Court File and Parties
Date: April 13, 2018
Court File No.: 11242/17
Ontario Court of Justice
Between:
Jennifer Agmon
Applicant
- and -
Dwayne James and Natalie Morris
Respondents
Counsel
Michelle Meighoo, duty counsel, for the Applicant
Michal Harel, duty counsel, for the Respondent, Dwayne James
Nancy Chaves, duty counsel, for the Respondent, Natalie Morris
Hearing and Judge
Heard: April 12, 2018
Justice: S.B. Sherr
Costs Endorsement
Part One – Introduction
[1] On January 11, 2018, the court released its endorsement concerning the applicant's (the stepmother's) motion for temporary access to L.J., age 9 (the child). The respondents (the parents) had opposed the mother having any access to the child. The court ordered that the stepmother have temporary access to the child one weekend each month. See: Agmon v. James, 2018 ONCJ 4.
[2] The endorsement set out that if the stepmother was seeking her costs of the motion she should put the parents on notice and advise them about how much she was seeking. The issue would then be dealt with on the April 12, 2018 return date.
[3] The stepmother put the parents on notice that she was seeking her costs of the motion in the amount of $4,571.
[4] The costs issue was argued on April 12, 2018. The parents ask that no costs be ordered. The mother, in the alternative, submitted that if costs are ordered, the father should be responsible for them. The father, in the alternative, submitted that if costs are ordered, that they should be paid equally by him and the mother, with monthly payments. He also asked the court to defer the costs decision.
Part Two – Legal Considerations
[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] Subrule 24(1) of the Family Law Rules (all references to rules in this endorsement are to the Family Law Rules) 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.
[7] Subrule 2(2) 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. Clauses 2(3)(a) and (b) of the rules set out that dealing with a case justly includes ensuring that the procedure is fair to all parties and saving time and expense. See: Sambasivam v. Pulendrarajah, 2012 ONCJ 711.
[8] Justice George Czutrin reviewed considerations for determining costs for self-represented litigants 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) Where one party is represented by a lawyer and the other is not, the hourly rate that the represented litigant's lawyer is entitled to claim on an assessment of costs should inform the reasonable expectations of both parties as to the costs that they will likely be required to pay if unsuccessful. Otherwise, litigants represented by lawyers would be less circumspect with regard to their conduct and their response to the opposing party's efforts to settle because that party is a self-represented litigant.
d) It is near impossible to come up with an objective way of fixing an in-person party's hourly rate or the amount of time they spent, not at the court, doing what we might otherwise consider lawyer's work.
e) Ultimately, the overriding principle in fixing costs is "reasonableness".
f) Courts addressing costs should consider Bills of Costs certified by lawyers who have provided assistance, even if not on the record throughout the case.
[9] Justice Laura Fryer recently added the following considerations in Browne v. Cerasa, 2018 ONSC 2242:
a) Determination of costs for self-represented litigants should take into account all of the objectives which costs orders should promote. Rules 18 and 24 apply. Otherwise the resulting amount can render the entitlement to costs illusory; undermine access to justice by self-represented litigants; and frustrate the administration of justice.
b) If a self-represented litigant, in performing the tasks that would normally have been performed by a lawyer, lost the opportunity to earn income elsewhere, this may be a relevant factor. But costs for self-represented parties are not the same as damages for lost income. Remunerative loss is not a "condition precedent" to an award for costs.
c) To require proof of lost income would disqualify litigants who are homemakers, retirees, students, unemployed, unemployable and disabled; and deprive courts of a tool required re administration of justice.
d) Lost income may be one measure. But even if no income was lost, the self-represented party's allocation of time spent working on the case may still represent value. The fact that a self-represented litigant is not a lawyer who charges a standard and commonly accepted hourly rate makes it more difficult – but not impossible – to assess their costs. However, the difficulty in valuing the time and effort of the lay litigant is not a good reason to decline to value it.
e) An applicable hourly rate should be taken into account when quantifying even a self-represented lay litigant's costs. But the appropriate hourly rate, once determined, is only one of several factors to be considered.
f) In considering the hourly rate, the court should consider what the lay litigant's reasonable expectations were as to the costs he or she would pay if unsuccessful.
g) As with counsel, the appropriate hourly rate may be affected by the level of indemnification or recovery deemed to be appropriate, given all of the rule 18 and 24 considerations.
[10] Several courts have fixed hourly rates for self-represented litigants in assessing costs. In Jahn-Cartwright, 2010 ONSC 2263, an hourly rate of $200.00 was applied, which was approximately two-thirds of what the husband's lawyer would have been entitled to claim. In Cassidy v. Cassidy, 2011 ONSC 791, an hourly rate of $150 was applied. In Izyuk v. Bilousov, 2011 ONSC 7476, the court fixed the self-represented party's hourly rate at $100 per hour. This approach was followed in Browne v. Cerasa, 2018 ONSC 2242.
Part Three – Analysis
[11] None of the parties made an offer to settle the motion. Accordingly, the court needs to examine the positions taken by the parties on the motion to determine who was successful.
[12] The court finds that the stepmother was the more successful party on the motion. Although the court ordered less access than she was seeking, the result was much closer to her position than the parents' position of no access. She had to bring this motion to restore her relationship with the child.
[13] The parents did not rebut the presumption that the stepmother is entitled to costs.
[14] In making this decision, the court considered the factors set out in subrule 24(11), which reads as follows:
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.
[15] The case was important for the parties. It was not complex or difficult. The court discussed legal issues pertaining to step-parent access in its reasons for decision, but the parties did not spend any time making legal arguments on these issues – understandably they were focused on the facts of the case.
[16] The stepmother acted reasonably on the motion.
[17] The court made a finding that the parents acted arbitrarily in frustrating the stepmother's close relationship with the child. The parents also unreasonably frustrated the child's access to his family and friends and to his half-sibling, who lives with the stepmother.
[18] The court found the father's unreasonable behaviour to be particularly egregious, as he offered access to the stepmother, but only in exchange for sex.
[19] The father also acted unreasonably by avoiding service. He did not file an affidavit on the motion and additional time was spent to permit him to give oral evidence.
[20] The mother has mitigated her unreasonable behaviour since the court order was made by facilitating access. She also was very reasonable in agreeing to telephone access for the stepmother at the case conference held on April 12th.
[21] The father has complied with the court order and reasonably agreed on April 12th to a term that he not be present at access exchanges (except when necessary) after an incident at an access exchange with the stepmother.
[22] The stepmother did a very good job in preparing her case. It was presented in a detailed and organized fashion. She was able to organize and present five supporting affidavits in support of her motion. Her conduct and presentation at the motion was appropriate and did not lengthen the proceeding.
[23] The stepmother works as a flight attendant, earning income of $54 per hour. She is paid time and a half during holidays. The court accepts her submission that she had to miss time from work and spend considerable time preparing her motion material.
[24] The stepmother initially claimed time spent for steps in the case not attributable to the motion. 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 motions judge 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.
[25] When asked to estimate the time spent only on the motion step, the stepmother said that she spent 24 hours (she had claimed 44 hours for all steps in the case). Four of those hours were for the appearance on the motion. The stepmother would have had to come to court even if she was represented by a lawyer. The court finds that 20 hours spent on the motion is reasonable.
[26] The stepmother is entitled to a partial recovery of her costs. The court will use an hourly rate of $125 to guide its assessment of the costs award.
[27] The stepmother incurred expenses for photocopying her motion materials, process serving fees, a lawyer's fees for swearing the affidavits and gas for driving around getting her affidavits signed and documents delivered. The court will award the mother expenses of $400.
[28] The court considered the parents' ability to pay the costs order. See: MacDonald v. Magel. They both have limited financial means. The mother works part-time at two jobs and earned under $17,000 in 2017. She is also the primary caregiver for the child. The father has been unemployed for the past year. However, a party's limited financial circumstances will not be used as a shield against any liability for costs but will only be taken into account regarding the quantum of costs, particularly when they have acted unreasonably. See: Snih v. Snih.
[29] The court adopts the comments of Justice Heather McGee in Mohr v. Sweeney, 2016 ONSC 3338, where she writes, "those who can least afford to litigate should be most motivated to seriously pursue settlement, and avoid unnecessary proceedings."
[30] The court 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.
[31] The court will award the stepmother costs of $2,400 for the motion, inclusive of expenses.
[32] The court will order the father to pay a greater share of the costs than the mother. His behaviour was much more unreasonable than the mother's. The mother is also the primary caregiver of the child and the court does not want a costs order to adversely affect the child.
Part Four – Conclusion
[33] Taking into account all of the considerations set out above, an order shall go that the father shall pay the stepmother's costs of $1,600 and, in addition, the mother shall pay the stepmother's costs of $800.
[34] The father may pay the costs at the rate of $100 each month starting on May 1, 2018. However, if he is more than 30 days late in making any costs payment, the remainder of the costs owing at that time shall immediately become due and payable.
[35] The mother may pay the costs at the rate of $50 each month starting on May 1, 2018. However, if she is more than 30 days late in making any costs payment, the remainder of the costs owing at that time shall immediately become due and payable.
Released: April 13, 2018
Justice S.B. Sherr