Court File and Parties

Court File No.: Toronto D 50802/10 Date: 2014-10-31 Ontario Court of Justice

Between:

Lawrencia Ntiri Asomoah (also known as Lawrencia Ntiri) Applicant

— AND —

George Kofi Asamoah Respondent

Before: Justice Carole Curtis

Written submissions on costs

Endorsement released on: 31 October 2014

Counsel:

• Osei Owusu, for the Applicant
• The Respondent in person and unrepresented

Index

1. Overview
2. The Parties' Claims Regarding Costs
3. The Trial
   • a. Conduct Of The Trial
     • i. The Mother's Conduct At The Trial
     • ii. The Father's Conduct At The Trial
   • b. Custody And Access
   • c. Future Litigation
4. 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
   • b. Offers To Settle
   • c. Behaviour Of The Parties
5. Quantum Of Costs
6. Order

Overview

[1] This is the decision regarding costs of the nine day trial that dealt with custody, access, and child support regarding the five year old daughter of the parents. The trial decision was released on 31 July 2014.

The Parties' Claims Regarding Costs

[2] The mother claims costs of the trial under Rules 14 and 24 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, on the basis that she was successful at the trial. She claims $17,834.61 all in (fees plus disbursements).

[3] The father concedes that the mother was entirely successful at the trial and that none of his claims was granted, but he claims that no costs should be ordered.

The Trial

[4] At trial the mother claimed sole custody, supervised access for the father, child support and arrears of support, an order for sharing of special expenses, travel and passport orders, and costs. The father claimed sole custody, in the alternative shared access, an order for no child support, a refund of over-paid child support, re-imbursement for 2011 and 2012 child–related items, an order preventing changing of the child's name, a non-removal order, a non-relocation order, and costs.

[5] The trial decision included (among other things) the following orders:

• a) sole custody to the mother, and supervised access to the father;
• b) passports and travel orders for the mother;
• c) a non-removal order against the father;
• d) child support in the table amount and for s. 7 expenses;
• e) annual financial disclosure;
• f) the father may not bring a motion to change without leave of the court, obtained in advance, on request, using a Form 14B, with two pages maximum in support, not to be served on the other side unless the court orders.

Conduct Of The Trial

[6] The parents are educated, intelligent, and articulate. The high level of conflict between the parents was evidenced by their behaviour at the trial. The trial was difficult and fractious, with much hostility and confrontation. The parents were on the witness stand for several days each, and were each cross-examined at length.

[7] The issues at trial were the usual issues in family law cases, and were straightforward: custody, access, and child support. This case should never have required nine days for trial. This was a three day trial, stretched out to nine days. Some of it was wasted time. Much of the evidence given was irrelevant to the issues before the court. The court was left sifting through days of irrelevant evidence to try to reduce the large amount of information presented to the facts relevant and necessary to decide the issues before the court.

[8] Rule 2 of the Family Law Rules is very clear. Rule 2 sets out detailed requirements for the court dealing with family law cases.

Primary Objective

2. (2) The primary objective of these rules is to enable the court to deal with cases justly. O. Reg. 114/99, r. 2 (2).

Dealing With Cases Justly

(3) Dealing with a case justly includes,

• (a) ensuring that the procedure is fair to all parties;
• (b) saving expense and time;
• (c) dealing with the case in ways that are appropriate to its importance and complexity; and
• (d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. O. Reg. 114/99, r. 2 (3).

Duty To Promote Primary Objective

(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective. O. Reg. 114/99, r. 2 (4).

Duty To Manage Cases

(5) The court shall promote the primary objective by active management of cases, which includes,

• (a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial;
• (b) encouraging and facilitating use of alternatives to the court process;
• (c) helping the parties to settle all or part of the case;
• (d) setting timetables or otherwise controlling the progress of the case;
• (e) considering whether the likely benefits of taking a step justify the cost;
• (f) dealing with as many aspects of the case as possible on the same occasion; and
• (g) if appropriate, dealing with the case without parties and their lawyers needing to come to court, on the basis of written documents or by holding a telephone or video conference. O. Reg. 114/99, r. 2 (5).

[9] The lawyers and the parties in family law litigation all have a positive obligation to conduct themselves and the court case in ways which promote the prime directive. That did not happen in this case.

The Mother's Conduct At The Trial

[10] The mother was calm, detailed, specific, not angry, not confrontational, and focused in her evidence. She repeatedly said in evidence that she realised she could not deal with the father and that she minimized the opportunities for contact and for conflict. It was clear that she was making an effort to not be drawn into a confrontation with the father during the two days that he cross-examined her.

The Father's Conduct At The Trial

[11] The father was a high-functioning unrepresented litigant. He was organized and prepared. The court had a unique opportunity to observe him and to observe his behaviour, as he was unrepresented for nine days of trial, and he was on the witness stand for several days.

[12] The father over-litigated this case and the issues in dispute (custody, access and child support). He was a difficult and confrontational witness and party. He was aggressive, hostile and combative. He showed little respect for the court or the court's process. At times, he was belligerent and demanding, obstinate and insistent. He was unable to accept adverse rulings, even on minor matters, and was insistent that things go his way. He saw each adverse ruling as an invitation for debate or discussion, and he repeatedly not only continued to make submissions and argument after a ruling was made, but insisted on doing so.

[13] The theory of the father's case was that the mother and her family had plotted and continued to plot to keep him away from the child. The father sees himself as a victim, and sees everything in terms of a plot against him. He believes that there is a conspiracy by the mother's family to keep him from the child. That was not supported by the evidence and was not what the trial decision found.

[14] The father's evidence consisted almost entirely of criticisms of the mother and her family. He sees the mother and her family as evil. His resentment of the mother and her family is strong and deep. It was palpable in the courtroom. He used extreme language to describe the mother and her family, their motives, their intentions, and their goals. He spent much of his evidence calling the mother names. The trial decision identified nineteen pejorative adjectives that he used to describe the mother.

[15] As the father was unrepresented at the trial, he cross-examined the mother himself, for two full days. His cross-examination of the mother also dealt extensively with incidents that involved the mother and her family, and their relations to and treatment of him. He repeatedly described the mother's family as hating him, and trying to set him up. He seemed to think the trial was a public forum in which to criticize, belittle and humiliate the mother.

[16] The father accepts no responsibility for anything that has happened to him or to his family: for the end of the marriage, for the conflict with the mother, for the conflict with her family, for the litigation. Everyone else is at fault, but not him.

[17] The father's analysis about the child and his relationship with her is all about his rights, not about what is in her best interests. He gave very little evidence about the child, about her needs, or about his ability to meet those needs.

[18] The father's level of anger is significant, and is, in fact, quite unusual, even for a high conflict case, and even for a specialist family law judge who sees high conflict cases every day.

[19] How the father sees himself is at odds with how he presented at the trial. He described himself as calm, kind, loving, co-operative, and reasonable. He described himself as "very, very understanding", an amazing father, and as the one always promoting peace, and negotiations. He said that he never lost his temper with the mother. He said that he is not the difficult person. But that is not how he presented at the trial during nine days of hearing. He was extremely short tempered, and appeared, at times, to have temper tantrums. He had a great deal of difficulty controlling himself. He was condescending and dismissive at times. He was self-righteous and self-important.

Custody And Access

[20] This case should not have gone to trial on the issue of joint or sole custody. The father sought sole custody, or in the alternative, joint or shared custody. This was not a case for joint custody. Joint custody is wholly unsuitable for these parents. This was a clear case of sole custody to the mother.

[21] The father voluntarily stopped seeing the child for one year (March 2013 to April 2014) because he did not like the court order for supervised access. This was an unfortunate and even foolish decision on his part, and it is not the behaviour of a parent who wants to be part of his child's life.

[22] The trial decision found that the father needs to find a different way, a better way of interacting with the mother and her family. The current way of interacting, based on his evidence at trial, is unhealthy for all, especially for the child. The father needs counselling to learn new strategies for this contact, and to learn how to deal with the anger he has towards the mother and her family.

Future Litigation

[23] The trial decision ordered that the father may not bring a motion to change without leave of the court, obtained in advance, on request, using a Form 14B, with two pages maximum in support, not to be served on the other side unless the court orders.

The Costs Analysis

The Law Of Costs

Entitlement

[24] 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.

[25] Modern costs rules are designed to foster three fundamental purposes: Fong v. Chan, 46 O.R. (3d) 330, 181 D.L.R. (4th) 614, 1999 CarswellOnt 3955 (Ont. C.A.), 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.

[26] 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 trial.

The Evolution Of Costs As An Instrument Of Social Policy

[27] 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.

[28] 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.

[29] 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

[30] 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, 210 A.C.W.S. (3d) 143, [2012] W.D.F.L. 1822, [2012] W.D.F.L. 1819, [2012] W.D.F.L. 1818, 7 R.F.L. (7th) 358 (Ont. Sup. Ct.), para. 51.

Offers To Settle

[31] 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.

[32] 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, [2011] O.J. No. 5134, 2011 CarswellOnt 12972 (Ont. Sup. Ct.), para. 7.

[33] To determine whether a party has been successful, the court should take into account how the order compares to any settlement offers that were made: Lawson v. Lawson, 2008 CarswellOnt 2819, [2008] W.D.F.L. 3600, 167 A.C.W.S. (3d) 723, [2008] O.J. No. 1978 (Ont. Sup. Ct.). The position each party took at the motion should also be examined.

[34] The costs consequences of offers to settle are set out in Rule 18 (14) as follows:

Costs Consequences Of Failure To Accept Offer

18 (14). A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:

1. If the offer relates to a motion, it is made at least one day before the motion date.
2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
3. The offer does not expire and is not withdrawn before the hearing starts.
4. The offer is not accepted.
5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer.

[35] The court has a discretion to take into account any written offer to settle, the date it was made and its terms, even if Rule 18(14) does not apply to the offer to settle, when exercising its discretion over costs (Rule 18(16)).

Costs — Discretion Of Court

18 (16). When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply.

[36] Rule 18 (16) invites consideration of any and all offers to settle: Osmar v. Osmar, 2000 CarswellOnt 2343, 8 R.F.L. (5th) 387, [2000] W.D.F.L. 660, [2000] O.J. No. 2504, [2000] O.T.C. 979 (Ont. Sup. Ct.), para. 7.

[37] In deciding whether a party has acted reasonably or unreasonably in a case, the court shall examine the reasonableness of any offer the party made (Rule 24(5)(b)): M. (J.V.) v. P. (F.D.), 2011 CarswellOnt 13510, ONCJ 616, 209 A.C.W.S. (3d) 873, [2012] W.D.F.L. 2168 (Ont. C.J.).

[38] Offers to settle are important and can be the yardstick by which to measure success. They are significant in determining both liability for costs and quantum: Osmar v. Osmar, 2000, Ont. Sup. Ct., supra, para. 7.

[39] It should be a fundamental step in any family law case to serve at least one offer to settle. Parties and their counsel now have a mandate under subrule 2 (4) of the rules, to promote the primary objective of the rules; to deal with cases justly (subrule 2 (2)). Dealing with a case justly includes taking steps to save time and expense (subrule 2(3)). Offers to settle play an important role in saving time and expense in a case. They are an important vehicle in promoting settlements, focus the parties and often narrow the issues in dispute: Klinkhammer v. Dolan and Tulk, [2009] O.J. No. 6370, 2009 ONCJ 774 (Ont. Ct.).

[40] The evidence as to whether either party had a valid offer to settle open at the start of the trial was unclear. No offers to settle were provided by either parent with their written costs submissions.

[41] Even where no offers to settle are made, the court has discretion to award costs and in appropriate circumstances, should do so; Rondelet v. Neff, [2011] O.J. No. 3911, 2011 ONCJ 407, 11 R.F.L. (7th) 248, 2011 CarswellOnt 8971, 207 A.C.W.S. (3d) 656 (Ont. Ct.).

Behaviour Of The Parties

[42] One of the purposes of costs is to change behaviour.

[43] Family law litigants are responsible for and accountable for the positions they take in the litigation: Heuss v. Sarkos, 2004 ONCJ 141, 132 A.C.W.S. (3d) 1112 (Ont. Ct.), and Peers v. Poupore, 2008 ONCJ 615 (Ont. Ct.), para. 62.

[44] 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.

[45] Matrimonial litigation is an occasion for sober consideration and thoughtfulness rather than intemperate behaviour: Heuss v. Sarkos, 2004, Ont. Ct., supra, para. 20.

[46] Rule 24 (5) provides criteria for determining the reasonableness of a party's behaviour in a case (a factor in Rule 24 (11)(b)). It reads as follows:

Decision On Reasonableness

(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

• (a) the party's behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
• (b) the reasonableness of any offer the party made; and
• (c) any offer the party withdrew or failed to accept.

[47] A finding of bad faith is not a condition precedent to full recovery of costs by the other side under the Family Law Rules: Osmar v. Osmar, 2000 (Ont. Sup. Ct.), supra, para. 11.

[48] The mother acted reasonably. The father did not. Both his position at trial and his behaviour were unreasonable. The details are set out above and in the trial decision.

Quantum Of Costs

[49] The mother claimed costs as follows:

Item	Amount
Fees + HST	$16,978.25
Disbursements + HST	$856.36
Total	$17,834.61

[50] 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, [2004] O.J. No. 2634 (Ont. C.A.).

[51] 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.

[52] 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.

[53] In determining the amount of costs on this trial, 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 issues in the trial were important to the parents, they were typical issues in a family law dispute and were neither complicated nor difficult. The case became more difficult and complex due to the way the father litigated the case;

• b) The reasonableness or unreasonableness of each party's behaviour in the case: A finding of unreasonableness is not necessary to the making of a costs order. However, the father's position at trial was unreasonable, and his behaviour was unreasonable. The details of his behaviour are set out above (in this endorsement), and in the trial decision;

• c) The lawyer's rates: The rates claimed for the mother's lawyers were modest, under the circumstances;

• d) The time properly spent on the case: The time spent that was claimed in the mother's costs submissions is very modest for a nine day trial; and,

• e) Expenses properly paid or payable: The disbursements claimed by the mother (total $856.36) were modest.

Order

[54] The claim for costs of the trial by the mother is modest. A nine day trial could easily have attracted a costs claim in the range of $30,000. The father is fortunate that the mother did not make such a claim, as she may have been successful.

[55] The fact that the mother claimed such a modest sum for costs more than off-sets the fact that she did not make an offer to settle.

[56] The father shall pay the mother's costs of the trial fixed at what she asked for, $17,834.61 all in (fees plus HST, disbursements plus HST). This is a very reasonable costs order, in all of these circumstances.

[57] The court shall take the payment of costs into account in determining whether or not the father may bring a future motion to change.

Released: 31 October 2014

Justice Carole Curtis