Court File and Parties

Ontario Court of Justice

Date: 2013-08-19

Court File No.: Cambridge 08-3249

Between:

Christopher James Catsimbras Applicant

— And —

Natasha Krstic Respondent

Before: Justice P. A. Hardman

Costs Decision released on August 19, 2013

Representation:

• Christopher James Catsimbras: on his own behalf
• Natasha Krstic: on her own behalf

Decision

HARDMAN J.:

[1] The respondent mother seeks her costs relating to an application brought by the applicant father issued November 15, 2011. The father sought joint custody, structured access and other specified relief. The mother's cross-claim in her Answer was for sole custody, access and child support.

[2] While the father also served and filed a motion seeking interim relief, that matter never was argued although the mother had to serve and file an affidavit in response.

[3] After the final determination at trial on February 5, 2013, the court gave any party seeking his or her costs the opportunity to do so in writing by March 15, 2013. The mother served the father with her submissions on February 26, 2013 and filed the next day.

[4] Despite the early service, the father failed to file his response by the date set by the court, being March 28, 2013. He did not serve and file until April 2, 2013. The mother was certainly aware of the late service and therefore filing but did not use the opportunity that she was given to file reply.

[5] Given the following, I am prepared to consider his submissions:

• the father was unrepresented;
• the father had to travel from a different city to effect service and filing;
• the mother has not filed to object to the late response by the father.

[6] The history of the matter is important in order to understand why the matter took so long to get to trial and what was accomplished during the appearances. Further, it is important to consider the time spent by counsel on behalf of the mother as those are the costs claimed.

THE PROCESS

[7] The first adjournment was necessitated by the mother's need to have time extended to have her then "agent" prepare and file an answer. On the return, that counsel appeared from the endorsement and the documents filed to be the mother's counsel of record.

[8] The matter was adjourned to the next date for a case conference in order to give the father time to serve and file his financial statement needed as a result of the mother's claim for child support. Once again counsel appeared for the mother and the matter was adjourned to the first of a number of settlement conferences.

[9] At that conference on April 11, 2012, counsel appeared as counsel for the mother and the parties were able to resolve on a final basis the issue of the father's child support arrears and further disclosure was ordered.

[10] On the next date, counsel for the mother was again present and the matter was adjourned to a second settlement conference on July 25, 2012. While counsel attended at the conference, she was noted as agent. It appears that the mother signed a Notice of Change in Representation on May 25, 2012 but it was not filed until July 3, 2012.

[11] At that conference, a temporary order of access was negotiated.

[12] When the matter returned to a third settlement conference on September 19, 2012 to try to resolve the balance of the matters, counsel was not present. Further, though she clearly had prepared the settlement conference brief (as is confirmed in the accounts filed), she was no longer shown as counsel on the document.

[13] The parties remained on their own for the fourth settlement conference at which all issues were resolved except the issue of whether there should be an order of joint custody or sole custody to the mother. The parents appeared at both trial management conference and the one day trial without counsel.

RULE 18

[14] The only offer to settle mentioned in the submissions on costs is one that was attached to the settlement conference brief prepared by counsel for the third conference on September 19, 2012. While there is case law (Entwistle v. MacArthur) that the offer in the brief should not be considered as an offer under the rules, it is my view that particularly with self-represented parties it is often the only record of their efforts to settle the matter. Given the importance of encouraging settlement as is noted throughout the rules, and the benefit obtained in costs from establishing those efforts to settle, it seems that it is appropriate at least in some circumstances to consider what was offered in the settlement conference brief.

[15] While the offer did not meet many of the expectations of Rule 18, the mother did offer to settle for what she sought, being an order of sole custody.

[16] The father in his submissions identified that he too had made an offer but did not provide a copy of that offer or proof of the service. He stated in his submission that he had made an offer February 1, 2013 to avoid trial and that the offer was open for acceptance until "1 minute after the commencement of the trial". In his offer, the father said that he sought joint custody.

[17] While neither party produced to this court an appropriate offer to settle, as set out in Rule 18, it is clear that neither party was prepared to negotiate regarding the issue of custody.

RULE 24

[18] The court is satisfied that the mother was the successful party at trial as the court awarded her sole custody.

[19] The parties acted reasonably in settling most of the matters claimed before the court. There were no issues of bad faith.

[20] Subrule (12) gives the court the authority to make an order regarding expenses:

24(12) The court may make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including a lawyer's fees.

[21] It seems clear that a claim for expenses is not limited to those generated from retaining counsel. That is further reinforced by subrule (9) which allows a court to make an order against a party's lawyer or "agent" where the court determines that the person has run up costs unreasonably.

[22] In this matter, it appears that the involvement of the mother's counsel as counsel of record and as agent assisted in moving the matter forward. The expenses claimed in the mother's submissions should be considered by the court.

[23] The father pointed out in his submissions that the mother had no expenses from the date of the last work done by her former counsel as counsel or agent on September 10, 2012. He submitted that as the only matter that went to trial was custody and as the mother had no counsel expenses at trial, then there should be no expenses to claim.

[24] Certainly that is not the law. Once a party is successful at trial, the court may consider all of the reasonable expenses that party incurred in the litigation. Subrule 24 (11) sets out a number of considerations for the court. While it is a factor how reasonably the parties approached resolving part of the claim, being unable to afford continuing with counsel up until the end of the litigation does not preclude the party from requesting those earlier costs or the court considering them. The costs of retaining counsel or agent in this matter were expenses properly paid as noted in subrule 24(11)(e).

COSTS CLAIMED

[25] There were six accounts submitted by the mother as expenses for conducting this litigation. These accounts were as follows:

1. January 18, 2012: $1,683.90
2. April 3, 2012: $1,084.91
3. May 10, 2012: $1,277.54
4. May 31, 2012: $174.60
5. August 28, 2012: $226.00
6. October 2, 2012: $339.00

[26] The total of these accounts is $4,785.95. This is the amount that was properly identified as the costs claimed by the mother in the father's submissions.

[27] The costs were reasonably incurred by the mother in having representation during these proceedings.

[28] Besides any consideration under the rules, it is important to note that pursuant to section 131(1) of the Courts of Justice Act (R.S.O. 1990, c. C. 43 as am.) the costs incidental to a proceeding are in the discretion of the court. In exercising its discretion, the court may consider the particular circumstances of the party against who the costs are sought.

[29] In this matter, the father is employed but is also paying child support of $643 for two children based on an income of $42,500 which commenced December 21, 2012. Further, the father has the costs of liberal access to the children including the travel related to that access.

[30] However, it should also be noted that the mother had difficulty maintaining the expense of counsel as well as her own personal expenses and those of the children.

[31] The father certainly must pay some of the costs claimed by the mother. The father stated that the mother had originally wanted half of her expenses. It was not clear whether he was proposing that as an option. Be that as it may, it seems like an appropriate share given the settlement of a number of issues while counsel was part of the process, a factor which ultimately may have reduced the father's exposure to costs.

ORDER FOR COSTS

1. The father is to pay to the mother or as she directs the sum of $2,393 towards her costs in these proceedings.

2. The father shall pay these costs within 90 days to the mother.

3. These costs were generated in order to obtain child support and therefore should be subject to enforcement by the Family Responsibility Office unless the order is withdrawn by the parties.

Released: August 19, 2013

Signed: "Justice P. A. Hardman"