Court File and Parties

Court File No.: Toronto D80049/15

Date: 2017-12-12

Ontario Court of Justice

Between:

J.R.M. Applicant

— AND —

C.T.H. Respondent

Before: Justice Curtis

Written submissions regarding Costs

Decision released on: 12 December 2017

For Applicant: Pamila Bhardwaj

The Respondent is unrepresented

CURTIS, J.

INDEX

1. Over-view
2. The Parties' Positions re Costs
3. Background
4. Litigation History
5. The Costs Analysis
   • a. The Law of Costs
     • i. Entitlement
     • ii. The Evolution of Costs as an Instrument of Social Policy
   • b. Offers to Settle
     • i. The Parent's Offers to Settle
   • c. Behaviour of the Parties
6. Order

1. Over-view

This is the decision on costs of the focused hearing regarding the father's access to the three year old child. Costs were claimed in written submissions. At the trial, a timetable was established for the submissions regarding costs.

2. The Parties' Positions re Costs

The father claims costs of this matter under Rules 18 and 24 of the Family Law Rules, in the amount of $11,695.50 all in (fees plus disbursements) from the mother.

The mother did not file any materials in response to the father's claim for costs. The father's claim for costs is unopposed.

3. Background

The father is 28 years old (born 1989). The mother is 23 years old (born 1994). The parties lived together from January to March 2014. There is one child of the relationship, M., now three years old.

4. Litigation History

The focused hearing regarding access determined the final issue to be resolved in the long-standing and acrimonious litigation between the parents.

The father brought an Application on 13 January 2015 for access to the child. He filed an amended Application on 9 March 2015 claiming sole custody.

The mother's Answer filed on 18 February 2015 claimed custody, supervised access, and support. She filed an amended Answer on 23 March 2015, but her claims were essentially the same.

From that point the litigation was hotly contested on many issues, with many case conferences and motions. Both parents were, at times, represented by lawyers, but the lawyers were changing and were coming and going. The trial was held almost three years after the case started.

At trial the only remaining issue was access. The trial was a Rule 1 focused hearing, with affidavits for the evidence in chief, and cross-examinations. The only witnesses were the parents.

The parents had an on and off relationship, in which they repeatedly separated and reunited. It was not a healthy relationship, but it was a relationship they repeatedly returned to, including twice during the court case.

There were various motions regarding access. Over the period of the court case (January 2015 to the trial in October 2017) there were a variety of orders regarding access, and many different types of access were tried, ranging from supervised access (supervised by the maternal grandmother, and then supervised at the supervised access centre), unsupervised access at a specified location, and overnight week-end access. Some access orders were on consent, and some were not.

Some orders for access were complied with by the mother, and some were not. On 15 May 2015 the father brought a contempt motion, alleging that the mother was denying access. The mother admitted that she was not complying with the court orders regarding access. The mother was, on more than one occasion, sternly cautioned about the need to comply with court orders.

There was a great deal of conflict regarding access. As well the parents made very serious allegations about each other in the material filed. This was a frequent occurrence, so frequent that the court made several endorsements (30 March 2017 and 13 October 2017) expressing concern about this evidence, about the level of conflict between the parents, and the ramifications of this behaviour for the health and safety of the child. York Children's Aid Society ("York C.A.S.") was involved with the family, and had confirmed in writing by letter dated 20 March 2017 that the child "is a child in need of protection, given the extensive conflict between the parents". Notwithstanding the clear statement in this letter, York C.A.S. did not start a protection application. The court was so concerned about the level of conflict and the seriousness of the allegations made by each parent about the other that there were several endorsements requesting or inviting further involvement from the C.A.S. (30 March 2017 and 13 October 2017). The court was still concerned about this at the trial, and this issue formed part of the reasons for decision given.

As well, the parents had completely unrealistic expectations about the litigation process and what the court could accomplish. They often came to court with no paperwork at all, making serious allegations about each other, but not in writing, in any format (not in case conference briefs nor in affidavits), but rather making these statements and requests from the counsel table. They often appeared unrepresented and requested detailed orders changing the status quo, without providing the court with any sworn evidence on these issues. Their unrealistic expectations about the litigation process was noted in repeated endorsements (30 March 2017, 26 June 2017, and 4 August 2017).

Due to the level of conflict and the fact that access was not happening for a period of time, the existing access order at the trial (an order made 30 March 2017) was for one hour per week supervised at the supervised access centre.

The court found that both parents had behaved badly.

These are the orders made at trial on 13 October 2017 (for oral reasons given):

• Father's access to be 5 hours unsupervised from noon to 5 p.m. every weekend, on Saturday or Sunday;
• From 1 April 2018, once per week, all day from 9 a.m. to 6 p.m., Saturday or Sunday;
• From 1 October 2018 every other week-end, Saturday and Sunday, 9 a.m. to 6 p.m.;
• From 1 April 2019 every other weekend from Friday 6 p.m. to Sunday 7 p.m.;
• All exchanges to be at the supervised access centre closest to where the child lives, or daycare, or the closest fast food restaurant to the child's home, in that order of preference;
• No exchanges to take place at the police station;
• Neither parent may bring a motion to change without permission obtained in advance on a Form 14B motion, maximum two pages in support, not to be served on the other side unless the court orders otherwise; and,
• Written submissions regarding costs (with a timetable).

In addition, the trial endorsement noted the court's concern over the serious allegations the parents made about each other, and the on-going high conflict. The court ordered that the children's aid society (York C.A.S.) shall investigate this situation. The court staff were ordered to send a transcript of the oral reasons for decision and the endorsement to Intake at York C.A.S.

5. The Costs Analysis

The Law of Costs

Entitlement

The courts have a broad discretion to award costs. The general discretion of the courts regarding costs is contained in the Courts of Justice Act, R.S.O. 1990, c. C. 43, as amended, s. 131(1), which sets out three specific principles:

a) the costs of a case are in the discretion of the court;

b) the court may determine by whom costs shall be paid; and,

c) the court may determine to what extent the costs shall be paid.

Modern costs rules are designed to foster three fundamental purposes:

(a) to indemnify successful litigants for the cost of litigation;

(b) to encourage settlement; and

(c) to discourage and sanction inappropriate behaviour by litigants.

Rule 2(2) of the Family Law 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 of the Rules.

The Evolution of Costs as an Instrument of Social Policy

The traditional purpose of an award of costs was to indemnify the successful party in respect of the expenses sustained. For some time, however, courts have recognized that indemnity to the successful party is not the sole purpose, and in some cases not even the primary purpose, of a costs award. The principle of indemnification, while paramount, is not the only consideration when the court is called on to make an order of costs; indeed, the principle has been called "outdated" since other functions may be served by a costs order, for example to encourage settlement, to prevent frivolous or vexatious litigation, and to discourage unnecessary steps. This change in the common law was an incremental one when viewed in the larger context of the trend towards awarding costs to encourage or deter certain types of conduct, and not merely to indemnify the successful litigant.

The traditional approach to costs can also be viewed as being animated by the broad concern to ensure that the justice system works fairly and efficiently. Because costs awards transfer some of the winner's litigation expenses to the loser, rather than leaving each party's expenses where they fall, they act as a disincentive to those who might be tempted to harass others with meritless claims. In addition, because they offset to some extent the outlays incurred by the winner, they make the legal system more accessible to litigants who seek to vindicate a legally sound position. These effects of the traditional rules can be connected to the court's concern with overseeing its own process and ensuring that litigation is conducted in an efficient and just manner. In this sense it is a natural evolution in the law to recognize the related policy objectives that are served by the modern approach to costs.

Modern costs rules accomplish various purposes in addition to the traditional objective of indemnification. An order as to costs may be designed to penalize a party who has refused a reasonable settlement offer. Costs can also 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.

The use of costs as a way to control the court process, the litigation and assist in the administration of justice is becoming increasingly important, as the precious resource of the justice system becomes less available for families needing it than it once was.

Offers to Settle

Offers to settle are a significant part of the landscape in family law in Ontario. They are important to the possible resolution of cases. In addition, they are important to determining costs.

Parties and their lawyers have a positive obligation to behave in ways which enable the court to move cases forward to resolution (Rule 2). Rule 2(4) imposes a duty on parties and their lawyers to promote the primary objective of the rules to deal with cases justly (Rule 2(2)). This includes taking appropriate steps to save time and expense (Rule 2(3)). Offers to settle play an important role in saving time and expense by promoting settlements, focusing parties and often narrowing issues in dispute.

Offers to settle are important and can be the yardstick by which to measure success. They are significant in determining both liability for costs and quantum.

In deciding whether a party has acted reasonably or unreasonably in a case, the court shall examine the reasonableness of any offer the party made (Rule 24(5)(b)).

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. The position each party took in the case should also be examined.

The costs consequences of offers to settle are set out in Rule 18 (14) 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.

The court has a discretion to take into account any written offer to settle, the date it was made and its terms, even if Rule 18(14) does not apply to the offer to settle, when exercising its discretion over costs (Rule 18(16)).

COSTS — DISCRETION OF COURT

18 (16). When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply.

Rule 18 (16) invites consideration of any and all offers to settle.

The Parent's Offers to Settle

The mother served an offer to settle dated 15 September 2017. It is unclear when this was served, but the father acknowledges that it was served on him. The mother's offer was for unsupervised day access every Saturday for five hours from 10 a.m. to 3 p.m., with exchanges to be at the supervised access centre. The father filed the mother's offer as part of his written costs submissions.

The mother's offer did not include a graduated access schedule as ordered at the trial, and does not meet the criteria under Rule 18(14). However, her offer to settle can be considered under Rule 18(16).

The father served an offer to settle on 2 October 2017. His offer provided for unsupervised access to begin immediately (every Saturday from 10 a.m. to 3 p.m., with exchanges at the supervised access centre), and for the access to be increased in two bi-monthly increments until it was week-end access (by 16 February 2017). In addition, on 21 February 2017 the access would include Wednesday evening from 5.30 p.m. to 7.30 p.m.

The final result was not as favourable as or more favourable than the father's offer (Rule 18(14)(5)). Close does not count when applying rule 18(14). Its presumptive costs consequences were not triggered by the father's offer.

However, an offer to settle that is very close to the final result will be a relevant costs consideration under rule 18(16) of the rules. The father's offer qualifies for consideration as an offer under Rule 18(16).

Behaviour of the Parties

Any claim for costs starts with a consideration of Rule 24:

SUCCESSFUL PARTY PRESUMED ENTITLED TO COSTS

24. (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.

SUCCESSFUL PARTY WHO HAS BEHAVED UNREASONABLY

(4) 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.

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.

Success is given presumptive pre-eminence in Rule 24.

Rule 24(1) of the Family Law Rules creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs.

However, success in the court case is not the only factor for consideration in determining entitlement to costs. Rule 24(4) requires the court to consider the reasonableness of a successful party's behaviour in determining entitlement. And Rule 24(5) sets out criteria for the court in determining reasonableness.

The father could be described as the successful party in the trial. Indeed, his lawyer sought costs at the conclusion of the trial, a clear indication that the lawyer believed the father to be the successful party.

Parties to litigation must understand that court proceedings are expensive, time-consuming and stressful for all concerned. They are not designed to give individual litigants a forum for carrying on in whatever manner they may choose.

Matrimonial litigation is an occasion for sober consideration and thoughtfulness rather than intemperate behaviour.

While the oral decision was being delivered, the father left the courtroom in anger. He was asked by the court if he would remain and hear the decision, and he refused. He did not hear the entire reasons for decision. He left, and he did not return.

After the trial, the father posted on his Facebook account the following (the text was accompanied by a photograph):

See this hideous disgusting, sloppy, crusty, piece of shit human being who smells like hotdog water and wet dog. This is the face of JUSTICE CAROLE CURTIS who is a family court judge at 47 Sheppard Ave E. The trashiest most despicable cunt I have ever seen in my life. This stupid skunt was able to become a family court judge obvioisly through a deal she made with the devil or some shit. She is paid to enable mentally ill and spiteful women to find revenge through their childr en. Against men who are doing everything they can and going above and beyond to be full time father's. I feel sorry for any man and their children who ever have to face this bitter sexist feminist old bag of shit. I will personally make it a daily routine once she kicks the bucket from bitter bitch disease to piss on her grave 3 times a day and I hope she rots in the darkest corner of hell. Anyone who is willing to limit or take away time that a father can be spending with his child deserves 1000 deaths and then some. This is time that you cannot get back. When a man applies to court and starts a proceeding it's, because he has exercised all other options with the other party and needs assistance in being able to find some stability as a majority of women who become baby mothers (not all), but most if we're being real here...become bitter, spiteful, vindictive bitches who lose all focus on what's important (the child) in an attempt to hurt the father. I know all about this cause my mother was one of them. As a judge it is your responsibility to do what's best for the child and not to nurture females and entertain their twisted bs claims of whatever tf they choose to accuse the man of. Especially when these claims have no backing or proof or evidence at all. I don't even blame the babymothers cause its not their fault. They are just doing what they have been doing and being what they have been from whenever tf babymoms became a thing. I blame this bitch and bitches like her as they have a responsibility to bring justice and order and is only bringing chaos and instability into the lives of children when she had the ability to do so much more. Fuck her.... I feel better now lol

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.

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.

One of the purposes of costs is to change behaviour.

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.

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.

This behaviour should have consequences. The father might have been entitled to his costs of the trial, which might have been as much as the $11,000 claimed. The father is not entitled to costs under Rule 24(4). This behaviour was costly for the father.

6. Order

There shall be no costs of this trial.

Released: 12 December 2017

Justice Carole Curtis