Court File and Parties

Date: January 29, 2018

Court File No.: Toronto D91758/16

Ontario Court of Justice

Between:

Joao Filipe Isidro Applicant

— And —

Susy Da Silva Respondent

Before: Justice Curtis

Written submissions regarding Costs

Endorsement released on 29 January 2018

For Applicant: Unrepresented

For Respondent: Isaura Medeiros

CURTIS, J.

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. Behaviour of the Parties
   • c. Quantum of Costs
6. Order

1. Over-view

This is the decision regarding the mother's request for costs of the father's application, which resulted in final orders made 15 August 2017.

2. The Parties' Positions re Costs

The mother asked for costs of $8,000, on the final court date 15 August 2017, which date the father did not attend. Costs were claimed by the mother in two affidavits filed (including a 23C affidavit seeking final orders) and sworn on 15 August 2017. The court invited the mother to make written submissions detailing the costs claim, and she did so, serving the costs submissions on the father.

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

3. Background

The applicant is the father, Joao Isidro, now 45 years old (born 13 August 1972). The respondent is the mother Suzy Da Silva, now 47 (born 7 January 1971). The parties lived together from 1998 to December 2011, and were not married to each other. There is one child of the relationship Joao Silva, known as Johnny, now 15 (born 28 October 2002).

From separation in December 2011 to September 2016, the child was primarily resident with the mother. The child sometimes spent four weeks in the summers in Portugal with the paternal grandparents. There was no court order or agreement in place about his custody and access. The mother says that they had a verbal agreement that the child would reside with the mother and see the father whenever the child wanted, at times on alternate week-ends, and at times on consecutive week-ends.

When the court case was started in October 2016, the father had paid no child support for the child from the time of separation in December 2011.

4. Litigation History

This was a high conflict case, which the court noted in several endorsements.

The father brought an Application on 28 October 2016 for custody, access, passport and travel orders, and a non-removal order.

The mother filed an Answer on 25 November 2016 claiming, among other things, custody, access, passport and travel orders, child support, and medical and dental coverage for the child.

The father brought an urgent motion, without notice, for sole custody, school registration, and residence with him, on 2 November 2016, and Paulseth, J. dismissed the motion as not meeting the test for urgency under the Family Law Rules, and set the matter for a case conference with the case management judge.

At the first case conference, on 14 December 2016, both parents were represented by lawyers, and continued to be represented by lawyers until early August 2017. The father filed a notice of change in representation to show he was unrepresented on 8 August 2017.

At a case conference on 21 April 2017, temporary orders were made for sole custody to the mother, and access to the father every week-end. A motion was set for 30 May 2017. However the court added a detailed endorsement about the child and the conduct of the case:

The court is deeply concerned about the level of conflict, the behaviour of the parents, the consequences for the child.

Court staff shall send the two most recent case conference briefs and this endorsement to Toronto CAS (children's aid society) for investigation as to whether this child is a child in need of protection.

This needs a motion.

The parents were given an opportunity to agree on a schedule as a term of the 6-week adjournment. They could not. This is a good example of their level of conflict and their inability to put the child's needs first.

Adjourned for the motion on terms:

1. Peremptory to both sides.
2. Neither parent shall discuss the court case or the other parent with the child. Neither parent shall allow the child to see the court documents or any correspondence with the parents' lawyers.
3. The child is invited to come to court to meet with the judge. Each parent may discuss this invitation with the child, only to tell him about this request and that he does not have to attend.
4. Timetable for serving and filing motion materials (dates were set out).

The child came to court on 28 April 2017 and provided useful input as to his views and preferences. The parties agreed not to pursue the motion and to try mediation about the summer schedule (it appears that this did not happen, though).

On 8 August 2017 the father filed a notice of change in representation and was then unrepresented. At the next court date on 15 August 2017, the father did not attend. The mother texted him twice that morning, to tell him she was at court and waiting for him to attend. The father did not respond. The child responded to the mother, telling her that the father had gone to work.

The mother filed two affidavits asking for final orders, and the court made final orders that day, as she requested, in the detailed terms of the offer to settle she had served on the father dated 23 May 2017. Among other things, the order provided for joint custody of the child (who was then living with the father), detailed specified access, a non-removal order, and travel restrictions.

5. The Costs Analysis

The Law of Costs

Entitlement

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.

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.

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.

The Evolution of Costs as an Instrument of Social Policy

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.

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.

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.

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

Behaviour of the Parties

One of the purposes of costs is to change behaviour.

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.

Family law litigants are responsible for and accountable for the positions they take in the litigation.

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.

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

Rule 24(5) of the Family Law Rules 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.

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

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.

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.

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

a) He brought an urgent motion without notice in September 2016, which was dismissed by Paulseth, J. as it did not meet the test for urgency in the Family Law Rules;

b) The parents participated in mediation on 18 January 2017, and came to a tentative agreement regarding all issues. On 13 April 2017 the mother learned from her lawyer that the father no longer wished to settle the case on the terms that had agreed to;

c) He made no offers to settle in the case;

d) He did not respond to the mother's offer to settle dated 23 May 2017 (neither the father nor his lawyer responded), despite the mother making a detailed offer shortly after the child's attendance at court on 28 April 2017;

e) After the child moved in with him, he stopped participating in the court case, fired his lawyer and did not come to court. After he filed the notice of change in representation on 8 August 2017, which resulted in his being then unrepresented, he made no efforts to contact either the mother or her lawyer to try to resolve the matter, including serving no further court documents and no offer to settle;

f) he did not come to court on 15 August 2017, although he knew about the court date.

The mother is a person of modest means, earning approximately $34,000 per year. She had to borrow money from family members (which debt she must repay) to hire a lawyer to defend the court case brought by the father. The father earns approximately $70,000 per year.

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 conduct of the court case. The mother is entitled to costs.

Quantum of Costs

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

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.

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.

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.

In determining the amount of costs in this matter, the court took into account these factors set out in Rule 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. However, the father was unreasonable in the conduct of the court case;

c) The lawyer's rates: The costs request of the mother is unopposed. And the rates claimed by the mother's lawyer are very modest, particularly given her long experience as a lawyer (she was called to the bar in 1996);

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 $456.10) were reasonable.

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.

6. Order

The father shall pay the mother's costs. 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 full recovery. The mother's summary of costs totalled $11,816.50. The father shall pay her costs of $11,816.50.

Should there be any additional litigation regarding the child Johnny, the court shall consider whether there are any outstanding costs orders.

Released: 29 January 2018

Justice Carole Curtis