Court File and Parties

Court File No.: 4961/15 Date: December 9, 2019 Ontario Superior Court of Justice

Between: Jayme Anne Green And: Devon Whyte

Counsel: Self Represented Litigant (Jayme Anne Green) Self Represented Litigant (Devon Whyte)

Before: The Honourable Justice R.j. Harper

Reasons for Costs

The Issues

[1] This matter was set as a five-day trial to commence before me during the trial sittings commencing the last week of May 2019. However, the parties settled all issues except the matter of costs. On May 21, 2019 Justice Pazaratz endorsed the following:

For clarity in the issue of costs: Justice Harper presided over a trial in relation to the parent issues. The parties advised that Justice Harper’s judgment did not address the issue of costs, but both parties acknowledge that costs remain alive and to be determined by Justice Harper if the parties are not able to resolve the issue. In this respect, there was apparently an endorsement of Justice Madsen which suggested that one of the parties write to Justice Harper about this issue, but I think it will be sufficient for the court to forward a copy of this endorsement to Justice Harper to advise him not only that the support trial that he was scheduled to hear next week has been avoided, but also to advise him that the parties may need to see him on a date to be determined in relation to costs. In the event that the parties are not able to resolve costs in relation to the parenting and support issues, and if Justice Harper is going to have to deal with costs on the parenting issues, I anticipate it would be appropriate that he deal with all costs. I will leave it for Justice Harper to make the ultimate determination about all aspects of the cost’s determination.

[2] Jayme Anne Green (Jayme) seeks her costs as a self represented litigant for both the pretrial activity and the trial with respect to issues of custody and access to the child and for the pretrial preparation and multiple motions and other conference appearances related to financial disclosure and child support.

[3] In my reasons for judgment dated August 8, 2019, I reviewed some of the litigation chronology leading up to the hearing before me at that time. I stated commencing at para 12:

The Litigation Chronology

In order to understand this lengthy and complicated process, I will review some of the more significant material evidence as follows:

a. The Application was issued on August 21, 2015. Devon did not file his Answer until December 4, 2015.

b. This matter was adjourned several times subsequent to the first appearance. The attendance at a first appearance was required as no Answer had been filed by that date. Once the Answer was filed, Devon selected a case conference date of July 5, 2016. That is almost a year after the Application was issued.

c. Devon did not file a case conference brief and he did not appear at the case conference. The judge hearing the conference noted in the endorsement record that Devon had only filed an “incomplete financial statement.” This was one of three financial statements has filed in this matter. The first incomplete statement was sworn November 28, 2015. The second financial statement was sworn on September 29, 2016. His final financial statement was filed on December 4, 2017.

d. Despite the Family Law Rules providing that parties must file a new financial statement if the statement is older than 30 days, or an affidavit stating that there have been no changes, this rule was never complied with.

e. Each financial statement filed by Devon had different representations of his income and lacked details regarding his expenses, assets, and liabilities. It is significant to note that due to the lack of information relative to Devon’s income, expenses, assets and liabilities, the original case conferencing judge endorsed that there could be no meaningful conference.

f. On July 5, 2016, Justice Brown ordered Devon to file a complete financial statement within 30 days of July 5, 2016. She also ordered that he attach the following to the statement:

i. Copies of his 2012, 2013, 2014 Income Tax Returns for both Canada and the USA;

ii. Copies of any Notices of Assessment for 2012, 2013 and 2014 for both Canada and the USA;

iii. Proof of his 2016 income for 2016 from all sources;

iv. Jayme was also ordered to file an up to date financial statement and copies of her Income Tax Returns and Notices of Assessment for those same years; and

v. Both Jayme and Devon were to file this disclosure within 30 days.

g. When the matter returned to court on September 1, 2016, Devon claimed that he had provided all of the disclosure ordered. Devon asserted that he had only received Jayme’s disclosure the day before and he sought an adjournment of the motion. The motion was adjourned to September 16, 2016.

h. At the return of the motion on September 16, 2016, Justice Pazaratz made an order for questioning for both parties. Questioning did not occur. I accept Jayme’s evidence that due to the lack of disclosure, she could not formulate the proper questions to ask Devon. On March 3, 2017, Justice Pazaratz endorsed, “I share the Applicant’s concern that disclosure issues are unusually complex.”

i. At that appearance before Justice Pazaratz, Devon undertook to obtain and provide to the court an expert report that would provide an opinion with respect to his income available for support purposes.

j. The matter was adjourned a number of times. It subsequently came before Justice Madsen on July 28, 2017.

k. Justice Madsen issued a written endorsement, Green v. Whyte, 2017 ONSC 4760. Despite Devon’s claim that he had provided everything he had to, Justice Madsen wrote at para. 9:

The Respondent’s financial statements of November 28, 2015 and July 6, 2017 are missing significant information.

l. At the attendance before Justice Madsen, Devon did file the income analysis report from a valuator that he had undertaken to provide. The Report was from “Valuquest Business Valuations” dated July 6, 2017. This report stated that Devon’s income for support purposes for 2015 and 2016 was $93,000.00. Justice Madsen noted:

There are important limitations to the report. The valuators did not have Mr. Whyte’s 2016 tax return by the time that he had the report was issued on July 6, 2017. Mr. Whyte told the valuator that he had received an extension to file that report and he was instructed to assume that his income for 2016 consisted only of his income from Rogers Blue Jays Baseball Partnership. He was also instructed to assume that there were no changes to his income for 2015 and 2016.

m. At the motion before Justice Madsen on July 28, 2016, she was asked for an order for interim disbursements and for disclosure. Jayme asked for an order for $30,000.00 so that she could hire an expert valuator to do an income analysis. However, she did not provide to the court, at that time, any details of why that sum was needed and what would be done with the funds.

n. Justice Madsen reviewed all of the criteria and factors that must be considered when making a determination to order interim disbursements. Justice Madsen stated that the moving party must establish:

i. Impecuniosity;

ii. The need to level the playing field;

iii. A prima facie case; and

iv. Exceptional circumstances.

o. Justice Madsen found impecuniosity and the need to level the playing field, however she went on to state that:

If there is a renewal of this motion Jayme did not have to establish impecuniosity or the need to level the playing field. She would only have to establish a prima facie case and exceptional circumstances.

p. One year ago, to this date, the parties had a Trial Scheduling Endorsement Meeting. At the end of the meeting, the parties singed the form and identified the outstanding issues as parenting, disclosure, and income determination.

q. Jayme later secured an order for interim disbursement in the amount of $7,500.00 to be paid to Jayme by Devon as a loan. This yielded a report from Mr. Carnegie, dated May 17, 2018, who is a valuator with Taylor Lebow accounting firm. The report stated that it was not possible to determine Devon’s income without significant disclosure. Mr. Carnegie set out a detailed list of what disclosure he thought was necessary to conduct any informed analysis.

r. From his review of the information provided by Jayme, relative to the potential interests in entities that could be a source of income for Devon, Mr. Carnegie made an extensive list for disclosure that he stated was necessary to do a proper analysis of Devon’s income for support purposes (the “Carnegie List”).

s. In his submissions at trial, Devon confirmed that over the three and a half years of litigation prior to the hearing before me he had filed four sworn financial statements.

[4] This matter was a lengthy and drawn out saga that took a torturous path through the courts from the issuing and filing of the Application in August, 2015 through the custody hearing before me for the first three days of the trial in 2019. The disclosure and interim disbursement motion immediately followed the custody and access trial.

The Custody Hearing

[5] The custody and access trial spanned 3 days. Jayme sought sole custody of the child Kingston and Devon sought joint custody. I found that the parties’ level of communication and distrust of each other was so great that joint custody was not an option that would be in the child’s best interest. Jayme was granted sole custody.

[6] With respect to access, I found that Jayme was overprotective of the child Kingston when it came to Devon’s access to the child. She controlled the amount of time Devon would have with Kingston and did not allow for or encourage maximum contact.

[7] Both parties agreed, at this trial, that an order was needed that was detailed and clear in order to lesson the opportunity for further conflict and mistrust.

[8] I find that success with respect to the parenting issues was divided. Jayme needed to come to court in order to get an order for custody. Devon needed to come to court in order to get an access regime that allowed for increased time with Kingston and access that would allow for Kingston to be with his father in his home and the home of Devon’s extended family who resided in the United States.

[9] I find that neither party acted reasonably with respect to the parenting issues. A significant contributor to their unreasonable conduct was the level of distrust each had of the other. Jayme did not want the child to attend with his father until she was given sole custody and Devon felt that he was being controlled by Jayme for no valid reason.

[10] Under the circumstances, there shall be no order with respect to the costs as they relate to the parenting issues.

The Financial Issues

The Law and Analysis

[11] Justice N. Gregson provided a helpful summary of the law relative to costs and self represented litigants in Kates v. Kates, 2019 ONSC 5409. She stated at para 17:

[17] Justice Sharpe J.A. of the Ontario Court of Appeal noted in Fong v. Chan, [1999] O.J. No. 4600, at paragraphs 25 and 26 of his reasons, Sharpe J.A. wrote:

25. I would add that nothing in these reasons is meant to suggest that a self - represent litigant has an automatic right to recover costs . The matter remains fully within the discretion of the trial judge, and as Ellen Macdonald J . observed in Fellowes, McNeil v. Kansa , supra, there are undoubtedly cases where it is inappropriate for a lawyer to appear in person, and there will be cases where the self - represented litigant’s conduct of the proceedings is inappropriate. The trial judge maintains a discretion to make the appropriate costs award, including denial of costs .

26. I would also add that 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. As the Chorley case, supra, recognized, all litigants suffer a loss of time through their involvement in the legal process. 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 retained to conduct the litigation and that, as a result, they incurred an opportunity cost by foregoing remunerative activity. As the early Chancery rule recognized, a self - represented lay litigant should receive only a “moderate” or “reasonable” allowance for the loss of time devoted to preparing and presenting the case. This excludes routine awards on a per diem basis to litigants who would ordinarily be in attendance at court in any event. The trial judge is particularly well-placed to assess the appropriate allowance, if any, for a self - represented litigant, and accordingly, the trial judge should either fix the costs when making such an award or provide clear guidelines to the Assessment Officer as to the manner in which the costs are assessed.

[18] Fong was applied by Gauthier J . in Logtenberg v. Ing Insurance Company (2008), CarswellOnt. 2930 . In paragraph 16 (d) Gauthier J . held that: “ … self - represented litigants should be awarded costs only when they can show that they devoted time and effort to do the work ordinarily done by a lawyer, and, that, as a result, they lost the opportunity to engage in remunerative activity.”

[19] Absent evidence of lost opportunity, Gauthier J . denied costs to the successful plaintiff adding at paragraph 35:

35. Once again, the discretion accorded a court pursuant to Section 131 of the Courts of Justice Act , does not provide the basis to award costs for loss of time and energy, or for physical and mental fatigue, whether the result of disabilities or otherwise. There is no authority to award costs for time taken away from family, or for reduced quality of life, as claimed by the Plaintiff.

[20] As was noted by Jennings J. in the decision of Mustang Investigations v. Ironside, 2010 ONSC 3444 of the Ontario Superior Court of Justice Divisional Court at paragraph 27:

27. As I have said, Master Dash, and several trial judges, seem to have interpreted Fong as saying that even in the absence of proof of an opportunity cost , one may assume that … because the lay person was involved in the litigation preparing material that might otherwise be prepared by a lawyer, he or she should nevertheless be entitled to nominal costs . With great respect to the Master and those judges, I’m unable to find that the language in Fong permits an award to be made without the self - represented litigant demonstrating that, as a result of the lawyer-like work put in on the file, remunerative activity was foregone. Simply stated, no proof of opportunity cost , no nominal costs available.

[12] I find that Devon was the major contributor to the extraordinary length and complexity of this case. His lack of timely, accurate and complete disclosure with respect to his finances was a central cause to this litigation being infused with extended conflict that was both emotionally and financially costly.

[13] I find that he purposely misled Jayme and this court with respect to his finances. Not only did he delay the production of his finances, he also omitted assets and was inconsistent in the multiple financial statements that he did file. One example was his lack of any satisfactory explanation for why he left out of any of his financial statements a bank account that he had in the Cayman Islands that exceeded $130,000 USD.

[14] In my reasons dealing with this disclosure and interim disbursement motion, reported at 2019 CarswellOnt 1217, 2019 ONSC 323 at para. 11 I stated:

11 The Respondent, Devon, has not disclosed his financial means in a manner that is complete, accurate and timely. I will detail this lengthy saga below. I find that Devon has misrepresented his income, assets, and liabilities throughout this litigation. He is responsible for creating the antithesis to any achievement of the Guidelines objectives. Instead of reducing conflict and tension, his slow and inaccurate financial disclosure has increased the conflict and tension. Instead of improving the efficiency of the legal process by giving courts, parents and spouses, guidance in setting the levels of child support and encouraging settlement, he has bogged the process down and placed barriers that prohibited informed decisions of the court and informed analysis of the Applicant in order to arrive at settlement positions.

[15] In the exercise of discretion when determining costs, courts must consider all of the factors set out in the Family Law Rules, Rule 24. The essence of the courts consideration was captured in Serra v. Serra, 2009 ONCA 395, [2009] O.J. No. 1905, which confirmed that cost rules are designed to foster three important principles:

a. To partially indemnify successful litigants for the cost of litigation;

b. To encourage settlement; and

c. To discourage and sanction inappropriate behavior by litigants

[16] Rule 24(8) specifically addresses the concept of bad faith. Justice Piccoli reviewed many of the factors a court must consider when making a determination as to whether a party acted in bad faith in Williams v. Williams, 2019 ONSC 6586. He stated at para. 11:

[13] Rule 24(8) states that if a party has acted in bad faith , the court shall decide costs on a full recovery basis and shall order the party to pay them immediately. In reviewing the law on bad faith in Jackson , Pazaratz J. quoted para. 17 of Perkins J.’s decision in S.(C). v. S(M.), [2007] O.J. No. 2164:

In order to come within the meaning of bad faith in rule 24(8), behaviour must be shown to be carried out with intent to inflict financial or emotional harm on the other party or other persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court… The requisite intent to harm, conceal or deceive does not have to be the person's sole or primary intent, but rather only a significant part of the person's intent. At some point a party could be found to be acting in bad faith when their litigation conduct has run the costs up so high that they must be taken to know their behaviour is causing the other party major financial harm without justification.

[17] At paras. 58-64 of Jackson , Pazaratz J. continued his review of the jurisprudence, holding bad faith implies the conscious doing of a wrong because of a dishonest purpose or moral obliquity – it involves intentional duplicity, obstruction or obfuscation. The act is done knowingly and intentionally. The breach of the order or agreement must be done to achieve an ulterior motive or with a view to achieving another purpose. To establish bad faith there must be some element of malice or intent to harm.

[18] In my view, when a party purposely embarks on a path during the course of family litigation that that looks more like a prolonged scavenger hunt the main theme of which is “catch me if you can”. That party is acting in bad faith.

[19] In this case I find that Devon embarked upon such a path and as a result Jayme is entitled to be compensated for significate costs that she incurred in order to pursue her child support claim.

Quantum of Costs and Self Represented Litigants

[20] Once liability for costs has been established, the court must determine the appropriate quantum of costs . Rule 24(12) prescribes some of the factors which the court must consider in deciding the appropriate quantum as follows:

(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] The court must also consider the impact of any Offers to settle by the parties during the course of the ligation.

[22] Rule 18(14) speaks to the cost consequences of failing to accept offers to settle.

[23] In this case, Jayme was not in a position to even formulate what offer might reflect an appropriate compromise as she spent the better part of three and half years trying to ascertain what Devon’s financial situation was in order to find out what the appropriate range of child should be.

[24] In Boucher v. Public Accountants Council (Ontario), 71 O.R. (3d) 291 (C.A.) and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC, 75 O.R. (3d) 638 (C.A.), the Court of Appeal for Ontario set out the following additional general principles relating to quantum:

(i) Ultimately, costs decisions should reflect what the court considers to be a fair and reasonable amount that the unsuccessful party should pay.

(ii) Costs need to be proportional to the issues and amounts in question and the outcome of the case.

(iii) Amounts actually incurred by the successful litigant are not determinative.

(iv) In assessing what is fair and reasonable, the expectation of the parties concerning the amount of a costs award is a relevant consideration.

[25] In M.A.L. v. R.H.M., 2018 ONSC 2542, Justice Pazaratz reviewed some of the factors to be considered when assessing the quantum of costs relative to self-represented litigants. Commencing at para. 11 he stated:

[11] Most of the caselaw dealing with costs claims by self - represented litigants deals with the first of the three objectives set out in Serra .

a. Self - represented litigants may be awarded costs , and those costs may include an allowance for counsel fees. Fong v. Chan, (1999) 46 O.R. (3d) 330 (C.A.); Jordan v. Stewart, 2013 ONSC 5037 (SCJ).

b. However, self - represented litigants – whether legally trained – are not entitled to costs calculated on the same basis as those of a litigant who retains counsel. Pirani v. Esmail, 2014 ONCA 279 (ON CA); Fong v. Chan , (supra); Reynolds v. Higuchi, 2014 ONSC 3375 (SCJ).

c. A self - represented litigant can be awarded costs for disbursements as well as the economic loss caused by having to prepare and appear to argue the case. Fong v. Chan (supra) ; G.B. v. S.A., 2013 ONSC 2147 (Divisional Ct).

d. A self - represented litigant should not recover costs for the time and effort that any litigant would have to devote to the case.

e. 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 retained to conduct the litigation and that, as a result, they incurred an opportunity cost by foregoing remunerative activity. Jordan v. Stewart , (supra).

f. Lost wages as a result of time missed from work to prepare for or argue a case can be compensated by way of costs . G.B. v. S.A., (supra). But this excludes routine awards on a per diem basis to litigants who would ordinarily be in attendance at court in any event. Warsh v. Warsh, 2013 ONSC 1886 (SCJ).

g. Compensation for the loss of time devoted to preparing and presenting the case should be moderate or reasonable. Reynolds v. Higuchi , (supra).

h. Once a court determines that a “counsel fee” is appropriate for a self - represented litigant , one of the biggest challenges is quantifying both the number of hours to be compensated and the appropriate hourly rate. Courts have awarded anywhere between $20.00 and $200.00 per hour for self - represented litigants , depending on the demonstrated level of skill. Izyuk v. Bilousov, 2011 ONSC 7476 (SCJ). $60 per hour appears to be a commonly used figure. Roach v. Lashley, 2018 ONSC 2086 (SCJ).

i. The Family Law Rules do not specifically address costs claims by self - represented litigants . But all of the Rule 18 and 24 costs provisions apply equally whether litigants are represented or not.

[26] I agree with the approach suggested by Justice Pazaratz as set out above.

[27] In this case, because of the pathway created by Devon of at least a reckless disregard for the rules relating to earlier and accurate disclosure, Jayme could not assess her case. She was not in a position to do a risk analysis, formulate a reasonable offer in order to settle. In short, she had to navigate the maze created by Devon and she was put to significant time and expense in order to withstand such a process.

[28] Jayme seeks to be compensated at the hourly rate of $100 per hour. She relies on numerous cases that sanction such an approach. (Browne v. Cersesa, 2018 ONSC 2242; Izyuk v. Bilousov, 2011 ONSC 7476; and Abela v. Gibbens, 2018 ONSC 25440.)

[29] Jayme provided a cost outline. In this outline she sets out the number hours she put into this matter including both the claims for custody, access and child support. Her outline details what she represents to be research, learning court, seek/locate evidence, preparation of documents, print and scan, commission, communicate, and review incoming.

[30] Her total based on $100.00 per hour amounts to $39,852.00. That amount incudes 20 hours for preparation of the cost submissions. I find that excessive and will allow $1,000.00 for the preparation of costs submissions.

[31] Jayme submitted in her cost submissions that Devon had represented to her that if he were to be awarded costs his claim would be $200,000.00. Clearly, Devon’s expectations are that he would at least have to pay approximately $39,852.00 if Jayme were awarded costs.

[32] Devon did not provide this court with any cost submissions nor did he reply to Jayme’s submissions.

[33] In addition, Jayme’s claim for costs include an amount of $6,100.00 for the custody and access trial.

[34] I have already ruled that neither party would be entitled to costs relative to the custody and access issue. Therefore, a further deduction from Jayme’s claim for costs in the amount of $6,100.00 is a fair reduction having regard to parenting claim.

[35] Jayme submitted in her cost outline that she would be prepared to settle her costs for $30,000.00. Devon did not make an offer to settle nor did he respond to Jayme’s costs submissions.

[36] Having regard to all the above noted factors and considerations, Devon shall pay to Jayme the total sum of $32,752.00 inclusive of disbursements and HST. These costs are payable forthwith.

Released: December 9, 2019

The Honourable R. J. Harper