Court File and Parties

Court File No.: FC-19-446 Date: 2023-06-15 Superior Court of Justice - Ontario

Re: Robert Caira, Applicant And: Angela La Duca Caira, Respondent

Before: The Honourable Mr. Justice JPL McDermot

Counsel: Both parties unrepresented

Heard: By written submissions

Costs Endorsement

[1] In November and December, 2022, the parties to this matter participated in a five day trial. The major issue was decision making for their daughter, Mia; the parties had agreed to share care of Mia but could not agree on decision making for her. Secondary issues were child and spousal support claimed by Ms. Caira as well as equalization of property.

[2] Ms. Caira was successful on the major issue and received an order for sole decision making for Mia. She was, however, unsuccessful in imputing income to the Applicant or in obtaining support order from him; based upon her new employment and the Respondent’s employment record as well as the shared care arrangement, no support was ordered.

[3] Both parties ended up owing small amounts for equalization of property and retroactive child and spousal support.

[4] The remaining issue is the costs of this five day trial.

[5] In their costs submissions, the parties acknowledged that Ms. Caira was owed costs. Mr. Caira offered to pay her $4,500 in costs. Ms. Caira claims partial recovery costs of $18,205.12 inclusive of HST.

Analysis

[6] Ms. Caira was successful on the major issue at trial being decision making concerning the parties’ daughter, Mia. Both parties acknowledge that some costs are payable to Ms. Caira for the trial of the issues in this matter.

[7] In considering costs, the court must instruct itself on the purposes of a costs award. In Mattina v. Mattina, 2018 ONCA 867, the Court of Appeal said that modern costs rules are intended to address four major issues:

(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.

[8] The Applicant acknowledges that he is liable to pay the Respondent costs; he only differs with her as to the amount. Under r. 24(12) of the Family Law Rules, the amount of costs are to be addressed as follows:

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.

[9] The major sticking point for Mr. Caira was the fact that Ms. Caira would not entertain any reasonable offer in respect of child support. On that point, based upon the offers attached to Ms. Caira’s costs submissions (no offers were appended to the Applicant’s costs submissions), Ms. Caira was unsuccessful in her attempts to obtain child support and spousal support. Because of Ms. Caira’s new employment (which she did not have when she made her offer), and based upon the shared care arrangement, I declined to order child or spousal support in this matter. I also refused to impute income to Mr. Caira as requested by the Respondent.

[10] There are also issues of unreasonable behaviour as well as the fact that both of these parties were unrepresented litigants.

Divided Success

[11] As stated, the major issue that the parties addressed at trial was decision making concerning Mia.

[12] This was not a contest between one party wanting sole decision making while the other party wanted shared decision making. Both parties sought sole decision making although parallel parenting was suggested at one point during the trial. Much of the evidence at trial concentrated on toxic parenting by the other party and abusive and insulting communications about Mia. I was provided with numerous Our Family Wizard messages and emails, and both parties gave evidence about frustrating interactions over parenting time or pickups.

[13] However, that was not the only issue. Support was also an issue. Although the parties spent most of their energy on the parenting issues, property and support were also an issue. The parties spent quite a lot of effort on the Applicant’s income which the Respondent said was artificially low. The parties also spent time on property including the repayment of a loan to the Applicant’s parents when the matrimonial home sold and funds were distributed. The Respondent was unsuccessful on the issue of support and because the Applicant’s parents were not parties, little could be done respecting the repayment of the loan.

[14] Therefore, to some extent, success was divided. Under r. 24(6), in the case where “success in a step in a case is divided, the court may apportion costs as appropriate.” In the present case, therefore, the Respondent’s costs will be reduced because of divided success.

Offers to Settle

[15] Both parties say that they served and filed offers to settle, but only the Respondent submitted her offers.

[16] Under r. 18(14), if an offer complies with the rule and the offering party achieves a better result at trial, that party should generally have an order for full recovery costs from the date of the offer. If the offer does not meet the formalities of the rule, the court may still take the offer into account under r. 18(16).

[17] The Respondent submitted two offers. The first offer, made on November 4, 2020, left a number of matters open, suggesting that parenting be referred to mediation and stating that the equalization would be dealt with once disclosure was received from the Applicant. The second offer, made October 7, 2022 was a comprehensive offer made on all aspects addressed at trial.

[18] Ms. Caira’s offers addressed both parenting, equalization and support. As noted above, the offers were as favourable to Ms. Caira on parenting as was my decision. However, the offers were offside as far as the financial issues went. That was because I refused to impute income to the Applicant as requested by Ms. Caira. As well, the Respondent provided in her second offer that the “fictitious loan” paid to Mr. Caira’s parents when the home sold be repaid to her from the Applicant’s share of the proceeds; however, she never proved that Mr. Caira benefitted by payment of the loan and never pressed that issue either at trial or in her submissions.

[19] Moreover, the Respondent’s offer was not severable and therefore the Applicant could not accept the parenting provisions of the order while leaving the financial parts of the offer to be litigated. It was an “all or nothing” offer. The case law makes it plain that it is important for offers to be severable so that portions can be accepted, avoiding a trial on all of the issues as was the case here. Moreover, the result at trial must be better or equal to all terms of an offer unless it is severable: see Paranavitana v. Nanayakkara, 2010 ONSC 2257, [2010] O.J. No. 1566 (S.C.J.); Rebiere v Rebiere, 2015 ONSC 2129 (S.C.J.) and Scipione v Scipione, 2015 ONSC 5982 (S.C.J.). That was clearly not the case here.

[20] All that the Respondent’s offers make plain is that success was divided as noted above. The Respondent does not deny that the Applicant made offers although those offers were not made available to me to review. The Respondent’s offers do not assist the court in assessing costs and I do not take them into account in assessing the costs of this trial under r. 18(16) of the Family Law Rules.

Unreasonable or Bad Faith Behaviour

[21] The Respondent suggests that the Applicant acted in bad faith, which would require the court to assess costs on a full recovery basis payable forthwith: see r. 24(8).

[22] Bad faith behaviour is different from unreasonable litigation behaviour. Unreasonable litigation behaviour has costs consequences as can be seen from r. 24(12)(a)(i) above. Rule 24(4) states that even a successful party who has behaved unreasonably may have costs awarded against him or her. However, unlike bad faith behaviour, there is no mandatory requirement for costs to be awarded against a party who acted in bad faith; it is only to be taken into account in quantifying costs.

[23] Bad faith is a high bar. In Fard v. Fard (2002), 30 R.F.L. (5th) 316 (Ont. S.C.J.), Campbell J. adopted the definition of bad faith from Black’s Law Dictionary (emphasis added by Campbell J.):

generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfil some duty or some contractual obligation not prompted by an honest mistake as to one’s rights or duties but by some interested or sinister motive. Bad faith is not simply bad judgment or negligence but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity; it is different from the negative idea of negligence in that it contemplates a state of mind affirmatively operating with furtive design or ill will.

[24] There was clearly unreasonable litigation behaviour on the part of the Applicant. He was dishonest in the preparation of his financial statement and was evasive during cross-examination. More importantly, he committed family violence in making death threats to the Respondent early on in the litigation and even after he took the PARS program his communications with the Respondent were abusive, rude and insulting. That was clearly unreasonable behaviour.

[25] However, bad faith behaviour involves motive: was the Applicant motivated by malice or evil intention? His behaviour was close to bad faith, but, in my view, does not cross the line. I do not find bad faith behaviour which would warrant full recovery costs in this case. I do find unreasonable litigation behaviour on the part of the Applicant which I take into account in quantifying costs.

Quantum of Costs

[26] These parties were unrepresented and the case law is clear that unrepresented parties are entitled to claim litigation costs: see Fong v Chan, [1999] OJ No 4600 (Ont C.A.).

[27] Mr. Caira objected to the costs that the Respondent claims for the lawyer who assisted her. However, in Jordan v. Stewart, 2013 ONSC 5037, Czutrin J. allowed the costs of a lawyer who was not on the record who assisted a self represented litigant. However, the court should be cautious not to permit the costs of a litigant duplicating the costs of a lawyer who assisted him or her: see Michener v. Carter, 2018 ONSC 4050. That was not the case here.

[28] Mr. Bennett’s total claim was $675 for his assistance for the trial and to prepare costs submissions. This amount is reasonable and I allow it.

[29] Ms. Caira claims $24,600 for her time spent on the file at $120 per hour for 205 hours for trial preparation. She did not claim an hourly rate for her time at trial, choosing instead to claim for lost wages as set out below.

[30] The hours claimed for trial preparation for a five day trial are excessive and uncharacterized. For example, the Applicant says that she spent 100 hours “preparing all materials for trial”. She also spent 50 hours “reviewing Applicant’s trial materials in totality”. I understand that there were a lot of documents filed by both parties but 205 hours is more than 25 eight-hour days. This was a five day trial and although there were numerous documents filed by both parties, many were duplicated in the parties’ document briefs. Taking into account the Respondent’s inexperience, I am willing to allow her 150 hours in total of preparation time.

[31] There is a wide range of hourly rates for self-represented litigants. In John-Cartwright v. Cartwright (2010), 2010 ONSC 2263, 91 R.F.L. (6th) 301 (Ont. S.C.J.), Price J. allowed a self-represented litigant $200 per hour for her time spent on responding to a motion to change. In Izyuk v. Bilousov, 2011 ONSC 7476, Pazaratz J. awarded costs for a self-represented litigant at $100 per hour. On the other hand, in Warsh v. Warsh, 2013 ONSC 1886, Lauers J. allowed only $30 per hour for the unrepresented litigant.

[32] All in, as stated by Price J. in John-Cartwright, the standard is reasonableness. This was confirmed by Wildman J. in Rashid v. Shaher, 2011 ONSC 852 who noted [at para. 12]:

The caselaw that will be reviewed in this decision establishes that "indemnification" is not the sole purpose of costs, and it is appropriate to award a self-represented litigant something for the considerable efforts she has had to put into defending this matter on her own behalf. However, the $163,643.86 claimed by Ms. Shaher, who works as a waitress in a coffee shop for $12 per hour, is excessive. Indemnification, while not the sole purpose of costs, is still a guiding principle. Winning a trial is not meant to be the same as winning a lottery.

[33] Ms. Caira has recently been trained as a paralegal and can therefore be classed as a professional. I find the hourly rate of $120 per hour excessive, but I am willing to assess her hourly rate at $80 which would mean that her costs on a full recovery basis for trial preparation would be $12,000.

[34] As well, Ms. Caira claims the loss of her paycheck during the days that she attended trial in the amount of $932.75. I allow this cost as Ms. Caira has not claimed an hourly rate for the costs of attending at trial.

[35] Totalling the figures, the total costs allowed on a full recovery basis is therefore $13,607.75. [1] Partial recovery of that amount would be $8,164.65.

[36] Taking into account the Applicant’s unreasonable behaviour and the divided success in this matter, I find that the Respondent shall have her costs of the trial in the amount of $7,500. Those funds shall be payable from the Applicant’s share of the funds held in trust respecting the sale of the matrimonial home. If those funds have been released, then the Applicant shall pay those costs to the Respondent in 60 days.

MCDERMOT J. Date: June 15, 2023

[1] $675 + $12,000 + 932.75 = $13,607.75