foster four fundamental purposes:

1. to partially indemnify successful litigants;
2. to encourage settlement;
3. to discourage and sanction inappropriate behaviour by litigants; and
4. to ensure that cases are dealt with justly under subrule 2(2) of the Family Law Rules (all references to the rules in this decision are to the Family Law Rules).

5Costs can be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice. See: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, paragraph 25.

6Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.

7An award of costs is subject to the factors listed in subrule 24(12), subrule 24(4) pertaining to unreasonable conduct of a successful party, subrule 24(8) pertaining to bad faith, subrule 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party. See: Berta v. Berta, 2015 ONCA 918, at paragraph 94.

8Subrule 24(1) creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. See: Sims-Howarth v. Bilcliffe, [2000] O.J. No. 330 (SCJ-Family Court). 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. See: Lawson v. Lawson, [2008] O.J. No. 1978 (SCJ).

9Subrule 18(14) sets out the consequences of a party's failure to accept an offer to settle that is as good as or better than the trial result of the person making the offer. It reads as follows:

Costs Consequences of Failure to Accept Offer

18(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:

1. If the offer relates to a motion, it is made at least one day before the motion date.
2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
3. The offer does not expire and is not withdrawn before the hearing starts.
4. The offer is not accepted.
5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer.

10Subrule 24(5) provides criteria for determining the reasonableness of a party's behaviour in a case. It reads as follows:

Decision on Reasonableness

(5) 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.

11Subrule 24(12) reads as follows:

24(12) In setting the amount of costs, the court shall consider,

(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.

12The court should also take into consideration the ability of a party to pay costs. See: MacDonald v. Magel, 67 O.R. (3d) 181 (Ont. C.A.). However, a party's limited financial circumstances will not be used as a shield against any liability for costs but will be taken into account regarding the quantum of costs. See: Snih v. Snih pars. 7-13. Those who can least afford litigation should be the most motivated to avoid unnecessary proceedings. See: Mohr v. Sweeney, 2016 ONSC 3238.

13Self-representation cannot be used to shield or insulate a litigant from a costs award, otherwise it would create a two-tier system — any such consideration is outweighed by the need to ensure that the objective of sanctioning/discouraging inappropriate behaviour is met. At a time when our family court system is seeing ever-increasing numbers of self-represented parties, it is important to reaffirm that costs sanctions apply equally whether parties have counsel or not. No one should get a "free pass." See: M.A.L. v. R.H.M., 2018 ONSC 2542 (par. 100); Barran v. Schanck, 2019 ONCJ 218.

Part Three – Offers to Settle

14The father issued his contempt motion on February 18, 2019.

15The mother served an offer to settle dated April 11, 2019. She offered that the motion be dismissed with no costs.

16The mother's offer remained open until after the start of the contempt hearing. The father did not accept the offer.

17The father did not make an offer to settle.

18The mother's offer met the conditions required to apply the costs consequences set out in subrule 18(14). It offered an element of compromise – she was willing to settle for no costs despite the costs she incurred defending the motion.

19Subrule 18(14) sets out that the costs consequences shall be applied unless the court orders otherwise. For reasons that will be set out below, the court will order otherwise.

Part Four – Analysis

20This motion was important to the parties. The contempt issue was not complex or difficult.

21The court finds that the time and rates claimed by the mother are reasonable and proportionate. The mother faced serious consequences if she was found in contempt. It was reasonable for her to vigorously defend the motion.

22The father's motion was ill-conceived. First, the court found that the mother did not breach the final order. The father's remedy was to move to change the exchange terms in the final order if he felt they were not fair. Second, the father was far too quick to jump to the contempt remedy. See: Hefkey v. Hefkey, 2013 ONCA 44. If there was a breach he should have first brought an enforcement motion pursuant to subrule 1(8).

23A review of the endorsement record shows that the father was advised on two appearances that he needed counsel for this matter.

24The father is no stranger to litigation. The parties have litigated about their child since 2010.

25The father's anger at the mother was palpable. It was apparent that he wanted the mother punished.

26It is important to send the message that the parties cannot litigate with impunity and that they will face costs consequences when they bring proceedings without merit.

27However, the mother is not an innocent victim in this case. Her behaviour escalated the animosity between the parties and contributed to the father bringing this motion.

28The father missed two visits in February 2019 when the parties could not agree on a third party to exchange the child. The final order provided that the father's wife could exchange the child, but she wasn't available. The final order set out that otherwise, the parties had to agree on a third party. The father insisted on using his brother. The mother would not agree stating that she has a poor relationship with him. Both parties dug in their heels and access did not take place.

29The mother sent abusive and inappropriate emails to the father when she became angered after their access disputes. The court will not repeat the contents of those emails. Suffice to say, the mother should be ashamed to have conducted herself in that fashion. Although they don't justify the father's insistence on continuing with his contempt motion, they certainly help the court understand it.

30In J.M. v. C.T.H., 2017 ONCJ 863, Justice Carole Curtis totally denied a successful litigant costs when he posted vile comments about her on the internet. She wrote at paragraphs 48 to 52:

48 This message posted to a public venue is disrespectful, in the extreme, to the Rule of Law, the administration of justice and the judicial system.

49 Given the outcome of the trial, and the offer to settle made by the father, the father would be considered to be the successful party, and he might have been entitled to some costs.

50 One of the purposes of costs is to change behaviour.

51 The father should not be rewarded for his behaviour. An order for costs in his favour might seem to be a reward, or a statement that such behaviour was acceptable, or at least, did not have consequences for him.

52 The father's behaviour easily falls into the unreasonable category. This behaviour is not acceptable. Courts must discourage this behaviour. Unless courts discourage this behaviour, it will continue and increase. Depriving an otherwise successful party of costs is one way to discourage this behaviour.

31The court agrees with the comments made by Justice Curtis. This behaviour by the mother has no place in family litigation, will not be tolerated and will have serious consequences. The consequence in this case will be that the mother's costs award will be significantly discounted. One hopes that this will make the parties think twice before they send such emails to each other in the future.

Part Five – Final Order

32Taking into account all of these factors the father shall pay the mother's costs of $2,000.

33The father shall have 30 days to pay the costs ordered.