Court File and Parties
Date: December 10, 2018
Court File No.: D10922/17
Ontario Court of Justice
Between:
Christine Ruby Anyumba Acting in Person Applicant
- and -
Jonathan Allany Keby Acting in Person Respondent
Raoul Lions, for the assignee, The City of Toronto
Heard: In Chambers
Justice S.B. Sherr
Costs Endorsement
[1] On November 5, 2018, the court released its reasons for decision arising out of a one-day trial about the child support arrangements for the parties' 8-year-old daughter (the child). See: Anyumba v. Keby, 2018 ONCJ 775.
[2] The court ordered the respondent (the father) to pay the applicant (the mother) the Child Support Guidelines (guidelines) table amount for one child, based on an annual income imputed to him of $40,000, retroactive to July 1, 2014. The court gave the father credit for support paid and fixed his support arrears at $17,489 - $14,074 owed to the mother and $3,415 owed to the City of Toronto (the assignee).
[3] The court provided the parties and the assignee with the opportunity to make written costs submissions.
[4] The mother seeks her costs of $2,500. The assignee and the father did not make costs submissions.
Principles Governing Costs Awards
[5] The 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).
[6] Costs 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.
[7] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.
[8] An 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.
Costs for Self-Represented Litigants
[9] Justice George Czutrin reviewed considerations for determining costs for self-represented litigants in Jordan v. Stewart, 2013 ONSC 5037 as follows:
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.
[10] Justice Laura Fryer added the following considerations in Browne v. Cerasa, 2018 ONSC 2242:
a) Determination of costs for self-represented litigants should take into account all of the objectives which costs orders should promote. Rules 18 and 24 apply. Otherwise the resulting amount can render the entitlement to costs illusory; undermine access to justice by self-represented litigants; and frustrate the administration of justice.
b) If a self-represented litigant, in performing the tasks that would normally have been performed by a lawyer, lost the opportunity to earn income elsewhere, this may be a relevant factor. But costs for self-represented parties are not the same as damages for lost income. Remunerative loss is not a "condition precedent" to an award for costs.
c) To require proof of lost income would disqualify litigants who are homemakers, retirees, students, unemployed, unemployable and disabled; and deprive courts of a tool required for administration of justice.
d) Lost income may be one measure. But even if no income was lost, the self-represented party's allocation of time spent working on the case may still represent value. The fact that a self-represented litigant is not a lawyer who charges a standard and commonly accepted hourly rate makes it more difficult – but not impossible – to assess their costs. However, the difficulty in valuing the time and effort of the lay litigant is not a good reason to decline to value it.
e) An applicable hourly rate should be taken into account when quantifying even a self-represented lay litigant's costs. But the appropriate hourly rate, once determined, is only one of several factors to be considered.
f) In considering the hourly rate, the court should consider what the lay litigant's reasonable expectations were as to the costs he or she would pay if unsuccessful.
g) As with counsel, the appropriate hourly rate may be affected by the level of indemnification or recovery deemed to be appropriate, given all of the rule 18 and 24 considerations.
[11] Several courts have fixed hourly rates for self-represented litigants in assessing costs. In Jahn-Cartwright, 2010 ONSC 2263, an hourly rate of $200.00 was applied, which was approximately two-thirds of what the husband's lawyer would have been entitled to claim. In Cassidy v. Cassidy, 2011 ONSC 791, an hourly rate of $150 was applied. In Izyuk v. Bilousov, 2011 ONSC 7476, the court fixed the self-represented party's hourly rate at $100 per hour. This approach was followed in Browne v. Cerasa, 2018 ONSC 2242.
[12] In Agmon v. James, 2018 ONCJ 240, this court used an hourly rate of $125 in assessing costs for a successful self-represented litigant.
Success and Settlement Offers
[13] Subrule 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. 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.
[14] Subrule 18(14) 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:
If the offer relates to a motion, it is made at least one day before the motion date.
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.
The offer does not expire and is not withdrawn before the hearing starts.
The offer is not accepted.
The party who made the offer obtains an order that is as favourable as or more favourable than the offer.
[15] The onus of proving that the offer is as or more favourable than the trial result is on the person making the offer. See: Neilipovitz v. Neilipovitz, [2014] O.J. No. 3842 (SCJ).
[16] The mother made an offer to settle. The father and the assignee did not make offers to settle.
[17] The mother offered that the father pay her the guidelines table amount for one child, based on an imputed annual income to him of $40,000, starting on May 1, 2017.
[18] The final court order was more favourable to the mother than her offer, as the court imputed annual income of $40,000 to the father with a start date of July 1, 2014.
[19] All of the conditions necessary for subrule 18(14) to apply have been met.
[20] The court finds that subrule 18(14) should be applied. The father should have accepted the mother's very reasonable offer to settle.
Application of Costs Factors
[21] In making this decision, the court considered the factors set out in subrule 24(12), which 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.
[22] The mother acted in a reasonable manner throughout this case.
[23] At paragraph 49 of its reasons for decision the court found that the father was not a credible or reliable witness. His evidence about his income changed throughout this case. He failed to provide complete disclosure despite court orders, and the financial disclosure that he provided did not support his version of his financial circumstances. He tried to avoid his child support obligations.
[24] The father's unreasonable behaviour resulted in additional court appearances and missed days of work by the mother.
[25] The mother earns $40,000 annually. Including the trial, she came to court three times to seek child support. She did a very good job preparing her trial affidavit. She complied with all court orders. The court finds that the hourly rate of $125 it used in Agmon, supra, is also an appropriate hourly rate to use in this case.
[26] Although she did not prepare an outline of her time, the court finds that the amount the mother is claiming for costs is both proportionate and very reasonable in all the circumstances of this case. Her costs request is consistent with the fair approach she took throughout this case.
[27] The father has the ability to pay the costs that will be ordered.
Order
[28] Taking into account all of these considerations, an order shall go that the father shall pay the mother's costs fixed in the amount of $2,500, payable within 30 days.
Released: December 10, 2018
Justice S.B. Sherr