Court Information

Ontario Court of Justice

Between:

Tyler Thomas Smith

Applicant

— AND —

Ashley Lynn Smith

Respondent

Counsel:

• Sarah Greatrix, for the Applicant
• Andrea Clarke, for the Respondent

Endorsement on Written Submissions

Before: Justice Jane Caspers

1. Introduction

[1] On April 9, 2020 I released my Decision with respect to two urgent COVID-19 motions: the first brought by Tyler Thomas Smith ("Mr. Smith") seeking to enforce my temporary Order of October 15, 2019 ("Order") with respect to access to twins, Tyson Robert Smith and Thomas Shaun Smith, born […], 2016 ("the children") with some additional access to be scheduled to compensate for access time lost; and a second brought by Ashley Lynn Smith ("Ms. Smith") seeking to suspend father's access to the children in light of the COVID-19 Pandemic.

[2] As part of my Order, I invited the parties to make written Costs Submissions ("Submissions") and I set deadlines for the filing of those Submissions. Mr. Smith complied with the deadline. Ms. Smith did not and was a day late. Nevertheless, Mr. Smith has consented to my considering those Submissions today, in Chambers.

2. Position of the Litigants

[3] Mr. Smith seeks Costs payable to him in the amount of $6,452.58 inclusive of HST on a full indemnity basis or $4,839.44 on a partial indemnity basis. Ms. Smith asks that I make no order with respect to Costs as to do so would create undue hardship for her and for the children and her extended family with whom she lives.

[4] This is my decision.

3. Applicable Rules and Principles with Respect to Costs

[5] Subject to the provisions of an Act or Rules of the court, the Costs of and incidental to a proceeding or a step in the proceeding are in the discretion of the court by virtue of s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C43, and the court may determine by whom and to what extent Costs shall be paid.

[6] Rule 24(1) of the Family Law Rules ("Rules") provides guidance on Costs in a family law context. Rule 24(1) sets out the basic assumption that a successful party is entitled to Costs. This provision still permits a court broad discretion in determining if Costs should be paid, by whom and in what amount.

[7] Subrule 24(11) provides a further list of factors a court should consider in dealing with Costs:

Factors in Costs. – 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, preparation and signature of the order;

(e) expenses properly paid or payable;

(f) any other relevant matter.

[8] Having regard to these considerations, I adopt the comments by Justice Perkins in Biant v. Sagoo, [2001] O.J. No. 3693 (S.C.J.) that:

"..the preferable approach in family law cases is to have cost recovery generally approach full recovery, so long as the successful party has behaved reasonably and the Costs claimed are proportional to the issues and the result.."

[9] The court's role in assessing Costs is not necessarily to reimburse a litigant for every dollar spent on legal fees. As was pointed out in Boucher v. Public Council (Ontario) (2004), 2004 CarswellOnt 2521, [2004] O.J. No. 2634 (Ont. C.A.), the award of Costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the proceedings rather than an exact measure of actual Costs to the successful litigant. The Court of Appeal has made it clear that, in assessing Costs, the overriding principle is one of reasonableness, and that the failure to follow that principle can produce a result that is contrary to the fundamental objective of access to justice.

[10] It is by now a well-accepted principle 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 Rules. See: Mattina v. Mattina, 2018 ONCA 867; Serra v. Serra, 2009 ONCA 395, [2009] O.J. No. 1905 at paragraph 8. 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. [See: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2002 S.C.C., supra, paragraph 25].

[11] 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, 2002 S.C.C., supra, paragraph 25. When awarded on a full recovery scale, Costs can serve to express the court's disapproval of unreasonable conduct during the litigation. See: Sabo v. Sabo, 2013 ONCJ 545, per Justice Carole Curtis.

4. Application of Legal Principles to the Facts

Success

[12] As a starting point, subrule 24(1) of the Family Law Rules (the "Rules") creates a presumption of Costs in favour of the successful party. [Sims-Howarth v. Bilcliffe, [2000] O.J. No. 330 (SCJ-Family Court)].

[13] In this case, Mr. Smith acted quickly in seeking enforcement of the Order with respect to access with respect to which Ms. Smith refused to comply, ostensibly due to COVID-19 Pandemic concerns. In the affidavit filed on his behalf, details of his effort to ensure compliance with the COVID-19 Pandemic Public Health Directives were clearly outlined. Concurrently Ms. Smith brought a cross-motion to suspend access. Ms. Smith's motion materials filed on her behalf lacked particularity, were speculative and provided nothing tangible to suggest that Mr. Smith was conducting himself in a cavalier fashion such that it would put the health and well-being of the children at risk.

[14] Mr. Smith was successful on his motion. Save and except for a minor amendment to Wednesday mid-week access to the children which I suspended until mid-June to avoid too many unnecessary exchanges for the children, I ordered that there be compliance with the prevailing parenting arrangement and made an order for make-up access time for Mr. Smith.

Offers to Settle

[15] Subrule 18(14) of the Rules 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.

[16] No formal Offers to Settle were exchanged.

[17] Mr. Smith submits that he had been engaged in settlement discussion with Ms. Smith, through counsel, for the period March 18-31, 2020 via email and telephone communication. This is not challenged by Ms. Smith. After I released my Decision, Ms. Greatrix on behalf of Mr. Smith attempted to begin a dialogue on the issue of Costs as I had requested. According to Submissions filed on behalf of Mr. Smith, no response was received from Ms. Smith. This is not challenged.

[18] Ms. Smith adopts the position that she attempted to settle matters at every stage of the proceeding without success and that it was Mr. Smith's "all or nothing approach" that resulted in the matter requiring litigation.

[19] Based on the Submissions filed, it appears that discussions did take place and were ongoing, but no settlement was achieved. Regrettably neither party formalized his/her position in a formal Offer to Settle reflective of those discussions. I have taken this into account in coming to my decision. I have also factored into my calculation the fact that Ms. Smith did not acknowledge Mr. Smith's overtures with respect to post-hearing Costs.

Rule 24(11)

[20] In determining the quantum of Costs, I have considered the legal principles and the following factors as set out in subrule 24(11) as follows:

(a) The importance, complexity or difficulty of the issues:

[21] The case was of importance to the parties as it related to the parenting arrangements of their children during the COVID-19 Pandemic and during a time of great stress and confusion with respect to Public Health Protocols and Directives. The individual issue itself was not complex or difficult. The order which prevailed and which was hard fought was only 5 months old.

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

[22] With respect to the reasonableness of the party's behaviour, it is Mr. Smith's position that Ms. Smith has acted unreasonably in the litigation. I agree for the following reasons:

[23] Mother engaged in self-help remedies by intentionally and unilaterally terminating access in the face of unrebutted evidence that the children were well-cared for by Mr. Smith with respect to concerns associated with the COVID-19 Protocol which was the primary foundation for her motion. Ms. Smith made allegations about Mr. Smith with respect to which there was no corroborative evidence. She raises the children's longstanding health history within the context of COVID-19 but provides no evidence to show how father's conduct in the present climate has exacerbated the health concerns of the children.

[24] Historically Ms. Smith has never encouraged access between the children and their father. In this case she used the COVID-19 Pandemic as an excuse to restrict access and to impose terms which could not be justified without providing any reasonable rationale. For example, Ms. Smith proposed a 14-day period of isolation for Mr. Smith even though he had not travelled from his present residence and place of employment and was adopting all the safety measures that one would expect including those associated with social distancing and personal hygiene. She made no proposal as to how following a two-week period of isolation access would resume other than to say that it would unfold on a "graduated basis."

[25] Ms. Smith has a history of non-compliance with court orders which has resulted in past motions and Costs awards against her.

[26] It is also worthy of note that, while the recommendations of Cris Caley Jones, the clinician and author of the s. 112 Report from the Office of the Children's Lawyer ("Report") are in no way determinative of the outcome of this proceeding – that remains within the mandate of the presiding Justice based on all of the evidence – on the issue of access the position which Ms. Smith advanced was in direct opposition to the proposals made by the clinician after having completed a lengthy s. 112 Report. Maximum contact between Mr. Smith and the children was recommended.

[27] Another disturbing feature of this case was the fact that Ms. Smith relied on reiterated concerns regarding Mr. Smith which she had advanced on prior occasions and which were successfully challenged and dismissed or were deemed irrelevant. She notes that Mr. Smith was a long-distance truck driver while the parties were together and that he was "away a lot". Whether true or not, this is irrelevant to this motion. She raised the spectre of drug and alcohol consumption which had never been substantiated but has formed the basis for many of her prior pleadings. She focused on Mr. Smith's relationship with another child which was irrelevant to this proceeding.

[28] Costs are designed to discourage and sanction inappropriate behaviour by litigants. Ms. Smith's conduct demonstrated a flagrant disregard for the court and its process in these challenging times. I have taken this into account.

[29] By contrast I find that Mr. Smith acted reasonably and quickly in his efforts to resolve the access issue.

(c) and (d) The lawyer's rates and the time properly spent on the case:

[30] Ms. Greatrix has provided a detailed Bill of Costs spanning the period March 19, 2020 to April 14, 2020 and has noted a total number of recorded hours at 12.45 for herself and 10.4 hours for her assistant. The total amount claimed on the Bill of Costs, including HST is $6,452.58 on a substantial indemnity basis and $4,839.44 on a partial indemnity basis.

[31] The hourly rate of $325.00 per hour for Ms. Greatrix who was called to the Bar in 2008 and $175.00 per hour for her assistant is not unreasonable. Ms. Clarke has not challenged any aspect of the Bill of Costs either with respect to hourly rate or the work done.

[32] Ms. Clarke did not produce a Bill of Costs. Thus, I have no information regarding the cost of Ms. Smith's litigation for this motion which had I received it, I might have been able to consider.

(e) Expenses properly paid or payable:

[33] There are no disbursements claimed for photocopying, service or support staff.

(f) Other relevant matters:

[34] The ability to pay is an additional factor that the court must consider when assessing Costs. Ms. Smith's stated inability to pay any Costs award and what she alleges to be a significant disparity in the household incomes and resources of the parties is the thrust of her argument. I have no information from either party with respect to income. All I know is that Ms. Smith's litigation is being funded through Legal Aid. Costs may be ordered against a party regardless of the manner in which counsel is retained. I have received no particulars about her current circumstances. I am told only that if Costs are ordered there will be "dire consequence". What form those "dire consequences" will take I do not know and with the greatest of respect, that is an argument proffered by most litigants against whom Costs are ordered.

[35] I have also considered that Ms. Smith suffers from acute anxiety with respect to which she is receiving treatment. According to her physician, Dr. Law, she worries that the children would not be safe with anyone other than herself. That has been Ms. Smith's position throughout. As I indicated in my Decision, I am not unsympathetic to Ms. Smith's worries and anxieties regarding COVID-19. We share those concerns, each and every one of us. But, removing children from the life of a parent and creating instability for them, without evidence that there are more than perceived risks, must be exercised cautiously.

[36] Finally, I wish to address the issue of filing affidavits by staff. I referenced my disapproval of this practice in my Decision and cited the case of Farooq v. Hawkins, [2018] O.J. No. 4206, a decision of Justice Pazaratz, who referred to such pleadings as "defective materials."

[37] In Ramirez-Scrimshaw v. Ingram, 2020 ONSC 2278, a more recent decision of Justice L. Madsen, she did not rely at all on the affidavits filed by staff. At paragraph 8 she noted:

"[8] Counsel are reminded that having law clerks swear affidavits about matters about which they do not have personal knowledge is no substitute for clients swearing their own affidavits. Counsel were informed by the court that the affidavits of the law clerks are not appropriate, and I have not considered them." [emphasis mine].

[38] I did not take the position that I should not consider the affidavits at all in this case as the affidavit material filed provided context within which to assess the merits of the respective arguments in this longstanding, high conflict case. Given Ms. Smith's history of non-compliance had I not heard this motion on an urgent basis, the relationship between Mr. Smith and his children would have been compromised for an indefinite period and that, I felt, was unacceptable and formed a basis for urgency. The proper procedural protocol would have been to file affidavits from the clients even when they have not been properly sworn/affirmed. That is the current practice during the COVID-19 Pandemic. Both litigants were in breach of this protocol.

[39] To what extent ought the court to sanction a litigant when he/she has not prepared his/her own affidavit when it comes to the issue of Costs? I am assuming that the content of the affidavits was provided by the litigants themselves and that those contents were approved. In this particular case the information contained in the affidavits filed by staff paralleled the information contained in previous documents which were executed by the parties themselves. So any deficiencies noted in the quality of the affidavits must be attributable to the litigants themselves even though the procedural irregularity lies solely with counsel.

5. Decision

[40] Costs awards are discretionary. In exercising discretion, the court must consider the two important principles of reasonableness and proportionality. [Beaver v. Hill, 2018 ONCA 840].

Bad Faith and Unreasonable Behaviour

[41] There is a difference between bad faith and unreasonable behaviour.

[42] I cannot find that Ms. Smith acted in bad faith, which, according to subrule 24(8) requires a high threshold of egregious behaviour. [See: Cozzi v. Smith, 2015 ONSC 3626; [Scipione v. Del Sordo, 2015 CarswellOnt 14971 (Ont. SCJ)].] The essence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose. It is done knowingly and intentionally. [See: [S. (C.) v. S. (M.) (2007), 38 R.F.L. (6th) 315 (Ont. SCJ)].] Having said that Ms. Smith came perilously close to crossing the line between bad faith and unreasonable conduct. She has always expressed her dissatisfaction regarding contact between Mr. Smith and the children both in her written documents where she made repeated unfounded allegations and by her actions of withholding access and failing to comply with court orders.

[43] I find that Ms. Smith acted unreasonably. She knows from experience that there are Costs sanctions for arbitrary behaviour. She took no notice.

[44] As observed by Justice Pazaratz in Ribeiro v. Wright, a case upon which Ms. Smith herself relied:

"20. If a parent has a concern that COVID-19 creates an urgent issue in relation to a parenting arrangement, they may initiate an emergency motion – but they should not presume that the existence of the COVID-19 crisis will automatically result in a suspension of in-person parenting time…

[45] Given the detailed information outlined in the affidavit filed on behalf of Mr. Smith and the comparatively poor quality of the affidavit evidence produced on behalf of Ms. Smith which lacked specificity, she ought to have appreciated that in the light of prevailing caselaw her motion would not be successful. Certainly, her counsel should have known that.

Quantum

[46] The issue of quantum is difficult to assess in any Costs case. Having found that Mr. Smith is entitled to his Costs, one of the considerations in any assessment of Costs is to fix them in an amount that is "fair and reasonable" for the unsuccessful party to pay in a particular proceeding: [Farjad-Tehrani v. Karimpour, 2009 CarswellOnt 2186 (S.C.J.) at para. 32, aff'd 2010 ONCA 326 at para. 4]. I have taken this principle into account.

[47] The court was asked to address a very narrow issue. Mr. Smith asks for Costs fixed in the amount of $6,452.58 on a full indemnity basis or $4,839.44 on a partial indemnity basis. Given what I understand to be Ms. Smith's funding model, I would have considered Costs at the partial indemnity level. However, given Ms. Smith's unreasonable conduct I am of the view that a slightly higher award is warranted to sanction her behaviour which, I find, needlessly increased the duration and expense of litigation in this proceeding.

6. Order

1. Ashley Lynn Smith shall pay to Tyler Thomas Smith Costs fixed in the amount of $5,000.00 inclusive of HST. All Costs are to be paid within 6 months from today's date unless otherwise negotiated between counsel, in writing.

Released: April 23, 2020

Signed: Justice Jane Caspers

[1] Paragraphs 32-35.