Court File and Parties

Date: 2018-06-18

Court File No.: Toronto D11641/17

Ontario Court of Justice

Between:

Julia Laura Jaglowitz Applicant

— And —

Phillip Robert Lindsay Respondent

Before: Justice Curtis

Written submissions regarding Costs

Reasons for Decision released on 18 June 2018

Counsel:

• A.J. Jakubowska for the Applicant
• Jane Mukongolo for the Respondent

Index

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

Over-view

1. This is the decision about costs of the mother's motion for custody and access, and the father's claims for custody and access.

The Parties' Positions re Costs

2. The mother claimed costs as the successful party on the motion and asked for full recovery costs of $14,203.20.

3. The father claimed that the amount sought by the mother was excessive and that he had no ability to pay such an amount. He did not, however, suggest an amount of costs that might be appropriate.

Background

4. The applicant is the mother, Julie Jaglowitz, 48 years old (born 26 July 1969). The respondent is the father, Phillip Lindsay, 53 years old (born 11 May 1965). The parties were not married to each other. They lived together from February 2012 until the relationship ended on 31 March 2017. They continued to live in the same home until October 2017. The mother asked the father to leave the home on many occasions but he refused to leave.

5. There is one child of the relationship, Kaden, 6 years old (born 15 February 2012). Kaden has Down Syndrome and significant other medical needs. The mother's evidence described six additional medical conditions, all of which affect his quality of life and require monitoring and treatment. He has received extensive medical treatment to address these issues.

Litigation History

6. This was a high conflict case. The litigation was started very soon after the parties' separation.

7. The mother brought an Application on 6 October 2017 claiming (among other things) custody, access, and support. She brought an urgent motion for custody and access for 20 October 2017, and said that the father refused to move out of her home, even though there was high conflict between them and she had asked him to do so, and that the level of conflict was harmful to the child. Her position on the motion was that she had been the child's primary caregiver and the parent who organized, delivered and met the child's significant medical needs. She said she had no intention of interfering with the father's participation in the child's life and that it was in the child's best interests to maintain contact with the father.

8. The first return date of the motion was 20 October 2017 before Sherr, J. Both parents were represented by lawyers. The father had not yet filed responding material. Sherr, J. made temporary orders and adjourned the motion so that the father could respond. In a six page endorsement Sherr, J. set out detailed and lengthy terms of the adjournment, as follows:

   a) The court was concerned about the deteriorating situation with both parents living in the home with the child;

   b) The child has very high special needs and is vulnerable;

   c) The mother fears the father, and is concerned the child is being adversely affected by witnessing a recent assault and aggressive verbal behaviour by the father;

   d) Considerations of the prejudice to the father of restricting him from coming into the home, in the short term, are secondary to the risk of harm to the child to be exposed to escalating conflict in the home, particularly given his special needs and vulnerability;

   e) It is in the child's best interests, considering the factors in C.L.R.A. s. 24(2) and (4) that the father's contact with the mother and child be circumscribed, pursuant to C.L.R.A. s. 28;

   f) This will be re-assessed when there is a full evidentiary record;

   g) Preliminary considerations include:

   • i. allegations of violence;
   • ii. father not being properly responsive to mother's attempts to negotiate settlement;
   • iii. mother is the owner of the home; and,
   • iv. evidence that mother appears to be child's primary caregiver;

   h) Temporary without prejudice order;

   i) child shall be in the primary care of the mother;

   ii) father shall have until 5 p.m. today to remove his belongings from home. Mother not to be present;

   iii) father to have no direct contact with mother;

   iv) father to have reasonable access (day access) to child to be arranged through counsel. A third party shall exchange the child at a neutral location;

   v) except for scheduled access father to have no contact with the child;

   vi) pursuant to s. 28 C.L.R.A. after 5 p.m. today the father is not to come within 500 metres of the home; and,

   vii) Police to enforce the order, if requested by the mother, pursuant to C.L.R.A. s. 36.

9. The father did not file a notice of motion, but made claims in his responding affidavit for (among other things) sole custody, joint custody and supervised access for the mother. The father said that he was the child's primary caregiver, not the mother, and claimed that neither the mother nor her family should have unsupervised access to the child.

10. The motion was heard on 30 October 2017. Both parents were represented by lawyers. For this motion, the parents filed a large amount of material. These are the temporary orders (among others) that were made:

    (a) the father did not serve or file a Notice of Motion despite the specific endorsement of Sherr, J. of 20 October 2017. The court considered the final page of father's affidavit as his claims;

    (b) sole custody to the mother;

    (c) access to the father every other week-end from Friday to Sunday 7 p.m., at the home of the paternal grandmother, starting 3 November 2017;

    (d) parents to have no contact directly or indirectly C.L.R.A. s. 28(1) (c)(i);

    (e) father shall be responsible for access transportation;

    (f) except for scheduled access, the father is to have no contact with the child C.L.R.A. s. 28(1) (c)(i);

    (g) father shall not come within 500 metres of mother's home C.L.R.A. s. 28(1) (c)(i); and,

    (h) police with jurisdiction shall enforce this order.

11. These are some of the findings made by the court in the decision on the motion heard on 30 October 2017:

    a) the level of conflict between the parents is high, and is harmful to the child;

    b) the child has extensive and significant special needs and medical needs. In particular, the child needs a calm, structured and stress-free environment, and needs stability and consistency. The child requires assistance on daily basis. The mother is the parent who has historically provided the child with all of his special needs and medical assistance;

    c) the court was influenced by the father's conduct and its relevance to his ability to parent (C.L.R.A. s. 24(3)) and by his abusive behaviour (C.L.R.A. s. 24(4));

    d) the mother asked the father several times to leave the home, even for a few days, and he refused to do so;

    e) the mother's lawyer repeatedly contacted the father and asked to be referred to his lawyer so she could negotiate a suitable custody and access arrangement. The father refused to provide his lawyer's name and refused to negotiate or even to talk with the mother's lawyer. He stated that he did not want to be contacted at all by the mother's lawyer;

    f) the father remaining in the home, and not engaging with the legal issues, was making a bad situation worse;

    g) the father dug in his heels, did not hire a lawyer or start a court case, and became aggressive and abusive;

    h) the father's refusal to leave the home (although asked on several occasions) showed his inability to put the child's needs ahead of his own needs;

    i) the father's behaviour was not child-focused and did not consider the child at all;

    j) the father's refusal to leave the home coupled with the escalating conflict in the home and his refusal to deal with the mother's lawyer, or refer her lawyer to his lawyer caused the mother to start an application and to bring an emergency motion for custody and access;

    k) the father's refusal to leave the home was surprising, considering that he had somewhere else to go (i.e., his mother's);

    l) the father did not present a plan for his proposal to be the sole custody parent;

    m) the father did not present adequate evidence to support his request that the mother's access to the child should be supervised; and,

    n) the father's behaviour during this period was confrontational and not appropriate;

12. The court also set a schedule for the exchange of written submissions re costs.

The Costs Analysis

The Law of Costs

Entitlement

13. 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.

14. Modern costs rules are designed to foster three fundamental purposes:

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

    (b) to encourage settlement; and

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

15. 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.

16. In addressing the issue of costs, the court must ultimately be guided by the primary objective of the Family Law Rules as set out in Rule 2(2), which is to enable to the court to deal with cases justly.

17. The exercise of discretion in a costs issue is subject to the overriding principles of fairness and "reasonableness." The important inquiry is to ascertain the reasonable expectations of the parties as to costs.

The Evolution of Costs as an Instrument of Social Policy

18. 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.

19. 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.

20. 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.

Success

21. The starting point in any costs analysis is the presumption that a successful party is entitled to costs. Rule 24(1).

22. Success must be measured not only against the parties' offers to settle, but also against the claims made by each.

23. An award of costs, however, is subject to the factors listed in rule 24(11), the directions set out under rule 24(4) (unreasonable conduct), rule 24(8) (bad faith) and rule 18(14) (offers to settle), and the reasonableness of the costs sought by the successful party.

24. The mother was the successful party on the motion, and she is entitled to costs.

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.

28. The decision respecting liability is ultimately a discretionary one that must be informed by the overall conduct of the parties and all of the circumstances and dynamics of the case. One of the most important functions of costs is to ensure that litigants conduct themselves in a manner that upholds the integrity of our justice system as a whole. A careful consideration of the conduct of the parties is therefore a key component to the costs analysis. The court has an obligation to ensure that litigation is not utilized as a tool to harass parties, and that the resources of the justice system are not unduly drained by unmeritorious claims.

29. 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.

30. Matrimonial litigation is an occasion for sober consideration and thoughtfulness rather than intemperate behaviour.

31. 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.

32. A finding of bad faith is not a condition precedent to full recovery of costs by the other side under the Family Law Rules. The court need not find that bad faith or other special circumstances exist to make a costs award approaching substantial or full recovery.

33. When awarded on a full recovery scale, costs can serve to express the court's disapproval of unreasonable conduct during the litigation.

34. The unreasonable conduct of a litigant is a factor in both the awarding of costs and in fixing the amount of costs.

35. 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.

36. 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.

37. The father's "behaviour in relation to the issues from the time they arose" was unreasonable. Here are some examples:

    a) on 16 October 2017 the father assaulted the mother and she called the police. No charges were laid. After this she was afraid and arranged to have third parties stay at the home;

    b) the home is owned by the mother and the parties were not married. She asked the father to move out of the home repeatedly, including her lawyer asking him to move out, even for a few days, and he refused to do so, and did not move out. He dug in his heels, did not hire a lawyer or start a court case, and became aggressive and abusive;

    c) the father was domineering and controlling, and was emotionally and psychologically abusive to the mother and intimidating to her. When she asked to separate, he packed suitcases with his belongings and the child's belongings, and told her that he would take the child to a hotel and would cut off all contact between her and the child. He left the suitcases packed and visible for several weeks, for her to see;

    d) the mother's lawyer repeatedly contacted the father and asked to be referred to his lawyer so she could negotiate a suitable custody and access arrangement. He refused to provide his lawyer's name and refused to talk to or negotiate with the mother's lawyer;

    e) the father remaining in the home, and not engaging with the legal issues, was making a bad situation worse, particularly for the child;

    f) the father's refusal to leave the home, coupled with the escalating conflict in the home and his refusal to deal with the mother's lawyer, or refer her lawyer to his lawyer caused her to start an application and to bring an emergency motion for custody and access;

    g) the father's aggressive and abusive behaviour escalated after he was served with the court papers;

    h) the father did not present a plan for his proposal to be the sole custody parent;

    i) the father requested that the mother's access to the child should be supervised, but he did not provide adequate evidence to support this claim; and,

    j) the father conceded in his costs submissions that his behaviour was unreasonable. He said that both parents behaved unreasonably.

38. The conduct of the father directly contributed to the time, effort required and the length of the case. The father's behaviour was unreasonable. The mother is entitled to costs.

Costs and Ability to Pay

39. 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.

40. 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.

41. Ability to pay alone cannot, nor should it, over-ride the other factors in Rule 24(11).

42. The (financial) means of the unsuccessful party may not be used to shield him from liability for costs, particularly when he has acted unreasonably.

43. A party's limited financial means will also be accorded less weight in quantifying costs if the court finds that the party acted unreasonably.

44. The father argued that he had no ability to pay costs. That issue may be relevant to quantum, but is not relevant to determining entitlement to costs.

Offers to Settle

45. Offers to settle are a significant part of the landscape in family law in Ontario. They are important to the possible resolution of cases. In addition, they are important to determining costs.

46. 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.

47. However, neither party made an offer to settle this motion. The mother should not be deprived of her costs, as her position on the motion was clear, and she qualifies for costs as the successful party and the party who was reasonable.

Quantum of Costs

48. Once liability for costs has been established, the court must determine the appropriate quantum of costs. These are general principles relating to the quantum issue:

    a) ultimately, costs decisions should reflect what the court considers to be a fair and reasonable amount that the unsuccessful party should pay;

    b) costs need to be proportional to the issues and amounts in question and the outcome of the case;

    c) amounts actually incurred by the successful litigant are not determinative; and,

    d) in assessing what is fair and reasonable, the expectation of the parties concerning the amount of a costs award is a relevant consideration.

49. The court's decision on the appropriate quantum of costs must also be informed by the principle of proportionality. Timeliness, affordability and proportionality are essential components of a legal system that ensures true access to justice. In the context of the costs analysis, these factors require the court to ensure that expenses claimed make sense having regard for the importance and complexity of the issues that were litigated.

50. The preferable approach in family law cases is to have costs recovery generally approach full recovery, so long as the successful party has behaved reasonably and the costs claimed are proportional to the issues and the result.

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.

52. In the context of family law disputes, a court need not find special circumstances to make a costs award approaching substantial recovery.

53. In considering the quantum of costs, the court should also consider Rule 1(8), which provides that the court may respond to a failure to follow the Rules or abide by an order by making an order for costs, and Rule 2(2), which provides that one of the primary objectives of the Rules is to ensure that cases are dealt with justly.

54. Determining the amount of costs is not simply a mechanical exercise. Costs must be proportional to the amount in issue and the outcome.

55. 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.

56. 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.

57. 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 mother's behaviour on the motion was reasonable. The father's behaviour was not reasonable (details are provided above);

    c) The lawyer's rates: The rates claimed by the mother's lawyer (for her work, and for the work of an junior lawyer) were reasonable;

    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 material filed; and,

    e) Expenses properly paid or payable: The disbursements claimed by the mother (total $434.15) were reasonable.

58. 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.

Order

59. The court makes the following findings regarding the motion:

    a) the conduct of the father was unreasonable;

    b) the mother was successful on the motion; and,

    c) the father shall pay the mother's costs of the motion.

60. A fair and reasonable costs order, and one that is proportionate to the issues involved, in all of these circumstances, is an order for costs based on substantial recovery. The father shall pay the mother her costs of $14,000, all included (fees + HST, disbursements + HST).

Released: 18 June 2018

Justice Carole Curtis