CITATION: Nelson v. Davidson, 2021 ONCJ 70
DATE: February 8, 2021
COURT FILE NO. D70798/14
ONTARIO COURT OF JUSTICE
B E T W E E N:
O’NEIL ORLANDO NELSON
SOLMAZ SEPARY, for the APPLICANT
APPLICANT
- and -
CAMELIA DACIANNE DAVIDSON
KENNETH E. SNIDER, for the RESPONDENT
RESPONDENT
HEARD: IN CHAMBERS
JUSTICE S.B. SHERR
COSTS ENDORSEMENT
Part one – Introduction
[1] On September 25, 2020, for oral reasons given, the court found the respondent in contempt of its access order dated March 18, 2020 (the access order).
[2] The contempt motion was adjourned for sentencing and to give the respondent the opportunity to purge her contempt, by fully complying with the access order.
[3] On January 11, 2021, on consent, the court found that the respondent had purged her contempt. The applicant is now regularly seeing the parties’ 10-year-old son.
[4] The applicant was given the opportunity to seek costs of the contempt motion. Both parties have made written submissions.
[5] The applicant seeks full recovery costs of $2,119.88. The respondent submits that the applicant’s costs should be fixed at $500, which costs may not be enforced for 12 months, and only in the event of a further finding of contempt by the respondent in respect of access.
Part Two – Legal considerations
[6] The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867, set out that 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 Family Law Rules (all references to the rules in this decision are to the Family Law Rules).
[7] 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, 2003 SCC 71, 2003 S.C.C. 71, paragraph 25.
[8] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.
[9] An award of costs is subject to the factors listed in subrule 24 (12), subrule 24 (4) pertaining to unreasonable conduct of a successful party, subrule 24 (8) pertaining to bad faith, subrule 18 (14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party. See: Berta v. Berta, 2015 ONCA 918, at paragraph 94.
[10] Subrule 24 (12) reads as follows:
24 (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.
[11] In determining the appropriate quantum, the court should consider the amount that the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation. See: Arthur v. Arthur, 2019 ONSC 938.
[12] The court should also take into consideration the ability of a party to pay costs. See: MacDonald v. Magel (2003), 2003 CanLII 18880 (ON CA), 67 O.R. (3d) 181 (Ont. C.A.). However, a party’s limited financial circumstances will not be used as a shield against any liability for costs but will be taken into account regarding the quantum of costs. See: Snih v. Snih, 2007 CanLII 20774 (Ont. SCJ pars. 7-13). Difficult financial circumstances are a factor but not are always a reason to deprive a successful party of costs or to reduce the amount of costs. See: Beaulieu v. Diotte, 2020 ONSC 6787.
[13] Those who can least afford to litigate should be most motivated to seriously pursue settlement and avoid unnecessary proceedings. See: Mohr v. Sweeney, 2016 ONSC 3338; Balsmeier v Balsmeier, 2016 ONSC 3485.
Part Three - Analysis
[14] There is no dispute that the applicant is the successful party and entitled to costs. The issues in dispute are the amount of costs and how they will be paid.
[15] The case was important for the parties. It was not complex or difficult.
[16] The applicant acted reasonably. When the respondent had previously breached access orders, he had sought lesser enforcement options than contempt. When the respondent denied his access after June 6, 2020, he tried, unsuccessfully, to restore his visits through counsel, before bringing his contempt motion.
[17] The respondent did not act reasonably. This resulted in the contempt finding. The contempt finding was the last resort of the court to enforce the access order. See: Hefkey v. Hefkey, 2013 ONCA 44.
[18] The court made the following findings on the contempt motion:
a) The applicant had been consistently denied access by the respondent.
b) The respondent had been warned many times that she must comply with the court order.
c) The respondent would then permit access for a while before denying it again.
d) The respondent had become openly defiant of the access order. This was undermining the administration of justice.
e) The respondent was undermining the child’s relationship with the applicant.
[19] The respondent acted reasonably by complying with the access order after the contempt finding was made.
[20] The respondent submitted that costs should be discounted because no offers to settle were made. However, this is only a factor when there can be some reasonable element of compromise to the motion. See: Beaver v. Hill, supra. Here, lesser enforcement options had already been attempted by the applicant, without any sustained change to the respondent’s conduct. She continued to arbitrarily deny access. The applicant reasonably pursued the contempt remedy.
[21] The time and rates claimed by the applicant are very reasonable and proportionate. The costs claimed are what a reasonable party should have expected to pay if they were unsuccessful on this motion.
[22] The respondent submitted that the rates claimed are too high because the applicant is in receipt of 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 CanLII 53246 (ON SC), 62 O.R. (3d) 107 (S.C.J.); Alvarez v. Smith, 2008 CanLII 10047 (ON SC), [2008] O.J. No. 941 (SCJ); Loncar v. Pendlebury, 2015 ONSC 4673; S.G. v. A.S., 2015 ONSC 1882.
[23] The court has considered the respondent’s financial circumstances. She is on public assistance. She is primarily raising the child.
[24] This consideration has to be balanced against the respondent having breached access orders on multiple occasions despite many warnings about the potential consequences of doing so. Her actions have undermined the child’s relationship with the applicant. They have caused the applicant considerable distress. Her actions have resulted in significant costs to the family law system.
[25] A contempt finding is serious and is not made lightly. The message needs to be sent that a party cannot be in contempt of an access order and then try to hide behind their impecuniosity when it comes to the costs reckoning.
[26] In E.K.B. v Jewish Family and Child Services, S.K.B. and R.G., 2020 ONSC 2924, Justice Freya Kristjanson was faced with a similar argument of impecuniosity by a parent on social assistance when determining costs. At paragraph 19 of her decision she adopted the comments made by Justice Roselyn Zisman, in Sang v. Suteu, 2016 ONCJ 160, who wrote at paragraph 29 of her decision:
No submissions were made on behalf of the mother as to what amount she was prepared to pay or how she was proposing a cost order be paid. It appears that the mother is content to simply permit the court to make a cost order in the knowledge that the father would for all practical purposes be unable to enforce the order as she has no assets and is in receipt of Ontario Works.
If the court simply made a cost order with no payment terms then the purpose of a cost order that is, to indemnify successful litigants, to encourage settlement and discourage and sanction inappropriate behavior by litigants, would be defeated…
[27] The court will take into consideration the respondent’s financial circumstances by permitting her to pay the costs over an extended time period. However, if there is any future finding that the respondent has breached the access order, the court may reconsider this term.
Part Four – Conclusion
[28] A final order shall go on the following terms:
a) The respondent is to pay the applicant his costs of the motion fixed at $1,800, inclusive of fees, disbursements and HST.
b) The respondent may pay the costs at $50 each month, starting on March 1, 2021. However, if any court makes a finding that the respondent has again breached the access order, the applicant may ask that court to accelerate payment of the costs order.
Released: February 8, 2021
_____________________ Justice S.B. Sherr