DATE: June 10, 2022 COURT FILE NO. D40826/06
ONTARIO COURT OF JUSTICE
B E T W E E N:
SHIRLYN AUGUSTIN
OLIVIA OPREA, for the APPLICANT
APPLICANT
- and -
GODWIN ANIGOZE and JOANNA FERENSOWICZ
THE RESPONDENTS ACTING IN PERSON
RESPONDENTS
CATHY TSAGARIS, agent, FOR THE ASSIGNEE, THE CITY OF TORONTO
HEARD: In Chambers
JUSTICE S.B. SHERR
COSTS ENDORSEMENT
Part One – Introduction
[1] On May 2, 2022, the court released its reasons for decision arising out of a two-day trial about child support. See: Augustin v. Anigoze, 2022 ONCJ 207.
[2] The court found that the applicant (the mother) was the successful party and gave her the opportunity to make written costs submissions.
[3] The mother seeks costs of $10,000.
[4] The respondents were also given the opportunity to make costs submissions but did not do so.
Part Two – Legal considerations
[5] 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).
[6] 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.
[7] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.
[8] 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.
[9] 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.
[10] 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.
Part Three – Analysis
[11] This case was important for the parties. It was made more difficult and complex because Godwin Anigoze (the father) was secretive and deceptive about his financial affairs. He did not provide complete or timely financial disclosure. He provided no documentary evidence that would allow the mother or the court to trace who provided him with money, when it was provided, how much was given to him and how it was disbursed.
[12] The father acted unreasonably, bordering on bad faith.
[13] The other respondent, Joanna Ferensowicz (Joanna) is the father’s spouse. She was added as a party by Justice Robert Spence for the purpose of a financial disclosure being made against her. Joanna acted unreasonably by not complying with Justice Spence’s financial disclosure order dated January 13, 2021.
[13] The father did not make an offer to settle. This was also unreasonable. He took the position that he should pay child support of $350 each month based on an annual income of $32,000. The court ordered him to pay child support of $1,088 each month, retroactive to April 1, 2019, based on an imputed annual income of $122,593. The court also ordered him to contribute to the child’s special and extraordinary expenses pursuant to section 7 of the Child Support Guidelines.
[14] The mother made a very reasonable offer to settle given the father’s failure to provide financial disclosure. It was dated March 16, 2022. She proposed that the father pay child support based on an imputed annual income of $129,702. She initially took the position that child support should be retroactive to January 1, 2016. She reasonably changed her position in closing submissions and asked that support be retroactive to January 1, 2019.
[15] The time claimed by the mother in her bill of costs was reasonable.
[16] The rate of $300 per hour claimed by the mother’s counsel (who is a 2014 call to the bar) is reasonable.
[17] The disbursements of $323.36 claimed by the mother are reasonable.
[18] The respondents should have expected to pay costs approaching the range sought by the mother if they were unsuccessful at trial.
[19] The respondents have the ability to pay the costs that will be ordered.
[20] Joanna was added to the case for a very limited purpose – a financial disclosure order. She breached that order and should be liable for costs related to that breach. However, she should not be jointly and severally liable for the remainder of the costs that will be ordered.
[21] The mother set out in her bill of costs that her fully recovery costs were $18,061.20. Her costs claim of $10,000 is reasonable and proportionate in these circumstances.
Part Four – Order
[22] An order shall go on the following terms:
a) The father shall pay the mother’s costs fixed at $10,000, inclusive of fees, disbursements and HST.
b) Joanna shall be jointly and severally liable for $1,000 of the costs award.
c) Costs are payable forthwith.
Released: June 10, 2022
Justice S.B. Sherr