ONTARIO COURT OF JUSTICE

CITATION: Barran v. Schanck, 2019 ONCJ 218

DATE: 2019 03 13

COURT FILE No.: Halton 59/16

BETWEEN:

Miklos Antonio BARRAN Applicant

— AND —

Jennifer Marion SCHANCK Respondent

Before Justice Victoria Starr

Heard on August 30, 2018, September 19, September 25, 2018

Costs decision and reasons released on March 13, 2019

Brian Ludmer.................................................................................. counsel for the applicant

Jennifer Schanck....................................................................................... on her own behalf

VICTORIA STARR J.:

INTRODUCTION

[1] This decision addresses the issue of costs of three court attendances: a teleconference held on August 30, 2018; mother’s subsequent motion and father’s 14B cross-motion, both of which were heard on September 19, 2018; and, a teleconference held on September 25, 2018.

BACKGROUND

[2] On March 26, 2018, the parties consented to a final order which resolved all issues in the prior proceedings, including but not limited to, parenting time.

[3] The father made a motion on August 8, 2018 to compel compliance/enforcement. He alleges that the mother had failed to comply with the access terms of the order.

[4] The motion came before the court for hearing on August 8, 2018. The mother sought an adjournment. The court made an order, among other things, adjourning the compliance/enforcement motion to November 1, 2018, and set a timetable for the exchange of materials for use on the motion. As a condition of the adjournment, the court required the mother to take immediate steps to ensure that access between the father and the parties’ two children occurred as ordered.

[5] On August 30, 2018, the parties had a teleconference with the court. The purpose of the teleconference was to check in with the parties to determine how access was going and to monitor the mother’s compliance with the terms of the access pursuant to the final order. During the teleconference call, the mother requested leave to bring a motion to appoint the Office of the Children’s Lawyer (“OCL”).

[6] As stated in my endorsement for that appearance, the court recommended that the mother seek legal advice and further indicated that “the noncompliance motion scheduled for November was intended to dispose of the lis, to the extent there is one, as the issues to be decided on that motion are very narrow”. The court told the parties that even if the OCL was requested to become involved, if the OCL was not ready by November 1, 2018 the compliance/enforcement motion would not likely be adjourned. The OCL motion was scheduled for an early a date as possible, September 19, 2018.

[7] In addition, an order was made that the mother serve and file her notice of motion and supporting affidavit by September 7, 2018 at 4:00 PM. I also advised the mother that she required a “formal motion” for the appointment of the OCL. I told both parties that “costs will likely be ordered against the unsuccessful party on the OCL motion” in part because I was opening the court room an hour earlier than the normal start of the court’s day, so as to hear the motion as soon as possible.

[8] Despite my clear direction, in addition to the appointment of the OCL, the mother brought a motion for additional relief that included the following: a change to the father’s parenting time pending the release of the OCL report, an adjournment of the compliance/enforcement motion scheduled for November 1, 2018; and, an extension of time to file her compliance motion materials, and costs.

[9] In response the father brought a 14B motion. He sought an order striking the affidavit of the mother because it had been served late and an order dismissing the various other claims set out in the mother’s notice of motion. The court was not able to decide the motion in advance of September 19th.

[10] The court heard both motions as well as an oral motion made by the father on the day of court to strike certain paragraphs and exhibits of the mother’s reply affidavit. The court struck certain paragraphs and exhibits of the mother’s reply affidavit sworn September 17, 2018. It also granted the father’s request that paragraph 2 of the mother’s notice of motion dated September 7, 2018 be dismissed. Furthermore, given the fact that the mother had not yet served her materials for the noncompliance/enforcement motion, it granted an extension of time to allow her to do this so that the father’s position for that motion was not prejudiced. The court adjourned the balance of the issues to September 25, 2018, when it intended to deliver its decision and reasons with respect to the undecided issues via teleconference.

[11] On September 25, 2018, the court delivered its decision and reasons on the outstanding issues orally on a teleconference call with the parties. The court dismissed the mother’s request for the appointment of the OCL and refused her request for an adjournment of the compliance/enforcement motion. The court refused to vary the father’s access.

[12] Costs, the subject matter of this decision, were sought and the court directed that submissions be made in writing.

LEGAL CONSIDERATIONS

[13] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that cost orders are in the discretion of the court. Rule 24 of the Family Law Rules, O Reg 114/99 sets out a framework for awarding costs for family law cases: See: Mattina v. Mattina, 2018 CarswellOnt 17838, 2018 ONCA 867, [2018] O.J. No. 5625, 299 A.C.W.S. (3d) 770, at para. 9. Rule 18 addresses offers to settle and their cost consequences.

[14] The Ontario Court of Appeal has held that modern family cost rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement, and; (3) to discourage and sanction inappropriate behaviour by litigants: Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40 (Ont. C.A.), at para. 8; Fong v. Chan (1999), 1999 2052 (ON CA), 46 O.R. (3d) 330 (Ont. C.A.), at para. 22.

[15] Subrule 2 (2) of the Family Law Rules adds a fourth fundamental purpose of costs: to ensure that the primary objective of the rules is met - that cases are dealt with justly. Thus, costs can also serve as a tool in the furtherance of the efficient and orderly administration of justice by sanctioning behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. See: J.N.M. v. A.T., 2018 ONCJ 668, 2018 CarswellOnt 16236, per Justice S.B. Sherr at paragraphs 4 to 5; and, Mattina v. Mattina, supra, at paragraph 10, where the Ontario Court of Appeal recently affirmed this fourth purpose; E.H. v. O.K., 2018 ONCJ 578 (Ont. C.J.), at para. 8; and, Sambasivam v. Pulendrarajah, 2012 ONCJ 711 (Ont. C.J.), at para. 37.

[16] Rule 24(1) creates a presumption of costs in favour of the successful party of a motion, case, or appeal.

[17] Consideration of success is the starting point in determining costs: Sims-Howarth v. Bilcliffe (2000), 2000 22584 (ON SC), 6 R.F.L. (5th) 430 (Ont. S.C.J.), at para. 1. This presumption does not, however, require that the successful party always be entitled to costs: M. (C.A.) v. M. (D.) 2003 18880 (ON CA), [2003 CarswellOnt 3606 (Ont. C.A.)], at para. 40. An award of costs is subject to the factors listed in r. 24(12), r. 24(4), r. 24(8), r. 18(14), and the reasonableness of the costs sought by the successful party: Berta v. Berta, at para. 94, and Mattina v. Mattina, supra, at para. 13.

[18] Rule 24(4) addresses the situation in which a successful party has behaved unreasonably:

Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs.

[19] Rule 24(5) provides guidance on how to evaluate reasonableness:

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.

[20] Rule 24(8) discusses the cost consequences for a party who has acted in bad faith:

If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.

[21] With respect to determinations of amount, in its decision in Beaver v. Hill, supra, the Ontario Court of Appeal confirms that there is no provision in the Family Law Rules that provides for a general approach of “close to full recovery” costs. As it points out, the rules only expressly contemplate full recovery costs in specific circumstances, e.g. where a party has acted in bad faith or has beat an offer to settle under r. 18(14). See also: Mattina v. Mattina, supra, at para. 15.

[22] Where the rules do not specify full recovery the appropriate considerations in fixing the amount of costs are set out in subrule 24(12). As the wording of the costs rule makes clear, proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs. See Beaver v Hill, supra at paragraphs 11, 12, and 13.

[23] The considerations set out in rule 24(12) are as follows:

(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

(i) each party’s behaviour,

(ii) the time spent by each party,

(iii) any written offers to settle, including offers that do not meet the requirements of rule 18,

(iv) any legal fees, including the number of lawyers and their rates,

(v) any expert witness fees, including the number of experts and their rates,

(vi) any other expenses properly paid or payable; and

(b) any other relevant matter.

POSITIONS

[24] The father seeks costs on a full recovery basis fixed in the amount of $20,598.71 inclusive of fees, disbursements, and HST. He submits that costs on a full recovery basis are justified in this case by his success and as well, by the mother’s bad faith and unreasonable conduct, both of which unnecessarily and unreasonably increased the father’s legal fees and wasted court time and resources.

[25] The mother asks this court to find she is not liable for costs. She denies she acted in bad faith or unreasonably. She relies heavily on the fact that she is a self-represented litigant to excuse any poor judgement or inadequate behaviour on her part. She claims she has no ability to pay costs and that an order for costs would cause her financial hardship and as a result, a loss of lifestyle on the part of the children who reside primarily with her. She also submits that the time spent, hourly rates and fees claimed in the father’s bill of costs, are excessive and beyond what a litigant in her position could reasonably have expected or afford to pay.

[26] If the court is inclined to order that she pay costs, she asks the court to reduce the amount and order that those costs be paid at the rate of $100 a month. She claims this is justified for the reasons I have already cited and in addition, by the financial disparity between her and the father’s incomes, the father’s superior personal and household income and standard of living, and, the financial hardship a cost award would cause her and the children given her greater assumption of costs related to the children and her tight financial circumstances.

ANALYSIS

Entitlement

Success

[27] Although he was not wholly successful, (he did not obtain the relief he sought with respect to one aspect of his 14B motion), the father was the only successful party. He enjoyed substantial success by defeating the mother’s motion, in securing most of the relief he sought on his 14B motion, and obtained the relief he sought on his oral motion. The only relief he was not successful in securing was an order that the mother’s affidavit be struck in its entirety due to late service and filing. The mother enjoyed no success at all beyond persuading the court not to strike her entire reply affidavit and obtaining an extension of time to file her affidavit originally due on September 7, 2018. I find that the father is entitled to costs based on his substantial success.

The Parties’ Behaviour

[28] In reaching my conclusions with respect to the parties’ behaviour, I have been guided by the reasoning of Justice Carole Curtis in Navarro v. Luongo, 2018 CarswellOnt 8031, 2018 ONCJ 342, 292 A.C.W.S. (3d) 351 (Ont. CJ). Specifically, I adopt the principles she sets out in paragraphs 29 to 33, 36 and 37 of that decision where she writes:

29 One of the purposes of costs is to change behaviour.

30 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.

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

32 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.

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

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

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

Behaviour of the Mother

[29] In S. (C.) v. S. (M.) (2007), 38 R.F.L. (6th) 315 (Ont. S.C.J.), at para. 17, 2010 ONCA 196, 262 O.A.C. 225 (Ont. C.A.), at paragraphs 17 and 18, Justice Craig Perkins of the Superior Court of Justice, provides critical guidance to courts tasked with deciding whether a party’s behaviour rises to the level of bad faith. There he writes as follows:

17 In order to come within the meaning of bad faith in rule 24 (8), behaviour must be shown to be carried out with intent to inflict financial or emotional harm on the other party or other persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court. A misguided but genuine intent to achieve the ostensible goal of the activity, without proof of intent to inflict harm, to conceal relevant information or to deceive, saves the activity from being found to be in bad faith. The requisite intent to harm, conceal or deceive does not have to be the person’s sole or primary intent, but rather only a significant part of the person’s intent. At some point a party could be found to be acting in bad faith when their litigation conduct has run the costs up so high that they must be taken to know their behaviour is causing the other party major financial harm without justification.

18 In construing rule 24 (8), I think there is an implication from the context of the provision that the bad faith must relate to the issues at stake in the case or to the conduct of the case — not behaviour outside the issues in the case or in a separate (even if related) case — in order to justify a costs penalty in the case.

[30] See also Buchanan v Buchanan, 2009 CarswellOnt 849 at paragraph 29, and at paragraphs 8 and 9 of Harrison V Harrison, 2015 ONSC 2002, where Justice J.P.L. McDermot makes it clear that bad faith is not unreasonable conduct. It requires more for the court to find bad faith. It must find some element of malice or intent to harm. See also Scalia v. Scalia, 2015 ONCA 492, 2015 CarswellOnt 9780, at paragraph 68, where the Ontario Court of Appeal confirms the legal test for bad faith as set out in S. (C.) v. S. (M.), supra.

[31] After applying these guiding principles to the facts in this case, I find that the father is entitled to full recovery of the portion of his costs attributable to the time spent by his counsel to secure an order striking portions of the mother’s affidavit and exhibits. In this regard, I agree with his counsel that the mother acted in bad faith by submitting evidence which amounted to a personal attack on counsel. During argument the mother submitted that she did this so that the court would be aware of how aggressively counsel was treating her, how difficult it was for her to deal with father’s counsel, and how this was driving up the level of acrimony and conflict between the parties. .

[32] Although I suspect it would take much more to dissuade Mr. Ludmer from forceful advocacy, I am persuaded that this was indeed part of the reason she put the evidence before the court. However, in my view, the evidence was also intended to: to diminish the court’s respect for and overall view of counsel, in the hopes that forming such a view of counsel, would lend weight to her claim that the father was being uncivil, unprofessional and inappropriately aggressive. In this way she strove to diminish the weight afforded to the father’s evidence, the submissions of his counsel, and ultimately, to prejudice the father’s chances of success. That amounts to intent to inflict harm. The behaviour was carried out for a completely improper purpose. For these reasons I find that the mother’s behaviour amounted to bad faith.

[33] This bad faith and highly unreasonable behaviour is what compelled the father to incur the expense of having his counsel take the necessary steps to have the evidence struck. The related cost to the father was completely unnecessary.

[34] Even if I am wrong and the behaviour does not rise to the level of bad faith I would still award costs related to this conduct on a full recovery basis for this issue, on the basis that it was very unreasonable conduct. The evidence was highly inflammatory and prejudicial and of limited probative value, both of which outweighed any relevance of it to the issues to be decided on the motions.

[35] I further find that the father is entitled to elevated costs because the mother acted unreasonably on other fronts. Her unreasonable behaviour drove up the amount of time spent by the father’s counsel and his legal team and thus, the legal fees incurred by the father. Her conduct also unduly increase the amount of time the court was required to devote to what should have been a simple, one issue motion. The mother’s behaviour resulted in the disproportionate consumption of court time and resources that would otherwise have been available to other families in need.

[36] Some examples of her unreasonable behaviour include the following: First, the mother unilaterally took it upon herself to depart from my order regarding when her responding materials on the compliance/enforcement motion were to be served and filed. This put the father to the expense of including in his 14B Motion relief related to the missed deadline. While the father was not successful in securing the order he sought – that the affidavit be struck in its entirety – he would never had to bring such a motion if the mother had not resorted to self-help and had instead, either sought an order from the court in advance of the deadline extending it, or, made an attempt in advance of the deadline to secure the father’s consent to late service and filing.

[37] Furthermore, the mother’s decision to late serve and file needed to be addressed by the court because it threw off the carefully calibrated schedule the court had previously set for the exchange of material. The court was required to redesign that schedule. But for the mother’s self-help behaviour and her failure to take appropriate steps in advance, the court would not have had to dedicate additional time to dealing with this issue by way of motion.

[38] Second, counsel submits the genesis of the mother’s request for the OCL is that it came out of the blue on the “check-in call” held on August 30, 2018. This greatly lengthened a call that would otherwise have been very short given its limited original purpose. In addition to time spent discussing the request the court and counsel also had to spend time establishing procedures for the hearing of the OCL motion and finding a mutually agreed upon date to hear it.

[39] Third, during that call the father made extensive submissions as to why an OCL involvement would be of little to no benefit on the compliance/enforcement motion, should not influence the date of completion of that motion, and, pointed out that there was no time for the OCL to conclude any meaningful work prior to the hearing date set for the compliance/enforcement motion. These were part of the same arguments successfully made by counsel for the father at the hearing of the OCL motion and formed part of the reasons the court ultimately gave for dismissing the mother’s request in this regard.

[40] Not only did the mother have advance notice of the father’s compelling arguments against such appointment, but she also had the benefit of hearing from the court. The court made it clear to the parties that it would likely order the unsuccessful party to pay costs. The court also told the mother to get legal advice before making the motion, which in and of itself should have served to warn her against bringing the motion. The court was also very clear that the November 1st hearing date set for the enforcement/compliance motion would not likely be adjourned, even if the OCL was appointed. The mother brought her motion anyway. This was her choice to make but that does not mean she should not, in these circumstances, shoulder all, or a substantial portion, of the financial consequences of her decision.

[41] Fourth, the mother behaved unreasonably by bringing a motion for much broader relief than the court gave her leave to seek on the day set for the hearing. The court had been very clear that the singular issue she had leave to move for that day was the appointment of the OCL. Instead of sticking to this confined scope of relief, she decided to seek additional relief such as a temporary change to the parenting schedule and an adjournment of the compliance/enforcement motion until after the OCL had completed its work and delivered a report.

[42] Fifth, because the mother had expanded the scope of the relief she was seeking to include a temporary change in the parenting schedule, she filed extensive and lengthy affidavit material designed to persuade the court that an immediate change in the father’s access was required. This left the father with no choice but to respond to the mother’s extensive evidence via lengthy and extensive affidavits of his own. He could not take a chance and simply sit back on his laurels. As the mother was not successful in securing this relief, the mother’s decision to pursue it and the manner in which she did, unreasonably, unnecessarily, and significantly, increased the time counsel for the father and his legal team had to devote to responding to it. This time included time spent drafting lengthy affidavits in response as well as time spent on legal research, drafting statements of law and compiling briefs of authority, and time spent making oral argument – all on issues that the mother should never have put before the court in the way that she did the first place.

[43] Unreasonable conduct of the kind I have set out above must be discouraged, lest the mother or other likeminded individuals contemplate behaving in the same or similar ways in future. An effective way to discourage such behaviour is by awarding elevated costs to the father.

Behaviour of the Father

[44] The mother submits that the father acted unreasonably and thus, despite his success, he should be deprived of all or a portion of any costs he would otherwise be entitled to. The main behaviour she complains of in this regard is that the father submitted too many cases, failed to highlight her copies, and then attempted on the day of the hearing to file even more (the court refused to accept these additional cases).

[45] Although she correctly points out that the court spoke to the parties in advance of the motion and asked the parties to limit the number of case they submitted, she is not entirely correct in her assertion that the father breached this directive. It was her expansion of the relief sought beyond the scope of what was permitted that raised issues beyond the appointment of the OCL. This opened the door for the father to submit additional cases in support of each of the various issues. The father did initially limit the number of cases to the directive given by submitting 4 or 5 as the court directed for every issue. The consequence however was that he submitted far more cases than he would have had to had the issue to be decided been restricted to the simple question of whether the OCL should be requested to become involved. I cannot fault him for this. The blame for this lies at the feet of the mother.

[46] As far as delivering copies of the cases that were not highlighted, I am unable to make this finding. Counsel submits that they were highlighted but that the mother made a printing error (they were initially sent to her via email). In any event, the father delivered statements of law that clearly set out the principle for which each case was being submitted and in most instances, the paragraph numbers where the principle is addressed in each case, was given.

[47] The mother claims she was overwhelmed by the sheer number of cases the father submitted. I can see how a self-represented litigant can be overwhelmed by so much jurisprudence. That does not, mean that parties who are represented by counsel should not rely on case law that is on point.

[48] Where I find the father went astray of reasonableness and proportionality was when he served the additional 34+ cases he sought to file on the day of the hearing. This put him beyond the pale of the limitation the court had placed on the number of cases a party should submit. Further, being served with so many more cases (particularly when many of them simply reiterated a principle set out in one of the other cases) would overwhelmed anyone, even the most seasoned of counsel and even the court. That approach was akin to the strategy of “war by attrition” or, put another way, ambush. The use of such strategies has no place in family law disputes because advantage is achieved through unfairness. Such approaches to litigation in family law are unreasonable and are to be discouraged.

[49] The statement of law and some cases were extremely helpful and that the court relied on it heavily and referenced certain cases the father put before it. However, overall it was not necessary to rely on so many cases. Such decisions have consequences for the court. Counsel and parties must bear in mind that when they present material to the court the expectation is not that the judge will just read the statement of law, but that the judge will read both the statement of law and the cases. When parties put voluminous and unnecessary jurisprudence before the court, particularly at the last minute, this increases the amount of time required by the court to prepare and then address the issues. Motion court judges are busy and do not generally have time to read 34+ cases per motion and in advance of every motion. This, in turn, creates a risk that the court will need to reserve its decision and adjourn a matter in order to be able to read or finish reading the material before deciding the issue. The court may then need to set another hearing date, as was the case here, to deliver its decision. This then consumes even more court time that could otherwise be devoted to other families in need.

[50] In serving and filing so many cases and then attempting to file even more on the day of the hearing, the father showed a lack of regard for his duty under the primary objective of the Family Law Rules to act in ways that save court time and resources. His actions made dealing with this motion more time consuming. This detracted from court time and resources available for other families in need. This disproportionate and unnecessary consumption of court time and resources must be discouraged. The best way to discourage this behaviour, in future is to reduce the costs he would otherwise be entitled to.

[51] While I would deprive the father of some of the costs he would otherwise be entitled to on account of the number of cases served, depriving him of all or even a significant portion would be a disproportionate and unjust response. This because, as I have said, it is the mother herself who expanded the number of issues which in turn opened the door for counsel to submit more than the 3 – 5 maximum the court asked the parties to adhere to. Also, counsel for the father took the initiative and prepared very helpful statements of law. Further, the court did not allow him to actually file the cases he sought to on the day of the hearing and in so doing was able to save some of the time it would have taken to read them all. I am also not persuaded, based on the mother’s submissions, that she even read any of them. Even if she did, she gave me no indication of the amount of time it took her. Finally, in reviewing the father’s bill of cost, it appears that the amount of fees claimed for working on and managing the presentation of the legal principles and jurisprudence is relatively low compared to the amount of time spent on other tasks. Some of that time was necessarily spent. For these reasons, I have reduced the costs to be awarded to the father, but only slightly.

SETTING THE AMOUNT OF COSTS

Preliminary Points Regarding My Approach

[52] The mother referred me to a number of civil cases where costs were determined under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. In her cost submissions she also submits that the factors listed in rule 57.01 of those Rules, continue to apply to family proceedings pursuant to the Family Law Rules, rule 1(7). In this regard she relies on the case of Khan v. Yakub, 2008 55141 (ON SC), [2008] O.J. No. 4286 at paragraph 26. She also compares the hourly rates charged by the father’s counsel, his law clerks, and assistants, with the allowable rates in Tariff A, otherwise known as the Costs Grid.

[53] At paragraphs 11 and 12 of the Ontario Court of Appeal’s decision in Frick v. Frick, 2016 ONCA 799, 132 O.R. (3d) 321 (Ont. C.A.), the Court of Appeal confirms that litigation in family law matters is different from civil litigation and embody a philosophy peculiar to a lawsuit that involves a family. Further, that the court may, in the rare instance when a matter is not adequately covered by the family rules, decide the issue with reference to the civil rules. In Mattina v. Mattina, supra, and Beaver v. Hill, supra, the Ontario Court of Appeal confirms that civil cases regarding costs are to be approached with caution.

[54] Given the forgoing and the fact that the Family Law Rules deal extensively with how the court is to decide the issue of costs, I see no need to turn to the Rules of Civil Procedure for guidance. Further, while I acknowledge that some jurists[^1] have found the Cost Grid to be a helpful tool to assess the reasonableness of hourly rates, the court is not required use that tool. In this case I have not done so as I am able to assess the reasonableness of the hourly rates used based on the material before me. Finally, in reaching my decision I have also approached the civil cases the mother relies on with caution and have relied primarily on those decisions put before me that were decided under the Family Law Rules.

The Behaviour of the Parties

[55] I have already discussed the behaviour of each party and the consequences that flow from it. Those comments apply equally at this stage of the analysis. As I have concluded above there should be a full recovery in the costs awarded to the father on account of the mother’s bad faith behaviour, elevated costs on account of the mother’s unreasonable behaviour, and, a discount applied to on account of the father’s most recently unreasonable litigation conduct.

[56] The mother also asserts that the level of acrimony and animosity between the parties, the acrimony she claims was directed at her by father’s counsel, and the aggressive litigation strategy pursued by the father’s counsel are what complicated the motion and necessitated the application of what she considers to be excessive time spent by the father. I am not persuaded by these submissions. She is the one who complicated the motion by including relief in her notice of motion that she was not granted leave to seek, by submitting inflammatory materials in attack of the father’s counsel, and, who filed lengthy and extensive affidavit evidence that the father had no choice but to respond to. It is her unreasonable conduct that made it necessary for the father to bring his 14B Motion and his oral motion on the day of the hearing.

Fees and Hourly Rates

[57] The mother takes issue with the hourly rate of counsel for the father and the hourly rates charged by his law clerks and legal assistants. She refers to the Cost Grid/Tariff to suggest that these rates were excessive, and alleges that some of counsel’s legal support team (as far as she knows) are not properly qualified and thus, their hourly rate not justified. To the extent she relies on the Cost Grid, I decline to consider same, for the reasons already given.

[58] The father retained senior, competent, and experienced counsel. Given this, his year of call (1987), and his admitted expertise, an hourly rate of $375 is reasonable and proportional.

[59] Counsel for the father quite rightly delegated work to those staff in his firm who held both the requisite knowledge, skill and experience to do the work with his oversight, and at a lower rate than that of counsel. The lawyer’s team/staff includes full-time law clerks and legal assistants who do some law clerk work. Not one of them has less than 10 years of experience as a law clerk or legal assistant. Counsel submits that all of his staff had were qualified to do the work that they did and that the rates applied for non-administrative work are well within the norms. This delegation approach was reasonable and saved costs.

[60] Looking at the hourly rates of those to whom counsel delegated work to and their level of experience, the hourly rates charged for this work was reasonable. Their hourly rates are commensurate with their level of skill and experience.

Time Spent

[61] The mother raises a number of issues with respect to the time spent by counsel and his legal support team. I address each of these below.

[62] First, the mother asserts that the bill of costs itself does not provide any time dockets. Counsel is not required to put individual time dockets or copies of his detailed invoices issued to his clients before the court. Here, counsel provided the details of all of the work done on the particular day, and, the time spent on the aggregate of that work. It is also clear who performed the work. I therefore find that this submission of the mother’s has no merit.

[63] Second, she takes issue with the fact that on September 13, 2018, counsel billed for 3.2 hours and his law clerk billed 11 hours, for a total of 14.2 hours of work in one day. In the mother’s view this is unreasonable because in “order to actually docket 11 hours of billing time, one would have to work many hours more than that”.

[64] I do not find this argument persuasive. While I acknowledge that there may be times when the mother is right, it is not always the case that a lawyer or law clerk must work more hours than the number of hours actually build in order to bill the hours they do. Sometimes counsel and staff can be very focused and efficient. It is entirely possible that in this instance both counsel and the law clerk were focused and efficient. Even if they were not, it is entirely possible that the law clerk worked more than 11 hours but billed only the 11. There are, after all, 24 hours in a day, and it is not unusual when the pressure is on and a matter is time sensitive, for lawyers and their support team to work well beyond normal work hours.

[65] Third, she takes issue with the fact that the father’s counsel billed 1.2 hours for work done after the actual motion date, reviewing responding materials. In reviewing the bill of costs I can see that the mother is right. However, the time entry referred to is not only for the work the mother refers to. Included in this time allotment is time spent on other tasks such as: on a call with the client and the court, and to give instructions to clerks to diarize dates for cost submissions. The time spent for that work is all properly claimed.

[66] Counsel for the father concedes that there should be some discounting on account of the time claimed and suggests a discount of .3 hours which would result in roughly $100 discount. He does not explain how he arrived at this amount and appears to me to be guessing. In the circumstances, the benefit of the doubt will inure to the credit of the mother and so, I have discounted the father’s total allowable fees by the entire 1.2 hours charged.

[67] Fourth, the mother takes issue with the fact that a total of 16.6 hours has been billed for the preparation of the cost submissions. To her credit, the mother acknowledges that she is unsure if claiming the time spent is proper.

[68] I find that the father’s claim for time spent and legal fees incurred on account of cost submissions to be proper. Justice Deborah L. Chappel addresses the propriety of such claims in her recent cost decision included in the mother’s materials, Thompson v. Drummond, 2018 ONSC 4762, 2018 CarswellOnt 13187. At paragraph 43 she con­cludes, as do I, that it is appropriate to claim such time are expenses.

[69] While I would allow the entire time billed by the lawyer with respect to cost submissions I am not prepared to allow for the entire amount of time spent by his legal support team. I agree with the mother that the father’s cost submissions were unduly lengthy, extremely repetitive, and portions of his reply submissions were not proper reply. Furthermore, this is another example of an instance where the father submitted far too many cases for the mother and the court to review and I attribute these flaws to the clerk’s lack of legal expertise and inadequate skill in legal drafting. I have discounted the time spent by the law clerks by about 6 hours so as to bring the time spent down to about 10.6 hours, which in my view, is more reasonable and proportionate.

[70] Fifth, the mother makes a number of statements to suggest that the significant fees incurred by the father are the direct result of his choice of lawyer, litigation strategy, and overall unreasonable behaviour. In this regard she submits:

(a) The father retained and instructed counsel to pursue an aggressive litigation style, as can be seen throughout this case, which inevitably entailed a significant escalation of costs;

(b) The time and cost claimed is grossly excessive. The material prepared was lengthy and repetitive, in that much of it was already set out in previous material filed;

(c) The time spent by counsel and his team of four staff, was well out of proportion. The issues to be argued was of critical importance to the father, but were not complex or difficult, especially given the expertise of father’s counsel. The time spent was not proportionate to the single issue before the court; and

(d) Counsel’s bill of costs, even if accurate, is not what would reasonably be expected to be required in the circumstances;

(e) The father’s counsel is well aware that she has zero family law experience and that she is self-represented. Accordingly, the volume of material and case law was completely unreasonable given her abilities.

[71] As I have already addressed most of these arguments earlier in this decision, I will not repeat myself save and except to reiterate and point out that:

(a) The only unreasonable conduct I have found on the part of the father is his decision to rely on so many cases;

(b) It was the mother who acted in bad faith with respect to one aspect of the motion, who generally engaged in unreasonable behaviour throughout, and, who made this matter overly complex and complicated, and thus, more time consuming for the father and the court.

[72] In assessing the merits of her assertions, however, I have stepped back and looked at the total time spent by father’s counsel and his legal team. The total overall time spent by counsel and his legal support team of four individuals, and before any of the adjustments I have indicated I have decided are to be made, is 84.22 hours at a total aggregate in fees of $17,335 before HST, and $19,585.44 inclusive of HST.

[73] I find neither the time spent nor the total charged in fees to be excessive. It must be remembered that although the mother’s motion was heard in September, there were two additional and related attendances. There was also the time necessarily spent with respect to the father’s 14B motion and oral motion. In addition, I note the father’s counsel prepared various statements of law that the court has already said it found very helpful and relied heavily upon. Further, while the number of cases submitted was excessive, it was still necessary and appropriate to put at least some of these before the court. This is all time consuming but necessary work.

[74] In reaching my decision with respect to whether the time spent by counsel and his legal team is reasonable and proportionate, I have also kept in the forefront of my mind the words of the court in D’Andrede v Schrage, 2011 Carswell on 5124 (SCJ) at paragraph 8, the court writes:

8 In reviewing Ms. D’Andrade’s detailed claim for full recovery costs there is nothing in that claim that would cause me to conclude that the charges were so grossly excessive that they should be second guessed by me. She retained thorough and competent counsel who took the steps necessary to advance her claims and defend her against the numerous claims that were being made against her by Mr. Schrage. With respect to the concept of proportionality, I agree with the comments of Gray J. in Cimmaster Inc. v. Piccione, 2010 CarswellOnt 609 (Ont. S.C.J.) at para. 19 where he states as follows:

The concept of proportionality should not normally result in reduced costs where the unsuccessful party has forced a long and expensive trial. It is cold comfort to the successful party, who has been forced to expend many thousands of dollars and many days and hours fighting a claim that is ultimately defeated, only to be told that it should obtain a reduced amount of costs based on some notional concept of proportionality.

[75] For three attendances, three motions, and all of the work I have described, the overall time spent and amount claimed for fees in the aggregate, is within the bounds of what is reasonable and proportionate.

Disbursements

[76] The mother correctly points out that the bill of costs does not include receipts for the disbursements charged. There were only two types of disbursements claimed: $505 for process server and $391.70 for photocopies / facsimiles. The total disbursements claimed are $896.70 before HST and $1103.70 after adding HST of $116.57.

[77] Subrule 24(12.1) does not specify that actual invoices must be provided. What is directed is:

Supporting Materials

(12.1) Any claim for costs respecting fees or expenses shall be supported by documentation satisfactory to the court.

[78] The court does not require receipts or invoices for the photocopies/facsimiles. I can see the rate charged and the volume of material filed for myself and it is sizeable. In any event, these are in-office expenses for which formal receipts would not be issued. The rate charged is not excessive.

[79] There are no invoices submitted for the process server fees. What is provided is a reference in the bill of costs to the individual process server bills by invoice number, and counsel’s submission that these relate to the multiple court filings concerning the motion, including the various affidavits, facta, cases and the related 14B motion. Counsel submits that process server fees for service carried out between Toronto and Milton would be expected to be material and should have been expected by the mother.

[80] I have decided not to allow the disbursement amount claimed for process server fees. It is not enough to reference invoice numbers in the bill of costs. In my view and in this case, the invoices themselves must be produced. Here, counsel was alerted to the mother’s submissions with respect to the inadequacy of the material provided with his bill of costs, and thus, the risk that the court would not allow the amount of the expense claimed. He had the opportunity to put the concern to bed by producing the actual invoices. He chose not to do so. This was unreasonable in the circumstances. While I am sure the father did incur the expense of various process servers, in the absence of invoices to prove the amounts claimed, I am not prepared to allow this disbursement without the actual invoices. The amount of costs awarded will reflect a discount of the whole of the amount claimed on account of the expense of process servers.

Offers to Settle

[81] In determining the reasonableness or unreasonableness of each party’s behaviour and the amount of costs to award I considered the fact that neither of them appears to have served an offer to settle. I place no weight on this consideration as this was a situation such as that described by the Ontario Court of Appeal in Beaver v Hill, supra. That is, in this case there were only two positions and no middle ground of compromise. Thus, there was no real point to submitting offers to settle.

Conclusion: Allowed Amount of Claim

[82] After considering the father’s overall success, his minor lack of success ingetting the mother’s affidavit struck in its entirety, the mother’s bad faith and unreasonable behaviour, and after applying the various discounts referred to above and including that designed to discourage the father and like-minded litigants from serving and relying on more cases than is necessary to establish a legal principle, I find that the fairest and most rreasonable and proportionate amount to set as the amount of costs the father is entitled to claim is $15,500, inclusive of disbursements and HST.

Reasonable Expectations and Other Arguments Advanced by the Mother

Reasonable Expectations

[83] I agree with the maxim put forward by the mother that a cost award should be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding. See Boucher v Public Accountants Council (Ontario) 2004 14579 (ONCA) at paragraph 26.

[84] I find that the mother could reasonably have expected to pay such a substantial cost award ($15,500). In reaching this conclusion I have taken into account these considerations: First, the father was represented by this same counsel in the prior proceedings involving this mother, and in those prior proceedings significant costs were sought by the father, although not granted. As such, the mother was, or ought to have been alive to the high cost of litigation, aware of counsel’s hourly rate, his style of delegation, and the hourly rate of the members of his legal support team to whom he delegated work.

[85] Second, based on her past experiences and submissions, she was also well aware that the father’s counsel is competent, would be very thorough, that the father would instruct his counsel to advocate by leaving no stone unturned, and to be very diligent in pursuing the father’s litigation objectives.

[86] Third, when she put in the record documents and statements that were personal in nature to counsel and an attack on his reputation, she knew or ought to have known that counsel would pursue the removal of this material from the record.

[87] Finally, I have also considered that the mother has been employed as a legal assistant in excess of 20 years. As such, she ought to be familiar with how expensive litigation is and how the court tends to discourage unreasonable and bad faith behaviour by elevating the amount of costs to be awarded.

Ability to Pay and Deep Pockets of the Father

[88] As outlined earlier in these reasons the mother asks that I decline to award the father costs or reduce the amount to be awarded to him significantly on account of: her inability or reduced ability to pay; the impact requiring her to pay substantial costs will have on her ability to support their two children and thus, on the lifestyle enjoyed by the children; and, because the father is the party with the deeper pocket and thus, the greater ability to fully absorb the costs.

[89] The mother submitted a number of cases in support of her position: Lawder-Windsor v. Windsor, 2013 ONSC 7365; M. (A.C.) v. M. (D.), supra; Heuss v. Surkos, 2004 ONCS 141; and, Thompson v. Drummond, supra.

[90] There is no question that the court has the discretion to do all of these things. Justice Chappel confirms this and discusses the jurisprudence and legal principles that apply when such requests are made in Thompson v. Drummond, supra, at paragraphs 21 to 23, where she writes:

21 Although not specified in Rules 24 and 18 as factors in deciding costs, the financial means of the parties, their ability to pay costs and the effect of any costs ruling on the parties and any children are also relevant to the adjudication of both liability for costs and the appropriate quantum of a costs award (Murray v. Murray (2005), 2005 46626 (ON CA), 79 O.R. (3d) 147, [2005] O.J. No. 5379 (Ont. C.A.); Tauber v. Tauber, 2000 5747 (ON CA), [2000] O.J. No. 2133 (Ont. C.A.); additional reasons at 2000 22280 (ON CA), [2000] O.J. No. 3355 (Ont. C.A.); Cassidy v. McNeil, 2010 ONCA 218 (Ont. C.A.); Biant v. Sagoo, 2001 28137 (ON SC), [2001] O.J. No. 3693 (Ont. S.C.J.); M. (C.A.); Clark v. Clark, 2014 ONCA 175 (Ont. C.A.)). In most cases, a party’s limited financial means will be relevant to the appropriate quantum of costs and how payment should be effected, and not to the issue of liability for costs (Snih v. Snih [2007 CarswellOnt 10717 (Ont. S.C.J.)], 2007 20774, at paras. 7-13; Izyuk v. Bilousov, 2011 ONSC 7476 (Ont. S.C.J.), at para. 51). However, the court may decline to order costs against an unsuccessful party if it is clear that the party would be unable to pay the costs, and the practical effect of a costs order would be to destroy any chance that the party may have to achieve financial self-sufficiency (Murray, at para. 10). The financial means of a parent may be particularly relevant in deciding costs if a costs award would indirectly impact a child in a negative fashion (M. (C.A.)). As the Ontario Court of Appeal stated in M. (C.A.), at para. 42, “[i]n fixing costs, the courts cannot ignore the best interests of the child and thus cannot ignore the impact of a costs award against a custodial parent that would seriously affect the interests of the child.” [Emphasis added, mine].

22 In determining the weight that should be accorded to a party’s limited financial means in the costs analysis, that party’s overall conduct in the litigation should be considered. Parties who have limited financial means cannot be permitted to litigate with impunity without regard or concern for potential costs consequences at the end of the line. A party’s limited financial means will be accorded less weight if the court finds that they acted unreasonably. As Curtis, J. stated in Mooney, “[i]t 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 by the requirement that the parties take a clear-headed look at their case before insisting on their day in court.” [Emphasis added, mine].

[91] In M.A.L. v. R.H.M., 2018 CarswellOnt 6162, 2018 ONSC 2542, 292 A.C.W.S. (3d) 799, Justice Pazaratz also offers guidance. It is:

17 The father says he can’t afford to pay costs. He’s unemployed, on ODSP, and too poor to reimburse the mother.

a. But the case law is clear that 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 and are the author of their own misfortune. Snih v. Snih [2007 CarswellOnt 3549 (Ont. S.C.J.)], 2007 20774 ; M. (C.A.) v. M. (D.) (2003), 2003 18880 (ON CA), 67 O.R. (3d) 181 (Ont. C.A.); Peers v. Poupore, 2008 ONCJ 615 (Ont. C.J.); Stephenson v. Thomas, 2015 ONCJ 5 (Ont. C.J.).

b. Those who can least afford litigation should be most motivated to avoid unnecessary proceedings. Mohr v. Sweeney, 2016 ONSC 3238 (Ont. S.C.J.); Izyuk v. Bilousov, (supra).

c. Impecunious litigants shouldn’t be reckless, just because they qualify for a Legal Aid certificate. This is particularly important in custody/access cases, where children are so easily impacted by conflict between parents.

[92] Following the guiding principles offered in the jurisprudence and for the reasons that follow, I am not persuaded to, find that the mother is not liable to pay costs, or to reduce that liability.

[93] First, this is not a clear case of inability or limited financial means to pay. Nor is a clear case made out that the impact of a costs award against the mother and primary residence parent would affect the interests of the children. The mother’s assertions regarding her income, expenses, children’s expenses, and her greater assumption of the burden of paying for them, are set out in her submissions. The problem is that her assertions are not supported in the evidence before me.

[94] Here, neither party filed a sworn financial statement. As such, I have extremely limited evidence regarding each party’s financial circumstances, including income, assets, debts and liabilities. Furthermore, the parties do not agree on what the mother’s income is. She also never filed an updated financial statement in the prior proceeding to which I could turn, despite being requested to do so by the court. Although she attached a page from an unknown income tax return to her cost submissions (which she claims is from her return), she did not attach the entire return and more importantly, she attached no notices of assessment. She produced nothing to show her current or year to date income or what she earned in 2018. There is also no evidence of what income, if any, the father’s partner earns or contributes to the burden sharing between the father and his partner or with respect to his current income, assets, debts, liabilities, or household expenses.

[95] Further, the mother is not the only parent who supports the children. The father is required to, and does, pay child support. Thus, the responsibility and obligation to support the children is a shared one.

[96] In these circumstances the evidence is insufficient to enable me to come to the conclusions I must in order to be persuaded by the mother’s claims.

[97] Second, this is a case where I have found that the mother acted in bad faith and that was unreasonable. She behaved without regard or concern for potential costs consequences at the end of the line. Thus, even though she may be of limited financial means, I would have given this factor minimal weight.

[98] Third, to do as the mother asks in the circumstances of this case would fail to properly indemnify the father who was both the substantially successful party and the party who acted reasonably, except in one minor way. It would also undermine the court’s ability to fulfill the other equally significant purposes of awarding the father costs in this case – to ensure that litigants conduct themselves in a manner that upholds the integrity of our justice system as a whole. In this regard, I again follow the reasoning of Justice Chappel in Thompson v. Drummond, supra, as set out in paragraphs 23 and 42 of that decision, which is as follows:

23 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. As Spence J. aptly stated in Heuss v. Surkos, 2004 ONCJ 141 (Ont. C.J.), at para. 20:

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. [Emphasis added, mine].

42 The financial means of the parties is a relevant factor to both liability for costs and the quantification of an award. Costs awards must take into consideration the reasonable prospects of a party being able to pay and the impact of an award on the ability of the party to meet their basic needs and those of any children in their care. However, a litigant’s limited financial means will be given less weight in the costs analysis than the court’s determination regarding overall success in the litigation (Biant; Gobin v. Gobin, 2009 CarswellOnt 3452 (Ont. C.J.)). Furthermore, ability to pay alone cannot override the other factors set out in Rule 24(11) (Peers v. Poupore, 2008 ONCJ 615 (Ont. C.J.)). A party’s limited financial means will also be accorded less weight in quantifying costs if the court finds that the party acted unreasonably.

Self- Representation

[99] The mother blames her shortcomings on the fact that she could not afford a lawyer and was as a result, forced to represent herself. She goes on to blame any poor judgment and inadequate conduct on her part on this fact. In this way she seeks to shield or insulate herself from a cost award. While I have taken into consideration the fact that a party is self-represented may be taken into account[^2], in this case I am not prepared to place significant weight on this consideration.

[100] Any such consideration is outweighed by the need to ensure that the unrelated objective of sanctioning/discouraging inappropriate behaviour, is met. Although in M.A.L. v. R.H.M., supra Justice Pazaratz was addressing a situation where a party who was represented appeared to have litigated without any regard for the consequences, his comments at paragraph 13 are equally applicable here. At paragraph 13, he writes :

13 But the remaining two objectives — “encouraging settlement” and “discouraging/sanctioning inappropriate behaviour” — are often unrelated to whether the successful party has a lawyer or not.

a. In our overburdened court system, costs is more than a question of financial reimbursement for a successful party.

b. The “risk/threat” of costs is perhaps the single most important tool our system has to ensure compliance with the Rules; encourage reasonable behaviour; and discourage unnecessary or inappropriate litigation.

c. All litigants should be encouraged to actively pursue settlement — whether the opposing party has counsel or not.

d. All litigants should be equally subject to sanction for inappropriate or unreasonable litigation behaviour — whether the opposing party has counsel or not.

e. All litigants should be mindful of costs implications and consequences at every step — whether the opposing party has counsel or not.

f. If we create a two-tier system — in which some litigants perceive they don’t have to worry about costs because their opponent didn’t hire a lawyer — we will tacitly invite wasteful, expensive and often destructive family litigation. We will lose our ability to control the process. We will fail in our responsibility to protect families from needless pain and financial burden. Our Rules will have no teeth.

g. At a time when our family court system is seeing ever-increasing numbers of self-represented parties, it is important to reaffirm that costs sanctions apply equally whether parties have counsel or not. No one should get a “free pass.”[Emphasis added, mine]

CONCLUSION

[101] For all these reasons I am not prepared to find that the mother is not liable for costs. I am also not persuaded that it would be fair and just to reduce the amount to be awarded below $15,500.

HOW COSTS SHOULD THE COST AWARD BE PAID?

Set-off Costs against Support Obligation and Enforcement through the FRO

[102] The father requests that the cost award to him be set-off against his ongoing obligations of child support enforceable through the Family Responsibility Office (FRO). This request is out of concern that the cost will not be paid and as a result, there will be yet another round of litigation seeking to enforce the costs award.

[103] He submits that the court has the authority to order the set-off, particularly in circumstances where the costs were incurred as a result of a breach of a parenting order. This is because of the principal that costs are one of the most important tools that a court has to ensure the parties comply with their commitments to support children’s relationships to the other parent with the other parent and to discourage litigation. Here, he submits, with a clear breach of a court order necessitating the current round of litigation in the face of a consensual settlement in March 2018, the principal is directly applicable.

[104] The jurisprudence regarding whether a costs order may be set-off against an order for child support is divided. Some courts consider that costs should never be set-off against child support payments. Others take the opposite view, such as those jurists who decided the cases relied on by the father [Peers v. Poupore, 2008 ONCJ 615, 2008 CarswellOnt 7055; Rego v. Santos, 2015 ONCA 540, 2015 CarswellOnt 10942; Ignjatov v. Di Lauro, 2014 ONSC 7362, 2014 CarswellOnt 18320; G. (J.D.) v. G. (S.L.), 2016 MBQB 83, 2016 CarswellMan 143; and, Berry v. Berry, 2014 ONSC 4146, 2014 CarswellOnt 10737]. Although no rationale was provided, the Court of Appeal In Burisch v. Gosal, 2007 ONCA 569, [2007] O.J. No. 3120 (Ont. C.A.), it awarded costs to the support payor in the amount of $2,500.00 and further ordered that the costs should be set-off against any child support arrears outstanding.

[105] The court in Peers noted that the previously decided cases (against set-off), provided limited analysis. It found that a set-off would be fair and just in that case given the following factors: both of the parties were represented by counsel; the child would not suffer by the order; and without the order the costs were unlikely to be paid. The court in Berry allowed a set-off relying on the second of those factors, and finding that the children would not suffer given the income of the party receiving child support.

[106] In Bentien v. Bentien, 2015 CarswellOnt 2637, 2015 ONSC 1252, [2015] W.D.F.L. 1556, 250 A.C.W.S. (3d) 76, the court was not inclined to set-off costs against the respondent’s child support obligation. The court’s concerns and the rationale for its decision, is discussed at paragraphs 19, 20 and 21. These fall into four categories:

(1) There is nothing in section 131 of the Courts of Justice Act, Rule 24, or Rule 26 (Enforcement of Orders) that allows the remedy sought;

(2) It is premature to address enforcement when the order is just being made and, there is no history of default;

(3) Child support orders are intended to contribute to child care expenses. The court must be careful and rely on clear evidence before it considers diverting money so intended and permitting less than full Child Support Guideline payments to flow. Child support is the right of the child, and there can be no assumption that an amount less than the Guidelines will be adequate; and,

(4) There evidence was insufficient to conclude that the children would not suffer or be directly impacted by such an order.

[107] All of these considerations make good sense. I would add one more, however, and that is that costs are only enforceable by the FRO if the costs to be awarded have something to do with support. Justice Chappel discusses the rational for this at length in her decision in Thompson v. Drummond, supra, at paragraphs 44 to 47. After reviewing the relevant statutory provisions she, like me, concludes that the designation of a costs award as being enforceable by the FRO is contingent on the court being satisfied that the costs arose “in relation to support” within the meaning of section 1(1)(g) of the FRSAEA. In order to fall within the scope of this section, the costs must in some way relate to the advancement of a support claim in the proceeding. Accordingly, it is an error to designate a costs award as being in relation to support if the litigant in whose favour the order is made has not advanced such a claim in their application, or if the step in the case had no connection to any support claims.

[108] With the guiding principles set out above in mind, the following considerations lead me to decline to order the set-off requested:

(a) None of the costs in this case relate to support in any way as support was neither the subject of these proceedings or the motions for which costs are sought and awarded;

(b) Such an order is premature. The order is just being made now and there is no history of default;

(c) The order is sought because the applicant anticipates a lack of payment given the mother’s breach of the parenting order. While she does not appear to have been fully complying with the order when the motion for enforcement was brought, the fact is that she headed the court’s direction given to her that first day. Since then she has complied with the parenting order. Further the enforcement/ compliance motion had not yet been argued. When these motions were heard that decision had not yet be delivered. As such, no finding had (or has) yet been made that any non-compliance was unjustified. Given this, the circumstances are much different than many of the cases counsel relied on as support for the proposition that costs should be set-off against support;

(d) This is not a case where the costs can be set-off against arrears, with little immediate effect on the children’s ongoing needs or lifestyle;

(e) Here, given the absence of clear evidence to the contrary, the benefit of any doubt must inure to the children. That is, the court should not presume that if set-off is ordered, it would not be diverting money intended to meet the ongoing needs of the children or that they would be affected. This is because, In effect, this would permit less than full Child Support Guideline payments to flow; and,

(f) The father’s request for set-off was only made in the father’s reply submissions. As such, it is improper reply. It would be unfair to make such an order given that the mother had no opportunity to respond.

Payment Within 30 – 60 Days vs Over Time Pursuant to a Payment Plan

[109] The mother asks that the court order her to pay any cost award at the rate of $100 per month. She relies on the same arguments here as she did in support of her request that the court decline to find her liable for any costs, or, if it does, to significantly reduce the amount to be awarded. I dismiss her request for a payment plan for the same general reasons as I dismissed those two alternative requests.

[110] I add the following to those reasons: I acknowledge that the father may have a higher income than the mother, has a second income earner living with him, and may have deeper pockets than the mother. I also acknowledge that the amount I have awarded to him in costs is significant. Further, it is possible that the mother will have considerable difficulty paying this cost award. If this is the case, a payment plan could have served as a way to ensure that she is able to meet her basic needs and those of the children when they are in her care, thereby reducing any negative impact the award might possibly have on the children. All of these considerations could have justified directing that the costs be paid according to some sort of payment plan.

[111] The problem is that the onus to demonstrate these things, the likely consequences of requiring her to pay the all of costs now, and to demonstrate the necessity of a payment plan, is on the mother. She could easily have filed a sworn financial statement with her cost submissions with all the requisite attachments. Had she done so the court could have assessed her household expenses and budget, any inability or reduced ability to cover those reasonable expenses at the same time as paying the costs awarded, based on such things as: her income and means such as by considering whether she has any assets that could be leveraged or liquidated. She could have put evidence before me addressing any inability to apply for a loan.

[112] She did none of these things. Instead she elected to make unsubstantiated and bald statements not supported by any evidence. To say the mother has failed to meet her onus is an understatement. In the absence of sufficient evidence, I must assume she has the ability to pay the costs she is ordered to pay.

[113] Further, the payment plan proposed by the mother is completely unreasonable and would be unfair to the father in all of the circumstances. Payment at the rate of $100 per month would mean the father would have to wait many years to fully recover the amount the court has found he is entitled to now. He and his household (which includes the children when they are with him), are out of pocket, now.

[114] However, I have decided to give the mother some time to rearrange her financial affairs, leverage or otherwise liquidate any assets she needs to, and to secure financing she might need. Thus, the mother shall have 60 days, instead of the usual 30, to pay the costs.

CONCLUSION AND ORDER

For all of these reasons I make the following order:

1. The mother shall pay the father costs of these motions, fixed in the amount of $15,500, inclusive of fees, disbursements and HST. These costs are to be paid within 60 days of the date of this order.

Released: March 13, 2019

Signed: Justice Victoria Starr

[^1]: See for example, Justice Robert Spence’s decision in Heuss v. Surkos, 2004 CarswellOnt 3317, 2004 ONCJ 141, [2004] O.J. No. 3351, 132 A.C.W.S. (3d) 1112

[^2]: For example, I can appreciate and understand that the mother thought it was important for the court to hear from the children and that she understood the way to do this was to ask for the involvement of the OCL.