COURT FILE No.: Toronto D21984/18 DATE: 2021 03 25
ONTARIO COURT OF JUSTICE
BETWEEN:
LEAH MARK Applicant
— AND —
LAUREN SAMANTHA MARK, ETTON ROY THOMAS AND RIKKA VESCIO Respondents
Before: Justice Curtis
Written submissions regarding Costs
Reasons for Decision released on 25 March 2021
Counsel: Lisa Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .for the Applicant Maternal Aunt Leah Mark Darnette Reid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . for the Respondent Rikka Vescio
CURTIS, J.
Over-view
[1] This is the decision about costs of a case regarding custody of and access to [1] a child whose mother died on 20 September 2018. The case was a dispute between the maternal aunt (the Applicant) and a friend of the mother’s and temporary caregiver of the child (Rikka Vescio, the Respondent) after the mother’s death. The case settled without a trial, but involved several years of contested litigation. Following the settlement, both sides claimed costs of the case.
The Parties’ Positions re Costs
[2] Costs claims were addressed through written submissions and oral argument.
[3] The maternal aunt claims costs of $32,910.35 as follows: (a) Costs of the motion for temporary custody heard 9 January 2019, on a full recovery basis in the amount of $13,250; and, (b) Costs of the case from 11 January 2019 to 1 December 2020 on a partial recovery basis in the amount of $19,660.35.
[4] Ms. Vescio claimed costs on a substantial recovery basis in the amount of $18,287.99.
[5] Both parties’ claims for costs included disbursements for the legal fees of the expert lawyers consulted regarding the immigration issue.
Background
[6] The case was a dispute about custody of and access to Aniyah Janee, born 16 March 2011 (now 10 years old) who was seven years old when her mother died unexpectedly on 20 September 2018. Lauren Samantha Mark was the child’s mother, and Etton Roy Thomas is her father.
[7] At the time of her mother’s death, the child lived with her mother. The father (now 37 years old) had only lived with them for the first year of the child’s life. In previous litigation between the parents, a consent order was made by Curtis, J. on 4 June 2015 for joint custody with primary residence to the mother and alternate week-end access to the father. Before the mother’s death, the father was not very involved in the child’s life and did not spend time with her.
[8] The maternal aunt (now 39 years old) lives in Pennsylvania. She was close to the mother and to the child. The child spent the entire summer with the maternal aunt in Pennsylvania for the previous four years, visited with the maternal aunt on holidays, other school breaks and vacationed there. The maternal aunt and the child had daily contact (on video phone calls). The child’s maternal grandmother, and another maternal aunt live nearby the maternal aunt in Pennsylvania.
[9] Following the mother’s death, on 20 September 2018, the father said he was not in a position to care for the child. Children’s Aid Society of Toronto was involved, and approved Rikka Vescio, a friend of the mother’s, as a kinship temporary caregiver for the child, and the child went to live with her. The father supported the child remaining with Ms. Vescio. The father would not allow the maternal aunt and maternal grandmother to see the child when they came to Toronto to see her soon after the mother’s death, in late October 2018.
Litigation History
[10] On 9 November 2018 the maternal aunt started this court case claiming custody of the child. The respondents were the father and the temporary care-giver Ms. Vescio. A consent order was made on 20 November 2018 for specified access to the maternal aunt. Ms. Vescio filed an Answer on 8 January 2019 claiming joint custody of the child with the father, or in the alternative, sole custody.
[11] Both the maternal aunt and Ms. Vescio have been represented by lawyers throughout (the maternal aunt since the case started in November 2018 and Ms. Vescio since at least 9 January 2019).
[12] On a contested motion on 9 January 2019 the court made temporary orders for (among other things): (a) Sole custody to the maternal aunt; (b) The child may be relocated to Pennsylvania; and, (c) Specified access to the father and to Ms. Vescio.
[13] The father filed no Answer in the case, and after this order was made, did not participate.
[14] On 12 April 2019 a consent order regarding Ms. Vescio’s access to the child was made. On 14 August 2019 the father was noted in default. A final consent order was made then for sole custody to the maternal aunt (among other things). There was an order for no access to the father, and an order that the father not contact the maternal aunt or the child. [2]
[15] After the consent order for custody to the maternal aunt, the court case did not settle for 15 months, until November 2020. The case was litigated for over two years before final orders were made. The case was originally set for trial for October 2020, and was adjourned [3], and then set for trial for December 2020.
[16] The case became complicated by the child’s legal status in the United States and the maternal aunt’s plan to adopt her. The child’s immigration status and its impact on the access dispute was raised with the court as early as 14 August 2019 (it is referred to in the endorsement made that day). The maternal aunt consulted family law and immigration lawyers in Pennsylvania. She was advised that any existing access order regarding the child might interfere with and even prevent her from being able to adopt the child. She wanted to adopt the child for many reasons, but in part, to ensure the child had legal and permanent resident status in the U.S.. Ms. Vescio would not settle the case without an order for access. It appeared that Ms. Vescio did not trust that access would continue without a court order.
[17] The health emergency started in March 2020, and caused a great deal of difficulty in this case (and in many other cases). The Canada-U.S. border was closed in March 2020 to all non-essential travel, and as of March 2021, is still closed. While there had been some access before the health emergency declarations, this stopped from March 2020 onwards.
[18] As a result of the immigration status of the child becoming an issue, Ms. Vescio also retained an immigration lawyer. There were at least two case conferences which involved immigration lawyers from the U.S. and Ontario participating, and explaining the status of the immigration law, the family law complications, and the child’s legal status. There was no dispute about whether there should be access to the child by Ms. Vescio, only about whether there should be an order for access. Should the trial have proceeded, this would have been the only issue for trial: is it in the child’s best interests for there to be an access order in favour of Ms. Vescio, even if there is a risk such an order would impair the ability of the maternal aunt to adopt the chid? The trial would have involved expert evidence (likely family law and immigration lawyers, for both sides). At one point, the trial was set for 7-10 days, then later set for 4 days.
[19] The case settled on the eve of trial. The settlement involved a court order for access by Ms. Vescio, and other terms. [4]
The Costs Analysis
The Law of Costs
Entitlement
[20] Under the Family Law Rules, [5] rule 2(2), the court is required to deal with cases justly. This is the primary objective of the Family Law Rules. Parties and their lawyers are required to deal with their cases in ways which promote the primary objective of the Rules (Rule 2(4)). Costs are an important component in any decisions made by parties about continuing with a court case.
[21] The courts have a broad discretion to award costs. [6] The general discretion of the courts regarding costs is contained in the Courts of Justice Act, [7] s. 131(1), which sets out three specific principles: a) the costs of a case are in the discretion of the court; b) the court may determine by whom costs shall be paid; and, c) the court may determine to what extent the costs shall be paid.
[22] Modern costs rules are designed to foster four fundamental purposes: [8] (a) to indemnify successful litigants for the cost of litigation; (b) to encourage settlement; (c) to discourage and sanction inappropriate behaviour by litigants; and, (d) to ensure that cases are dealt with justly.
[23] In addressing the issue of costs, the court must ultimately be guided by the primary objective of the Family Law Rules as set out in Rule 2(2), which is to enable the court to deal with cases justly. [9]
[24] Rule 2(2) needs to be read in conjunction with Rule 24. Rule 2(4) of the rules states that counsel have a positive obligation to help the court to promote the primary objective under the Family Law Rules. Rules 2(3)(a) and (b) set out that dealing with a case justly includes ensuring that the procedure is fair to all parties and saving time and expense. [10]
[25] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. [11]
Availability of Costs Where No Claim Made for Costs
[26] At the conclusion of the case the respondent Ms. Vescio claimed costs. No costs were claimed in her Answer filed 8 January 2019, nor in the Notice of Motion dated 12 December 2018 (a cross-motion in this case). She did not ask to amend her Answer to claim costs. She raised the issue of costs at a settlement conference on 7 October 2020, when she said she may be bringing a motion for security for costs. The Offer to Settle made by Ms. Vescio dated 20 July 2020 did not refer to costs. [12]
[27] The maternal aunt took the position in her costs submissions that this failure to claim costs by Ms. Vescio precludes her from now seeking costs at the end of the case, and that such a claim should be dismissed.
[28] Under the Family Law Rules, rule 2(2), the court is required to deal with cases justly. This is the primary objective of the Family Law Rules. Parties and their lawyers are required to deal with their cases in ways which promote the primary objective of the Rules (Rule 2(4)). Costs are an important component in any decisions made by parties about continuing to trial in a court case.
[29] The purposes of requiring a party to make claims in writing are these: [13] (a) to put the other side on notice of the case they are to meet; and, (b) to frame the issues for the court to determine at the hearing.
[30] However, the failure to properly plead claims is not always fatal to a party’s ability to ask the court to grant relief later in the case or at the trial. [14]
[31] The issue of notice is central to this analysis. The maternal aunt claimed costs at many stages of the case and asked that costs be reserved. Several such orders were made.
[32] The maternal aunt is entitled to notice of the claim for costs made by Ms. Vescio. But despite the lack of formal, written claims for costs by Ms. Vescio, the issue of costs was alive for the maternal aunt, she was represented by a lawyer throughout, and she could not have been entirely surprised that there would be a claim for costs by Ms. Vescio.
[33] The court should take into account whether there would be any unfairness or disadvantage to the other party to allow Ms. Vescio to claim costs in this way (i.e., absent a claim in the originating documents). [15]
[34] The fact that there was no claim for costs by Ms. Vescio is not an answer on this issue. [16] The maternal aunt did not submit that she was caught by surprise by this claim, or that she was disadvantaged by it. She did not ask for an adjournment to allow her to prepare to respond to this claim. She was given an opportunity to make reply submissions on this issue and did so. There would be no unfairness or disadvantage to the maternal aunt for the court to now deal with a claim for costs from Ms. Vescio. Indeed, the maternal aunt did not suggest that there would be.
[35] The lack of a specific pleading did not catch the maternal aunt by surprise. Under the circumstances, Ms. Vescio’s claim for costs may proceed.
The Evolution of Costs as an Instrument of Social Policy
[36] The traditional purpose of an award of costs was to indemnify the successful party in respect of the expenses sustained. For some time, however, courts have recognized that indemnity to the successful party is not the sole purpose, and in some cases not even the primary purpose, of a costs award. The principle of indemnification, while paramount, is not the only consideration when the court is called on to make an order of costs; indeed, the principle has been called "outdated" since other functions may be served by a costs order, for example to encourage settlement, to prevent frivolous or vexatious litigation, and to discourage unnecessary steps. This change in the common law was an incremental one when viewed in the larger context of the trend towards awarding costs to encourage or deter certain types of conduct, and not merely to indemnify the successful litigant. [17]
[37] The traditional approach to costs can also be viewed as being animated by the broad concern to ensure that the justice system works fairly and efficiently. Because costs awards transfer some of the winner's litigation expenses to the loser, rather than leaving each party's expenses where they fall, they act as a disincentive to those who might be tempted to harass others with meritless claims. In addition, because they offset to some extent the outlays incurred by the winner, they make the legal system more accessible to litigants who seek to vindicate a legally sound position. These effects of the traditional rules can be connected to the court's concern with overseeing its own process and ensuring that litigation is conducted in an efficient and just manner. In this sense it is a natural evolution in the law to recognize the related policy objectives that are served by the modern approach to costs. [18]
[38] Modern costs rules accomplish various purposes in addition to the traditional objective of indemnification. An order as to costs may be designed to penalize a party who has refused a reasonable settlement offer. Costs can also be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. [19] 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. [20]
Success
[39] The starting point in any costs analysis is the presumption that a successful party is entitled to costs, in Rule 24(1). [21]
[40] Success must be measured not only against the parties’ offers to settle, but also against the claims made by each. [22]
[41] An award of costs, however, is subject to the factors listed in rule 24(11) [23], the directions set out under rule 24(4) (unreasonable conduct), rule 24(8) (bad faith) and rule 18(14) (offers to settle), and the reasonableness of the costs sought by the successful party. [24]
[42] In written costs submissions both parties argue that they were the successful party.
[43] The maternal aunt was the successful party on the motion for temporary custody heard 9 January 2019.
[44] It is not always a straightforward matter to determine who the successful party was in a court case. Ms. Vescio argues she is the successful party, as the case settled on the basis of a final order for access to the child. The maternal aunt argues that the case should not have taken 15 months to settle after the consent custody order, and that in that time period, she was put to great expense in the litigation (including the expense of the expert immigration and family law lawyers).
[45] Determining eligibility for costs in this case is not simply a matter of deciding who was successful. The circumstances are more subtle than that issue suggests. The litigation should not have continued for 15 months after the consent custody order in August 2019. The maternal aunt is the party entitled to costs in this case.
Behaviour of the Parties
[46] One of the purposes of costs is to change behaviour.
[47] 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.
[48] Family law litigants are responsible for and accountable for the positions they take in the litigation. [25]
[49] 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. [26]
[50] 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. [27]
[51] Matrimonial litigation is an occasion for sober consideration and thoughtfulness rather than intemperate behaviour. [28]
[52] Rule 24(5) provides criteria for determining the reasonableness of a party’s behaviour in a case (a factor in determining quantum of costs, Rule 24(12)). It reads as follows:
DECISION ON REASONABLENESS (5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine, (a) the party's behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle; (b) the reasonableness of any offer the party made; and (c) any offer the party withdrew or failed to accept.
[53] A finding of bad faith is not a condition precedent to full recovery of costs by the other side under the Family Law Rules. [29] The court need not find that bad faith or other special circumstances exist to make a costs award approaching substantial or full recovery. [30]
[54] When awarded on a full recovery scale, costs can serve to express the court’s disapproval of unreasonable conduct during the litigation. [31]
[55] The unreasonable conduct of a litigant is a factor in both the awarding of costs and in fixing the amount of costs.
[56] It must be made clear to family law litigants that there is no right to a day in court, or at least, that the right to a day in court is tempered with the requirement that the parties take a clear-headed look at their case before insisting on their day in court. The court must sanction this behaviour clearly, or it will invite more of this behaviour.
[57] Costs can be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. The behaviour of Ms. Vescio in bringing claims for joint custody, sole custody and access could not be described as vexatious. But the decision of Ms. Vescio to continue to seek an access order for fifteen months after custody was resolved on consent (a decision which also could not be described as vexatious), did increase the duration and expense of the litigation and could be described as unreasonable, given her status in the child’s life at the time of the mother’s death, and the court order in January 2019 granting custody to the maternal aunt and allowing the child to move then to Pennsylvania with the aunt. The fact that the case settled with a court order for access to Ms. Vescio does not change this, as the maternal aunt says she settled the case as she could not afford the cost of a trial in Canada and additional litigation regarding the child in the U.S.. [32]
Costs and Ability to Pay
[58] Success is given presumptive pre-eminence in Rule 24. While Rule 24(11)(f) [33] does permit the consideration of ability to pay (under the umbrella of “any other relevant matter”), it is given significantly less prominence than the presumption that costs will follow success [34].
[59] Ability to pay may be relevant to the issue of the quantum or scale of costs, but not to another party’s entitlement to costs [35].
[60] Ability to pay alone cannot, nor should it, over-ride the other factors in Rule 24(11). [36] [37]
[61] The (financial) means of the unsuccessful party may not be used to shield him from liability for costs, particularly when he has acted unreasonably [38].
[62] A party’s limited financial means will also be accorded less weight in quantifying costs if the court finds that the party acted unreasonably. [39]
[63] Both parties raised the issue of their individual modest means. But neither party raised this issue specifically regarding either eligibility for costs or the amount of costs.
Offers to Settle
[64] Offers to settle are a significant part of the landscape in family law in Ontario. They are important to the possible resolution of cases. In addition, they are important to determining costs.
[65] Parties and their lawyers have a positive obligation to behave in ways which enable the court to move cases forward to resolution (Rule 2). Rule 2(4) imposes a duty on parties and their lawyers to promote the primary objective of the rules to deal with cases justly (Rule 2(2)). This includes taking appropriate steps to save time and expense (Rule 2(3)). Offers to settle play an important role in saving time and expense by promoting settlements, focusing parties and often narrowing issues in dispute. [40]
[66] The maternal aunt made Offers to Settle on 16 July 2020 and 6 November 2020. There was a Legal Aid Settlement conference, which resulted in a settlement. Ms. Vescio accepted the maternal aunt’s Offer to Settle dated 6 November 2020 on 9 November 2020.
[67] Ms. Vescio made Offers to Settle on 20 July 2019 and 28 October 2020. The Offer to Settle made 20 July 2019 was not provided to the court in the costs submissions.
[68] To attract the automatic costs consequences of rule 18(14), an Offer to Settle a trial must be served at least seven days before the trial (rule 18(14) 2). An Offer that does not meet the criteria of rule 18(14) can still be considered under rule 18(16).
[69] The Offers to Settle made in this case are not determinative on the issue of entitlement to costs.
Quantum of Costs
[70] Once liability for costs has been established, the court must determine the appropriate quantum of costs. These are general principles relating to the quantum issue: a) ultimately, costs decisions should reflect what the court considers to be a fair and reasonable amount that the unsuccessful party should pay; b) costs need to be proportional to the issues and amounts in question and the outcome of the case; c) amounts actually incurred by the successful litigant are not determinative; and, d) in assessing what is fair and reasonable, the expectation of the parties concerning the amount of a costs award is a relevant consideration. [41]
[71] The court’s decision on the appropriate quantum of costs must also be informed by the principle of proportionality. Timeliness, affordability and proportionality are essential components of a legal system that ensures true access to justice. In the context of the costs analysis, these factors require the court to ensure that expenses claimed make sense having regard for the importance and complexity of the issues that were litigated. [42]
[72] The over-riding principle is reasonableness. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case. [43]
[73] In the context of family law disputes, a court need not find special circumstances to make a costs award approaching substantial recovery. [44]
[74] In considering the quantum of costs, the court should also consider Rule 1(8), which provides that the court may respond to a failure to follow the Rules or abide by an order by making an order for costs, and Rule 2(2), which provides that one of the primary objectives of the Rules is to ensure that cases are dealt with justly. [45]
[75] Determining the amount of costs is not simply a mechanical exercise. Costs must be proportional to the amount in issue and the outcome. [46]
[76] Costs awards should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties, rather than any exact measure of the actual costs to the successful litigant. It is not appropriate to simply take the number of hours spent by counsel on a particular matter and multiply those hours by a determined hourly or per diem rate. [47]
[77] Prior to July 1, 2018, pursuant to rule 24(10), costs for any step in the proceeding were required to be determined at the time or expressly reserved. A trial judge should not deal with requests for costs that were addressed or should have been addressed at prior steps in the case. However, this did not preclude courts from awarding costs accrued from activity not specifically related to the step. [48] This activity includes time spent for meetings with the client and reviewing and preparing pleadings and financial statements. [49]
[78] Rule 24 (11) came into force on 1 July 2018 and now provides that the failure of the court to order costs in relation to a step in a case does not prevent it from awarding costs in relation to the step at a later stage in the case. [50]
[79] Rule 24(12), which sets out factors relevant to setting the amount of costs, specifically emphasizes "reasonableness and proportionality" in any costs award. [51] These are the factors in Rule 24(12) to consider in determining the amount of costs in family law matters:
Setting Costs Amounts (12) In setting the amount of costs, the court shall consider, (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. O. Reg. 298/18, s. 14.
[80] In determining the amount of costs in this matter, the court took into account these factors set out in R. 24 (12): (a) the reasonableness and proportionality of each party’s behaviour, as it relates to the importance and complexity of the issues: While the issues were important to the parents involved, the case was not factually complex. The complicating legal factor was the child’s immigration status and the impact that an Ontario court order for access might have on the maternal aunt’s request to adopt the child. The behaviour of Ms. Vescio in continuing the litigation for 15 months after the consent custody order was not reasonable, in all of the circumstances of this case; (b) the reasonableness and proportionality of the time spent by each party, as it relates to the importance and complexity of the issues: The time spent by each party’s lawyer was similar, and given the issues at stake and their importance to the parties, and the legal complexity, was reasonable. No objection was raised regarding the time spent; (c) the reasonableness and proportionality of any written offers to settle, including offers that do not meet the requirements of rule 18, as it relates to the importance and complexity of the issues: The offer of the maternal aunt, which was accepted, resulted from a Legal Aid settlement conference. The Offers to Settle made in this case are not determinative on the issue of costs; (d) the reasonableness and proportionality of any legal fees, including the number of lawyers and their rates, as it relates to the importance and complexity of the issues: The rate claimed by the maternal aunt’s lawyer was a reduced rate, and was reasonable. Ms. Vescio made no objection on that basis; and, (e) the reasonableness and proportionality of any other expenses properly paid or payable, as it relates to the importance and complexity of the issues: The unusual disbursements claimed by both parties related to the need to get expert immigration and family law input from lawyers with expertise in this complicated issue. Ms. Vescio made no objection on that basis.
[81] The court must determine an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of this case. This determination is not merely an arithmetical exercise of calculating time spent by a suitable hourly rate.
Order
[82] Ms. Vescio shall pay the costs of the maternal aunt in this matter. The maternal aunt was the successful party on the motion for temporary custody heard 9 January 2019. A fair and reasonable costs order, and one that is proportionate to the issues involved, in all of these circumstances, is an order for costs fixed at $25,000 all in (fees plus HST and disbursements plus HST).
Released: 25 March 2021 Justice Carole Curtis
[1] Although the legislative changes to the Children’s Law Reform Act, R.S.O. 1990, c. C. 12, as amended, on 1 March 2021 changed the language of custody and access to decision-making responsibilities, and parenting time and contact, this case was completed and settled before these changes. The words custody and access, as they were the law at the time of this case, are used throughout these Reasons for Decision. [2] Under Children’s Law Reform Act, s. 28 (1)(c). [3] Due to illness. [4] Following this order, on consent, Canada is not the appropriate jurisdiction to determine the issues of custody and access. Future litigation about this child will be held in the jurisdiction in which she lives. [5] Family Law Rules, O. Reg. 114/99, as amended (“the Rules” or “the rules”). [6] Mattina v. Mattina, 2018 ONCA 867, para. 9. [7] Courts of Justice Act, R.S.O. 1990, c. C. 43, as amended. [8] Mattina v. Mattina, 2018 ONCA 867, supra, 2018, (Ont. C.A), para. 10. [9] Darling v. Booth, 2017 ONSC 6261; Lawrence v. Lawrence, 2017 ONCJ 431, para 27; Kukyz v. Simeoni, 2017 ONSC 6732, para. 21. [10] Sambasivam v. Pulendrarajah, 2012 ONCJ 711. [11] Beaver v. Hill, 2018 ONCA 840. [12] No other Offers to Settle from Ms. Vescio were provided. [13] M.P.A.N. v. J.N., 2019 ONCJ 96, para. 28. [14] M.P.A.N. v. J.N., 2019 ONCJ 96, supra, 2019 (Ont. Ct.), para. 29. [15] M.P.A.N. v. J.N., 2018 ONCJ 769, para. 266. [16] O’Brien v. Chuluunbaatar, 2019 ONCJ 882. [17] British Columbia (Minister of Forests) v. Okanagan Indian Band, [2003] 3 S.C.R. 371, 2003 SCC 71, paras. 21-24. [18] British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, supra, 2003 (S.C.C.), para. 26. [19] T.L. v. D.S., 2020 ONCJ 9, para. 5. [20] British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, supra, 2003, (S.C.C.), para. 25. [21] Sims-Howarth v. Bilcliffe, 2000 ONSC 22584; Jackson v Mayerle, 2016 ONSC 1556, para. 21. [22] Biant v. Sagoo, 2001 ONSC 28137, para 28. [23] The factors are now contained in Rule 24(12). [24] M. (C.A.) v. M. (D.), 2003 ONCA 18880, paras. 40-43; Berta v. Berta, 2015 ONCA 918, para. 94. [25] Heuss v. Sarkos, 2004 ONCJ 141; Peers v. Poupore, 2008 ONCJ 615, para. 62. [26] Beaver v. Hill, 2018 ONSC 3352, para 38. [27] Heuss v. Sarkos, 2004 ONCJ 141, supra, 2004, (Ont. Ct.), para. 20. [28] Heuss v. Sarkos, 2004 ONCJ 141, supra, 2004, (Ont. Ct.), para. 20. [29] Osmar v. Osmar, 2000 ONSC 20380, para. 11. [30] Sordi v. Sordi, 2011 ONCA 665, para. 21; Beaver v. Hill, 2018 ONSC 3352, supra, 2018, (Ont. Sup. Ct.), para 41. [31] Prinzo v. Baycrest Centre for Geriatric Care, 2002 ONCA 45005, para 76. [32] It was disclosed that the maternal aunt was paying privately for her lawyer, and that Ms. Vescio was assisted through Legal Aid Ontario. [33] Now Rule 24(12)((b). [34] Biant v. Sagoo, 2001 ONSC 28137, supra, 2001, (Ont. Sup. Ct.), para. 16. [35] Izyuk v. Bilousov, supra, 2011, (Ont. Sup. Ct.), para. 51. [36] Now Rule 24(12). [37] Peers v. Poupore, 2008 ONCJ 615, supra, 2008, (Ont. Ct.), para. 42. [38] Gobin v. Gobin, 2009 ONCJ 278, para. 24. [39] Beaver v. Hill, 2018 ONSC 3352, supra, 2018, (Ont. Sup. Ct.), para 55. [40] Laing v. Mahmoud, 2011 ONSC 6737, para. 7. [41] Serra, Boucher v. Public Accountants Council (Ontario), 2004 ONCA 14579; Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC, 2005 ONCA 1042; Beaver v. Hill, 2018 ONSC 3352, supra, 2018, (Ont. Sup. Ct.), para 39. [42] Hryniak v. Mauldin, 2014 SCC 7; Jackson v Mayerle, 2016 ONSC 1556, supra, 2016, (Ont. Sup. Ct.); Beaver v. Hill, 2018 ONSC 3352, supra, 2018, (Ont. Sup. Ct.), para 45. [43] Serra, Boucher v. Public Accountants Council (Ontario), 2004 ONCA 14579, supra, 2004, (Ont. C.A.); Farjad-Tehrani v. Karimpour, 2010 ONCA 326, para. 32, aff’d 2010 ONCA. 326 (Ont. C.A.), para. 4. [44] Sordi v. Sordi, 2011 ONCA 665, supra, 2011, (Ont. C.A.), para. 21. Forrester v. Dennis, 2016 ONCA 840, supra, 2016, (Ont. C.A.), para. 22. [45] Mooney v. Fast, 2013 ONCJ 600; Beaver v. Hill, 2018 ONSC 3352, supra, 2018, (Ont. Sup. Ct.), para 43. [46] Serra, Boucher v. Public Accountants Council (Ontario), 2004 ONCA 14579, supra, 2004, (Ont. C.A.). [47] Zesta Engineering Ltd. v. Cloutier, 2002 ONCA 25577. [48] Islam v. Rahman, 2007 ONCA 622. T.L. v. D.S., 2020 ONCJ 9, para. 15. [49] Czirjak v. Iskandar, 2010 ONSC 3778. [50] T.L. v. D.S., 2020 ONCJ 9, supra, 2020 (Ont. Ct.), para. 16. [51] Mattina v. Mattina, 2018 ONCA 867, supra, 2018, (Ont. C.A.), para. 10.