Court File and Parties

Date: June 7, 2017

Court File No.: Toronto D44719/08

Ontario Court of Justice

Between:

Tanya Lynn Bucchan Applicant

— And —

Elroy Nathaniel Bucchan Respondent

Before: Justice Curtis

Written submissions regarding Costs

Endorsement released on 07 June 2017

For Applicant: Sheila MacKinnon

For Respondent: Janice Michelle Farrell

CURTIS, J.

INDEX

1. Over-view
2. The Parties' Positions re Costs
3. Litigation History
4. The Costs Analysis
   • a. The Law of Costs
     • i. Entitlement
     • ii. The Evolution of Costs as an Instrument of Social Policy
   • b. Costs and Ability to Pay
   • c. Behaviour of the Parties
   • d. Quantum of Costs
5. Order

Over-view

[1] This is the decision regarding costs of the mother's motion to strike the father's pleadings in an application brought by him, which resulted in final orders made 16 August 2016.

The Parties' Positions re Costs

[2] Costs were claimed in written submissions. The parties agreed on a timetable for these submissions. Both parents were represented by lawyers at the time.

[3] The mother claims costs of this matter under Rule 24 of the Family Law Rules, in the amount of $7,925.26 all in (fees plus disbursements).

[4] The father did not respond to the mother's claim for costs. The mother's claim for costs was unopposed.

Background

[5] The applicant is the mother, Tanya Lynn Bucchan, now 46 years old (born 16 July 1970). The respondent is the father Elroy Nathaniel Bucchan, now 44 (born 24 October 1972). The parties were married on 5 February 2005 and separated on either 13 September 2013 or 31 January 2014 (the date of separation does not affect the outcome of this decision). There are two children of the marriage:

• Chloe Christine Loretta, now 11 (born 20 April 2006); and,
• Shae James Reginald, now 6 (born 29 July 2010).

Litigation History

[6] The father (although he is the respondent) brought an Application on 8 September 2015 for custody, access, and a non-removal order. He brought an emergency motion for a non-removal order and a non-relocation order for 15 September 2015, but he did not come to court (the mother did) and his motion was dismissed as abandoned. The mother's Answer (although she is the applicant) filed 14 October 2015 claimed custody, access, travel orders, a non-removal order, and child support. The mother filed an Amended Answer on 28 October 2015 with the same claims.

[7] This was a high conflict case, which both parents acknowledged, and which the court noted in several endorsements. The parents were in mediation for 21 months, but were unable to resolve even one issue.

[8] The father brought a motion on 5 February 2016 for (among other things) joint custody, no child support, and a non-removal order. The mother brought a motion for (among other things) custody, access, and child support. A timetable for serving and filing materials for these motions was set at court, with both parties present, on 2 December 2015. Neither parent was represented by a lawyer that day, although they were urged to get lawyers.

[9] The father brought his motion, but did not respond to the mother's motion, made no disclosure, did not file a financial statement, and did not attend court on 5 February 2016. The mother's claims were unopposed. The court made temporary orders (among other things) for sole custody to mother, very detailed access to the father, child support of $1,148 per month on imputed income of $78,100 starting 1 February 2016, s. 7 expenses of $280 per month starting 1 February 2016, and specified disclosure. The father was ordered to pay the mother costs of $1,200, to be enforced as support. The father did not appeal this order and did not ask to change it. He did not hire a lawyer until April 2016, two months after the order was made.

[10] There were disclosure orders made 28 October 2015 and 5 February 2016. The father did not comply with them. A further disclosure order was made at a case conference on 13 June 2016, and the court extended the time for him to complete the disclosure to 14 July 2016. The father was present at court that day, represented by a lawyer, and he was specifically cautioned about the possible consequences of failing to comply with court orders. The costs order of 5 February 2016 for $1,200 had been paid. The court ordered additional costs payable by the father to the mother of $2,500, to be enforced as support.

[11] The mother brought a motion to strike the father's pleadings on 16 August 2016. The father responded, and although he did not file a notice of motion, he attempted to make claims in his affidavit for (among other things) joint custody, and a change to the s. 7 expenses order made 5 February 2016. He said that he had paid the $2,500 costs order made 5 February 2016. At the hearing of the motions he sought leave to amend his Application to seek joint custody and no child support, and to provide his disclosure late. At the motion the parents agreed that the father had by then completed the disclosure.

[12] On 16 August 2016 the court granted the mother's motion, and struck the father's pleadings for failure to comply with the court orders. At that point the father had had 11 months since he started the court case to make the disclosure needed (and had been given several extensions of time to do so), and had had 6 months since the order of 5 February 2016 had been made. He could have complied with the requirements and the court orders, but he chose not to. He was effectively saying to the court, "I'm here now, and I'm ready to participate". He was seeking a "do-over"[1] of the matters that were heard and determined on 5 February 2016.

[13] On 16 August 2016, the court made final orders (among other things) regarding custody, access and child support in the terms of the temporary orders made 5 February 2016 and 13 June 2016. The father's claims made in his affidavit and a Form 14B motion filed were dismissed. The court ordered that the father could not bring a further motion to change without leave, obtained in advance on a Form 14B, maximum two pages in support, not to be served on the other side unless the court orders, and that all disclosure required for the motion to change shall be attached to his affidavit in support of the request for leave. The court also ordered that the payment of costs shall be taken into account by the court in determining any request for leave.

The Costs Analysis

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, R.S.O. 1990, c. C. 43, as amended, 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.

[16] Rule 2(2) of the Family Law 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 of the rules: Sambasivam v. Pulendrarajah, 2012 ONCJ 711.

The Evolution of Costs as an Instrument of Social Policy

[17] 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, paras. 21-24.

[18] 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.

[19] 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.

[20] When awarded on a full recovery scale, costs can serve to express the court's disapproval of unreasonable conduct during the litigation: Prinzo v. Baycrest Centre for Geriatric Care, para. 76.

Costs and Ability to Pay

[21] 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, para. 51.

[22] Success is given presumptive pre-eminence in Rule 24. While Rule 24(11)(f) does permit the consideration of ability to pay (under the umbrella of "any other relevant matter"), it is given significantly less prominence than the presumption that costs will follow success: Biant v. Sagoo.

[23] Ability to pay alone cannot, nor should it, over-ride the other factors in Rule 24(11): Peers v. Poupore, 2008 ONCJ 615, para. 42.

[24] The (financial) means of the unsuccessful party may not be used to shield her from liability for costs, particularly when she has acted unreasonably: Gobin v. Gobin, 2009 ONCJ 278, para. 24.

Behaviour of the Parties

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

[26] The justice system is a precious public resource. Access to the justice system by individuals must be balanced with the need to ensure that the resource is available for all those who need it. This is one of the purposes of Rule 2.

[27] Family law litigants are responsible for and accountable for the positions they take in the litigation: Heuss v. Sarkos, 2004 ONCJ 141, and Peers v. Poupore, 2008 ONCJ 615, para. 62.

[28] 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.

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

[30] 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.

[31] 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., para. 11.

[32] The unreasonable conduct of an unsuccessful litigant is a factor in both the awarding of costs and in fixing the amount of costs.

[33] The dynamics on this case are all too common, and cry out for judicial response. In a troubled economy there are more unrepresented parties in family court, and certainly more people with limited finances. Inevitably, these ingredients create greater strains on the administration of justice. Combined with limited judicial resources, the need to encourage settlement and discourage inappropriate behaviour by litigants has never been more pressing: Izyuk v. Bilousov, 2011, Ont. Sup. Ct., supra, para. 58.

[34] It must be made clear to family law litigants that there is no right to a day in court, or at least, that the right to a day in court is tempered with the requirement that the parties take a clear-headed look at their case before insisting on their day in court. The court must sanction this behaviour clearly, or it will invite more of this behaviour.

[35] The father's behaviour in the litigation was unreasonable. Here are some examples:

• (a) He brought an emergency motion in September 2015 and did not come to court for it;
• (b) Although he had started the litigation, it took 11 months before he produced the disclosure required and court ordered;
• (c) He brought another motion in February 2016 and did not come to court for that motion;
• (d) He did not respond to the mother's motion brought in February 2016 and did not come to court for it;
• (e) He did not comply with disclosure orders made 28 October 2015, 5 February 2016 and 13 June 2016 in a timely way and in accordance with the many extensions and deadlines he was given;
• (f) For the motion set for 12 August 2016 he served voluminous materials on 11 and 12 August 2016, and sought leave to late file his materials and to amend his pleadings to make new claims, almost a year after he started the court case; and,
• (g) At the mother's motion to strike his pleadings in August 2016, he sought to relitigate the issues that had been determined in February 2016, for which motion he failed to respond and did not come to court.

[36] The father made claims that were unreasonable in the circumstances and in which he was unsuccessful. Courts must discourage this behaviour. Unless courts discourage this behaviour, it will continue and increase. Orders for costs are one way to discourage this behaviour.

[37] The conduct of the father throughout the case directly contributed to the time, effort required and the length of the case. The father was unreasonable in the court case throughout.

Quantum of Costs

[38] 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.

[39] Costs awards should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties, rather than any exact measure of the actual costs to the successful litigant. It is not appropriate to simply take the number of hours spent by counsel on a particular matter and multiply those hours by a determined hourly or per diem rate: Zesta Engineering Ltd. v. Cloutier.

[40] 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.

[41] 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.

[42] In determining the amount of costs in this matter, the court took into account these factors set out in R. 24(11), as follows:

• (a) The importance, complexity or difficulty of the issues: the case was important to the mother and the father. However, it was neither legally complex nor difficult. The case was high conflict;
• (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. The father ignored disclosure orders, failed to attend court on two motions brought by him, and sought to relitigate matters decided six months earlier in February 2016. The behaviour of the father was unreasonable;
• (c) The lawyer's rates: the costs request of the mother is unopposed. And the rates claimed by the mother's lawyer are reasonable, given her experience and expertise;
• (d) The time properly spent on the case: The time spent by the mother's lawyer was reasonable, under these circumstances, given the issues at stake, the claims made by the father, and the large amount of material filed; and,
• (e) Expenses properly paid or payable: the disbursements claimed by the mother (total $113.50) were modest.

[43] The court must determine an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of this case. This determination is not merely an arithmetical exercise of calculating time spent by a suitable hourly rate. The costs award in this case should take into account and reflect the amount of work necessary for the mother to respond to the father's claims.

Order

[44] The father shall pay the mother's costs of the motion. A fair and reasonable costs order, and one that is proportionate to the issues involved, in all of these circumstances, is $8,000 all in (fees plus HST, and disbursements plus HST), to be enforced as support.

[45] The final order made 16 August 2016 provided that the father shall not bring a motion to change without leave obtained in advance, on a Form 14B motion, two pages maximum in support, not to be served on the other side, unless the court orders. The father shall produce all disclosure required for the motion to change and attach it to his affidavit in support of his request for leave. The payment of costs shall be a factor for the court in determining any request for leave.

[46] The final order in this case made 16 August 2016 has not been issued and entered. The mother's lawyer shall have this order taken out promptly, as well as this costs order.

Released: 7 June 2017

Justice Carole Curtis

[1] "Do over": this kind of request by payors and the use of this term to describe this request is now so frequent in family law litigation that it hardly merits the continuing use of quotation marks.