Court of Appeal for Ontario

Date: 2019-02-27 Docket: C64766

Judges: Lauwers, van Rensburg and Nordheimer JJ.A.

Between

Brittany Beaver Applicant (Respondent)

and

Kenneth Hill Respondent (Appellant)

Counsel

For the Appellant: Chris G. Paliare, Bryan R.G. Smith, and Andrew K. Lokan

For the Respondent: Harold Niman, Martha McCarthy, Sarah Strathopolous, Joanna Radbord, and Scott Byers

For the Attorney General of Ontario, Intervenor: Manizeh Fancy and Estee L. Garfin

Heard: September 11, 2018

On Appeal

On appeal from the order of Justice D.L. Chappel of the Superior Court of Justice, dated December 8, 2017, with reasons reported at 2017 ONSC 7245, 4 R.F.L. (8th) 53, and costs reasons reported at 2018 ONSC 3352, 8 R.F.L. (8th) 288.

Costs Decision

[1] In the court's judgment respecting the appeal by the father from a costs award, with reasons reported at 2018 ONCA 840, Nordheimer J.A. invited written submissions on the costs of the appeal.

[2] The appellant asserts that he was substantially successful in the appeal and seeks partial indemnity costs in the amount of $40,000, inclusive of disbursements and HST. He says that this is a reduction from the partial indemnity amount of over $67,000 that would apply "based strictly on time spent".

[3] The respondent submits that she was relatively more successful and should be awarded partial indemnity costs in the amount of $30,805, including costs of the stay motion heard by Roberts J.A. on March 14, 2018, which were awarded to the successful party on the appeal. The parties agree that the costs of the motion before Roberts J.A. are $12,000, all inclusive.

[4] In the costs decision, Nordheimer J.A. said, at para. 3:

Nevertheless, in my view, the respondent is still entitled to the costs of the original motion to strike the amended answer. She was successful on that motion and that success remains. This court's decision, on the merits appeal, simply provides the appellant with the opportunity to seek to amend his answer to properly plead his constitutional argument. His failure to do so in the first instance is what led to the motion to strike. The respondent should not bear the consequences of that failure.

[5] The appeal of the merits was allowed only in part. We granted the appellant leave to amend the Amended Answer and Claim.

[6] We make reference to paras. 13 and 14 of the merits decision:

The version of Mr. Hill's amended answer considered by the motion judge was poorly pleaded and lacking in detail. Neither Mr. Hill's pleading, nor the ramshackle way in which the constitutional claim was asserted and is being developed, does justice to the seriousness of the claim. The appellant provided this court with a draft "Amended Answer and Claim," which would amend extensively the version considered by the motion judge. Nonetheless, as I will explain, it was premature to dispose of the constitutional claim at this early stage. It is difficult to evaluate Mr. Hill's claim under s. 35 of the Constitution Act, 1982 at this early stage of the proceeding. It would be unwise to dismiss the claim summarily on such a scanty record.

In the end result, I would permit Mr. Hill to seek leave before another Superior Court judge to amend his answer to address the motion judge's criticisms of his pleading and the requirements of the jurisprudence. I would refuse to stay the interim support order and would permit Ms. Beaver to pursue any other remedy open to her short of a final order while the constitutional challenge is pending. This would properly balance the contending interests: Ms. Beaver's immediate interest in obtaining interim support for herself and B., and Mr. Hill's interest in having the constitutional claim determined.

[7] In addition, in the merits appeal we referred to the moving target that the appellant presented at para. 42:

The case has changed in two ways. First, as I have already observed, the thrust of Mr. Hill's argument to the motion judge was that the Superior Court had no jurisdiction over this family law dispute, based on s. 35 of the Constitution Act, 1982. The Superior Court's undoubted jurisdiction is now conceded by Mr. Hill. Second, Mr. Hill insisted before the motion judge that he was asserting an essentially individual claim, although his pleading could arguably be characterized as a claim to "self-government". Mr. Hill's draft amended answer clarifies his claim somewhat.

[8] As we see it, the appellant did not achieve his objective, which was to stay the family law claims while his constitutional claim proceeded. The appellant pursued an appeal on the motion judge's findings of no justiciability and no standing in favour of an order by our court that would resolve those issues in his favour. However, the court's disposition leaves those issues for future determination.

[9] On balance, we view the respondent as more successful than the appellant on the matters at issue in the appeal. While the constitutional question can proceed, the jurisdiction of the Superior Court of Justice was affirmed, a concession made by the appellant only at the hearing of the appeal. The respondent can continue with her family law claims. The appellant only escaped the abuse of process motion by paying up arrears of support before the appeal hearing.

[10] In the merits decision, we noted that the appellant has taken a scorched earth approach to every step of this case but, as we noted, at para. 78: "This case has developed into a procedural morass, to which both sides have contributed." We do not want to encourage this kind of conduct.

[11] In the circumstances, we award costs to the respondent in the amount of $20,000, inclusive of the costs of the stay motion heard by Roberts J.A., and of disbursements and HST.

P. Lauwers J.A. K. van Rensburg J.A. I.V.B. Nordheimer J.A.