Court File and Parties
Date: November 4, 2019
Court File No.: D61246/13
Ontario Court of Justice
Between:
Wesley Lewis
Applicant
-and-
Daniela Silva
Respondent
Counsel:
- Aida Pasha, for the Applicant
- Julie Amourgis, for the Respondent
Heard: In Chambers
Justice: S.B. Sherr
Costs Endorsement
Part One – Introduction
[1] The respondent (the mother) seeks her costs of $18,109.39 arising out of her motion to change the final parenting order of Justice Carole Curtis, dated July 24, 2014 (the final order).
[2] The applicant (the father) asks that if costs are ordered that they be nominal. He also asks for an order to pay the costs ordered at $50 each month.
Part Two – Background Facts
[3] The parties have been litigating in this court, on and off, since 2013.
[4] The mother has four children (ages 12, 11, 9 and 7) (the children). The father is the biological father of the 12-year-old child and stepfather to the other three children.
[5] On July 24, 2014, on consent, Justice Curtis ordered that the mother have final custody of the children. The order provided that the father shall have alternate weekend and holiday access with them.
[6] The father brought a motion to change the final order on November 12, 2015. Justice Curtis dismissed this motion to change on December 15, 2016. She ordered the father to pay the mother's costs fixed at $7,500. None of those costs have been paid.
[7] The mother brought a motion to change the final order on September 21, 2018 seeking to terminate the father's access. The father did not file a response to motion to change. He did bring a contempt motion.
[8] On October 19, 2018, Justice Curtis made a temporary order that the father have no access to the children. She did not find the mother in contempt and directed the case to proceed pursuant to the mother's motion to change. A referral was made to the Office of the Children's Lawyer. It accepted the case and prepared a report for the court pursuant to section 112 of the Courts of Justice Act.
[9] On August 12, 2019, Justice Curtis referred the case to Assignment Court to set trial dates. The court's notice to the parties is clear that parties and their counsel are expected to attend at Assignment Court. Often settlement conferences take place or are arranged that day. Trial management issues are often discussed. The father did not attend at Assignment Court on September 4, 2019 – everyone else was present. A settlement conference was scheduled for September 19, 2019.
[10] The father did not attend at the settlement conference on September 19, 2019 – again, everyone else was present. The court noted that the father had still not filed a response to the motion to change and was in default. His counsel did not provide an acceptable excuse for his default.
[11] The mother asked the court to dispose of the motion to change. The court endorsed that while the father's non-attendance at court is unacceptable and it is not fair to the mother, the children or to the administration of justice to delay the case because the father isn't coming to court or filing responding material, when deciding the best interests of children, it is always preferable to have evidence from both parties. The court determined that the father would be given one last opportunity to file his response to motion to change, but on very strict terms being:
a) He had to serve and file his materials by October 3, 2019.
b) If he failed to file his materials, the mother could move on notice to him, by Form 14B, for a determination of the motion to change. She was to serve and file her Form 23C setting out her evidence for the default orders she was seeking.
c) He was to pay the mother's costs fixed at $750, payable in 30 days.
[12] The settlement conference did not proceed on September 19, 2019.
[13] The father did not file a response to motion to change in the additional time granted by the court. He did not seek an extension of time to file it. He did not pay the costs order. He also did not respond to the mother's Form 23C affidavit that set out her evidence in support of the relief she was requesting, despite being served with it and having had the opportunity to respond.
[14] The father states in his costs submissions that he did not respond to the motion to change or the mother's Form 23C due to being weary of the litigation and feeling helpless about the prospects of an outcome more favourable than that which was recommended by the Office of the Children's Lawyer.
[15] The court made final orders on October 15, 2019. The court relied on the mother's Form 23C and the report from the Office of the Children's Lawyer. The court commented that the father had only seen the children twice in supervised settings since June 2018 (including once with the clinician from the Office of the Children's Lawyer for the purpose of its report), that he was resistant to any recommendation of supervised access and that he had stopped participating in the court process.
[16] The court changed the final order. The father's access to the children is now to be supervised by a professional, to be reasonably agreed upon by the mother, at the father's cost, at times and on dates to be reasonably agreed upon by the mother.
[17] The court adjourned the determination of the mother's request for costs and gave the father one more opportunity to respond to them. He filed his written costs submissions on November 1, 2019.
Part Three – Legal Considerations
3.1 Purposes
[18] 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).
[19] 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.
3.2 Success
[20] 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, [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).
3.3 Determination of the Amount of Costs
[21] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.
[22] 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.
[23] Subrule 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.
[24] A significant amount of the costs sought by the mother, as set out in her costs outline, predated this step in the case – being the default hearing.
[25] Prior to July 1, 2018, pursuant to subrule 24(10), costs for any step in the proceeding were required to be determined at the time or expressly reserved. In Islam v. Rahman, 2007 ONCA 622, the Ontario Court of Appeal set out that the trial judge should not deal with requests for costs that were addressed or should have been addressed at prior steps in the case. However, this did not preclude courts from awarding costs accrued from activity not specifically related to the step. Activity not requiring judicial intervention is often better dealt with at the end of the case and not by the motions judge. See: Houston v. Houston, 2012 ONSC 233; Walts v. Walts, 2014 ONSC 98. This activity includes time spent for meetings with the client and reviewing and preparing pleadings and financial statements. See: Czirjak v. Iskandar, 2010 ONSC 3778.
[26] Subrule 24(11) came into force on July 1, 2018 and now provides that the failure of the court to order costs in relation to a step in a case does not prevent it from awarding costs in relation to the step at a later stage in the case.
[27] However, courts continue to be cautious about awarding costs at the trial stage where costs were not awarded at earlier steps in a case. See: Baezner v. Brunnenmeir, 2018 ONCJ 956; Nabwangu v. Williams, 2019 ONCJ 171.
[28] In Saunders v. Vargas, 2018 ONSJ 4531, Justice Robert Charney set out the challenges faced by a trial judge in determining costs incurred at previous steps in a case, writing at paragraphs 23 and 24:
[23] While the amendment to Rule 24(11) confirms that the court is not precluded from awarding costs at a later stage in the case, this should not be seen as an open invitation to counsel to ask a judge to review the conduct of the opposing party at previous conferences or hearings before a different judge. There is a risk that cases will no longer be about the issues that brought the parties to court in the first place, but turn into conflicts about what happened in previous court appearances and conferences. Trying to reconstruct the conduct of previous hearings and conferences that took place before a different judge is not an efficient use of judicial resources.
[24] While there may be circumstances in which the significance and unreasonableness of some actions may only become clear after the trial or settlement, the judge who deals with a step in the case generally remains best placed to decide and assess costs in relation to that step. In my view, it is incumbent on a party that requests the court to award costs in relation to an earlier step heard by a different judge, to explain why the later judge is in a better position than the judge who actually dealt with the particular step to assess the significance or unreasonableness of any steps taken.
[29] In Cameron v. Cameron, 2018 ONSC 6823, Justice Marvin Kurz interpreted the changes to the costs rules regarding prior steps in a case as creating a rebuttable presumption against ordering costs for these steps if they were not addressed or reserved by the judge hearing the step. He wrote at paragraphs 83 to 88:
[83] In sum, a trial judge has the jurisdiction under R. 24(11) to determine the costs of earlier steps in the proceeding. However, in light of the continued application of R. 24(10), it should be presumed that a judge who does not determine or reserve the costs of a step before her or him does not find that the conduct of the parties during the course of that step merits an award of costs.
[84] That presumed finding should be entitled to deference by subsequent judges. It should be accorded even greater deference when, as here, the previous step was conducted before R. 24(11) was formally amended on April 23, 2018.
[85] If the judge of a step prior to trial does not wish the presumption to apply, I suggest that he or she should say so. The judge can then expressly reserve the costs of the step to a later date, such as the trial. If that occurs, brief reasons would be helpful. I know that many judges are reluctant to award costs of a conference or even reserve them for fear that such a decision may adversely affect the potential for settlement. However, with the increasingly onerous costs of family litigation, it is always salutary for the parties to be reminded at every stage of the proceeding of the potential costs consequences of their litigation.
[86] In light of the presumption, a judge hearing a trial should only grant the costs of a previous step in one of the following circumstances:
a. when they have been reserved to the trial judge; or
b. when, in light of subsequent events, the trial judge is better situated to determine the costs of the prior step than the judge presiding over that step. In that case, the process of determining costs will involve a broad consideration of the prior step within the context of the case as a whole; or
c. in exceptional circumstances.
[87] If a party seeks the previously undetermined and unreserved costs of a previous step, the onus rests on him or her to set out why those costs should now be awarded in their favour. To meet that onus, the party should offer a detailed summary of each prior step for which he or she is seeking costs. The party should add an explanation of why he or she should now be granted the costs of that step. That summary should include:
a. the positions that each party took at that step;
b. the manner in which the party's participation in that step advanced the case or contributed towards the ultimate result;
c. an explanation of why the later judge is in a better position than the judge who actually dealt with the particular step to assess the significance or reasonableness of the conduct of the parties during that step;
d. a comparison of any relevant offers to settle, particularly as they may impact on the prior step; and
e. any other consideration that the party relies upon to claim the costs of that step.
[88] The principles set out above also apply, with any necessary adjustments (considering their more summary nature), to motions and any other proceedings in which a judge is asked to award the undetermined costs of prior steps. Those principles can apply, for example when a motions judge is asked to determine the costs of a previous case conference or when the balance of a partially completed conference is adjourned to another date, without costs being reserved.
[30] This court agrees with the approach taken by Justice Kurz.
3.4 Ability to Pay Costs
[31] The court should 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.
Part Four – Analysis
4.1 Success
[32] Neither party submitted, nor relied upon an offer to settle in making their costs submissions.
[33] The father submitted that there was equal success in this case – the mother had sought termination of access in her motion to change and he wanted to restore access. Supervised access was ordered. This is not divided success. The mother was prepared to agree to supervised access. The endorsement of Justice Curtis on August 12, 2019 indicates that the father did not agree with this and she sent the case to trial.
[34] The mother was the successful party in this case. The presumption that she is entitled to costs was not rebutted.
[35] The mother seeks her costs from August 2018.
[36] The mother is entitled to costs for time spent on the case that is not specifically attributable to a step in the case. She had to spend considerable time preparing court materials to support her motion to change the final order. She had meetings and telephone calls with her counsel. She and her counsel attended at a disclosure meeting with the clinician from the Office of the Children's Lawyer to discuss its report and recommendations.
[37] Justice Curtis did not award costs or reserve costs for the appearance where she made a temporary no access order on October 19, 2018. Costs could have been sought by the mother at that time and she chose not to do this. Justice Curtis was then in the best position to assess costs for that step. This court is not prepared to order costs for that step at this stage of the case.
[38] The case conference scheduled for December 10, 2018 was adjourned on consent. The court will not order costs for that appearance.
[39] The appearances on May 31, 2019 and June 5, 2019 dealt with Justice Curtis' dissatisfaction with the Office of the Children's Lawyer for taking so long with completing its report. The adjournments were not the fault of either party. Justice Curtis did not order or reserve costs for these appearances and this court will not order costs at this point.
[40] A case conference was held by Justice Curtis on August 12, 2019. Although she did not order or reserve costs, she was not in the best position at that time to assess the appropriate amount of costs – the appearance was for the purpose of discussing settlement and determining the next step in the case. This court is better positioned to assess costs at this stage, having made a final order, and will award the mother costs for the preparation and attendance at that appearance.
[41] The mother was already awarded costs for the aborted settlement conference on September 19, 2019 and claimed costs again for that appearance in her costs outline. This won't be ordered.
[42] The mother is entitled to costs for the preparation for and attendance at Assignment Court, the preparation of her materials for the uncontested hearing and her preparation of costs submissions.
[43] The mother acted reasonably in this case.
[44] The father did not act reasonably and increased the mother's costs by failing to attend at Assignment Court and the settlement conference. He has acted unreasonably by failing to pay anything towards prior costs orders.
[45] The issues were important for the parties. They were not complex or difficult.
[46] The time claimed by the mother (allowed by the court) is reasonable and proportionate.
[47] The rates claimed by the mother are reasonable.
[48] The expenses claimed by the mother are for the entire case. She is entitled to compensation for a portion of these expenses.
[49] The father has limited means to pay a costs order. He is on Ontario Works. His ability to pay will be taken into consideration in making this order.
[50] The father has not paid anything towards past costs orders. The court is not inclined to permit payment of costs over a lengthy period of time as sought by him given his previous disregard of these orders. The mother is free to enforce this order as she sees fit.
Part Five – The Order
[51] Taking into account all of these considerations, the court orders that the father shall pay the mother her costs fixed in the amount of $6,500 inclusive of fees, disbursements and HST.
Released: November 4, 2019
Justice S.B. Sherr
