Court File and Parties
COURT FILE NO.: 766/16 DATE: 2020-04-28 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: D.D. and F.D., Applicants AND: H.G., Respondent
BEFORE: The Honourable Mr. Justice A. Pazaratz
COUNSEL: Mr. Angelo P. Fazari, Counsel, for the Applicants Self-Represented Respondent
HEARD: In Chambers
Endorsement
[1] An enormous waste of time and money cannot go without consequences. Otherwise, what is the disincentive for irresponsible litigants inclined to abuse former partners and the court system?
[2] This is my costs ruling stemming from a 255 page judgment dated February 14, 2020, following a 41 day trial spread over 16 months.
[3] At the conclusion of my judgment I set out timelines for written submissions:
a. On March 10, 2020 I received costs submissions on behalf of the Applicants. These were delivered within the specified timeline.
b. On March 30, 2020 – one day before the deadline for reply submissions – the self-represented Respondent sent an e-mail to the Applicants’ lawyer and to the court requesting a 10-day extension of her deadline. The Applicants’ counsel immediately consented.
c. On March 30, 2020 the parties were advised that the deadline for the Respondent’s costs submissions was extended to April 14, 2020; with any reply by the Applicants to be filed by April 27, 2020.
d. However, on April 15, 2020 the Applicants’ lawyer advised the court by e-mail that notwithstanding the extension, the Respondent had not served him with her costs submissions by April 14, 2020. Counsel confirmed that in the circumstances the Applicants would not be filing any further submissions (since there was nothing to reply to).
[4] On April 20, 2020 the Respondent sent a one-line e-mail to the Trial Coordinator and the Applicant’s counsel:
“I am sick. I have been in hospital for several weeks. I do not remember things.”
[5] The Respondent did not specify what she was hoping would result from that statement. There has been no further word from her.
[6] Having regard to the very unique circumstances of this case, I have proceeded with my costs determination without further delay:
a. While the Respondent’s cryptic April 20, 2020 e-mail might infer that there are health reasons why she has not filed responding costs submissions, this is a repetition of a pattern of behavior the Respondent displayed throughout this protracted and much delayed trial. Over the course of 16 months the Respondent repeatedly represented that she had debilitating health issues which precluded her from participating in the trial. But despite repeated directives from the court, the Respondent provided no medical corroboration to justify by far the majority of her failures to attend and participate in the process. Now, after much delay in relation to costs, the Respondent has provided some vague reference to medical issues, without elaboration or corroboration. Given the Respondent’s historic abuse of medical excuses, I cannot accept the April 20, 2020 e-mail as justification for any further delay.
b. The Respondent has already been given more than the extra time she requested.
c. This is not a case where COVID-19 would warrant any further extension of time. The Respondent’s costs submissions were to be filed electronically. The temporary closure of the court was already taken into account when the extension to April 14, 2020 was granted.
d. The Respondent has a history of missing deadlines and failing to file required materials, despite representations that she intended to do so.
e. There is no justification for any further extension of time.
[7] I will briefly summarize the trial dynamics relevant to this costs analysis.
[8] The factual background:
a. This was primarily a custody/access dispute involving two boys now ages 13 and 8.
b. The Applicants are the father and paternal grandmother.
c. The Respondent is the mother.
d. The parents separated in April 2011. The children remained in the care of the mother.
e. On August 31, 2012 Justice Henderson granted a final order based upon minutes of settlement. This trial was the oral hearing of the Applicants’ motion to change that order.
f. The 2012 order granted custody to the mother with reasonable access to the father. The father was ordered to pay child support and spousal support.
g. Soon thereafter the mother’s situation became extremely unstable. By the spring of 2013 she relocated with the children to Alberta, to evade increasing scrutiny in Ontario as a result of her seriously deficient care of the children.
h. The father initiated proceedings in St. Catharines to have the children returned to Ontario and to him. The mother ignored Ontario court orders. The mother was jailed as a result of her non-compliance and failure to return the children to Ontario.
i. Eventually the Children’s Aid Society (“CAS”) arranged for the children to be returned to Ontario. On their arrival they were apprehended and placed in foster care. By the end of 2013 the children were placed temporarily with the paternal grandmother. By early 2014 the father moved into that residence as well.
j. The children remained in the care of the paternal grandmother and the father until my trial judgment was issued.
k. During most of the past six years the mother has been entitled to regular access to the children, but she has only visited them on a very irregular basis.
l. The Office of the Children’s Lawyer (“the OCL”) prepared a detailed section 112 report. The recommendations were accepted by the Applicants, but the Respondent rejected those recommendations.
m. As stated, this trial was primarily in relation to custody and access. Notwithstanding her minimal involvement in the children’s lives and her numerous unresolved personal problems, the mother persisted in seeking custody of the children. The Applicant father was entirely successful in obtaining a sole custody order in his favour, with limited access to the mother. This result was consistent with the OCL’s recommendations.
n. The Applicant sought a termination of spousal support, and he wanted the Respondent to pay him child support (by the end of the trial he gave up on his request for child support). The Respondent wanted spousal support to continue indefinitely, and in conjunction with her custody claim, she wanted to receive child support. She sought a significant retroactive increase in both child and spousal support.
o. The Applicant father was successful on all support issues. In fact, the mother caused the trial to become so needlessly protracted that the father was successful in having spousal support suspended prior to the completion of the trial.
[9] So on the basic issue of success – who got what they wanted – the Applicants were almost entirely successful.
[10] None of these issues were unusual from a family court perspective. The distinguishing – and aggravating – aspect of this case was the mother’s irresponsible and wasteful litigation behavior.
[11] There was a further troublesome dynamic:
a. Both Applicants were represented by (the same) counsel.
b. The mother represented herself.
c. It is not uncommon for trials involving one or more self-represented litigants to require more time. Judges have an obligation to provide guidance and reasonable accommodation for lay litigants who are presumed to be unfamiliar with the court process. The responsibility to “level the playing field” is heightened when a self-represented party is facing experienced counsel on the other side.
d. But the inefficiency and gross waste of time and resources on this trial went far beyond anything that could be reasonably attributed to inexperience by a self-represented party.
e. The mother flagrantly disregarded some basic courtroom requirements that don’t require a lawyer’s guidance. Like showing up for court on time. Or showing up at all.
f. So in many ways this became a classic case of a self-represented party proceeding with meritless claims in an extremely inefficient manner, either oblivious to -- or motivated by -- the financially ruinous legal fees she was causing her former spouse to incur.
[12] I will review just some of the many examples of the Respondent’s troubling and inappropriate approach to this case.
a. On Day One of the trial – in October 2018 -- the Respondent sought an indefinite adjournment. That in itself isn’t particularly egregious. But all of her arguments in support of her adjournment request had previously been rejected by the case management judge who set this matter down as a long trial. It was clear from the outset that the Respondent didn’t want this trial to proceed – or at the very least, she didn’t want this trial to finish.
b. On Day One of the trial the Respondent requested that I disregard the fact that the Applicants had served her with a comprehensive Request to Admit which she ignored. As an accommodation to the Respondent I accepted her request that the contents of the Request to Admit would not be deemed to constitute admitted facts. But throughout the trial the Respondent ended up admitting or conceding virtually nothing. She forced the Applicants’ counsel to take time to introduce into evidence facts and documents which could easily have been the subject of an admission.
c. Once the trial started, the Respondent caused significant time to be wasted.
d. She was more than 15 minutes late for court at least six times (sometimes as much as 90 minutes).
e. She failed to show up for court on nine days, after everyone else had gathered. Usually she would send an e-mail shortly before court started. One time she sent an e-mail a few minutes after court had started.
f. Unsubstantiated medical issues by the Respondent were a recurring problem. She caused court to adjourn early on three days because she said she wasn’t feeling well. She attributed all of her missed court days to health issues. Apart from scheduled trial days which were missed, resumption of the trial was repeatedly delayed because the mother identified weeks at a time when she would be unavailable for health reasons. But despite repeated requests and orders that the mother would have to provide medical corroboration for missed court days, she provided very little medical corroboration.
g. The mother caused the trial to be further derailed by bringing an emergency motion returnable December 19, 2019. She requested all sorts of relief including a mistrial. But she didn’t file any materials in support of her motion. On the return date she required an adjournment to file what she represented would be comprehensive and important affidavit materials. Granting her time to file more materials meant that we ended up losing a week of trial time previously scheduled for early January 2020. But in the end she didn’t file any additional materials, and she didn’t even show up for the return of her own motion (which was dismissed).
h. Ironically, the only issue resolved on December 19, 2019 was the Respondent’s request for Christmas access to the children. She argued strenuously requesting 12 consecutive overnights. I granted her eight overnights. But after all that fuss she elected not to see the children at all during the entire Christmas school break.
i. Ultimately, after the Respondent missed multiple consecutive trial days in January 2020 – without proper explanation – on January 21, 2020 (Day 36 of the Trial) I issued an endorsement clearly advising the Respondent that we had reached the tipping-point. The trial would proceed whether she showed up for court or not. But even after that warning, she still failed to appear on the next four trial days. She finally appeared on the last day of trial, January 31, 2020 – her only attendance in court that month – for closing submissions.
j. More generally, on those days when the Respondent attended in the courtroom, a great deal of time was wasted as a result of the Respondent’s inefficiency and lack of focus.
k. She would raise time consuming issues about matters which could and should have been resolved outside of the courtroom.
l. Her cross-examination of witnesses was inefficient, repetitive, and at times incoherent. I tried to be patient. I tried to provide gentle suggestions and direction. But the Respondent’s reaction to any sort guidance or correction was to embark on self-serving diatribes, accusing everyone in the courtroom of being unfair and insensitive.
m. At the beginning of the trial the Respondent had already established a pattern of seeing her children infrequently. During the 16 months that the trial elapsed, the Respondent’s level of contact with her children actually decreased. And yet she persisted in claiming custody, even though it was painfully obvious that the only real issue was formulating an access schedule which the mother would make a commitment to follow.
[13] In contrast, the Applicant father conducted himself in an almost exemplary manner.
a. I say almost because there was one area where the Applicant father stumbled badly.
b. At the beginning of the trial, in relation to spousal support he presented annual income numbers which were transparently unreliable. He kept insisting that by the end of the trial his accountant would explain and justify everything. But his “accountant” didn’t explain anything. To his credit, at the very end of the trial the father presented revised income numbers which I accepted.
c. So on the narrow issue of the father’s income, the father behaved unreasonably and the mother was correct to challenge his numbers. But the income issue consumed less than ten percent of the trial.
d. By far the majority of the trial was in relation to parenting issues. And on those issues the father and paternal grandmother took a reasonable and ultimately successful position, throughout.
[14] The Applicants now seek a significant costs award:
a. They request $129,737.92 which they characterize as “partial indemnity.”
b. They say “substantial indemnity” would amount to $151,652.01. And “full indemnity” would be $181,097.55.
[15] In the absence of submissions, the Respondent has not identified her position regarding costs.
[16] Costs rules are intended to foster four fundamental purposes:
a. To partially indemnify successful litigants;
b. To encourage settlement;
c. To discourage and sanction inappropriate behaviour by litigants; and,
d. To ensure that cases are dealt with justly pursuant subrule 2 (2) of the Family Law Rules (“the Rules”)
Mattina v. Mattina, 2018 ONCA 867; Serra v. Serra, 2009 ONCA 395
[17] Costs awards are discretionary. In exercising that discretion, the court should be mindful of two touchstone considerations: reasonableness and proportionality. Beaver v. Hill, 2018 ONCA 840.
[18] Costs are an important tool to promote the efficient use of judicial resources and the orderly administration of justice. Costs can be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71; Lewis v. Silva, 2019 ONCJ 795.
[19] As Justice Desormeau stated in Carmichael v. Carmichael, 2019 ONSC 7224:
12 The justice system is a precious public resource. Access to the justice system by individuals must be balanced with the need to ensure that the resource is available for all those who need it. This is one of the purposes of Rule 2: Lawrence v. Lawrence, 2017 ONCJ 431, at para. 52.
13 Parties to litigation must understand that court proceedings are expensive, time-consuming and stressful for all concerned. They are not designed to give individual litigants a forum for carrying on in whatever manner they may choose, oblivious to the impact of that conduct on the other side and, perhaps most importantly for the purposes of this case, oblivious to the mounting costs of the litigation: Lawrence v. Lawrence, supra, at para. 54.
[20] Rules 18 and 24 of the Family Law Rules govern the determination of costs in family law proceedings.
[21] Consideration of success is the starting point. Rule 24(1) creates a presumption of costs in favour of the successful party. Sims-Howarth v. Bilcliffe, 2000 ONSC 22584, [2000] O.J. No. 330.
[22] As stated, the Applicants were entirely successful on the primary parenting issues. The father was successful with respect to child support. And even though his original representation as to his income (for spousal support purposes) was not accepted, by the end of the trial his revised figures were accepted. More to the point, the father was successful in obtaining a termination of spousal support (an issue which was vigorously opposed by the Respondent, even though she made no disclosure which would have supported her claim for indefinite support continuing after nine years of separation).
[23] Rule 24(4) provides that in some circumstances a successful party can be deprived of their costs if they have behaved unreasonably. Ajiboye v. Ajiboye, 2019 ONCJ 894. But there was no unreasonable behavior by the Applicants which would justify any reduction of costs they would otherwise be entitled to.
[24] 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. Lawson v. Lawson, 2008 ONSC 23496, [2008] O.J. No. 1978 (SCJ); Ajiboye v. Ajiboye. Rule 18(14) sets out the consequences of a party’s failure to accept an offer to settle that is as good or better than the trial result.
[25] In this case I was not advised of any formal offers to settle having been filed.
[26] In the context of assessing the reasonableness or unreasonableness of parties’ conduct, Rule 24(5) focuses consideration of any offers to settle made by the parties in the course of the litigation and their respective responses to those offers to settle. Hum v. Skoll, 2020 ONSC 275.
[27] In family law cases, offers to settle should always be filed – preferably severable offers dealing with each issue individually. The failure to make an offer may be less egregious in binary single-issue cases where there is little or no room for compromise. Beaver v. Hill. But in most family law cases the failure to make a formal offer to settle will be an adverse factor when assessing costs. L.M.L. v. S.LG., 2019 ONCJ 422; Andriano v. Andriano, 2019 ONSC 1523; Laing v. Mahmoud, 2011 ONSC 6737.
[28] In this case, the Applicants should have filed a severable offer to settle, dealing with each of the issues. Given the Respondent’s obstructionist approach throughout – and given her apparent lack of concern about exposure to costs orders – it is doubtful the Respondent would have accepted any offer. But anticipated rejection by the opposing party does not relieve litigants of the obligation to make all reasonable efforts to promote settlement, or at least narrow the issues.
[29] Even where no formal offer to settle has been filed which might trigger the Rule 18(14) full recovery consequences, Rule 18(16) allows the court to take into account “any written offer to settle”. However, in this case I was not alerted to any documentation which would invoke Rule 18(16) considerations.
[30] Once entitlement to costs is established, determination of the amount of costs is dealt with primarily in Rule 24(12).
[31] There is no presumption in the Rules that provides for a general approach of “close to full recovery” costs. (And the Rules don’t contemplate the “partial indemnity” and “substantial indemnity” characterizations set out in the Applicants’ costs submissions.) The Rules expressly contemplate full recovery only in specific circumstances:
a. Bad faith (Rule 24(8))
b. Matching/exceeding an offer to settle (Rule 18(14)). Beaver v. Hill
[32] And even in circumstances in which Rules 18(14) or 24(8) trigger “full recovery costs”, the court still has an overriding discretion and responsibility to determine a costs award that is proportional, fair and reasonable in all the circumstances. Chomos v. Hamilton, 2016 ONSC 6232.
[33] As stated, the Applicants do not seek “full recovery” costs. But they allege bad faith on the part of the Respondent. And that requires consideration of Rule 24(8) which provides 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."
[34] A finding of bad faith on the part of a litigant is rarely made, because it requires a high threshold. S.(C). v. S(M.), 2007 ONSC 20279, [2007] O.J. No. 2164 (SCJ): Piskor v. Piskor, 2004 ONSC 5023; Cozzi v. Smith, 2015 ONSC 3626; Hum v. Skoll, 2020 ONSC 275.
a. The behavior 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 behavior; to conceal information relevant to the issues at stake in the case; or to deceive the other party or the court. S.(C). v. S(M.)
b. A misguided but genuine intent to achieve the ostensible goal of the activity, without proof of intent to inflict harm, to conceal relevant information or to deceive, saves the activity from being found to be in bad faith. Calver v. Calver, 2019 ONSC 7317.
c. The requisite intent to harm does not have to be the person’s sole or primary intent, but rather only a significant part of the person’s intent. S.(C). v. S(M.)
d. At some point a party can 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 behavior is causing the other party major financial harm without justification. S.(C). v. S(M.).
e. Bad faith is not synonymous with bad judgment or negligence. Rather, it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. Bad faith involves intentional duplicity, obstruction or obfuscation. Scipione v. Del Sordo, 2015 ONSC 3626; Children's Aid Society of the Region of Peel v. F. (I.J.), 2009 ONCJ 252; Biddle v. Biddle, 2005 ONSC 7660; Leonardo v. Meloche, 2003 ONSC 74500; Hendry v. Martins, 2001 ONSC 28019; Carter v. Carter, 2020 ONSC 1095; Jackson v. Mayerle, 2016 ONSC 1556; Green v. Whyte, 2019 ONSC 7133.
f. To establish bad faith the court must find some element of malice or intent to harm. Harrison v. Harrison, 2015 ONSC 2002.
g. There is a difference between bad faith and unreasonable behaviour. 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. The court can determine that there shall be full indemnity for only the piece of the litigation where bad faith was demonstrated. Scipione v. Del Sordo; Stewart v. McKeown, 2012 ONCJ 644; F.D.M. v. K.O.W., 2015 ONCJ 94.
h. A bad faith finding on some specific issue does not necessarily have a spill-over effect to other issues. The court can order full recovery costs in relation to the portion of the proceeding where bad faith is applicable. Hunt v. Hunt, 2001 ONSC 28019.
i. Even where the "full recovery" provisions of the Rules are triggered by a finding of bad faith, the quantification of costs still requires an overall sense of reasonableness and fairness. The successful party is not entitled to a blank cheque. Goryn v. Neisner, 2015 ONCJ 318; Jackson v. Mayerle; Belair v. Bourgon, 2019 ONSC 2170; Slongo v. Slongo, 2015 ONSC 3327.
j. The court retains a residual discretion to make costs awards which are proportional, fair and reasonable in all the circumstances. Scipione v. Del Sordo; Jackson v Mayerle.
[35] While I have no difficulty expressing the court’s profound disapproval about most of the Respondent’s behavior in this trial, in some respects the delineation between “bad faith” and mere “unreasonable behavior” can be challenging.
[36] I find that some of the Respondent’s behavior constitutes bad faith. This includes:
a. Pursuing sole custody (which would have entailed dramatic disruption for the children, including relocation to another city) in circumstances in which the Respondent could not even commit herself to any access schedule. She would allow weeks and even months to go by between visits. She never provided any corroboration as to her inability to see the children. She was secretive and deceptive (to the OCL investigator) about her circumstances. She declined and obstructed disclosure. She offered no specifics as to any plan for the children. She paid lip-service to any consideration of “the best interests of the children.” This was not a sincere custody claim. But the mother clearly knew that by claiming custody, a lengthy, expensive trial was inevitable.
b. Missing multiple court dates, with virtually no advance notice that she would not be attending. This caused enormous inconvenience and expense for the Applicants and their counsel (not to mention the taxpayer).
c. Bringing a frivolous motion in December 2019; failing to file materials in relation to the motion; requesting an adjournment to serve and file proper materials (resulting in the trial being delayed); failing to serve or file any additional materials; and then failing to show up for her own motion.
[37] Some of the Respondent’s behavior arguably falls short of the “bad faith” threshold. But it was still quite unreasonable. This includes:
a. Failing to respond to a Request to Admit and requiring the Applicant’s counsel to prove certain facts and documents which should not have been contentious.
b. Failing to make disclosure. Her lack of medical disclosure, for example, was relevant not only in relation to the amount of time she was missing from court. Medical disclosure was required to support her narrative in relation to missing access, and her claim that she should receive spousal support because she is medically unable to work.
c. Consistently causing court time to be used inefficiently. In 41 days of trial we only heard from seven witnesses. Counsel for the Applicants was quite efficient both in his cross-examination of the OCL social worker (the court’s witness) and also during examination in chief of his witnesses. In contrast, the Respondent’s cross-examination of each witness was prolonged, repetitive, unfocussed, and often unproductive. The Respondent bristled at any effort or suggestion I made hoping to encourage more efficient use of court time.
[38] There is not a sufficient “bad faith” component here to justify full recovery costs. And I note that the Applicant’s counsel is requesting a costs order which is significantly less than full recovery. I do find, however, that there is a sufficient element of “bad faith” here to justify somewhat elevated costs.
[39] In the absence of one of the limited situations in which full recovery of costs is appropriate, the principles of reasonableness and proportionality include the following considerations:
a. Costs decisions should reflect what the court considers to be a fair and reasonable amount that the unsuccessful party should pay, rather than an exact measure of the actual costs incurred by the successful party.
b. Costs need to be proportional to the issues; the amounts in question; and the outcome of the case.
c. Determining the quantum of costs is not a mere mathematical exercise of lawyer’s hours multiplied by an hourly rate. Except in rare cases, costs are not meant to reimburse a litigant for every dollar spent on legal fees. Amounts actually incurred by the successful litigant are not determinative.
d. In assessing what is fair and reasonable, the expectation of the parties concerning the amount of a costs award is a relevant consideration.
Serra v. Serra; Boucher v. Public Accountants Council (Ontario), 2004 ONCA 14579, [2004] O.J. No. 2634 (Ont CA); Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC, 2005 ONCA 1042, 2005 CarswellOnt 189; Delellis v. Delellis and Delellis, 2005 ONSC 36447; Hum v. Skoll; Bexon v. Mccorriston, 2020 ONSC 92; Jackson v. Mayerle.
[40] Rule 24(6) provides that where success in a step in a case is divided, the court may exercise its discretion to order and apportion costs as appropriate. However, the determination of whether success was truly "divided" requires a contextual analysis that takes into consideration the importance of the issues that were litigated and the amount of time and expense that were devoted to the issues that required adjudication. Jackson v. Mayerle; Slongo v. Slongo; Lippert v. Rodney; Norton and Norton, 2017 ONSC 5406.
[41] In this case I do not find that there is any relevant element of divided success. While the Respondent was successful in challenging the Applicant father’s income figures, in the final analysis, even with higher income figures which he eventually acknowledged, he was still successful in obtaining a termination of spousal support and resisting a claim for increased retroactive support.
[42] As stated, the touchstone considerations in determining costs are reasonableness and proportionality. Rule 24(5) provides criteria for determining the reasonableness of a party’s behavior.
a. Family law litigants are expected to act in a reasonable and cost-effective way. They should -- and will -- be held accountable for the positions they take in their litigation. Carter v. Carter, 2020 ONSC 1095; Calver v. Calver, 2019 ONSC 7317; Heuss v. Surkos, 2004 ONCJ 141; Carmichael v. Carmichael, 2019 ONSC 7224.
b. If a litigant persists in a weak case and forces the other side to prepare and respond to it, then costs ought to reflect the work done by the other side to respond. Kirshenblatt v. Kirshenblatt, 2008 ONSC 1000.
c. If a party pursues an unreasonable claim through protracted litigation, they cannot later complain about the amount of costs spent to defend those claims: Fielding v. Fielding, 2019 ONSC 1000.
[43] Mandatory consideration of reasonableness and proportionality is also specifically addressed in Rule 24(12) which sets out specific factors the court should consider. These include:
a. Each party’s behavior: Rule 24(12)(a)(i): In this respect, I find that the Applicants’ behavior was reasonable throughout. They consistently demonstrated a desire to reach an appropriate resolution of all issues, in a cost-efficient manner. In contrast the Respondent attempted to punish the Applicants by needlessly (and significantly) driving up their legal fees by delaying completion of the trial. Her delaying tactics were not just malicious. They were strategic. The Respondent was receiving significant ongoing spousal support payments pursuant to order which was the subject of the motion to change. The longer the trial went on, the longer those payments would presumptively continue. Ultimately, I had to address that dynamic head-on, by suspending spousal support, to remove this incentive for delay.
b. The time spent by each party: Rule 24(12)(a)(ii): On this topic, I am satisfied that all of the time set out on Mr. Fazari’s bill of costs was required; reasonable; and only relates to this trial (as opposed to earlier legal steps).
c. Written offers to settle: Rule 24(12)(a)(iii): I have already commented on neither party having filed written offers.
d. The legal fees, including the number of lawyers and their rates: Rule 24(12)(a)(iv): In this respect, speaking plainly, Mr. Fazari’s hourly rate of $375.00 was a bargain, given his 31 years of experience and the extreme skill and professionalism he maintained throughout this demanding and frustrating trial. Similarly, the charge for the assistance of a law clerk (who attended the whole of the trial) is easily warranted. There was an overwhelming amount of paper in this trial, and Mr. Fazari’s law clerk was kept busy helping to organize things.
e. Any other expenses: Rule 24(12)(a)(v): All of the disbursements claimed are reasonable.
[44] The financial implications of legal fees – and costs orders – must also be taken into account. But this can be a complicated issue.
a. A costs order should take into consideration the ability of a party to pay costs. MacDonald v. Magel, 2003 ONCA 18880, 67 O.R. (3d) 181 (Ont CA).
b. Although they are not specified in Rule 24 as factors in determining costs, the financial means of the parties, their ability to pay a costs order, and the effect of any costs ruling on the parties and the children are relevant considerations in reaching a determination on the issue of costs. Fyfe v. Jouppien, 2012 ONSC 97.
c. A party's limited financial circumstances cannot be used as a shield against any liability for costs. Ability to pay will be taken into account regarding the quantum of costs. Snih v. Snih, 2007 ONSC 20774; Dhillon v. Gill, 2020 ONCJ 68. But 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. Gobin v. Gobin, 2009 ONCJ 278.
d. Parties cannot expect to be immune from an order of costs based on their limited financial resources. If this were the case, parties would be free to conduct litigation as they wished without fear of reprisal in the form of adverse costs orders and this would be contrary to the philosophy and requirements of the Rules. Culp v. Culp, 2019 ONSC 7051; Mark v. Bhangari, 2010 ONSC 4638.
e. Ability to pay alone cannot, nor should it, over-ride the other factors in Rule 24(12). Peers v. Poupore, 2008 ONCJ 615; Lawrence v. Lawrence.
f. Those who can least afford litigation should be the most motivated to seriously pursue settlement and avoid unnecessary proceedings. Mohr v. Sweeney, 2016 ONSC 3238; T.L. v. D.S., 2020 ONCJ 9; Balsmeier v. Balsmeier, 2016 ONSC 3485.
g. The impact of a costs determination on household budgets applies to both unsuccessful and successful parties. An onerous costs order against an unsuccessful custodial parent may impact on that parent’s ability to provide for a child in their care. But equally, an inadequate costs order in favour of a successful custodial parent may result in similar deprivation for a child in their care. In both instances, we want to ensure that litigation expenses do not impoverish the household where the child resides.
[45] As stated, the Respondent represented herself throughout this protracted trial.
a. A self-represented litigant is not immune from a claim for costs. Culp v. Culp.
b. Being self-represented will likely have no impact on liability for costs.
c. But for a number of reasons, self-representation can impact on the amount of a costs award.
[46] In many ways, the costs analysis in relation to self-represented parties mirrors the “ability to pay” analysis set out above. That’s no coincidence. Many litigants are forced to represent themselves in court precisely because of their limited “ability to pay.”
[47] But while “ability to pay” can be a mitigating factor in quantifying costs, self-representation can be either a mitigating or aggravating factor. Or both.
a. Sometimes parties can afford lawyers, but they choose to represent themselves anyway. In those cases, if they are unsuccessful, the Rule 18 and 24 costs considerations should apply without modification.
b. Sometimes parties would qualify for Legal Aid or other fee assistance, but they still choose to represent themselves. Again, if they end up being unsuccessful, they shouldn’t be able to rely on the “I didn’t understand the court process” argument to avoid Rule 18 and 24 consequences. They could have had a lawyer.
c. Most self-represented parties really would prefer to hire a lawyer, but that option simply isn’t available. In those cases, so long as they behave reasonably in advancing legitimate positions in an efficient and responsible manner, being self-represented may inevitably be somewhat of a mitigating factor in quantifying costs. Trials almost always take longer when one party has a lawyer and the other party doesn’t. Judges have to take time to explain things and make necessary accommodations. If the successful party had a lawyer, often that extra court time doesn’t get fully compensated in costs.
[48] Those are the “I didn’t have a lawyer, but I always acted in good faith” types of cases.
[49] But what about the self-represented litigant who does not act in good faith? At least two broad categories come to mind:
a. Sometimes a self-represented litigant will have a legitimate issue – but they will pursue it in a reckless, inefficient and financially wasteful manner.
b. And sometimes a self-represented litigant will pursue an issue aggressively even though it has no merit.
c. In both scenarios, the concern is about the potential for financial coercion and abuse when one party has a lawyer and the other doesn’t. The party paying a lawyer has every incentive to be realistic and efficient, to minimize legal fees. In contrast, the self-represented party may recklessly or deliberately create needless complication and expense -- because it’s not costing them anything.
d. This onerous and potentially crippling imposition of legal expense on the opposing party can occur unwittingly.
e. It can occur maliciously.
f. It can occur strategically.
g. The court must be mindful of all of these potential dynamics.
[50] When one party has a huge incentive to be reasonable, and the other party has no incentive to be reasonable, it creates an uneven playing field for the parties. And that, in turn, creates systemic problems for our courts.
a. Judges prefer litigants to have lawyers. It’s better for them, and it’s better for us.
b. But no matter how hard judges try to apply the rules equally, there is a widespread perception – among lawyers and litigants – that self-represented parties are granted too many accommodations. That rules and deadlines apply if you have a lawyer. But not if you represent yourself.
c. Whether it’s accurate or not, that’s the perception.
[51] Quite understandably, this creates a great deal of frustration.
a. Why should one party pay a lot of money to a lawyer to do things the right way, if the court system seems to have limitless tolerance for self-represented parties who do things the wrong way? Wouldn’t it be cheaper to fire your lawyer and play dumb?
b. And how is it fair that we impose stringent expectations on lawyers, while glossing over non-compliance by self-represented parties? Family law is already perhaps the most difficult area for a lawyer to practice. If we create all sorts of rules – and then only enforce them against lawyers – we will jeopardize the respect, cooperation and participation of the bar.
[52] So judges need to be mindful of the messaging we send.
a. If we inadvertently signal that there may be advantages to not hiring a lawyer – then we shouldn’t be surprised when our system gets clogged with people who elect not to hire lawyers.
b. Costs endorsements provide an excellent opportunity to correct that unintended message.
c. Clearly, we must always provide accommodation and assistance to self-represented litigants, to explain the process and ensure their meaningful participation.
d. Parties without lawyers may need help understanding the law and procedures.
e. But it is equally important that we ensure that they understand consequences.
[53] In Steele v Big-Canoe, 2019 ONSC 1778 Justice Gibson commented on unreasonable behaviour by a self-represented litigant which resulted in a needlessly lengthy trial: seven days. Justice Gibson described the balancing act judges have to engage in, when dealing with trials in which one party has counsel and the other party is self-represented:
28 Self-represented litigants may be afforded some additional consideration consistent with the Court's obligation to treat both parties fairly, but they are not afforded some special licence to behave badly without consequence. The reputation of the administration of justice requires an appropriate response. Moreover, other parties to the litigation who have behaved appropriately should not have to indefinitely absorb the misconduct of those who do not.
30 It is important to consider how these general principles should be applied in the particular context of cases involving self-represented litigants. As was stated at paragraphs 5-13 in Kirby v. Kirby, 2017 ONSC 6695:
[5] Self-represented litigants appear frequently in our courts on family law matters. It is generally recognized that they may be at some disadvantage to parties who are represented by counsel, and that there is a duty on judges and court staff to recognize this.
[6] The Canadian Judicial Council has produced a Statement of Principles on Self-represented Litigants and Accused Persons, which it adopted in September 2006. In Pinteas v. John, 2017 SCC 23, Karakatsanis J. declared at para. 4 of the judgment that the Supreme Court of Canada endorses this Statement of Principles.
[7] The Statement sets out a number of statements and principles, with accompanying commentary, to the general effect that judges, the courts and other participants in the justice system have a responsibility to promote opportunities for all persons to understand and meaningfully present their case, regardless of representation. It suggests a number of accommodations that may be made to assist self-represented litigants.
[8] However, this is not a one-way street. The Statement of Principles recognizes that there are also corollary duties incumbent upon self-represented litigants. In particular, Para 4 of the Commentary to statement B provides: Self-represented litigants, like all other litigants, are subject to the provisions whereby courts maintain control of their proceedings and procedures. In the same manner as with other litigants, self-represented persons may be treated as vexatious or abusive litigants where the administration of justice requires it. The ability of judges to promote access may be affected by the actions of self-represented litigants themselves.
[9] Paragraph 4 of the Commentary to statement C provides: Judges and court administrators have no obligation to assist a self-represented person who is disrespectful, frivolous, unreasonable, vexatious, abusive, or making no reasonable efforts to prepare their own case.
[10] Rule 24 of the Family Law Rules deals with the question of costs in family law matters. Paragraph 24(11) details the factors that the Court shall consider in setting the amount of costs, including, ellipsis; (b) the reasonableness or unreasonableness of each party's behaviour in the case, and ellipsis; (f) any other relevant matter.
[11] On the hearing of the motion, Ms. Kirby behaved very badly. She had to be frequently admonished by the Court. She consistently tried to take more time than she was allocated by the Court. She was rude to opposing counsel, and to the Court. She asserted that opposing counsel was lying. She frequently and repeatedly interrupted opposing counsel even after being instructed by the Court not to do so. She made both loud and sotto voce critical comments while the Court was speaking. She was observed by court staff to be trying to harass and physically bully opposing counsel in the hallway outside court during a break, and tried to intimidate her in court by crowding her and interjecting. Ms. Kirby's conduct required the attendance of police officers in court during the hearing to maintain security, and to safely escort the opposing counsel out of the building after the hearing.
[12] Ms. Kirby undoubtedly has many difficulties in her life, and contends with some physical and mental health challenges. But there is no evidence to demonstrate that these are so severe as to render her incapable of behaving properly in Court.
[13] The Courtroom is not a school playground. The outcome is not governed by who shouts loudest. There are minimum rules of decorum, orderliness and courtesy which must be observed in order to ensure that all parties are afforded the opportunity to present their case fully and fairly, and to maintain the reputation of the administration of justice. It is not a spectacle. It is not a free-for-all in which litigants may indulge their tempers at whim if they don't immediately get what they want. No party is entitled to be petulant, abusive or to attempt to bully another party.
[54] I agree with and adopt those comments.
[55] This 41 day trial spread over 16 months – with such a predictable result – compels the court to address the reasonable behavior of the Applicants and the unreasonable behavior of the Respondent in a meaningful way. Any glossing over of this egregious situation would bring the administration of justice into disrepute.
a. The Applicants were overwhelmingly successful.
b. They were reasonable before the litigation even began. They were reasonable throughout the litigation and throughout the trial.
c. There is nothing the Applicants could have done to avoid this nightmarish trial.
d. The issues were extremely important. The Applicants advanced their own claims quite efficiently. They had no choice but to respond to the Respondent’s meritless claims in an effective manner.
e. While I have only identified specific areas where the Respondent’s behavior constituted “bad faith” in relation to Rule 24(8), in reality there was very little sign of “good faith” on her part.
f. At every stage, the Respondent made things more difficult. More complicated. More time-consuming. More expensive.
g. Even on the one topic where she had the most legitimate claim – access – she made a mockery of the process by fighting vigorously for time with her children, and then she didn’t bother to show up.
h. She displayed little commitment or respect for the court process, and absolutely no concern about the financial hardship her litigation behavior was causing for the people caring for (and exclusively paying for) her children.
i. Indeed, I have no doubt that the Respondent attempted to deliberately complicate and prolong this trial for strategic reasons. She wanted to delay any reconsideration of ongoing spousal support pending determination of the motion. And she was deliberately causing the Applicants to spend (waste) so much money on legal fees, that she must be taken to have known the financial harm she was causing.
[56] I have considered all of the costs considerations set out herein, including in particular success; reasonableness; proportionality; reasonable expectations; and the complex dynamics in relation to the Respondent being self-represented.
[57] The Respondent never made proper financial disclosure, but it appears that she is not currently working. During the trial she constantly described her financial situation as bleak, without providing particulars. As such, I have tried to give realistic consideration to “ability to pay”, while at the same time respecting the fundamentally important principle that “impecuniosity is no excuse for reckless litigation behavior.”
[58] The conduct of the Respondent has been reprehensible. In this respect, I note and endorse the comments of Justice Chappel in Thompson v. Drummond, 2018 ONSC 4762:
23 The decision respecting liability is ultimately a discretionary one that must be informed by the overall conduct of the parties and all of the circumstances and dynamics of the case. One of the most important functions of costs is to ensure that litigants conduct themselves in a manner that upholds the integrity of our justice system as a whole. A careful consideration of the conduct of the parties is therefore a key component to the costs analysis. The court has an obligation to ensure that litigation is not utilized as a tool to harass parties, and that the resources of the justice system are not unduly drained by unmeritorious claims. As Spence J. aptly stated in Heuss v. Surkos, 2004 ONCJ 141, at para. 20: Parties to litigation must understand that court proceedings are expensive, time-consuming and stressful for all concerned. They are not designed to give individual litigants a forum for carrying on in whatever manner they may choose, oblivious to the impact of that conduct on the other side and, perhaps most importantly for the purposes of this case, oblivious to the mounting costs of the litigation. Matrimonial litigation is an occasion for sober consideration and thoughtfulness rather than intemperate behaviour.
[59] I have no hesitation in concluding that the $129,737.92 requested by the Applicants’ counsel is more than reasonable (and indeed, yet another reflection of the reasonable approach the Applicants have taken throughout). I will supplement this with a small additional amount for the thorough written costs submissions Mr. Fazari provided.
[60] The Applicants’ request that costs be enforceable by the Family Responsibility Office.
a. Pursuant to section 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, 1996 the court's authority to make orders directing that legal fees be included as a support order and enforced by FRO, is limited to costs awards arising out of support decisions. Clark v. Clark, 2014 ONCA 175; D.G. v. A-G.D., 2019 ONCJ 156.
b. Where the court judgment involves a mix of support and other issues, the court has the discretion to determine what portion of the costs should be allocated to the support issue. See: Sordi v. Sordi, 2011 ONCA 665; Clark v. Clark; A.A. v. Z.G., 2016 ONCA 737.
c. In this case I would estimate that 20 per cent of the fees arose in relation to the various claims relating to child and spousal support. This is the percentage of costs which should be enforced by FRO.
[61] The order:
a. The Respondent shall pay to the Applicants costs fixed in the sum of $132,000.00 inclusive of HST, disbursements.
b. Of that amount, the sum of $26,400.00 shall be enforceable the Family Responsibility Office.
Pazaratz J.
Date: April 28, 2020
