WARNING

The court hearing this matter directs that the following notice be attached to the file:

The court has ordered the exclusion of the public from the hearing of this case under subsection 135(2) of the Courts of Justice Act and has expressly prohibited the disclosure of any information about identifying the child who is the subject of a proceeding, or the child's parent or foster parent or a member of the child's family. This subsection and subsection 135(3) of the Courts of Justice Act, which deals with the consequences of failure to comply with subsection 135(2), read as follows:

135.— (2) EXCEPTION — The court may order the public to be excluded from a hearing where the possibility of serious harm or injustice to any person justifies a departure from the general principle that court hearings should be open to the public.

(3) DISCLOSURE OF INFORMATION — Where a proceeding is heard in the absence of the public, disclosure of information relating to the proceeding is not contempt of court unless the court expressly prohibited the disclosure of the information.

Subrules 31(5) and 31(6) of the Family Law Rules state as follows:

31.— (5) Contempt orders. — If the court finds a person in contempt of the court, it may order that the person,

(a) be imprisoned for any period and on any conditions that are just;

(b) pay a fine in any amount that is appropriate;

(c) pay an amount to a party as a penalty;

(d) do anything else that the court decides is appropriate;

(e) not do what the court forbids;

(f) pay costs in an amount decided by the court; and

(g) obey any other order.

(6) WRIT OF TEMPORARY SEIZURE — The court may also give permission to issue a writ of temporary seizure (Form 28C) against the person's property.

Court Information

Ontario Court of Justice

Date: June 11, 2019

Court File No.: Halton 325/18

Between:

The British Columbia Director of Child, Family and Community Services, Ministry of the Attorney General

Applicant

— AND —

L.M. & R.B.

Respondents

Before: Justice Victoria Starr

Cost Decision for motion heard on September 27 and November 29, 2018, released on June 11, 2019

Counsel:

• Logan Rathbone — counsel for the applicant
• Natasha Hyppolite — counsel for the respondents

Decision

VICTORIA STARR J.:

INTRODUCTION

[1] This is the court's decision with respect to costs of a motion for a restraining order, publication ban, and sealing order, initially before the court on an ex parte basis on September 27, 2018 and fully argued on November 29, 2018. The court's written decision and reasons with respect to that motion were released on March 1, 2019. In the result, the court granted the Applicant the restraining order sought at the ultimate hearing, along with the procedural relief designed to protect the child.

[2] The Applicant seeks costs of the motion on a partial recovery basis fixed in the amount of $12,356.71, inclusive of fees, disbursements, and HST.

[3] The Respondents submit that costs should not be awarded to the Applicant, or in the alternative, that costs be reserved for the trial judge. Furthermore, the Respondents seek costs against the Applicant on a substantial indemnity basis ($7,530.88), or in the alternative on a partial indemnity basis.

POSITIONS

[4] The Applicant asserts that she is entitled to costs payable by the Respondents, jointly and severably, first and foremost on the basis that she was successful on the motion. She asserts that she is also entitled to costs because it was the conduct of the Respondents that led to the bringing of this motion, which conduct was unreasonable. The conduct she references includes attending at the child's school in a wholly inappropriate manner and reliance upon self-help remedies. These behaviours and their unreasonableness are consistent with this court's interim findings as set out in, and more fully fleshed out in, this court's written decision and reasons released on March 1, 2019.

[5] Despite her success and the unreasonable behaviour of the Respondents, the Applicant is only seeking costs on a partial recovery basis. By seeking reduced costs she aims to recognize and acknowledge many factors that support such a result, including that:

a. She initially pleaded slightly broader relief in her notice of motion;

b. The publication ban and limited access to the court file orders sought and obtained, were ancillary in nature and were not opposed by the Respondents;

c. The issues were important as the parties and the child, SS, deserved to know whether there would be an order in place to keep the Respondents away from the child, backed by the ability for the authorities to enforce same, pending trial or final disposition of this case.

d. The issues, and in particular the legal issues, were also quite complex due to the somewhat novel nature of the motion as opposed to the usual application of the Children's Law Reform Act as to restraining orders. This case included difficult issues, including but not limited to: the interjurisdictional components, the interplay of the custom adoption issue and how it related to lawful custody, and the addition of the uniquely lengthy and protracted litigation history of the parties.

[6] The Applicant also submits that although the legal issues were complex, difficult and somewhat novel, the conduct of the Respondents contributed to this complexity. As such, the Respondents ought not to be able to use the novel and complex nature of this motion to bolster a potential claim for there being no costs of this motion or that costs should be substantially lower as a result of the complexity.

[7] It is the Applicant's position that while she did not serve an offer to settle, the absence of an offer ought not bar her from seeking reasonable costs on a partial indemnity basis as the successful party on this motion. She points out that neither party served an offer to settle. Further, this case would have been a difficult one for either party to craft an offer to settle. The issue before the court was singular in nature, and was a difficult issue. In addition, had the parties exchanged offers to settle, it is difficult to envision what these offers might have looked like, beyond each party reiterating its position on the motion.

[8] In terms of ability to pay, the Applicant submits that the Respondents have the ability to pay the costs sought. Although the court does not have direct evidence of the income levels of the Respondents, the court has in the evidentiary record several examples of the Respondents' ability to pay.

[9] In support of their positions the Respondents point out that while the Applicant was successful in maintaining the restraining order, her success is displaced by the following factors:

a. During the ex parte motion, Justice Starr denied much of the broader relief sought by the Applicant.

b. At the ex parte motion, Justice Starr acknowledged that this was a matter that required a response from the Respondents and endorsed same. In that sense, the Respondents were required to respond to and attend the motion's return date and should not pay costs for fulfilling this obligation.

c. In Justice Starr's decision, she repeatedly acknowledges the importance of the pending decisions of the Northwest Territories Court and the BC Court of Appeal with respect to the parentage of the child. Based on this, within her decision, Justice Starr permits the Respondents to seek a review of her interim decisions once the NWT and BC decisions are released.

[10] The Respondents also submit that the Applicant should be deprived of her costs and ordered to pay the Respondents their costs because she behaved unreasonably. The examples they give and rely on include:

a) She did not book the appropriate amount of time for the motion which necessitated the Respondents to incur further costs;

b) She ignored communication from the Respondents and has made no attempt to settle the underlying issues;

c) She brought the motion, knowing that the issue of lawful custody is an issue requiring a trial;

d) She brought a motion that was so complex and important to the parties in terms of the underlying issue of lawful custody, when there are outstanding decisions from other courts which could impact that underlying issue.

e) She failed to follow the Family Law Rules and directive in Rosen v. Rosen, [2005] O.T.C. 31 (S.C.J.), and Shah v. Irvine, 2018 ONSC 7359, by bringing the motion prior to a case conference. This includes failing to first (i) inquire of the earliest date for a case conference; (ii) schedule a case conference; (iii) provide notice to the Respondents of the relief sought; and (iv) address the relief required at the case conference; all prior to bringing a motion.

f) She made the motion without notice, in circumstances where notice should have been given. This is because while the Applicants, in asserting that SS was at risk of harm, relied fully on the events of June 22nd but waited until September 20th to bring the motion. In their view, between June 22nd and September 20th, 2018, the Applicant had ample opportunity to commence an application and bring a motion with notice which would have allowed the Respondent to fully participate in the process set out by the Family Law Rules.

[11] By contrast, the Respondents assert they acted reasonably. Some of the examples they give to demonstrate this include: (1) they have demonstrated the utmost cooperation towards the Applicant; (2) they are fully complying with the restraining order and its terms; (3) they communicated repeatedly with the Applicant even after the events of June 22nd, in an attempt to settle the underlying issue of who has or should have lawful custody of SS.

[12] In support of their request that costs be reserved for the trial judge, or for a further motion judge should the Respondents seek a review of the present decision, the Respondents point out the following: First, although it is not generally the case that family law proceedings proceed to trial, this is an exceptional case where a trial/final determination of the issue is a virtual certainty. Second, the Applicant has made no effort to settle the issues in the case and ignored the Respondents' many attempts to do so. Third, the outcome of other pending litigation could affect the outcome of the issue.

[13] With respect to quantum, the Respondents point to:

a) Their significantly lower costs which they claim signals an excessiveness in the time spent and amount claimed by the Applicant;

b) The Applicant ignored their overtures and communication and made no offer/efforts to settle; and,

c) Through her unnecessary and unreasonable conduct in bringing the motion, the Applicant unnecessarily and unreasonably increased the Respondents' legal fees.

[14] Finally, the Respondents deny they have an ability to pay costs. They submit that making any cost order against them would create financial hardship for them.

RELEVANT LEGAL PRINCIPLES

[15] 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 ONCA 867, [2018] O.J. No. 5625, 299 A.C.W.S. (3d) 770, at para. 9.

[16] The Ontario Court of Appeal has held that modern family cost rules are designed to foster four fundamental purposes:

(1) to partially indemnify successful litigants;

(2) to encourage settlement;

(3) to discourage and sanction inappropriate behaviour by litigants; and,

(4) as a tool to ensure that the primary objective of the rules as set out in subrule 2(2) is met - that cases are dealt with justly; and thus, 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.

[17] Although Rule 18 addresses offers to settle and related cost consequences, neither party made an offer in this case that would attract such cost consequences. As such, it is not necessary to turn to that rule to decide costs of this motion.

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

[19] Consideration of success is the starting point in determining costs: Sims-Howarth v. Bilcliffe, 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] 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), and 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.

[20] 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.

[21] 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.

[22] Rule 24(6) offers guidance to the court when success on a step is divided. It directs that in such situations the court may apportion costs as appropriate.

[23] 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.

[24] 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.

[25] 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.

[26] 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.

ANALYSIS

Entitlement

[27] There is no debate that the Applicant was wholly successful in securing the relief she sought on the day of the hearing. The fact that she narrowed the scope of relief sought from that set out in the notice of motion is a sign of her reasonableness. It does not diminish her success. I find the Applicant is presumptively entitled to costs on the basis of her success.

[28] I place no weight on the Respondents' argument that the Applicant acted unreasonably for several reasons: First, by their very nature motions for restraining orders are rarely made after a case conference.

[29] Second, the court was satisfied that there was sufficient risk to the child that the order at first instance should be made without notice and prior to a case conference. This is evident from the fact that the court proceeded to hear the motion ex parte and from the fact that the court granted the interim and without prejudice restraining order.

[30] Third, the result both on the first return date and on the second, also demonstrate the court did not see the Applicant's failure to make any effort to schedule a case conference (early or otherwise) was acceptable and appropriate.

[31] The court, not the applicant is the gate-keeper and as such, the ultimate decision about whether the motion should be allowed to proceed prior to a case conference, was made by the court. By hearing the motion and from the result, it should be plainly obvious that the court shared the applicant's view that this was a motion that should proceed before a case conference. I also point out that the Respondents never even suggested to the court that the motion should be dismissed on these procedural grounds at the time. The first time this was raised is in the Respondents' cost submissions.

[32] Fourth, given the court heard the motion and granted the restraining order sought, I also place no weight on the Respondents' arguments that it was unreasonable for the applicant to seek an interim restraining order given the importance and complexity of determining who ultimately has lawful custody of SS; given that the motions judge would be required to address the issue of lawful custody; and, when there are two outstanding decisions from other courts that could impinge on the determination for the purpose of the motion. The court's determination that the Applicant has lawful custody of the child, was for the purposes of the motion only. It was not a final determination and it was not a determination made on the merits of the underlying complicated dispute regarding the customary adoption.

[33] Further, courts are routinely called upon at the motion stage to make interim orders related to the very issues that will ultimately be decided at trial. Those orders are made because the court finds it necessary to make an order pending trial. In most motions, including this one, both the facts relied on by the motion judge and the determinations made are all subject to the ultimate findings of fact and determinations that will be made by the trial judge. Indeed, this court recognized this explicitly, including when it ordered that a review may be sought prior to trial, if the outstanding decisions are released.

[34] Fifth, I place no weight on the fact that neither party made a formal offer to settle. Compromise with respect to whether a restraining order should be granted on a temporary basis settlement was, in the circumstances, not likely possible. Making an offer would merely have meant restating the party's position as set out in the notice of motion and facta.

[35] In my view, the Respondents would never have agreed to a restraining order because doing so would mean acceding to the very law LM has explicitly stated she will not accede to. They could have agreed to a lessor order or to a promise not to have contact. I doubt they would have done this given their view that SS is being unlawfully and wrongly withheld from them. In any event, the Applicant's mistrust of them was, quite rightly, very high given the Respondents' past behaviour, behaviour on the day of the school event, and behaviour in September 2018. In any event, if the Respondents were prepared to agree to a restraining order, or to some lessor order that would prevent them from having contact with SS, it was always open to them to make such an offer. They made no effort to do so.

[36] Sixth, I do not see the Applicant's refusal/failure to engage with the Respondents in terms of communicating with them as unreasonable. The communications, overtures towards settlement, and settlement proposals of the Respondents did not relate to settling the motion, but rather the larger issue of custody and placement of SS. The applicant's refusal to engage on that front, even though settlement would have effectively resolved the motion, was not unreasonable at the time. The parties are embroiled in litigation on three fronts. There is an extensive history of highly acrimonious litigation. The parties were awaiting decisions from other courts. Further, there is no history that I can see of compromise and settlement.

[37] Seventh, I disagree completely with the Respondents' submissions that it is the Director (and ultimately, the court) who put the Respondents in the position of having to defend/respond to the motion and thus, to the expense consequent to doing so. In my view, it was the Respondents' conduct both before the school event, on the day of the school event, and in September 2019, that created the need for such a motion. That conduct is discussed in great detail in my decision on the motion. It is their behaviour that escalated the degree of mistrust and that formed the reasonableness of the Director's belief that SS was at risk of being removed from her care and which resulted in the order being granted.

[38] Eight, while it is true that there is a significant gap between what occurred on the day of the school event and when the motion was brought, the fact is that during the intervening period, the Director learned that the police investigation would not result in charges against the Respondents (or even a warning if the Respondents' evidence is preferred). There is also the Respondents' communications to the Director, particularly on the heels of the conclusion of that investigation and in September 2019. These were suggestive of further action in an effort to have SS returned to the Respondents' care, without the Director's explicit agreement or a court order. All of this was discussed by the court in its written decision and reasons with respect to the motion and formed part of the court's reasons for granting the order. This argument, like many others of the Respondents made in their cost submissions and addressed above, is nothing more than an attempt to re-argue the facts and findings which underlie the court's decision on the motion.

[39] For all these reasons, I find the presumption that the Applicant is entitled to costs of the motion on the basis of her success has not been rebutted. I would not deprive her of these costs on the basis that she engaged in unreasonable conduct. She did not. The party who behaved unreasonably is the Respondents. It is their conduct prior to, and in relation to the issues on the motion that made the motion and ultimate order necessary and thus, put the Director to the expense of bringing it.

Setting the Amount

[40] Both parties submitted a Bill of Costs which I have carefully reviewed.

[41] No one took issue with the hourly rates charged or disbursements. From this, my own review of same, and given each lawyer's year of call, I find both the hourly rates charged and disbursements claimed, reasonable and proportional.

[42] The "bone of contention" is with the time spent. The total time spent by the Applicant's lawyers appears to be 60.1 hours. The total time spent by the Respondents' counsel was about 26 hours.

[43] I do not agree with the Respondent that the disparity in the time spent signals that the time spent by the Applicant's lawyer was excessive or not proportional, for these key reasons, among others:

a) The Applicant had the burden of reply and as well, her counsel attended court twice, whereas the Respondents' counsel attended once. It stands to reason that the time spent by the Applicant's counsel would be greater than that spent by counsel for the Respondents;

b) The Applicant had the greater burden to provide detail, including details related to the litigation history. That additional affidavit provided regarding the detailed litigation history was instrumental to the court and very helpful;

c) Counsel for the Applicant was competent and thorough and the quality of the Applicant's material was excellent. It reflects the attention to detail one would expect of such counsel, and as well the expenditure of additional time required to produce highly relevant, focused and succinct material;

d) All of the members of the applicant's legal team, except for one, were situated outside of Ontario. This would no doubt have made working as a team more complicated and added more time to preparing for the motion;

[44] I add to the forgoing the fact that, although she could have, the Director is not seeking recovery of her fees for all 60.1 hours of time spent. She has greatly reduced the amount of costs she could have sought. By reducing the amount she seeks to the partial recovery amount of only $12,356.71, she sought to seek an amount that takes into account some of the mitigating factors. These include: the need to recognize that the issues were very important to both parties; the legal issues and litigation history complex; and, the fact that the Respondents did not really oppose either the publication ban or the sealing order, which diminishes the significance of the Director's success on those ancillary issues. These are all relevant considerations and ones I would have relied on to reduce the amount had the Director in fact sought costs on a full or substantial indemnity basis.

[45] The partial recovery amount sought already reflects the discount I would have applied had a full or substantial recovery amount been sought. Given this, the factors I have already discussed, and given the Respondents' unreasonable behaviour that made the motion necessary in the first place, $12,356.71, while, on the high side, is by no means an excessive amount. I find it is fair, reasonable and proportional. It is also within the bounds of what a reasonable person in the Respondents' shoes could have expected to pay in costs. Given this and the other factors discussed above, I would not discount the Applicant's costs further.

Ability to Pay

[46] I turn to consider the Respondents' ability to pay. In this regard, I endorse Justice Chappel's comments in her decision in Thompson v. Drummond, 2018 ONSC 4762, and Justice Pazaratz comments in M.A.L. v. R.H.M., 2018 ONSC 2542, 292 A.C.W.S. (3d) 799, and Justice Gray's comments in Cimmaster Inc. v. Piccione, 2010 CarswellOnt 609 (Ont. S.C.J.). At paragraphs 21 to 23, of her decision in Thompson v. Drummond, Justice Chappel 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, 79 O.R. (3d) 147, [2005] O.J. No. 5379 (Ont. C.A.); Tauber v. Tauber, [2000] O.J. No. 2133 (Ont. C.A.); additional reasons at , [2000] O.J. No. 3355 (Ont. C.A.); Cassidy v. McNeil, 2010 ONCA 218 (Ont. C.A.); Biant v. Sagoo, [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, 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].

[47] In M.A.L. v. R.H.M., supra, Justice Pazaratz writes at paragraph 17:

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; M. (C.A.) v. M. (D.), 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 the 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.

[48] In Cimmaster Inc. v. Piccione, Justice Gray writes at paragraph 19:

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.

[49] The evidence before me to support the Respondents' submission that having to pay costs would cause them financial hardship is limited and the conclusion could only be made by inference. The burden to satisfy me that they do not have the ability to pay or have limited ability to pay falls on the shoulders of the Respondents. Their evidence must be clear. It is not. They are not the custodial parents in the sense that they do not, at present, have the burden of supporting the child financially. All I am satisfied of here and on the evidence before me is that they have spent an enormous sum of money on the other litigation and are now feeling a financial pinch, and as a result, have been forced to try to conserve their financial resources by forgoing such things as appealing every decision they disagree with.

[50] Further, in their cost submissions the Respondents are emphatic that this case will go to trial and it is plainly obvious that they will pursue their claims at that trial. Trials are time consuming and expensive. The Respondents know this already. It seems to me that the Respondents do not want to pay costs of this motion, preferring instead to use their funds to pay for future litigation that may result in some benefit to them.

[51] The options the court has to address inability or reduced ability to pay are not limited to an all or nothing approach. The court has the option of ordering that costs be paid in accordance with a payment plan. The Respondents' did not advocate for a payment plan. Instead, they ask this court, if it is not inclined to reduce the applicant's costs to $0 and award them their costs, to defer the decision to the trial judge. In any event, given this and the lack of evidence with respect to their income, assets and other information to assess their financial circumstances and the merits of the relief they seek, I am not persuaded that a payment plan is required.

[52] The court also has the option of providing relief by reducing the amount to be awarded. In my view, the significant reduction in amount sought applied by the Applicant already provides sufficient financial relief, even if this was not the intention.

[53] Further, against the weak and unclear evidence to support their claimed inability to pay is the reality for the Applicant. She has been successful. I have found that the Respondents behaved unreasonably and in a way that resulted in the Applicant incurring unnecessary legal expense. She has behaved reasonably by seeking a significantly reduced amount in costs. To decline to award her costs would be unfair and not proportional. It would lead to an unjust result.

[54] Finally, for the purposes of the motion, I have found the Respondents to have behaved unreasonably and that it is their conduct leading up to it that necessitated the motion. But for their behaviour no motion would have had to have been brought. Their behaviour put the applicant to unnecessary and significant legal costs. To decline to award any or even further reduced costs to the Applicant on such unclear evidence and in circumstances such as here, where a party has behaved unreasonably, would result in an utter failure to achieve one of the main purposes of a cost award. That is it would fail to impose a consequence sufficient to discourage the Respondents and other like-minded individuals contemplating resorting to self-help remedies from behaving unreasonably in future.

[55] For all these reasons, I would not reduce the amount to be awarded in costs to the Applicant any further, nor would I decline to award the Applicant any costs. I find therefore, that ordering the Respondents to pay to the Applicant $12,356.71 in costs to be a fair, proportional and reasonable result.

Deferral

[56] The Respondents have requested alternative relief and I turn now to address that request. The orders they seek were framed as follows:

a) Refuse to award the Applicant costs, or in the alternative that costs be reserved for the trial judge; and,

b) Make an order for costs against the Applicant on a substantial indemnity basis, or in the alternative on a partial indemnity basis.

[57] I find the request confusing and unclear. As a result, I address below, my reasons for rejecting it based on various possible interpretations.

[58] The Respondents' request is that I only defer the decision in the event that I am not prepared to deprive the Applicant of her costs, and, that I none-the-less decide the Respondents' claim for costs now. This makes no sense to me. To do as they request I would have to go through the whole analysis with respect to costs and then, if inclined to award the Applicant costs, to then defer the decision to the trial judge, and, to decide the Respondents' claim for costs separately as if in a vacuum. To follow this approach would be completely and utterly inconsistent with the court's duty under Rule 2 to deal with the case justly, including in ways that are efficient and do not waste time, expense, and court resources that could otherwise be devoted to other families in need.

[59] Although not framed in such a way to support such an interpretation, if what the Respondents meant was to decide each party's claim together but then if awarding costs to the Applicant ignore all that work and defer the whole issue of costs to the trial judge, this too makes no sense for the exact same reasons.

[60] Likewise, if what the Respondents meant was to defer the decision as a whole, or just the decision as to when and how costs will be paid, to the trial judge, I decline to do so for these reasons:

a) The party entitled to costs is out of pocket now;

b) The need to discourage further unreasonable behaviour is a present need. The best way to discourage the type of behaviour that I have found unreasonable in this case is to impose the consequence in a timely fashion. Waiting until trial does not accomplish this;

c) Costs are generally to be decided promptly at each step in the case and leaving this to the trial judge would be inconsistent with that general approach;

d) It is ideal for the judge who presided over the step to decide the issue as that judge has the greatest familiarity with the factors relevant to the issue of costs for that step. I am that judge.

CONCLUSION AND ORDER

[61] For all these reasons I make the following order with respect to costs of the motion:

1. The Respondents' claim for costs of the motion is dismissed;

2. The Applicant's claim for costs of the motion is granted such that the Respondents shall be jointly and severally liable to pay, and required to pay to the Applicant, within 30 days, her costs of this motion fixed in the amount of $12,356.71, inclusive of fees, disbursements and HST.

3. The Judicial Secretary to email a copy of this Order to both counsel.

Released: June 11, 2019

Signed: Justice Victoria Starr