Court File and Parties
File No.: D42331/07 Date: 2013-04-08 Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1
Between: Michael James Junior Ostafichuk, Applicant And: Cynthia Anna Iaboni, Respondent
Before: Justice Robert J. Spence
Written Submissions in Chambers
Reasons for Judgment released on: 8 April 2013
Counsel:
- Mr. Roman Y. Botiuk, for the applicant, father
- Mr. Daniel W. Simard, for the respondent, mother
Introduction
[1] On December 31, 2012 I released my reasons for judgment following a motion argued on December 13, 2012. The issue on that motion was whether the Ontario Court of Justice had jurisdiction to deal with custody and support following the filing of a separation agreement in this court by the father. Notwithstanding the fact that it was the father who commenced an application in this court seeking to vary the terms of that agreement, he subsequently argued that this court had no jurisdiction to deal with those issues.
[2] The motion was fully argued by the parties' respective counsel, and in my reasons for judgment I concluded that this court did indeed have jurisdiction to address the substantive issues. The mother had disagreed with the father's position respecting jurisdiction and, accordingly, she was the successful party in the outcome of the motion. The mother now seeks her costs.
[3] The father is opposed to any order for costs or, in the alternative, seeks a costs order that could be characterized as nominal.
[4] Costs submissions were presented in written form.
The Father's Position
[5] As I understand father's counsel's argument, no costs should be awarded because:
The thrust [of this] motion to see whether this court has jurisdiction is inherently reasonable, proper and correct, and if this court did not have jurisdiction, the whole matter would have been a nullity . . . and all of the effort and everything that was done would have been . . . an expensive waste, and so it is a very good use of court time and resources make [sic] sure that we are in the right place.
[6] The written submissions then continue that the only reason mother's counsel is seeking costs is because [my emphasis]:
He [mother's counsel] took this on a contingency basis and now that it appears as if he will not be able to correct [sic] on any kind of contingency fee, he is forced to scramble to find a way to try to pick up some kind of money somewhere.
[7] Further on in his submissions, father's counsel submits that the costs sought by the mother are [my emphasis]:
Unreasonable and if anything, an indication of bad faith on the part the death [sic] for respondent, more particularly, the death for respondent's solicitor [sic] . . . [1] whose [sic] definitely trying to recover some kind of fee for himself which, quite frankly, is not the applicant's problem. That is to say, with respects [sic], it appears as if the respondent solicitor is bringing this motion for costs simply as a way to try to recover some money for all of his efforts if he was indeed being paid on a contingency basis, which would be bad faith on the respondent solicitor's part . . . .
[8] I find these submissions troubling and will have more to say about them later in these reasons.
The Law
[9] Costs are governed by Rule 24 of the Family Law Rules. There is a presumption that the successful party is entitled to costs. Subrule 24(1) In this case, the mother is presumed to be entitled to her costs as the successful party in the outcome of the motion.
[10] Subrule 24(11) then sets out the factors which the court must consider in determining the amount of costs:
Factors in Costs
(11) A person setting the amount of costs shall consider,
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness or unreasonableness of each party's behaviour in the case;
(c) the lawyer's rates;
(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;
(e) expenses properly paid or payable; and
(f) any other relevant matter. O. Reg. 114/99, r. 24 (11).
[11] The motion was important for the parties. The parties both filed facta and briefs of authorities, so that while the issue was not conceptually difficult each party understandably spent a considerable amount of time preparing for the motion. And, as a result, it was necessary for me to review and analyze the law and apply it to the somewhat unique facts of the case.
[12] Neither party acted unreasonably in preparing for, and arguing the motion itself. However, I do find it unreasonable that it was the father who filed the separation agreement in this court; it was the father who then sought to vary that agreement in this court; and, after all that, it was father who then sought to effectively resile from his position that this court had jurisdiction over the very issues that he himself had asked the court to address.
[13] Toronto does not have a Unified Family Court. Because of this, the Superior Court of Justice and the Ontario Court of Justice have concurrent jurisdiction in respect of certain issues under the Family Law Act and the Children's Law Reform Act, for example, custody, access and support. The Superior Court has exclusive jurisdiction in respect of other issues under the Family Law Act, for example, equalization of net family property; and it has exclusive jurisdiction under the Divorce Act. Justice Stanley B. Sherr has accurately described this as a "jurisdictional jigsaw". Sambasivam v. Pulendrarajah, 2012 ONCJ 711
[14] However, it is incumbent on the parties to attempt to sort out this jigsaw before dashing headlong into expensive, time-consuming litigation. In this case, the father plunged straight into litigation in this court before later taking the position that this court had no jurisdiction to decide his issues. This is something he ought to have thought about beforehand. [2] I conclude that the father's conduct in that regard was unreasonable. And, more importantly for the mother, it was conduct which added significantly to the mother's litigation costs, as well as adding to the time necessary to resolve the substantive issues. [3]
[15] Mother's Bill of Costs is based on a rate of $200 per hour for her counsel, a rate which I conclude is modest and certainly well within reason.
[16] Her counsel's Bill of Costs originally sought an order based on more than 94 hours of time spent in respect of the motion. After reviewing the docket entries it appeared to me that there was a certain amount of time overlap which dealt with other matters in this case. I asked counsel to provide me with an amended Bill of Costs, by April 2, 2013 [4] clarifying time spent more directly on the motion alone. However, that amended Bill of Costs was not forthcoming and, accordingly, I have attempted as best I can to attribute the appropriate time spent on the motion. I have concluded that 45 hours is a rough ballpark estimate of the time that can reasonably be attributable to the motion.
[17] The disbursements set out in the Bill of Costs do not appear to me to be out of line. Nor was any objection taken in respect of those disbursements.
[18] In determining the amount of costs I do not find that there is any other relevant matter that I must take into account, apart from the foregoing factors.
Observations Regarding Submissions by Father's Counsel
[19] The courts, the bar, and the public are most fortunate that counsel who appear in our courts representing family law litigants generally act in accordance with the highest standards expected of counsel and in the finest tradition of the bar. The challenging disputes which thrust litigants into our courts are often accompanied by high levels of stress. Those disputes can have significant fallout, both in terms of the emotional/psychological impact, as well as the financial consequences to those litigants. And when children are involved – as they usually are in these cases – the fallout extends beyond simply the litigants themselves.
[20] A significant percentage of the litigants who appear in our courts are unrepresented. In those cases it is understandable – or at least, not surprising – when the litigants sometimes behave inappropriately toward one another. It then becomes the responsibility of the presiding judge to moderate the emotional temperature in the courtroom. However, when litigants are represented by counsel, it is expected that this kind of behaviour will not be present, certainly not on the part of counsel themselves.
[21] Therefore, it is profoundly disappointing when a lawyer acts as Mr. Botiuk has done in his costs submissions. When one lawyer accuses a colleague of acting in bad faith, as Mr. Botiuk has done, he had better be 100% certain that such is the case. Here, without any justification whatsoever, Mr. Botiuk made a decision to accuse Mr. Simard of acting in bad faith, perhaps on the theory that the best defence is a good offence. In doing so, Mr. Botiuk has unfortunately picked up his client's cudgel, and entered into the fray in a manner which was entirely uncalled for. He had a duty to act professionally, a duty which he unfortunately breached.
[22] It is rare for this court to experience such behaviour on the part of counsel. By far, the vast majority of counsel recognize the need to act in accordance with the Law Society's Rules of Professional Conduct and, in particular, Rule 6.03 (Courtesy and Good Faith toward other lawyers).
[23] In making these comments, I adopt the following from Justice Sherr's reasons for judgment in Sambasivan, supra, at paragraph 80 [my emphasis]:
I regret any embarrassment the publication of this decision may cause [the lawyer], but it is important to send a specific message to [that lawyer] and a general message to the public [5] that this is not the way family law is to be conducted, and in the rare cases where counsel act this way, the court will voice its disapproval . . . It is essential that family law litigants and counsel have confidence that they will be treated fairly during a difficult process.
[24] For his part, Mr. Simard has conducted himself throughout in a manner that is entirely beyond reproach.
[25] Notwithstanding my comments about Mr. Botiuk's behaviour I wish to make it clear that this is not a factor which I am taking into account in determining the amount of costs. Arguably, that behaviour could have been a factor under subrule 24(11) (f) [6], but in this case I will give the father the benefit of the doubt, and assume that Mr. Botiuk's submissions about bad faith were a misadventure entirely of his own making, and did not have their genesis in anything emanating from the father himself.
Conclusion
[26] I otherwise treat this matter as a reasonably straightforward request for costs following a successful outcome on an argued motion. I recognize that the court has a broad discretion in deciding costs. See C.A.M. v. D.M. (2003), 67 O.R. (3d) 181 (Ont. C.A.)
[27] I note that the mother did not serve an Offer to Settle pursuant to Rule 18. Had she done so, and had she met or exceeded that offer, the presumption according to that Rule would have been an award of costs to her on a full recovery basis. Rule 18(14)
[28] A full recovery of costs would have been $9,000 in fees (45 hours x $200 per hour), plus disbursements of $525 (inclusive of H.S.T.), for a total of $9,525. While I do not think that a full recovery of costs is appropriate in the circumstances, I have concluded that a near full recovery of costs is called for, particularly having regard to the conduct of the father, which I have earlier discussed.
[29] In all the circumstances, I find that an appropriate award of costs payable by the father to the mother is $8,000, inclusive of H.S.T. Those costs shall be paid by the father within 60 days.
Justice Robert J. Spence April 8, 2013
Footnotes
[1] Although it does not impact on my ultimate decision, I must admit that I do not know what the words in these two lines mean
[2] Or, perhaps more accurately, father's counsel ought to have turned his mind to this beforehand
[3] Some of which currently remain unresolved due to the inordinate time spent on the jurisdictional issue and, now, the costs, following that motion
[4] I waited until today, April 8th, for that document
[5] And, I would add, to the family law bar
[6] "any other relevant matter"