DATE : August 11, 2021 COURT FILE NO. D31342/19
ONTARIO COURT OF JUSTICE
B E T W E E N:
CLETUS OPPONG WIAFE
APPLICANT
GLENDA PERRY, for the APPLICANT
- and -
GIFTY AFOAKWA-YEBOAH
RESPONDENT
GABRIELLA V. DEOKARAN, for the RESPONDENT
HEARD: IN CHAMBERS
JUSTICE S.B. SHERR
COSTS ENDORSEMENT
Part One – Introduction
[1] On April 6, 2021, the court released its reasons for decision after a two-week trial about the parenting and child support arrangements for the parties’ three-year-old daughter (the child) See : Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 201.
[2] The father was the more successful party at trial. He was given the opportunity to make costs submissions.
[3] The father brought a Form 14B motion on June 30, 2021, asking for an extension of time to file his costs submissions. In response, the mother filed her own Form 14B motion asking to extend her time to file her costs submissions to July 31, 2021. The court made an order extending the time for the father to file his costs submissions to July 12, 2021 and extended the time for the mother to file her costs submissions to August 7, 2021.
[4] The mother also asked in her Form 14B motion that the father deliver his submissions directly to the trial coordinator’s office and that her counsel would obtain the costs submissions directly from the court. This was a system arranged by Justice Roselyn Zisman earlier in this case after a series of accusations between counsel that the other was falsely claiming to have served documents on the other. The court made this order.
[5] The father filed his costs submissions with the trial coordinator’s office as ordered. He seeks his costs for the trial of $83,241.45 for fees and $576.49 for disbursements.
[6] The father also seeks his costs of $3,565.15, inclusive of fees, disbursements and HST for production motions that were argued before Justice Zisman on February 26, 2021. Justice Zisman reserved the costs of those motions to the trial judge.
[7] The trial coordinator’s office notified the mother’s counsel on July 13, 2021 that the father’s costs submissions had been delivered and that she could pick them up at the counter. They were not picked up. On July 20, 2021, the trial coordinator’s office emailed the costs submissions to the mother’s counsel.
[8] The mother did not make costs submissions. This was not unusual in this case.
[9] On April 7, 2021, Justice Melanie Sager released a costs endorsement arising out of a production motion brought by the father. The mother failed to file costs submissions. Justice Sager ordered the mother to pay $1,500 costs to the father.
[10] On April 27, 2021, Justice Roselyn Zisman released her costs decision arising from temporary parenting motions brought by both parties and a motion by the mother asking Justice Zisman to recuse herself from the case. See: Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 254. Justice Zisman noted in her costs endorsement that despite several extensions given to the mother, she failed to make costs submissions.
[11] Justice Zisman ordered the mother to pay the father costs of $6,471.51 for the recusal motion and $20,000 for the temporary parenting motions.
Part Two – Legal Considerations
2.1 General Principles
[12] 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).
[13] 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, 2003 S.C.C. 71, paragraph 25.
[14] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.
[15] 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.
2.2 Success
[16] 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).
[17] Subrule 24 (6) sets out that if success in a step in a case is divided, the court may apportion costs as appropriate.
[18] Divided success does not equate with equal success. It requires a comparative analysis. Most family cases have multiple issues. They are not equally important, time-consuming or expensive to determine. See: Jackson v. Mayerle, 2016 ONSC 1556, paragraph 66.
[19] Where there are multiple issues before the court, the court should have regard to the dominant issue at trial in determining success. See: Firth v. Allerton, 2013 ONSC 4900; Mondino v. Mondino, 2014 ONSC 1102.
2.3 Other Factors Affecting Costs Orders
[20] 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.
[21] Subrule 24 (5) provides some 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.
[22] Being unsuccessful does not necessarily equate to being unreasonable. See: Wauthier v. McAuliff, 2019 ONSC 5302; W.H.C. v. W.C.M.C., 2021 ONCJ 363.
[23] The reasonableness of the parties’ positions, arguments and conduct are relevant to the issue of costs. An important function of costs is to uphold the integrity of our justice system. Costs are one way of ensuring the resources of the justice system are not unduly drained by clearly unreasonable claims and ill-advised litigation strategy. See: Weber v. Weber, 2020 ONSC 6855.
[24] The rules do not require the court to allow the successful party to demand a blank cheque for their costs. See: Slongo v. Slongo, 2015 ONSC 3327 (SCJ). The court retains a residual discretion to make costs awards which are proportional, fair and reasonable in all the circumstances. See: Jackson v. Mayerle, 2016 ONSC 1556.
[25] In determining the appropriate quantum, the court should consider the amount that the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation. See: Arthur v. Arthur, 2019 ONSC 938.
[26] A useful benchmark for determining whether costs claimed are fair, reasonable and proportionate is to consider the amount that the unsuccessful party paid for their own legal fees and disbursements in the same matter. See: Laidman v. Pasalic and Laidman, 2020 ONSC 7068.
[27] The 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.). Ability to pay will be less of a mitigating factor when the impecunious party has acted unreasonably, or where their claim was illogical or without merit. See: Gobin v. Gobin, 2009 ONCJ 278; D.D. and F.D. v. H.G., 2020 ONSC 1919.
[28] Those who can least afford to litigate should be most motivated to seriously pursue settlement and avoid unnecessary proceedings. See: Mohr v. Sweeney, 2016 ONSC 3338; Balsmeier v. Balsmeier, 2016 ONSC 3485.
[29] Impecuniosity does not grant a litigant the right to unrestricted access to the courts. Such access has to be exercised responsibly and reasonably. See: G.W.S. v. C.S., 2018 ONCJ 378.
Part Three – Analysis
3.1 Success
[30] The father was the far more successful party at trial.
[31] The most important issue in the trial was who the child should live with. The court ordered that it was in the child’s best interests to live with the father.
[32] The mother had asked for an order permitting her to relocate the child’s primary residence to London, Ontario. The court’s determination that it was in the child’s best interests to live with the father did not depend on where the mother chose to live.
[33] Both parties sought orders for sole decision-making responsibility for the child. The father was granted sole decision-making responsibility for all major matters regarding the child, except for matters of cultural, language and spiritual training. The court ordered that both parents would be responsible for this training when the child resided with them. The father was required to consult with the mother before making any other major decisions regarding the child.
[34] Both parents sought orders that the other have parenting time with the child on alternate weekends and holidays. The court ordered that the mother would have parenting time with the child on two out of every three weekends and on holidays.
[35] The court ordered that the parenting exchanges be supervised by a professional parenting time supervisor. This was one of the parenting time options suggested at trial by the father. The father asked that the mother pay the costs of the professional parenting time supervisor. Instead, the court ordered the father to initially pay 75% of these costs and for the mother to pay 25% of these costs. The court ordered, that starting on January 1, 2022, each party was to pay 50% of these costs.
[36] The court ordered several incidents of parenting sought by the father including:
a) His ability to obtain government documentation for the child without the mother’s consent.
b) Requiring the mother to deliver the child’s government documentation to him prior to her parenting time starting.
c) Prohibiting the mother from removing the child from Canada without his consent or prior court order.
d) His ability to travel outside of Canada with the child for vacation purposes without the mother’s consent.
e) Several terms of communication.
[37] Very little time was spent at trial on the support issues and success on those issues was divided.
[38] The mother sought to impute income to the father for the purpose of calculating his support obligations. She sought ongoing support and past support of about $14,780.
[39] The father opposed the mother’s claim for past support and asked to impute annual income to the mother for the purpose of ongoing support.
[40] The court made the following support orders:
a) The father owed no past child support to the mother.
b) The mother owed no past child support to the father.
c) No child support is payable by the mother to the father at this time. However, the father may seek a review of this term if the mother fails to pay her share of the costs of the professional parenting time supervisor.
[41] The father was completely successful on the production motion before Justice Zisman on February 26, 2021. The father obtained production of the mother’s medical records and the business records of the Peel Children’s Aid Society. These records assisted the father in impeaching the mother’s credibility at trial. The mother’s production motion was late-served and dismissed by Justice Zisman.
[42] The mother did not rebut the presumption that the father is entitled to his costs for both the trial and the production motions.
3.2 Unreasonable Behaviour
[43] Neither party made an offer to settle. This was unreasonable behaviour by both. Even if the court accepts that there was little room for compromise on the issue of who the child would live with, there was room for compromise on the other issues.
[44] Otherwise, the father acted in a reasonable manner. He complied with filing timelines and followed court direction.
[45] The court finds that the mother did not act in a reasonable manner and that her conduct significantly increased the costs of the trial.
[46] The court is not making this finding because the mother was unsuccessful at trial. It was not unreasonable for her to litigate the parenting and support issues. These were contentious issues and a trial was required to determine them.
[47] The court is making this finding because of the way the mother conducted this litigation.
[48] The mother’s litigation conduct made it very challenging for the court to provide a fair trial. The father was often disadvantaged by the mother’s litigation conduct.
[49] The court wrote the following at paragraphs 21 to 25 of its reasons for decision:
[21] The trial structure set out by Justice Zisman was quickly compromised because of multiple breaches of her order by the mother. These breaches included:
a) The mother failed to provide her trial plan to the father setting out the order of witnesses and the date and approximate time the witness would be called to testify. This was supposed to have been delivered to the father by March 1, 2021. Her witness list became a moving target during the trial.
b) The mother had only provided a one-page, undated letter from a doctor she had seen in Ghana. The mother was required by Justice Zisman to provide the complete records of this doctor to the father by March 1, 2021. No further records were provided.
c) The mother was ordered to provide a copy of her former counsel’s (the former counsel) file to the father by March 1, 2021. She did not provide these records by the start of the trial. The mother claimed at trial that the entire file had been produced.
The former counsel was called at trial and testified about the delivery of his file to the mother. He stated that he had not been given, nor had he been advised by the mother’s counsel of Justice Zisman’s production order. He was not summonsed to bring his entire file to the trial. He had just informally provided the mother’s counsel with what he felt were the necessary documents in the file. It became apparent that the former counsel had not delivered his entire file to the mother’s. He was ordered to scan and produce his entire file, send it to the court clerk the same day and to attend the next day at 10:00 a.m. for examination.
The former counsel delivered his entire file later that day but did not attend for examination, when scheduled, the next day. The mother’s counsel advised the court that she had told the former counsel that he did not have to attend since she was no longer calling him as a witness. However, the court had made it clear that since he had been produced as a witness, that the father could cross-examine him. The mother’s counsel apologized for doing this. The court was eventually able to reach the former counsel and he testified later in the day.
d) The mother was required to file her Amended Answer/Claim by February 12, 2021. This was not filed until March 12, 2021. [1]
e) The mother was required to serve her financial statement by March 1, 2021. She did not serve it until mid-way through the trial after several reminders. Even then, she failed to serve and file the required attachments to her financial statement required by the rules. [2]
f) Copies of any audio or video tape that the mother sought to introduce were to be served by February 24, 2021. These were not served until March 12, 2021.
g) The mother’s trial affidavits and document briefs were to be served and filed by March 8, 2021. She had not done this by the morning of March 12, 2021 – the Friday before the trial was to start on Monday, March 15, 2021. The father had filed his trial affidavits and document briefs, as required, and the mother had not picked them up from the trial office. [3]
Justice Zisman made the following endorsement on March 12, 2021:
This is to confirm that counsel for the Respondent was advised by the trial coordinator on Tuesday morning that the Applicant’s trial record and document brief had been filed with the court as required on Monday March 1 st and were available for pick up at the trial coordinator’s office. Respondent’s counsel advised that she would be sending a process server to pick up the documents and also to file her own documents.
It has been brought to my attention that both trial coordinators have attempted to reach the Respondent’s counsel on numerous occasions but her office number is not in service and there is no ability to leave a message on her cell phone. Counsel is aware of the filing deadlines.
Despite further attempts to reach the Respondent’s counsel, she has not picked up the Applicant’s documents or delivered her own documents.
The trial is scheduled to begin on Monday March 15 th . There has been no request for an adjournment.
The consequences of counsel not filing materials or not arranging to pick up the Applicant’s trial documents will be dealt with by the trial judge.
The mother finally filed her trial affidavits and document briefs in the afternoon on March 12, 2021. She failed to provide additional copies for the court as directed by Justice Zisman, making her documentation much more difficult to manage in a virtual trial.
The father’s counsel was then called to pick up these documents. Counsel advised the court that she picked up the mother’s documents after 4 p.m. that Friday.
h) The father complied with the page limits set out by Justice Zisman. The mother did not come close. Her affidavit was within the page limits, but she filed over 420 pages of documents, when she was only permitted to file 150 pages. She had not sought prior leave of the court to exceed the page limits set.
[22] The mother’s counsel advised the court that she had been unable to file her trial affidavits and document brief on time because her photocopier had broken on March 8, 2021. She said it was not fixed until the afternoon of March 9. She did not explain why she did not file the documents by March 10, 2021 or why she did not notify the father’s counsel about the delay.
[23] The court’s challenge became trying to provide a fair trial process for the father, who was being prejudiced by the mother’s litigation conduct as enumerated in paragraph 21.
[24] On the first day of trial (March 15, 2021), the father sought an adjournment of two days because of the mother’s non-compliance with Justice Zisman’s order. A one-day adjournment of the trial was granted, together with terms to address his prejudice, including:
a) The father was allocated an additional 1.5 hours to present his case at trial.
b) The page limits set out by Justice Zisman would be enforced. The mother was given until March 17, 2021 to pare down her documents to the 150 pages ordered. [4] The mother was advised that court orders and endorsements that she had attached from various court levels in her documents brief could be filed separately in a supplementary trial record.
c) The mother would only be permitted to cross-examine the father on documents that had been previously filed at the different court levels (including the documents that the father filed at this trial). [5] If the father gave reply evidence, the mother would be permitted to cross-examine him on additional documents that related directly to the reply evidence he gave.
d) 30 minutes were reduced from the mother’s time to present her case due to the wasted time (the father sought a much larger time reduction). The mother was cautioned that the court would not be as lenient with future breaches of court direction.
[25] The mother’s inability or refusal to comply with Justice Zisman’s trial management orders was part of a pattern of defiant behaviour by her that was a hallmark of this case.
[50] The mother acted unreasonably by failing to comply with court orders throughout the case. The court wrote the following at paragraph 256 of its reasons for decision:
The mother has breached multiple court orders. She removed the child from the GTA without the father’s consent. She failed to exchange the child at the Woodbine Mall after she moved to London, contrary to a court order. She did not provide her address, as required, until February 4, 2021. [6] The case history shows that she constantly missed deadlines set by the court for the service of materials. She failed to comply with production orders. She breached multiple terms of the trial management order of Justice Zisman. She hasn’t complied with the two costs orders.
[51] The mother acted unreasonably by making unsupported allegations that the police officers from the London police force who dealt with her were racist and that the worker from Peel Children’s Aid Society who investigated her case was biased. Additional trial time was spent hearing from these witnesses.
[52] The mother was not a credible witness. The court wrote at paragraph 44:
The mother’s credibility issues were very serious. It became apparent that she was willing to lie, misinterpret events, make false allegations and, quite simply, do or say anything to achieve her objectives. Many examples will be provided in this decision.
[53] The mother’s credibility is relevant to the costs analysis since the trial was considerably lengthened because the father had to gather the necessary evidence to disprove many of her false allegations.
[54] The father needed to bring production motions for the mother’s health records, for police records and for records from the Peel Children’s Aid Society. The information obtained from these records turned out to be vital in refuting the mother’s evidence.
[55] This poor litigation behaviour by the mother was not specific to the trial stage – this was her pattern of conduct throughout this case.
[56] Justice Sager made a finding that the mother acted unreasonably in her April 7, 2021 costs decision.
[57] Justice Zisman made multiple findings of unreasonable behaviour by the mother and her counsel in her April 27, 2021 costs decision (See: paragraphs 20-29 and paragraph 37).
3.3 The Reasonableness of Costs Claimed
[58] The case was important to the parties. It became unduly complex and difficult due to the mother’s litigation conduct.
[59] The mother’s witness list was a moving target. Her documents were served late and in a disorganized manner. The mother’s trial material, when it was eventually filed, significantly exceeded the page limits set out by Justice Zisman. The father had no way of knowing what evidence might be admitted or excluded and had to spend additional time preparing to respond to the excessive material. Some of the mother’s exhibits were dated after the affidavits were allegedly sworn. It became very challenging for the father’s counsel to anticipate what to expect next from the mother and her counsel.
[60] The mother did not challenge the time or amounts claimed in the father’s bill of costs. She did not submit her own bill of costs for the court to use as a comparison.
[61] The father acted proportionally by only claiming time for the production motions (where costs were reserved to the trial judge) and the trial step.
[62] The court finds that the time and rates claimed by the father are reasonable and proportionate.
[63] The court finds that the disbursements claimed by the father are reasonable.
3.4 Mother's Ability to Pay
[64] The mother does not have the ability to pay the multiple costs orders that have already been made against her (she also has costs orders against her in this matter from proceedings in the Superior Court of Justice and the Court of Appeal). She won’t have the ability to pay this costs award – even if the court chooses to significantly discount the father’s claim. She may never have this ability. She is on public assistance.
[65] In many cases, courts address the inability to pay factor by discounting the costs award or by ordering payment of an affordable monthly amount towards the costs. This court has done so many times. However, due to the mother’s reckless and unreasonable litigation conduct it would be inappropriate, unjust and contrary to the public’s respect for the administration of justice, to discount the costs order or to make a payment order based on her ability to pay. Making such an order would send the wrong message to the mother and to like-minded litigants.
[66] In its trial decision, the court ordered that the mother would require leave prior to being able to bring any future proceeding in the Ontario Court of Justice. It is very likely that the court will require proof that the mother is making good-faith attempts to make costs payments before granting leave.
[67] The court also noted in its trial decision that since the child’s ordinary residence is now in Peel, the mother would need to start any future proceedings in that jurisdiction. To ensure that the Ontario Court of Justice in Brampton has the necessary information to make any leave decision, court staff are directed to send copies of the trial decision and this costs decision to the Local Administrative Judge in Brampton.
Part Four – Conclusion
[68] Taking into account all of these considerations, the court makes the following orders:
a) The mother shall pay the father’s costs of $3,000 for the production motions, inclusive of fees, disbursements and HST.
b) The mother shall pay the father’s trial costs of $72,000 for the trial, inclusive of fees, disbursements and HST.
Released: August 11, 2021
Justice S.B. Sherr
[1] The mother had earlier served an unsigned version of this pleading on the father. This was a procedural irregularity. The father was not prejudiced by this breach other than by having to wonder what different pleading might later emerge.
[2] Later in the trial, she produced a 2019 Notice of Assessment.
[3] The mother included her trial affidavits in a Trial Record brief.
[4] The mother did this on March 17, 2021.
[5] This covered most of the admissible documents that the mother initially filed. The first version of her document brief included clearly inadmissible evidence such as newspaper and webpage articles. Between taking out these articles and the court orders and endorsements, it was not very difficult for her to pare down the documents to the page limits that had been ordered by Justice Zisman.
[6] And this was only because Justice Zisman ordered on February 2, 2021 that her extended parenting time would only begin once her address was provided.
