Court File and Parties

Ontario Court of Justice

Date: May 13, 2019

Court File No.: D146-18

Between:

L.I.O. Applicant

— And —

I.K.A. Respondent

Before: Justice Jane Caspers

Written Submissions

Reasons for Judgment released on: May 13, 2019

Counsel:

• Luke Weiler, counsel for L.I.O.
• I.K.A., on his own behalf

Decision

CASPERS, J.:

1. Introduction

[1] On April 9, 2019 I released my Decision with respect to a Motion to Change brought by Ms. O. seeking a variation of the Order of Justice Mathias-Macdonald dated October 19, 2016 ("Final Order") with respect to custody of and access to the child, T.W.O., born December 22, 2014 ("T."). As part of my Order, I invited the parties to make Costs Submissions ("Submissions") and I set deadlines for the filing of those Submissions.

2. Position of Ms. O.

[2] Ms. O. in her Submissions seeks payment to Legal Aid Ontario in the amount of $10,396.00, inclusive of HST. Mr. A. has filed no Submissions. Mr. Weiler has, however, provided what appears to be an undated email communication directed to him from Mr. A. indicating that he has recently returned to Sri Lanka. No specific return date is identified.

3. Applicable Rules and Principles with Respect to Costs

[3] Subject to the provisions of an Act or Rules of the court, the costs of and incidental to a proceeding or a step in the proceeding are in the discretion of the court by virtue of s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C43, and the court may determine by whom and to what extent costs shall be paid.

[4] Rule 24(1) of the Family Law Rules ("Rules") provides guidance on costs in a family law context. Rule 24(1) sets out the basic assumption that a successful party is entitled to costs. This provision still permits a court broad discretion in determining if costs should be paid, by whom and in what amount.

[5] Subrule 24(11) provides a further list of factors a court should consider in dealing with costs:

Factors in costs. A person setting the amount of costs shall consider:

(a) the importance, complexity or difficulty of the issues;

(b) the reasonableness or unreasonableness of each party's behaviour in the case;

(c) the lawyer's rates;

(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, preparation and signature of the order;

(e) expenses properly paid or payable;

(f) any other relevant matter.

[6] Having regard to all of these considerations, I adopt the comments by Justice Perkins in Biant v. Sagoo, [2001] O.J. No. 3693 (S.C.J.) that:

"…the preferable approach in family law cases is to have cost recovery generally approach full recovery, so long as the successful party has behaved reasonably and the costs claimed are proportional to the issues and the result.."

[7] The court's role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees. As was pointed out in Boucher v. Public Council (Ontario), 2004 CarswellOnt 2521, [2004] O.J. No. 2634 (Ont. C.A.), the award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings rather than an exact measure of actual costs to the successful litigant. The Court of Appeal has made it clear that, in assessing costs, the overriding principle is one of reasonableness, and that the failure to follow that principle can produce a result that is contrary to the fundamental objective of access to justice.

[8] Modern costs 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) to ensure that cases are dealt with justly under subrule 2(2) of the Rules. [See: Mattina v. Mattina, 2018 ONCA 867; Serra v. Serra, 2009 ONCA 395, O.J. No. 1905 at paragraph 8]

[9] Costs can be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice. [See: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2002, S.C.C., paragraph 25].

4. Application of Legal Principles to the Facts

Success

[10] As a starting point, subrule 24(1) of the Family Law Rules (the "Rules") creates a presumption of costs in favour of the successful party. [Sims-Howarth v. Bilcliffe, [2000] O.J. No. 330 (SCJ- Family Court)]. To determine whether a party has been successful, the court should take into account how the order compares to any settlement offers that were made. [Lawson v. Lawson, [2008] O.J. No. 1978 (SCJ)]. The position each party took at the hearing of the motion or the trial should also be examined.

[11] Ms. O. sought a variation of the joint custody regime as provided for in the Final Order. In addition she sought sole custody of T. She also sought to institute a procedure whereby the parties would follow a series of steps to effectuate the Final Order. This request was made as Mr. A. refused to comply with the consent order regarding access. Mr. A. sought a shared parenting arrangement that accorded with his employment schedule which, for the most part, was not always consistent or predictable.

[12] Ms. O. was generally successful on the motion which she brought to vary the Final Order. Of the 12 heads of relief requested in the Notice of Motion filed by Ms. O., an interim order was granted with respect to 11 of those heads of relief. The remaining paragraph departed slightly from the proposal of Ms. O. as the Order ultimately included additional time for Mr. A. on weekends when his access was adjacent to either a Professional Development Day or a statutory holiday.

Offers to Settle

[13] Subrule 18(14) of the Rules reads as follows:

Costs Consequences of Failure to Accept Offer

18(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:

1. If the offer relates to a motion, it is made at least one day before the motion date.
2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
3. The offer does not expire and is not withdrawn before the hearing starts.
4. The offer is not accepted.
5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer.

[14] The court has a discretion to take into account any written Offer to Settle, the date it was made and its terms, even if subrule 18(14) does not apply, when exercising its discretion over costs (subrule 18(16)).

[15] The onus of proving that the Offer is as or more favourable than the hearing result is on the person making the Offer. [See: Neilipovitz v. Neilipovitz, [2014] O.J. No. 3842 (SCJ).]

[16] The court is not required to examine each term of the Offer as compared to the terms of the order and weigh with microscopic precision the equivalence of the terms. What is required is a general assessment of the overall comparability of the offer as contrasted with the order. [See: Wilson v. Kovalev, 2016 ONSC 163.]

[17] Ms. O. made a written Offer to Settle on March 11, 2019. The Offer to Settle contained terms that were more generous than those terms which were ultimately incorporated into my Decision. Specifically the Offer to Settle proposed access from Thursday to Sunday on alternate weekends whereas my Decision stipulated access from Friday to Sunday on alternate weekends. Mr. A. did not accept the Offer.

[18] The Offer must be as good as or more favourable than the ultimate result. I find that in this case it was.

Rule 24(11)

[19] In determining the amount of costs, I have considered the legal principles and the following factors as set out in subrule 24(11) as follows:

(a) The importance, complexity or difficulty of the issues:

The case was of importance to the parties as it relates to the future parenting arrangements of their child. The individual issues were not complex or difficult. However the employment schedule of Mr. A. and his uncompromising stance made the crafting of an order which would provide certainty, routine and structure for T. was challenging. The proposal that access should occur in accordance with Mr. A.'s employment schedule and whenever he felt that he should have access on short notice to Ms. O. was simply untenable. I find that Ms. O. attempted to be fair in her efforts to coordinate an access schedule which would maximize T.'s time with Mr. A. while providing predictability.

(b) The reasonableness or unreasonableness of each party's behaviour in the case:

With respect to the reasonableness of the party's behaviour, it is Ms. O.'s position that Mr. A. has acted unreasonably in the litigation. I agree for the following reasons:

• In the face of compelling evidence that T. was well cared for by Ms. O., Mr. A. embarked on an assassination of Ms. O.'s character. He made allegations with respect to which there was no corroborative evidence. He persisted in finding fault with Ms. O.'s care of T. and portrayed her as an unfit parent. Mr. A. took unreasonable positions and filed voluminous, needless and scurrilous affidavits. In so doing he wasted time and increased the cost of litigation.

• Another disturbing feature of this case was Mr. A.'s inability to be guided by court orders. On October 19, 2016 and on consent, the parties were subject to a final order which only required them to work together to implement the terms. Mr. A. refused to work together with Ms. O., unable at every turn to put the needs of his son ahead of his own. The reasons for his non-compliance I found to be neither credible nor substantiated by the evidence.

I made a defined parenting order on April 4, 2019. According to the written Costs Submissions, Mr. A. has refused to comply with the terms of that order. We now know that he has returned to Sri Lanka. If and when he proposes to return is unknown. In the end he has, by his actions, deprived himself of time with T. and he has deprived T. of the love and affection of his father.

• Equally egregious is the fact that from the outset, Mr. A. defiantly refused to pay child support in accordance with the Child Support Guidelines until ordered to do so.

• Furthermore, Mr. A., against whom costs were ordered in the amount of $250.00 on December 10, 2018, has refused to discharge that obligation. Ms. O. agreed to a reasonable repayment schedule of $25.00 per month. She agreed on the condition that if he missed any payment the full amount would be due and owing. He made two payments of $25.00 each and has failed to pay the outstanding balance of $200.00.

[20] Costs are designed to discourage and sanction inappropriate behaviour by litigants. Mr. A.'s conduct demonstrated a flagrant disregard for the court and its process, and I have taken this into account. By contrast I find that Ms. O. acted reasonably in her efforts to work co-operatively with Mr. A.

(c) and (d) The lawyer's rates and the time properly spent on the case:

[21] Ms. O. is receiving legal services pursuant to a Legal Aid Certificate.

[22] Mr. Weiler has provided a detailed Bill of Costs spanning the period December 11, 2018 to April 5, 2019 and has noted a total number of recorded hours at 36.80, less than the true number of hours committed to the file. The account totals $4,604.20 pursuant to the Legal Aid Tariff.

[23] In addition, Mr. Weiler has tendered a second Bill of Costs referencing his hourly rate of $250.00. This rate is reasonable given his seniority and the complexities and difficulties of the case both as a matter of law and of fact. The amount endorsed on that Bill of Costs totals $10,396.00.

(e) Expenses properly paid or payable:

There are no disbursements claimed for photocopying, service or support staff.

(f) Other relevant matters:

The ability to pay is an additional factor that the court must consider when assessing costs.

[24] I have considered the financial circumstances of the parties. I am satisfied that Mr. A., whose income was determined on December 10, 2018 to be $66,084 in accordance with his 2017 income can afford to discharge any costs obligation.

5. Decision

[25] Ms. O. was represented by counsel pursuant to a Certificate issued by Legal Aid Ontario. Costs awarded to a legally aided client are recoverable in the same manner and to the same extent as though awarded to a non-legally aided client. The fact that a client is legally aided is not relevant to the assessment of costs. When assessing costs, the private retainer rate of the legally aided lawyer should be referenced.[1]

[26] Costs awards are discretionary. In exercising discretion, the court must consider the two important principles of reasonableness and proportionality. [Beaver v. Hill, 2018 ONCA 840.]

Bad Faith and Unreasonable Behaviour

[27] There is a difference between bad faith and unreasonable behaviour.

[28] Although requested to do so, I cannot find that Mr. A. acted in bad faith which, according to subrule 24(8) requires a fairly high threshold of egregious behaviour. [See: Cozzi v. Smith, 2015 ONSC 3626; Scipione v. Del Sordo, 2015 CarswellOnt 14971 (Ont. SCJ).] The essence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose. It is done knowingly and intentionally. [See: S.(C.) v. S.(M.), 38 R.F.L. (6th) 315 (Ont. SCJ).] The case law notes that bad faith is not synonymous with bad judgment or negligence; rather, it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. Bad faith involves intentional duplicity, obstruction or obfuscation [See: Scipione, supra.]. Despite his defiant brashness and abusive conduct, I find that Mr. A.'s actions were motivated by a sincere desire to have meaningful contact with his son.

[29] I do find that Mr. A. acted unreasonably. Mr. A. was told repeatedly that there would be costs sanctions for his arbitrary behaviour. He took no notice. While I appreciate that the issue of access to his son is very important to him, had he made any effort whatsoever to work co-operatively with Ms. O., then I am confident that a more flexible approach could have been implemented. But he conducted himself in a belligerent, offensive and uncompromising manner such that it became impossible for either Ms. O. or her counsel, Mr. Weiler, to work with him.

Quantum

[30] For all the foregoing reasons, I find that Ms. O. is entitled to her costs.

[31] Having found that Ms. O. is entitled to her costs, one of the considerations in any assessment of costs is to fix costs in an amount that is "fair and reasonable" for the unsuccessful party to pay in a particular proceeding: [Farjad-Tehrani v. Karimpour, 2009 CarswellOnt 2186 (S.C.J.) at para. 32, aff'd 2010 ONCA 326, 2010 O.N.C.A. 326 at para. 4]. I have taken this principle into account.

[32] On the issue of a determination of the quantum of costs to which Ms. O. is entitled, I have considered the award to which she might be entitled under the Legal Aid Tariff ($4,604.20) and the award that would be awarded to a non-legally aided client ($10,396.00).

[33] Given the very narrow issue that the court was required to address, I would normally have favoured awarding costs in accordance with the Legal Aid Tariff. However, given Mr. A.'s unreasonable and at times, outrageous conduct, his refusal to engage in any meaningful settlement discussions and given his lack of civility in the courtroom and in his dealings with Ms. O. and her solicitor, I am of the view that a higher award is warranted to sanction Mr. A.'s behaviour which I find, needlessly increased the duration and expense of litigation in this proceeding.

6. Order

(i) I.K.A. shall pay to Legal Aid Ontario on behalf of L.I.O. costs fixed in the amount of $7,500.00 inclusive of applicable taxes. All costs are to be paid in full, in addition to the balance of the costs order made on December 10, 2018 in the amount of $200.00 (total $7,700.00), by June 14, 2019 failing which his pleadings shall be struck and the matter shall proceed on an uncontested basis on a date to be fixed by the court.

(ii) A copy of this order is to be forwarded to I.K.A. by email.

(iii) This proceeding is adjourned to May 30, 2019 at 10:00 am to be spoken to.

Released: May 13, 2019

Signed: Justice Jane Caspers

[1] Legal Aid Ontario: Tariff and Billing Handbook, Chapter 6, Costs and contributions, 2.1 General Principle. Goffi v. Goffi, 2019 ONSC 2160.