Ontario Court of Justice

Endorsement

Justice L.S. Parent

Parties

Applicant: Karen Victoria Conceicao

Counsel: Sathishkumar Balasunderam

Respondent: Iverson Abraham

The Issue

[1] On May 7th, 2019, I released my decision denying Ms. Conceicao's motion, heard on April 2nd, 2019, for an order for the appointment of an assessor and costs of the assessment pursuant to section 30 of the Children's Law Reform Act, R.S.O. 1990, c. C.12 (hereinafter "CLRA").

[2] Paragraph 62 of my decision provided for timelines for submissions to be exchanged on costs should the issue remain outstanding. Mr. Abraham and counsel for Ms. Conceicao, Mr. Balasunderam, provided written submissions as ordered. However, the issue of costs could not be determined pending the appeal of my May 7th, 2019 decision by Ms. Conceicao.

[3] On July 23rd, 2019 counsel for Ms. Conceicao confirmed at a case conference that his client was not pursuing her appeal and will be serving and filing a Notice of Withdrawal in the Superior Court of Justice. Accordingly, both counsel and Mr. Abraham agreed that the issue of costs associated with the April 2nd, 2019 motion could now be determined.

[4] In written submissions, Mr. Abraham seeks his costs on a full recovery basis in the amount of $5,996.05. The submissions do not address the time for payment of costs, if ordered.

[5] In written submissions, counsel on behalf of Ms. Conceicao seeks an order that costs of $2,250.00 be ordered and that payment of these costs be suspended until there is a decision on the substantive issue of child support arrears.

Authorities

[6] The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867, set out that modern costs rules are designed to encourage three fundamental purposes, namely:

a) to partially indemnify successful litigants;

b) to encourage settlement; and

c) to discourage and sanction inappropriate behaviour by litigants.

[7] Rule 2(2) of the Family Law Rules (FLR) adds a fourth fundamental purpose, namely to ensure that cases are dealt with justly.

[8] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, as am. provides that cost orders are in the discretion of the court. Rule 24 of the FLR provides a framework for awarding costs for family law cases.

[9] Rule 24(1) creates a presumption of costs in favour of the successful party of a motion. Although consideration of success is the starting point in determining costs, this presumption does not, however, require that the successful party always be entitled to costs, especially in circumstances where the successful party behaved unreasonably.

[10] An award of costs is subject to the factors listed in Rule 24(12), Rule 24(4) relating to unreasonable conduct of the successful party, Rule 24(8) relating to bad faith, Rule 18(14) relating to offers to settle, and the reasonableness of the costs sought by the successful party. See: Berta v. Berta, 2015 ONCA 918, para. 94.

[11] Rule 24(12) sets out a list of factors the court shall consider in determining an appropriate amount of costs. These are:

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.

[12] The Ontario Court of Appeal has stated in its decision in Beaver v. Hill, 2018 ONCA 840, that the court should approach the exercise of its discretion in determining costs in family law matters on the basis of reasonableness and proportionality and that it is an error in law to apply full recovery of costs unless findings support such an award.

[13] The Family Law Rules only expressly contemplate full recovery costs in specific circumstances, such as where a party has behaved unreasonably, in bad faith or has exceeded an offer to settle under Rule 18(14).

Analysis

[14] In reviewing the submissions filed on behalf of the parties, I have applied the above-stated principles.

[15] I have also considered the Supreme Court of Canada's decision in British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371. The Court states at paras. 25-26 of their decision that the ultimate objective in determining costs is to balance the principles that (1) the successful litigant should not be required to bear the costs of responding to a proceeding, and that (2) costs should not be seen as a hurdle to seek relief from the court. The Court stated that these principles ensure access to justice and that the system works fairly and efficiently.

[16] At paragraph 61 of my May 7th, 2019 decision I found that Mr. Abraham was the successful party on the motion. I further find, therefore, that he is presumed to be entitled to his costs.

[17] Submissions filed on behalf of Ms. Conceicao do not dispute that Mr. Abraham is entitled to costs. The submissions, however, emphasize that the costs requested are not reasonable and proportionate to the narrow issues before the court. Specifically, counsel submits that the time needed to draft Mr. Abraham's affidavit in response and the reviewing of Ms. Conceicao's motion materials are excessive given the order sought by Ms. Conceicao.

[18] Even with this position, I am mindful of the court's decision in Jordan v. Stewart, 2013 ONSC 5037 wherein the court indicated the following principles, namely:

a) A self-represented litigant does not have an automatic right to recover costs. The determination of costs remains fully within the discretion of the judge;

b) The overriding principle in fixing costs is "reasonableness"; and

c) In addressing costs, courts should consider Bills of Costs certified by lawyers who have provided assistance, even if not on the record throughout the case.

[19] In her decision in Browne v. Cerasa, 2018 ONSC 2242, Justice Fryer states as follows:

"Determination of costs for self-represented litigants should take into account all of the objectives which costs orders should promote. Rules 18 and 24 apply. Otherwise the resulting amount can render the entitlement to costs illusory; undermine access to justice by self-represented litigants; and frustrate the administration of justice."

[20] I have reviewed the Bill of Costs submitted by Mr. Abraham.

[21] I agree with counsel on behalf of Ms. Conceicao that the time allocated to the steps undertaken in the preparation of Mr. Abraham's affidavit in response are disproportionate. Numerous docket entries submitted indicate communication between the student-at-law and counsel regarding instructions and confirmation of actions in the preparation of the affidavit in response and the preparation of Mr. Abraham to represent himself at the motion.

[22] Dockets have also been submitted detailing actions undertaken outside the scope of the motion. Specifically dockets have been provided relating to financial disclosure.

[23] I have also reviewed the Bill of Costs submitted on behalf of Ms. Conceicao. I note that 20.5 hours were spent on the preparation of materials and review of motion documents on her behalf. Although Ms. Conceicao is the moving party, the Bill of Cost submitted is an indication of reasonable expectations Ms. Conceicao was made aware of as to the issue costs.

[24] A review of both parties' Bills of Costs allows the court to ensure that any 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) at paragraph 26.

[25] A review of the document identified as "Offer to Settle" dated March 29th, 2019 in the submissions of Mr. Abraham confirms that this document does comply with the requirements of Rule 18 FLR. Also the result achieved by Mr. Abraham on the motion does exceed the terms offered.

[26] Submissions on behalf of Mr. Abraham are correct therefore that the cost consequences of Rule 18 do entitle him to recover costs, on a full recovery basis, after the serving of the offer to settle.

[27] Mr. Abraham was self-represented at the motion. The Bill of Costs submitted is limited to fees of $315.00 incurred after April 1st, 2019, being the date the offer to settle was served. These fees relate to the issue of costs. I find that the Bill of Costs, as it relates to these fees, also indicate a duplication of efforts given the involvement of a student-at-law and counsel. Accordingly full recovery of these fees as submitted is not reasonable.

[28] Mr. Abraham also sought full recovery of lost wages in the amount of $250.00 for his attendance at the motion.

[29] A similar request was considered by the court in Browne v. Cerasa. Justice Fryer in addressing this point stated "If a self-represented litigant, in performing the tasks that would normally have been performed by a lawyer, lost the opportunity to earn income elsewhere, this may be a relevant factor. But costs for self-represented parties are not the same as damages for lost income. Remunerative loss is not a 'condition precedent' to an award for costs."

[30] I was not provided with any evidence to support that wages were in fact not paid to Mr. Abraham on the day of the hearing of the motion. Accordingly, I have not considered this request in the determination of costs.

[31] Mr. Abraham sought repayment of a disbursement and HST of $101.70. I find that this disbursement is reasonable given the indication that this was a fee paid to a process server to attend at court and file Mr. Abraham's affidavit in response.

Result

[32] Given the above, I find that Ms. Conceicao is ordered to pay costs, inclusive of fees, disbursements and HST, in the amount of $3,000.00 to Mr. Abraham.

[33] Submissions made on behalf of Ms. Conceicao seek to suspend the payment of the cost award so that the order is satisfied only following the determination of child support arrears. In other words, Ms. Conceicao is seeking to set-off any cost award against any child support arrears owed by Mr. Abraham.

[34] The jurisprudence regarding whether a costs order may be set-off against an order for child support is divided. I was not provided with any case law to support Ms. Conceicao's request. Submissions on behalf of Mr. Abraham did not address any payment terms.

[35] Given the submissions, I am not inclined to grant an order suspending payment of my cost award. To do so in my view:

a) would not address the principles established in the Mattina decision;

b) the motion heard did not relate to the issue child support; and

c) it is also premature to order a suspension when the issue of the existence of child support arrears has yet to be determined by the court.

[36] Accordingly, I further order that the cost be paid in two instalments of $1,500.00 by certified cheque, money order, bank draft or trust cheque on August 8, 2019 and August 30, 2019.

[37] This cost order is, in my view, reasonable and proportionate to the issue before the court for determination.

Justice L.S. Parent