Court File and Parties

Court File No.: D48617-09 Date: 2015-05-27

Ontario Court of Justice

Between:

V.S. APPLICANT

Mary Kodric, for the APPLICANT

- and –

I.M.B. RESPONDENT

ACTING IN PERSON

Heard: In Chambers

Before: Justice S.B. Sherr

Costs Endorsement

Introduction

[1] On April 21, 2015, I released my reasons for decision after hearing a four-day trial concerning the parenting and support arrangements for the parties' child.

[2] The parties were given permission to make written costs submissions and both made them.

[3] The respondent (the mother) acted in-person at trial, although she received assistance from two lawyers during the course of this case. She has asked the court to award her costs of $15,097.25 – the total of the accounts billed to her by the two lawyers.

[4] The applicant (the father) has asked that no order for costs be made.

Principles Governing Costs Awards

[5] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395 stated that modern costs rules are designed to foster three fundamental purposes, namely: to partially indemnify successful litigants for the cost of litigation, to encourage settlement and to discourage and sanction inappropriate behaviour by litigants bearing in mind that the awards should reflect what the court views is a fair and reasonable amount that should be paid by the unsuccessful party.

[6] Sub rule 2 (2) of the Family Law Rules (all rules references in this decision relate to these rules) adds a fourth fundamental purpose for costs: to ensure that the primary objective of the rules is met – that cases are dealt with justly. This provision needs to be read in conjunction with rule 24. See: Sambasivam v. Pulendrarajah, 2012 ONCJ 711.

[7] Subrule 24(1) creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. See: Sims-Howarth v. Bilcliffe. 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. See: Lawson v. Lawson. The position each party took at trial should also be examined.

Settlement Offers and Rule 18(14)

[8] Subrule 18 (14) reads 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.

[9] The mother submits that subrule 18 (14) applies in this case. The father disagrees.

[10] The mother made two offers to settle. They were dated February 6, 2015 and April 7, 2015.

[11] Some aspects of the mother's offers to settle were more favourable to the father than the final result. The mother proposed joint custody in both offers. She was granted sole custody of the child. In her offer dated February 6, 2015, the mother proposed that the father pay child support of $700 per month. This was the same as the final result. In her April 7, 2015 offer, she proposed that the father pay child support of $730 per month – slightly higher than the final result.

[12] The mother's offers regarding the father's parenting time were close to the final result, but not more favourable to the father. The mother proposed that the child be with the father on alternate weekends from Thursday after school until Monday morning. The final order provided that the child would spend two out of every three weekends with the father, albeit starting on Friday and not Thursday evening. The order also provided that the child would spend two mid-week overnights with the father during one out of every three weeks.

[13] The father was also provided with more holiday time with the child than proposed in the mother's offers. The child will alternate spending two weeks with each parent in the summer. In addition, the father will have the right to have a three week trip with the child to Romania in the future. The mother's offers provided that each parent would have exclusive time with the child in the summer for two weeks – otherwise the regular schedule would be in place. It did not provide for extended trips.

[14] The mother's offers were not simple. They did not merely propose joint custody and a parenting schedule, but rather attached separation agreements. The father, even if he had been inclined to accept the core elements of the offers, could not be blamed for not accepting them, as they included some terms that were unclear. Many of the terms proposed by the mother were not included in the final order.

[15] The mother's offers were generally reasonable, but were not more favourable to the father than the final result. Subrule 18 (14) does not apply.

[16] Subrule 18 (16) provides the court with a discretion to take into account any written offer to settle, the date it was made and its terms, even if subrule 18(14) does not apply.

Comparative Analysis of Offers and Trial Positions

[17] The father also made an offer to settle. He proposed that there be a joint custody order, with him having final decision-making authority over medical issues. He proposed an equal time-sharing parenting plan. He proposed paying $700 per month for child support (the order made by the court).

[18] The mother's offers were much closer to the final result than the father's offer.

[19] At trial, the mother sought sole custody of the child, a parenting schedule consistent with her offers and child support of $700 per month. The father sought parenting orders consistent with his offer and a child support order of $526 per month.

[20] The mother's trial position was closer to the final result than the father's trial position.

[21] Based on both the offers to settle and their respective trial positions, the mother was the successful party at trial.

[22] The father did not rebut the presumption that the mother is entitled to costs.

Determination of Costs Amount

[23] The next step is to determine the amount of costs that should be awarded to the mother.

[24] The mother limited her costs claim to costs she incurred for counsel to assist her throughout the litigation. She did not make a costs claim for her own time spent on the case.

[25] The mother submitted invoices from two different lawyers. Her first lawyer, Paul Cooper, represented her from June of 2013 until November of 2013. The mother submitted Mr. Cooper's invoices to her that totalled $3,000. These invoices were not certified by him. The invoices appear to primarily have involved time spent on steps in the case prior to the trial step. Subrule 24(10) sets out that costs are to be determined in a summary manner after each step in the case by the presiding judge. A "step" in the case is one of the discrete stages recognized by the rules such as a case conference, settlement conference and the like. See: Husein v. Chatoor, 2005 ONCJ 487. The court should not deal with requests for costs that were addressed or should have been addressed at these prior steps in the case. See: Islam v. Rahman, 2007 ONCA 622.

[26] It is possible that some of the work done by Mr. Cooper was not attributable to any step in the case. Time claimed for correspondence, meetings, reviewing disclosure and preparing pleadings are properly considered at the trial stage as this is work that is either not attributable to a discrete step in the case or is attributable to multiple steps in the case. See: Czirjak v. Iskandar, 2010 ONSC 3778 and my comments in Kardaras v. Kardaras, 2008 ONCJ 616. However, Mr. Cooper's invoices do not set out work that meets these criteria.

[27] The mother provided a costs outline from her second lawyer, Angi Panzaru. Ms. Panzaru certified her Bill of Costs. She represented the mother at Assignment Court, assisted her with her trial preparation, put together her trial and document briefs, prepared summons to witnesses, drafted her offers to settle and helped her prepare her costs submissions. Ms. Panzaru's costs outline clearly set out the work performed for the mother for the trial step (this includes the appearance at Assignment Court and preparation of the costs submissions).

[28] In making this decision, the court considered the factors set out in subrule 24 (11), which reads as follows:

Factors for Setting Costs

24 (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.

[29] The court also considered the following principles in determining costs for self-represented litigants that were set out by Justice George Czutrin in Jordan v. Stewart, 2013 ONSC 5037:

a) A self-represented litigant does not have an automatic right to recover costs. The matter remains fully within the discretion of the trial judge. Moreover, self-represented litigants, be they legally trained or not, are not entitled to costs calculated on the same basis as those of the litigant who retains counsel. The self-represented litigant should not recover costs for the time and effort that any litigant would have to devote to the case. Costs should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer to conduct the litigation, and that as a result, they incurred an opportunity cost by foregoing remunerative activity;

b) Parties who litigate against a self-represented person should not be able to ignore the potential for costs. The court retains the discretion to fashion an award of costs that is fair and reasonable in the circumstances of the case before it;

c) Ultimately, the overriding principle in fixing costs is "reasonableness".

d) Courts addressing costs should consider Bills of Costs certified by lawyers who have provided assistance, even if not on the record throughout the case. (Emphasis mine)

Application of Factors

[30] The case was important for the parties. There was some complexity and difficulty to the case as it had been before the court for almost six years. Both parties introduced many exhibits at trial.

[31] The parties conducted themselves reasonably at the trial step. The reasons for decision set out concerns about the behaviour of both parents during the years of litigation. The court made the following findings about the mother:

a) She made unilateral decisions for the child, even when there was a joint custody order. She tended to act first and then ask for permission later.

b) The mother was resistant to agreeing to access increases or changes in access schedules throughout this case. This resulted in numerous court appearances and escalated the conflict.

c) The mother unreasonably delayed (and by doing so contravened a court order) in providing the father with a consent to travel. This increased the father's anxiety and escalated the conflict.

d) The mother presented as a difficult person to deal with. She misinterpreted many of the father's emails to her, interpreting innocent emails from him as hostile. She would then respond with hostility.

e) The mother stopped joint counseling that might have assisted the parties.

[32] The court made the following findings about the father's behaviour:

a) The father was manipulative and dishonest in obtaining medical decision-making authority for the child from the court. He obtained this authority with evidence he knew or ought to have known was false.

b) The father made attempts after he obtained medical decision authority to marginalize the mother. He changed the child's doctor. He then informed the doctor that the mother could only speak at the end of meetings.

c) The father delayed in signing a passport application for the mother. She required court intervention to obtain this.

d) The father resisted the mother's attempts to mediate this case.

[33] The unreasonable behaviour of both parties greatly added to the cost of the proceedings.

[34] The rates claimed by the mother for her legal fees are reasonable.

[35] The time claimed by the mother for her legal fees for assistance on the trial step are reasonable. The time claimed for prior steps in the case will not be granted.

[36] The mother benefitted from the assistance of counsel. She presented her case in a very organized fashion – saving the court considerable trial time.

[37] The mother claimed $4,229.63 for disbursements. A significant disbursement ($2,410.46) was for obtaining a psychological assessment from Dr. Collins. This was required by the case management judge. The court found this assessment very helpful at trial. It is appropriate for the mother to claim this expense at this stage.

[38] The mother also paid $838.50 for transcripts. These were very useful as they revealed the basis for the case management judge granting the father temporary medical decision-making authority for the child. They showed that the father provided evidence to the case management judge that he knew or ought to have known was false. This is a reasonable expense to claim.

[39] The balance of the disbursements claimed by the mother were for photocopies and postage fees. There was considerable documentation at this trial – much of it helped the mother's case. These disbursements will be allowed.

[40] The father can afford to pay the costs that will be awarded. He is earning over $89,000 per annum.

[41] I have also considered both Boucher et al. v. Public Accountants Council for the Province of Ontario and Delellis v. Delellis and Delellis. Both these cases point out that when assessing costs it is "not simply a mechanical exercise." In Delellis, Aston J. wrote at paragraph 9:

However, recent cases under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended have begun to de-emphasize the traditional reliance upon "hours spent times hourly rates" when fixing costs....Costs must be proportional to the amount in issue and the outcome. 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, rather than an amount fixed by the actual costs incurred by the successful litigant.

Order

[42] Taking into account all of these considerations, an order shall go that the father shall pay the mother's costs fixed in the amount of $10,000, inclusive of fees, disbursements and HST. The father shall pay these costs to the mother within 90 days.

Justice S.B. Sherr

Released: May 27, 2015