Ontario Court of Justice
Date: 2021 02 08 Court File No.: Toronto D31369/19
Between:
Sheena Dixon Applicant
— AND —
Howard McGhann Respondent
Before: Justice Robert J. Spence
Endorsement on Costs following written submissions Released on: February 8, 2021
Counsel: Mr. A. Sam Zaslavsky, counsel for the applicant Ms. Jyotsana Panwar, counsel for the respondent
R. J. SPENCE J.:
1: Introduction
[1] The respondent has filed submissions seeking costs against the applicant, in the amount of $4,000 following the applicant’s withdrawal of her application.
[2] The applicant (applicant or mother) seeks an order that no costs be awarded against her in respect of the withdrawn application.
[3] The request for costs against a party who withdraws their application is governed by subrule 12(3) of the Family Law Rules (Rules), which provides:
COSTS PAYABLE ON WITHDRAWAL
(3) A party who withdraws all or part of an application, answer or reply shall pay the costs of every other party in relation to the withdrawn application, answer, reply or part, up to the date of the withdrawal, unless the court orders or the parties agree otherwise. O. Reg. 114/99, r. 12 (3).
2: Background
[4] The applicant issued her application claiming custody, incidents of custody and child support.
[5] In his Answer, the respondent acknowledged that the parties had been in an intimate relationship. His Answer questioned whether he was the child’s biological father. However, he stated that if it was determined he was the biological father, the child’s last name should be changed to his last name.
[6] The respondent requested a paternity test. The court granted the respondent’s request.
[7] The parties subsequently participated in three paternity tests with differing test results. There was some ambiguity after the three test results.
[8] At a case conference held on September 22, 2020, the court ordered a fourth paternity test, to be carried out in a specified manner.
[9] That fourth test resulted in 0.00% probability of paternity to the respondent.
[10] The mother continued to assert the respondent is the biological father. However, in the face of the fourth test result, she subsequently advised the court that she would be withdrawing her application.
[11] The mother did withdraw her application and she repaid the respondent the sum of $959 for the cost of the paternity tests.
3: Analysis
[12] Subrule 12(3) creates a presumption that the withdrawing party must pay the costs of the other parties. However, that is a rebuttable presumption.
[13] In the event the court does order costs, the subrule does not provide any guidance for how costs are to be determined, in the same way that Rules 18 and 24 provide courts with guidance and factors to consider when ordering costs following trials or motions.
[14] In the case of Slezak v. Pietrzyk, 2007 ONCJ 352, Justice Karswick stated the following at paragraph 22 [my emphasis]:
[22] Subsection 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended, provides that the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.
[15] At paragraph 23 of his decision, Justice Karswick then stated:
[23] Subrule 24(11) requires that a number of issues be considered as well as any other relevant matter when assessing costs.
[16] Rule 24 provides [my emphasis]:
SUCCESSFUL PARTY PRESUMED ENTITLED TO COSTS
- (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. O. Reg. 114/99, r. 24 (1).
[17] When a party withdraws an application, there is no “successful party” in a “motion, enforcement, case or appeal”.
[18] It is not clear to this court why Karswick, J. chose to engage subrule 24(11) [now subrule 24(12)], in his consideration of costs in that case.
[19] In the present case, I prefer a somewhat different approach to deciding the issue of costs pursuant to subrule 12(3).
[20] On the wording of subrule 12(3), the court must decide two things. First, does the presumption of an entitlement to costs apply. And second, if it does apply, what is the amount of costs that the court ought to order.
[21] The primary objective of the Rules is to deal with cases “justly”. [1]
[22] The court of appeal in Beaver v. Hill, 2018 ONCA 840, stated that any costs order must be “proportional and reasonable”. [2]
[23] Although the Beaver court made this statement in the context of deciding costs under Rule 24, this court finds it appropriate to adopt the principle of “proportionality and reasonableness” in determining how to decide the costs issue “justly”.
[24] The court views these two concepts as equivalent.
[25] The respondent did not include a Bill of Costs with his costs submissions. The $4,000 requested was based on the assertion that the respondent’s counsel spent “over 40 hours of time billed”.
[26] In the respondent’s costs submissions, the respondent states [my emphasis]:
The applicant was fully aware that the respondent was not the father of the child yet she continued to [not] settle or withdraw her claim for child support. She had admitted to the respondent in her various messages to the respondent that the respondent was not the father of the child and she had even admitted to the respondent that she had sexual relations with another man in May of 2016 . . . . The applicant made false statements to intentionally deceive the courts and the respondent that he is the father of the child and dragged him through stressful and strenuous litigation, in spite of being fully aware that the respondent was not the biological father of the child.
[27] The respondent did not file those messages that he says the applicant sent him. The respondent did not provide evidence in his costs submissions of any intention on the part of the applicant to deceive either him or the court.
[28] I have also reviewed the respondent’s case conference brief filed for the case conference on September 22, 2020. In that brief, the respondent engaged in a detailed analysis of the three different paternity tests. He noted that there were “substantial and noticeable discrepancies and differences in how [the tests] were compiled”.
[29] As I noted earlier, at that case conference, the court ordered a fourth and final paternity test, on the consent of the parties.
[30] However, what is significant for the purpose of the costs issue, is this. Nowhere in that case conference brief did the respondent refer to the existence of extraneous evidence corroborating what he now asserts, that the applicant was intentionally misleading either himself or the court.
[31] Moreover, in his earlier case conference brief dated July 8, 2020, the respondent stated:
The applicant advised the respondent that the respondent was the father of the child. To assure the respondent that he was the biological father of the child, the applicant produced a pre-natal paternity report. In the report provided by the applicant, the respondent is stated as the biological father.
[32] The contents of that case conference brief belie the respondent’s assertions in his costs submissions. Specifically, that case conference brief suggests the opposite that the applicant was “fully aware” the respondent was not the biological father. It suggests the opposite that the applicant “admitted” to him that he was not the father. In short, there is nothing in that case conference brief which suggests any sort of bad faith or intentional deception on the part of the mother.
[33] This court finds it disturbing that now, for the first time, the respondent is alleging bad faith and intentional deception by the applicant, without having done so previously, and without attaching the messages which the respondent alleges he received from the applicant.
[34] These unfounded and unsubstantiated allegations are a significant consideration in the court’s ultimate decision in these reasons.
[35] The issue was a simple one – paternity. That issue did not have to take a great deal of lawyer time. Paternity was the threshold issue. To the extent that the parties chose to spend time in their briefs and case conferences on the other issues, all of that could have been avoided, had the parties so requested, pending a determination of the paternity issue.
[36] I am not prepared to conclude anything other than that the mother commenced her application for custody and child support in good faith. While she appears [3] to have been mistaken in her conclusion that the respondent was the biological father, the evidence does not satisfy me that she commenced her application in bad faith.
[37] As subrule 12(3) makes clear, there is no requirement for a court to automatically order costs on a withdrawn application.
[38] In B.L. v. M.L., Justice David Aston declined to make a costs order when an applicant withdrew her application. He found that the applicant had commenced her application in good faith.
[39] Justice Ellen Murray reached a similar conclusion in Davidson v. Ferrill, 2006 ONCJ 472.
[40] In the present case, the mother is of limited financial means. I take that into account.
[41] As noted earlier, I place significant weight on the respondent’s “last-minute” unfounded allegations against the mother in his costs submissions.
[42] Had I concluded that a costs order was appropriate, a proportional and reasonable costs award would have been in the range of $750-$1,000.
[43] However, on the facts of this case, including the lack of evidence of mother’s bad faith, combined with the respondent’s unacceptable behaviour as outlined earlier, I exercise my discretion to make no order as to costs.
[44] An order for no costs is the just result. It accords with the court’s primary objective under the Rules.
[45] Order to go accordingly.
Released: February 8, 2021 Signed: Justice Robert J. Spence (signed electronically)
Footnotes
[1] Subrule 2(2)
[2] At paragraph 12
[3] Notwithstanding the various test results, the applicant has continued to assert that the respondent is the biological father. While the court makes no determination about the reliability of the paternity tests and the mother’s claims, the widespread judicial acceptance of the accuracy of these paternity tests reminds the court of the Goudge Inquiry which concluded in 2008 and which called into doubt the previous widespread judicial acceptance of the so-called expert forensic test results which Dr. Charles Smith had reached in many death cases involving children. The Goudge Report reminded judges of the rigor which is necessary before accepting so-called “expert” evidence and reports. More recently this problem arose again in connection with the reliability of the Motherisk hair-strand drug and alcohol tests. Many courts had routinely accepted the reliability of these test results. However, those test results were subsequently thrown into doubt, leading to Justice Susan Lang’s Report in 2015 in which she concluded those tests were unreliable.