Court File and Parties

Court File No.: 531/11 Date: 2013-08-09

Ontario Court of Justice

Re: Alvin Wayne Brown, applicant

Wendy I Pardy, respondent

Ministry of Community and Social Services, respondent

Before: S. O'Connell

Counsel:

• Alvin Wayne Brown, acting in person
• Robert Brooks, for the Respondent, Ministry of Community and Social Services

Costs Endorsement

Introduction

[1] The Ministry of Community and Social Services ("the Ministry") seeks costs in the amount of $3,626.32 from the applicant, Mr. Brown.

[2] Mr. Brown brought a motion to change seeking to rescind the child support arrears owed of $14,857.35 as of February 10, 2011 for the following reasons:

a) As a Notice of Withdrawal was filed regarding the enforcement of the support Order, the support recipient was paid directly and the statement of arrears did not account for those monies;

b) Notwithstanding the Notice of Withdrawal executed by the parties, the Director of the Family Responsibility Office:

i. collected support payments when it ought not to have been and credited them to the Pardy account;

ii. was accruing child support post-terminating events;

[3] For a period of time when the child support arrears were accruing, the child support order had been assigned to the Ministry. The Ministry took the position that the child support arrears owed to it during this time were $2,000.00.

[4] Mr. Brown took the position that he should not have to pay these arrears and maintained that the Family Responsibility Office had misdirected funds that he had paid them for this child support order to another child support order that was also accruing and owed by him at the same time.

[5] After a number of case conferences, the parties were not able to resolve the issues, and I scheduled a hearing on August 8, 2012. The Ministry served an Offer to Settle on July 12, 2012 that the arrears owed to the Ministry should be fixed at $1,500.00, payable at a rate of $100.00 per month.

[6] After the hearing on August 8, 2012, I made a finding that the arrears owing to the Ministry were in fact $2,000.00 and that no further arrears owed by Mr. Brown. I reduced the child support arrears from $14,857.35 to $2,000.00. Mr. Brown continued to take the position that he should not have to pay the $2,000.00 to the Ministry because FRO had misdirected the funds. I then adjourned the hearing to August 16, 2012 and directed that counsel for the Family Responsibility Office attend to provide assistance for the Court and the parties regarding Mr. Brown's claim. At that time, I confirmed that the arrears owing were in fact $2,000.00 and then ordered that the payment of those arrears were to be determined on November 1, 2012.

[7] There were two further adjournments of this matter after November 1, 2012, to January 29, 2013 and finally to May 7, 2013. Both of these adjournments were granted to permit Mr. Brown to provide further documentation and proof to the Court that FRO had misdirected the funds that he had paid towards these arrears. Finally, on May 7, 2013, after not receiving any further evidence regarding this from Mr. Brown, I determined that Mr. Brown should pay the arrears owing to the Ministry.

[8] Mr. Brooks, counsel for the Ministry, submits that there were several wasted appearances in this matter because of the unreasonable position of Mr. Brown. He submits that the Ministry has been clear from the outset that Mr. Brown owes $2,000.00 to the Ministry and ultimately, this is what the Court ordered. Mr. Brooks submits that this was a simple case and should have been settled at a very early stage in these proceedings, but for the intransigent position of Mr. Brown.

[9] Mr. Brooks has submitted a very detailed and reasonable Bill of Costs, at a reduced hourly rate. He is an experienced family lawyer, who often represents the Ministry in cases where the agency has a financial interest in child support arrears owing.

[10] Mr. Brown submits that this case was far from simple. He submits that the Court was also concerned that there may have been an incorrect diversion of funds collected by FRO from one account (in St. Catharine's, Ontario) to the account in question, and this concern is reflected in my endorsements.

[11] Mr. Brown submits that he was ultimately successful in having the child support arrears reduced to $2,000 owed to the Ministry of Community and Social Services from the original amount alleged to have been owed of $14,857.35.

[12] Mr. Brown was also unrepresented throughout the proceedings and submits that he did not behave unreasonably. He submits that for each court attendance, he was required to take time away from work and lost income of $18.00 per hour. He further submits that on at least three of the court attendances, the recipient, Ms Pardy, was not in attendance, making it difficult to ascertain her position and how much, if any child support she received directly from him. On August 16th, 2012, Ms Pardy was again not in attendance and I ordered that she attend November 1st, 2012. I further ordered that Mr. Brooks, counsel for the Ministry, was not required to attend November 1st, 2012.

[13] As part of his cost submissions, Mr. Brown has submitted an Order dated May 16, 2013 from Justice MacPherson of the Superior Court of Justice Family Court Branch in a proceeding in St. Catherine's Ontario regarding other child support arrears owing by him in another case. He submits that the Order, which requires the Family Responsibility Office to provide particulars regarding the amount of monies it received and how it was diverted demonstrates the following:

a) The Director of the Family Responsibility Office collected support from Alberta Justice Maintenance Enforcement from June 2006 to March 2010 on the Stashynsky account.

b) The Director diverted fifty percent of the funds that ought to have gone to the other account (Stashynsky) to this account (Pardy);

c) Following the February 10th, 2011 the Director of the Family Responsibility Office diverted a further $1,453.40 by way of monies collected upon federal garnishment to the Pardy account.

d) Hence the reason for the dispute of the amount of $2,000 being owed to the Ministry as further monies were collected and not taken into account.

[14] There is no finding of fact made by Justice MacPherson in the above order, it is simply an order for production from the Family Responsibility Office. Further, Justice MacPherson then adjourned the matter to a trial scheduled for July 18, 2013. There is no information regarding the outcome of that trial and whether in fact, the court in St. Catherine's found that funds had been incorrectly diverted by FRO. I did not find that in the case before me.

[15] Mr. Brown further submits that he never received the Offer to Settle from the Ministry dated July 12, 2012. No Affidavit of Service was provided with the Offer to Settle. He further states that he was not residing at 1152 Bonin Crescent, Milton as the offer shows but rather at 526 Guelph Street as the order shows.

[16] Mr. Brown finally submits that it would be unfair to now compel him to pay costs to the government, given that the government (FRO) had incorrectly diverted funds from one account to the other leading to the confusion and complexity in this case from the outset.

The Governing Principles

[17] Rule 24 of the Family Law Rules, O. Reg. 114/99, governs the determination of costs in family law proceedings. The relevant subrules in the circumstances of this case are as follows:

24. (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.

(2) The presumption does not apply in a child protection case or to a party that is a government agency. [Emphasis added]

(3) The court has discretion to award costs to or against a party that is a government agency, whether it is successful or unsuccessful. [Emphasis added]

(10) Promptly after each step in the case, the judge or other person who dealt with that step shall decide in a summary manner who, if anyone, is entitled to costs, and set the amount of costs.

[18] Rule 24(11) provides a further list of factors that a court should consider in dealing with costs:

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).

[19] In Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, [2009] O.J. No. 1905, 2009 CarswellOnt 2475, at paragraph [8], the Ontario Court of Appeal confirmed that costs rules are designed to foster three important principles:

(1) to partially indemnify successful litigants for the cost of litigation;

(2) to encourage settlement; and

(3) to discourage and sanction inappropriate behaviour by litigants.

[20] Although rule 24 created a new framework for determining costs, the presumptive nature of this rule does not apply to a party that is a government agency, even if that party is successful. Subrules 24(2) and 24(3) provide that courts still have a considerable amount of discretion in determining whether costs should be awarded for or against a government agency.

Conclusion

[21] In my view, although Mr. Brown was insistent that he should not have to pay the $2,000.00 owed in child support arrears to the Ministry, based on his erroneous belief that FRO had improperly diverted his child support payments to another source, this is not a case in which the court should exercise its discretion to award costs to the Ministry. Mr. Brown was representing himself and the issues regarding the diversion of child support by FRO, as well as the direct payments made to the recipient were complicated. There were a number of court appearances in which the recipient did not attend, making it difficult to ascertain her position and the payments owing. Mr. Brown was ultimately more successful in globally reducing the arrears owing in his motion to change and he was not acting in bad faith. Mr. Brown has limited financial resources, unlike the resources available to the Ministry.

[22] For the reasons above, there will be no costs awarded to the Ministry.

Justice Sheilagh O'Connell

Date: August 9, 2013