CITATION: Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 488
DATE: September 17, 2021
COURT FILE NO. D31342/19
ONTARIO COURT OF JUSTICE
B E T W E E N:
CLETUS OPPONG WIAFE
GLENDA PERRY, for the APPLICANT
APPLICANT
- and -
GIFTY AFOAKWA-YEBOAH
GABRIELLA V. DEOKARAN, for the RESPONDENT
RESPONDENT
HEARD: IN CHAMBERS
JUSTICE S.B. SHERR
ENDORSEMENT
Part One – Introduction
[1] On August 11, 2021, the court released its costs endorsement (the costs decision) arising from a two-week trial about the parenting and child support arrangements for the parties’ three-year-old daughter (the child) See: Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 424.
[2] The court ordered the mother to pay the father’s costs of $72,000 for the trial step and $3,000 for a production motion (the production motion) where costs had been reserved to the trial judge (the costs order).
[3] Timelines had been set for making the costs submissions. The mother had failed to make submissions by the deadline.
[4] In the costs decision, the court set out extensive unreasonable behaviour by the mother. Due to this behaviour, the court determined that the costs order should not be reduced based on the mother’s ability to pay.
[5] On August 13, 2021, the mother delivered a Form 14B motion to the trial coordinator’s office seeking to set aside the costs order and asking for an extension of time to file her costs submissions. The father asked for this motion to be dismissed and sought costs against the mother and the mother’s counsel jointly.
[6] On August 26, 2021, the court released its endorsement (the extension decision) and made the following order:
(a) The court will consider changing or setting aside the costs order if the mother delivers a money order or certified cheque made payable to the father in the amount of $3,500, together with her costs submissions, by Thursday, September 9, 2021 at 4:30 p.m. The funds and costs submissions must be delivered in person to the trial coordinator’s office. The costs submissions are not to be mailed, emailed or filed through the court’s portal. Court staff are not to accept the mother’s costs submissions unless accompanied by the funds ordered.
(b) The previous directions for costs submissions continue. The mother’s submissions shall not exceed 4 pages, not including any offer to settle or bill of costs. The father has already made his submissions and shall not make any further submissions.
(c) The costs order is suspended until further order of the court. It shall not be issued and entered until there is a further order of the court. This suspension will be lifted if the mother does not comply with the terms set out in subparagraph (a).
(d) The father’s claim for costs of this Form 14B motion is reserved. If the mother meets the conditions set out in this order, his claim will be considered in the costs consideration. If she does not, a separate endorsement will be issued.
[7] The mother made the required payment of $3,500 and delivered her costs submissions.
[8] The mother submits that no costs should be ordered and that if they are ordered against her they should not exceed $5,049.02.
[9] The court must now decide whether to set aside or change the costs order, and if so, what amount of costs should be ordered.
[10] This endorsement is to be read in conjunction with the costs decision and the extension decision. Those decisions set out the legal considerations that apply to this decision. The court will not repeat those considerations here. Those decisions also set out the court’s findings. Except as expressly indicated otherwise in this decision, the court relies on those findings.
Part Three – The mother’s submissions that will have no impact on the costs order
[11] The mother submitted that the father’s claim for costs is too high because he is on legal aid. The case law is well settled that the receipt of legal aid is not a factor in determining costs. See: Ramcharitar v. Ramcharitar (2002), 2002 53246 (ON SC), 62 O.R. (3d) 107 (S.C.J.); Alvarez v. Smith, 2008 10047 (ON SC), [2008] O.J. No. 941 (SCJ); Loncar v. Pendlebury, 2015 ONSC 4673; S.G. v. A.S., 2015 ONSC 1882.
[12] The mother claimed that this was not a difficult or complex trial. In support of this submission, she pointed out that a maximum of 27 hours of trial time had been set by Justice Roselyn Zisman, the case management judge. She submits that the maximum time that should be allowed for the father’s costs is 37 hours – the 27 hours allocated for trial and 10 hours to prepare for the trial.[^1]
[13] The court does not accept this argument. This case was given priority scheduling (it was not placed on the regular Assignment Court list) due to its importance, difficulty and high conflict. Time limits were imposed by Justice Zisman to place some controls on the extensive litigation that had already taken place in the case.
[14] The litigation became even more difficult and complex due to the mother’s litigation conduct. This unreasonable behaviour was described in detail in Part 3.2 of the costs decision.
[15] When a court focuses a trial, it usually reduces the days that the parties spend in court. However, this does not necessarily reduce the preparation time that is required for trial. In many cases, the preparation time for counsel increases. Affidavits for direct evidence need to be drafted, reviewed, served and filed. Document briefs need to be prepared in advance. Counsel may need to spend extra time honing their examinations to ensure they are concise, effective and can be conducted within the time limits ordered.
[16] The court commented in the costs decision that the mother did not submit her own bill of costs for the court to compare it to the father’s (see paragraph 60). The case law sets out that a useful benchmark for determining whether costs claimed are fair, reasonable and proportionate is to consider the amount that the unsuccessful party paid for their own legal fees and disbursements in the same matter. See: Laidman v. Pasalic and Laidman, 2020 ONSC 7068.
[17] Subrule 24 (12.2) of the Family Law Rules (all references to rules in this decision are to the Family Law Rules) applies to this case. It reads as follows:
(12.2) A party who opposes a claim for costs respecting fees or expenses shall provide documentation showing the party’s own fees and expenses to the court and to the other party.
[18] The mother did not submit any documentation showing her own fees and expenses with her costs submissions.
[19] The mother submitted that only 10 hours of preparation of time was required. This is an extremely low amount of preparation time for a trial that took place over nine days.
[20] The court reviewed the father’s bill of costs again and finds that the rates and time that were claimed are reasonable and proportionate. The father acted proportionally by only claiming time for the production motions (where costs were reserved to the trial judge) and the trial step. He could have claimed costs for work not related to any specific step in the case (such as drafting pleadings). See: Houston v. Houston, 2012 ONSC 233; Walts v. Walts, 2014 ONSC 98.
[21] The court further comments that the father’s counsel’s presentation of the case was excellent. She acted in a highly professional manner in the face of challenging litigation conduct by the mother and her counsel. The court recognizes the extensive amount of work that was required of her to meet these standards.
[22] The mother made a submission that the father was not prejudiced by the late delivery of her trial affidavit because the father had all the mother’s exhibits from prior temporary motions.[^2] This submission has no merit. While the father would be aware of much of the mother’s evidence from the temporary motions, he had no way of knowing what new evidence might be led, or how the mother’s evidence would be presented. Further, the mother’s trial affidavit was significantly in excess of the page limits ordered by Justice Zisman. The father had no way of knowing what excess pages from the affidavit, if any, would be admitted by the court. And, if pages were excluded by the court, what evidence the mother would choose to exclude. This made it even more difficult for the father to prepare his cross-examination of the mother.
[23] The court ordered the mother to comply with the page limits imposed by Justice Zisman. It also adjourned the trial for one day to address the prejudice caused by the mother’s litigation conduct.
[24] The mother attached in her costs submissions a portion of an offer to settle, made by the father in his settlement conference brief, in support of her submission that the father had made an unreasonable offer to settle.[^3] This should not have been submitted. Subrule 17(23) is clear that no brief, evidence or statement made at a settlement conference is to be disclosed unless in an agreement reached at a settlement conference or an order. There is no exception for the offers to settle in a settlement conference brief to be disclosed in submissions for costs. See Entwistle v. MacArthur, 2007 17375, 157 (SCJ - Ont. Fam. Ct.); Farooq v. Majeed, 2011 ONCJ 827.
[25] The father, appropriately, did not attach this offer to settle to his costs submissions. He did not attach any offer to settle to his costs submissions and this was a factor in reducing his costs claim.
[26] The mother did not provide the court with any offer to settle made by her.
[27] The mother used her opportunity to make costs submissions to again attack Justice Zisman’s temporary decisions. This was consistent with her trial conduct. At trial, she blamed everyone but herself for her circumstances – the father, many judges, the police, her previous lawyer and the Peel Children’s Aid Society. It is unfortunate that she continues to do this. The court would have been much more receptive to reducing the costs order if she had taken any accountability for her unreasonable behaviour during this case.
[28] The mother did not make any specific submissions regarding the $3,000 costs ordered for the production motion that had been reserved to the trial judge. The court will consider her general ability to pay submission below.
Part Four – Factors that will influence the costs decision
[29] There are factors that persuade the court, in exercising its discretion, to change (not set aside) its costs order.
[30] The first factor is that the mother complied with the extension decision and made costs submissions. She had failed to make costs submissions to both Justice Sager and Justice Zisman earlier in the case. Her failure to make costs submissions for the trial stage appeared to be further evidence of defiant behaviour.
[31] The second factor is that the mother paid $3,500 towards the costs award (albeit as a condition to make these submissions). The mother’s prior failure to pay anything towards multiple costs orders had been an exacerbating costs factor.
[32] The third factor has become an increasing concern of the court as this case has developed. How much of the unreasonable behaviour in this case is attributable to the mother’s counsel as opposed to the mother? And does this even matter in making a costs order?
[33] Ordinarily, a litigant will be held responsible for the litigation conduct of his or her lawyer. Courts are not privy to privileged solicitor-client discussions and are not well-suited to determine why certain actions and approaches were or were not taken.
[34] However, as the father in his affidavit filed in opposition to the mother’s extension pointed out, The Law Society of Ontario is seeking the interim suspension of the mother’s counsel’s licence, arising out of very serious allegations against her. An interim order restricting counsel’s practice was recently made, as outlined in paragraph 17 of the extension decision.[^4] These developments give the court some pause in attributing all of the unreasonable behaviour in this case to the mother. It was the extent of this unreasonable behaviour that led to the court’s determination that there should be no reduction to the costs order based on the mother’s ability to pay.
[35] The mother should still be held accountable for most of the unreasonable behaviour in this case. She swore the affidavits that were presented to the court. She is the person who made unsupported allegations against the father, the police, the Peel Children’s Aid Society and the judiciary. She maintained her unsupported allegations and positions at trial. She put the father to extensive cost to gather the evidence to disprove these allegations. As particularized in paragraph 50 of its costs decision, the mother breached multiple court orders.
[36] However, it is unlikely that the mother is responsible for the frequently missed timelines throughout the case or for the multiple breaches of the trial direction orders made by Justice Zisman (as set out in paragraph 49 of the costs decision).
[37] The court finds it is just, applying rule 2, to take a liberal interpretation of clause 25 (19) (e) of the rules.[^5] It finds that the mother has a satisfactory reason for her failure to make costs submissions within the time ordered– the reason being the disorganization and neglect of her counsel. The court always prefers to make decisions with the input of both parties – they are usually better decisions. The mother should not be prejudiced due to her counsel’s failure to make the costs submissions when ordered.
[38] The court recognized in the costs decision that the mother does not have the financial means to pay the existing multiple costs orders that have been made against her – let alone anything that will be ordered by this court. The mother is on public assistance and has another young child living with her. However, it also found that due to the mother’s reckless and unreasonable litigation conduct that it would be inappropriate, unjust and contrary to the public’s respect for the administration of justice, to discount the costs order or to make a payment order based on her ability to pay. Making such an order would send the wrong message to the mother and to like-minded litigants.
[39] The court finds that it can still send this strong message to the mother and to like-minded litigants while taking into consideration the unique circumstances described in this decision. The court is prepared to give the mother a partial discount (as compared to the discount it would ordinarily allow impecunious litigants) in the costs amount based on her ability to pay the costs order.
Part Five – The Form 14B motion
[40] The father also sought costs of $1,000 against the mother and the mother’s counsel personally, arising out of the mother’s Form 14B motion to extend the time for her to make costs submissions. The court reserved that request in the extension decision.
[41] The court will not order any costs for this step. The mother was partially successful on the Form 14B motion. She obtained an extension of time to make costs submissions over the father’s objections. The father was paid $3,500 towards past costs orders.
Part Four – Conclusion
[42] The court orders that the costs order is changed as follows:
a) The mother shall pay the father’s costs of $2,500 for the production motion, inclusive of fees, disbursements and HST.
b) The mother shall pay the father’s trial costs of $60,000, inclusive of fees, disbursements and HST.
c) The father may now take out and enforce this order.
Released: September 17, 2021
_____________________ Justice S.B. Sherr
[^1]: Justice Zisman also allocated one full day for closing submissions.
[^2]: The mother’s trial affidavit was delivered late in the afternoon on the last business day before the trial.
[^3]: The mother only included one undated page of the father’s settlement conference brief.
[^4]: The interim order from the Law Society Tribunal was made on August 13, 2021 – two days after the release of this court’s costs decision.
[^5]: Clause 25 (19) (e) of the rules reads as follows: CHANGING ORDER — FRAUD, MISTAKE, LACK OF NOTICE 25 (19) The court may, on motion, change an order that, (a) was obtained by fraud; (b) contains a mistake; (c) needs to be changed to deal with a matter that was before the court but that it did not decide; (d) was made without notice; or (e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.