Court File and Parties
Court File No.: Toronto D 21243/02A3 Date: 2014-03-24 Ontario Court of Justice
Between: Lydia Evangelista, Applicant
— And —
Domenic Galloro, Respondent
Before: Justice Carole Curtis
Written Submissions re Costs
Decision released on: 24 March 2014
Counsel:
- The Applicant, unrepresented
- Robert Shawyer, for the Respondent
CURTIS J.:
INDEX
- Overview
- Background
- Litigation History
- The Parties' Claims re Costs
- The Costs Analysis
- a. The Law of Costs
- i. Entitlement
- ii. The Evolution of Costs as an Instrument of Social Policy
- iii. Costs and Ability to Pay
- iv. Offers to Settle
- b. Analysis
- i. The Mother was Unrepresented at the Motion
- ii. Behaviour of the Parties
- c. Quantum of Costs
- a. The Law of Costs
- Order
Overview
[1] This is the costs decision regarding the father's motion to change child support for 14 year old Adrian, born 3 August 1999.
Background
[2] The parents lived together for less than two years (until 16 July 2002) and were not married to each other.
[3] The father Domenic Galloro is the moving party (born 1 January 1961, now 53 years old). He works in construction, as a truck driver.
[4] The mother Lydia Evangelista is the respondent to the motion (born 30 October 1962, now 51 years old). She works as a law clerk with a law firm.
Litigation History
[5] The father started this motion to change in June 2012, asking to change the access and child support order made 14 April 2009, following a trial. The two issues were heard and dealt with separately. Both motions to change were argued on the basis of affidavit evidence and submissions.
[6] Adrian was nine years old when the trial decision was released. The trial was the last chapter in a long and difficult history of litigation that had lasted almost all of Adrian's life to that point. The trial decision found that the history of the litigation was appalling, divisive, and disruptive.
[7] The motion to change regarding access was heard on 19 February 2013 and a decision was released on 28 February 2013 dismissing the motion to change access, as no material change in circumstances had taken place. Costs of the motion to change access were dealt with and an endorsement was released on 28 June 2013, awarding the mother her costs of the motion to change access, fixed at $5,500.
[8] The motion to change child support was heard on 1 and 26 November 2013, and the decision was released on 8 January 2014, dismissing the father's motion to change support, as no change in circumstances had taken place that would result in a different order for child support. The mother's request for specified s. 7 expenses was granted.
[9] The father's motion to change did not mention change in circumstances, did not plead change, and offered no evidence in support of change in circumstances. During the motion to change, there were several adjournments, at the father's request, to allow the father to amend his pleadings and for him to file further and additional material. Seventeen months passed from the start of the motion to change until it was argued. The father was represented by two lawyers during this time.
[10] Both parties were given the opportunity to file additional material. Both filed a large amount of additional material. The court ordered costs payable by the father to the mother for these adjournments as follows:
| Date | Costs Order |
|---|---|
| 17 October 2012 | $1,500 |
| 28 June 2013 | $2,500 |
The father paid both these costs orders.
The Parties' Claims re Costs
[11] The mother (who was unrepresented at the motion) claims costs of the motion. The claim is brought under Rules 24(1) and 24(11) of the Family Law Rules, O. Reg. 114/99, as amended, and s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C. 43, as amended. She claims $731.34 all in (fees + disbursements). However, the mother's costs summary contains an arithmetic error. The correct total is $1,338.90.
[12] The father (who was represented at the motion) says the mother is not entitled to costs, as success was divided, and she was unrepresented.
The Costs Analysis
[13] The mother's claim for full recovery costs is based on her position that she was successful on the motion to change support. The father's motion to reduce support was dismissed. The mother's claim for specific s. 7 expenses was allowed.
The Law of Costs
Entitlement
[14] The courts have a broad discretion to award costs. The general discretion of the courts regarding costs is contained in the Courts of Justice Act, s. 131(1), which sets out three specific principles:
(a) the costs of a case are in the discretion of the court;
(b) the court may determine by whom costs shall be paid; and,
(c) the court may determine to what extent the costs shall be paid.
[15] Modern costs rules are designed to foster three fundamental purposes: Fong v. Chan, 46 O.R. (3d) 330, 181 D.L.R. (4th) 614, para. 24:
(a) to indemnify successful litigants for the cost of litigation;
(b) to encourage settlement; and
(c) to discourage and sanction inappropriate behaviour by litigants.
The Evolution of Costs as an Instrument of Social Policy
[16] The traditional purpose of an award of costs was to indemnify the successful party in respect of the expenses sustained. For some time, however, courts have recognized that indemnity to the successful party is not the sole purpose, and in some cases not even the primary purpose, of a costs award. The principle of indemnification, while paramount, is not the only consideration when the court is called on to make an order of costs; indeed, the principle has been called "outdated" since other functions may be served by a costs order, for example to encourage settlement, to prevent frivolous or vexatious litigation, and to discourage unnecessary steps. This change in the common law was an incremental one when viewed in the larger context of the trend towards awarding costs to encourage or deter certain types of conduct, and not merely to indemnify the successful litigant: British Columbia (Minister of Forests) v. Okanagan Indian Band, [2002] S.C.R. 371 (S.C.C.), paras. 21-24.
[17] The traditional approach to costs can also be viewed as being animated by the broad concern to ensure that the justice system works fairly and efficiently. Because costs awards transfer some of the winner's litigation expenses to the loser, rather than leaving each party's expenses where they fall, they act as a disincentive to those who might be tempted to harass others with meritless claims. In addition, because they offset to some extent the outlays incurred by the winner, they make the legal system more accessible to litigants who seek to vindicate a legally sound position. These effects of the traditional rules can be connected to the court's concern with overseeing its own process and ensuring that litigation is conducted in an efficient and just manner. In this sense it is a natural evolution in the law to recognize the related policy objectives that are served by the modern approach to costs: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2002, S.C.C., supra, para. 26.
[18] Modern costs rules accomplish various purposes in addition to the traditional objective of indemnification. An order as to costs may be designed to penalize a party who has refused a reasonable settlement offer. Costs can also be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2002, S.C.C., supra, para. 25.
Costs and Ability to Pay
[19] Ability to pay may be relevant to the issue of the quantum or scale of costs, but not to another party's entitlement to costs: Izyuk v. Bilousov, 2011 ONSC 7476, 7 R.F.L. (7th) 358 (Ont. Sup. Ct.), para. 51.
Offers to Settle
[20] Offers to settle are a significant part of the costs landscape in family law in Ontario. They are important to the possible resolution of cases. In addition, they are important to determining costs.
[21] Parties and their lawyers have a positive obligation to behave in ways which enable the court to move cases forward to resolution (Rule 2). Rule 2(4) imposes a duty on parties and their lawyers to promote the primary objective of the rules to deal with cases justly (Rule 2(2)). This includes taking appropriate steps to save time and expense (Rule 2(3)). Offers to settle play an important role in saving time and expense by promoting settlements, focusing parties and often narrowing issues in dispute: Laing v. Mahmoud, 2011 ONSC 6737, para. 7.
[22] There was no evidence that either party made an offer to settle the child support motion to change. It is particularly surprising that the father did not make an offer to settle, as it was his motion to change and he was represented by a lawyer throughout.
Analysis
[23] Pursuant to Rule 24(1) of the Family Law Rules, the mother is presumed to be entitled to costs because she was successful at the motion.
The Mother was Unrepresented at the Motion
[24] Unrepresented litigants may be awarded costs and such costs may include allowances for counsel fees: Fong v. Chan, 1999, Ont. C.A., supra, para. 23.
[25] Costs for unrepresented litigants is a matter fully within the discretion of the judge, who is particularly well-placed to assess the appropriate allowance for an unrepresented litigant: Fong v. Chan, 1999, Ont. C.A., supra, paras. 27, 28.
[26] The right of an unrepresented litigant to recover costs is not automatic. Quantification of those costs may be difficult. But without the option of awarding meaningful costs to unrepresented litigants, the court's ability to encourage settlements and discourage inappropriate behaviour will be greatly diminished: Izyuk v. Bilousov, 2011, Ont. Sup. Ct., supra, para. 40.
[27] Determination of costs for unrepresented litigants should take into account all of the objectives which costs orders should promote. Rules 18 and 24 of the Family Law Rules apply. Otherwise the resulting amount can render the entitlement to costs illusory, undermine access to justice by unrepresented litigants, and frustrate the administration of justice: Izyuk v. Bilousov, 2011, Ont. Sup. Ct., supra, para. 40.
[28] A party with counsel, opposite an unrepresented litigant, should be deterred from the notion that it is immune from a costs award merely because the opposite party is unrepresented. A party with counsel, opposite an unrepresented litigant, should also be deterred from the notion that he will face only nominal costs because the opposing party is not represented by a lawyer: Jahn-Cartwright v. Cartwright, 2010 ONSC 2263, 91 R.F.L. (6th) 301 (Ont. Sup. Ct.), para. 72.
[29] The difficulty in the valuing of the time and effort of the unrepresented litigant is not a good reason to decline to value it: Jahn-Cartwright v. Cartwright, 2010, Ont. Sup. Ct., supra, para. 63.
[30] The quality of the unrepresented litigant's work and documentation must be considered, and its impact on hearing time and trial results. The emphasis must be on the value of the work done. This encompasses both the value of the work to the court and the value of the time spent to the litigant who performed the work: Izyuk v. Bilousov, 2011, Ont. Sup. Ct., supra, para. 40.
Behaviour of the Parties
[31] One of the purposes of costs is to change behaviour.
[32] Family law litigants are responsible for and accountable for the positions they take in the litigation: Heuss v. Sarkos, 2004 ONCJ 141 (Ont. Ct.).
[33] Parties to litigation must understand that court proceedings are expensive, time-consuming and stressful for all concerned. They are not designed to give individual litigants a forum for carrying on in whatever manner they may choose, oblivious to the impact of that conduct on the other side and, perhaps most importantly for the purposes of this case, oblivious to the mounting costs of the litigation: Heuss v. Sarkos, 2004, Ont. Ct., supra, para. 20.
[34] Matrimonial litigation is an occasion for sober consideration and thoughtfulness rather than intemperate behaviour: Heuss v. Sarkos, 2004, Ont. Ct., supra, para. 20.
Quantum of Costs
[35] Determining the amount of costs is not simply a mechanical exercise. Costs must be proportional to the amount in issue and the outcome: Boucher et al. v. Public Accountants Council for the Province of Ontario.
[36] The over-riding principle is reasonableness. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case: Boucher et al. v. Public Accountants Council for the Province of Ontario, 2004, Ont. C.A., supra.
[37] The factors to consider in determining the amount of costs in family law matters are (Rule 24(11)):
(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.
[38] In determining the amount of costs, the court took into account these factors set out in R. 24(11), as follows:
(a) The importance, complexity or difficulty of the issues: Although the case was important to the parents, it was neither complicated nor difficult;
(b) The reasonableness or unreasonableness of each party's behaviour in the case: The two parents conducted themselves quite differently during the course of the motion to change. The mother acted reasonably and appropriately throughout the motions to change. The father's behaviour throughout the litigation was less reasonable. He was not prepared at the very start of the motion, even though he was the moving party, and was represented by a lawyer. There needed to be several adjournments at the father's instance, including one to accommodate his need to amend his pleadings to include the most basic claim and evidence required on a motion to change, that is, that there had been a change in circumstances since the making of the original order. There have already been costs awarded regarding some of these adjournments. However the mother is not making a costs claim based on unreasonable behaviour.
[39] The mother was well-prepared, organized, and capable in the presentation of her case. She appeared for every court date. She took time off work for the court appearances, and to prepare, serve, and file the material required to respond to the motion to change. As an unrepresented litigant, she prepared for and participated in a motion to change over a full court day. She reviewed documents, read cases, read the Family Law Rules and the relevant legislation, and prepared all her material, as well as her submissions at the hearing of the motion. She used her vacation time to do this work and to attend court. She incurred disbursements for parking. She made no claim for other disbursements, but may also have incurred other disbursements, for example, for faxing, photocopying, filing, and postage.
[40] In her costs claim, the mother claimed costs for only those portions of the motion to change regarding support, and only those portions for which costs had not been previously awarded.
[41] The mother presented these details to support her claim for costs:
| Category | Amount |
|---|---|
| Mother's time (28 hrs. x $20.63 per hour) (reviewed father's large amount of material; prepared, served, and filed responding material; prepared for and participated in one-day motion, reviewed documents, read cases, read the Family Law Rules and relevant legislation) | $577.64 |
| 4 days missed pay (4 x $165) | $660 |
| Disbursements (parking 4 x $15) | $60 |
| Total | $1,297.64 |
[42] The mother's claim was for a total of $1,338.90 (including time spent to prepare the costs submissions (2 hours x $20.63 = $41.26)).
Order
[43] The court must determine an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case. This determination is not merely an arithmetical exercise of calculating time spent by a suitable hourly rate.
[44] The costs order in this case should take into account and reflect the amount of work necessary for the mother to respond to the father's claims.
[45] There were two previous costs orders in the motion to change. These orders were taken into account in this determination.
[46] The time spent by the mother is reasonable and even modest, in all the circumstances, particularly bearing in mind the fact that the father served a large amount of material on her on short notice, and she chose to respond to it, and not to seek an adjournment to do so, as she wanted the matter heard and concluded (a reasonable position).
[47] The hourly rate proposed by the mother is very modest. It is $20.63 per hour, the amount she is paid at her law clerk job.
[48] In a similar circumstance, in Rodriguez v. Singh, [2012] O.J. No. 6265 (Ont. Ct.), the court found $200 per hour to be a reasonable hourly rate for an unrepresented litigant who prepared and presented their own case at a four day trial.
[49] The over-riding principle in determining the amount of costs is reasonableness. Given the level of work required in this matter (where child support was at issue), and the amount of work required, a reasonable rate for the mother's time spent would be $150 per hour.
[50] The mother's claim can be characterized as follows:
| Category | Amount |
|---|---|
| Mother's time (16 hrs. x $150 per hour) (reviewed father's large amount of material; prepared, served, and filed responding material; prepared for and participated in one-day motion, reviewed documents, read cases, read the Family Law Rules and relevant legislation) | $2,400 |
| 2 days missed pay (2 x $165) | $330 |
| Disbursements (parking 2 x $15) | $30 |
| Total | $2,760 |
[51] These calculations reflect the fact that there appear to be duplicate entries shown on the mother's summary of her costs (for time spent on 17 November 2013, for days missed work, and for parking).
[52] A fair and reasonable costs order, in all of these circumstances, is $2,760 all inclusive (fees + disbursements). The father shall pay the mother's costs on the motion to change child support in the amount of $2,760.
[53] The costs on this motion relate to the mother's efforts regarding child support. The costs awarded shall be enforced by the Family Responsibility Office as child support.
[54] The mother's original Costs Submissions presented her claim as $731.34. The father would have been well-advised to pay the mother what she was asking for in costs.
Released: 24 March 2014
Justice Carole Curtis