DATE: April 25, 2023 COURT FILE NO. D41854/21 ONTARIO COURT OF JUSTICE

B E T W E E N:

F.K.T. ARTHUR BROWN, for the APPLICANT APPLICANT

• and -

A.A.H. FEVEN GLAIZGHI, for the RESPONDENT RESPONDENT

HEARD: In Chambers

JUSTICE S.B. SHERR

COSTS ENDORSEMENT

Part One – Introduction

[1] On March 10, 2023, the court released its reasons for decision after a two-day trial. See: F.K.T. v. A.A.H., 2023 ONCJ 110.

[2] The trial was primarily about the applicant’s (the mother’s) request for supervised parenting time with the parties’ two children. She had not exercised parenting time since she attempted to kill them by stabbing them multiple times on July 11, 2020. She was found not criminally responsible for her actions and the Ontario Review Board (the ORB) ordered her to be detained at CAMH. She remains there.

[3] There were other minor issues at trial. The mother sought the right to obtain information about the children. The respondent (the father) sought non-contact orders.

[4] The court made the following order:

a) The mother shall have no in-person or virtual parenting time with the children.

b) The father shall send a picture of the children to the mother every three months and send her copies of the children’s report cards, with the names and addresses of the schools, and the names of any school staff blacked out. He may send this to the brother. He is to send the first set of pictures and P.’s report card to the mother by March 28, 2023.

c) Pursuant to section 28 of the Children’s Law Reform Act, the mother shall not contact the father and the children directly or indirectly, by any form of communication, except through legal counsel, or with the father’s written consent.

d) Pursuant to section 28 of the Children’s Law Reform Act, the mother shall not come within 250 meters of the father’s home, the children’s school, or any other place that the father and the children may be reasonably expected to be, except with the father’s written consent.

e) The balance of the mother’s claims are dismissed.

f) Either party may seek a review of this order after two years.

[5] The parties were given the opportunity to make written costs submissions. The father seeks his costs of $19,045. The mother asks that if costs are ordered that they be nominal.

Part Two – General costs principles

[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 (1) creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. See: Sims-Howarth v. Bilcliffe, [2000] O.J. No. 330 (SCJ-Family Court).

[11] Subrule 24 (6) sets out that if success in a step in a case is divided, the court may apportion costs as appropriate.

[12] Divided success does not equate with equal success. It requires a comparative analysis. Most family cases have multiple issues. They are not equally important, time-consuming or expensive to determine. See: Jackson v. Mayerle, 2016 ONSC 1556, paragraph 66.

[13] Where there are multiple issues before the court, the court should have regard to the dominant issue at trial in determining success. See: Firth v. Allerton, [2013] O.J. No. 3992 (SCJ); Mondino v. Mondino, 2014 ONSC 1102.

Part Three – Determination of success

[14] The mother submits that there was divided success at trial because the father had made claims for a restraining order, child support and the return of Canada Child Benefits in his Answer/Claim that were not pursued at trial, and she was able to obtain an order at trial for the production of pictures of the children and redacted report cards. Further, she submits that if not for her application, it is unlikely that the father would be seeking treatment for their older child.

[15] This does not constitute divided success. The trial was focused on whether the mother should have parenting time with the children and the father was completely successful on this issue. The court also granted orders restricting the mother’s contact with the father and the children pursuant to section 28 of the Children’s Law Reform Act and the mother was provided with very limited information about the children. The court does not find that the mother’s application was the impetus for the father seeking treatment for the older child.

[16] The father was the successful party at trial. The mother did not rebut the presumption that the father is entitled to costs.

Part Four – Amount of costs

[17] 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.

[18] 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.

[19] This case was important to the parties. It was not complex or difficult.

[20] The father acted reasonably in this case, save for one exception that will be set out below.

[21] The father submits that the mother acted unreasonably by pursuing this matter to trial. The court does not agree. Being unsuccessful does not necessarily equate to being unreasonable. See: Wauthier v. McAuliff, 2019 ONSC 5302; W.H.C. v. W.C.M.C., 2021 ONCJ 363. The mother sincerely felt that it was in the best interests of the children to have parenting time with her.

[22] The father acted reasonably by making an offer to settle dated August 28, 2022. The offer was not as favourable to the mother as the trial result. However, it was an attempt to resolve the case. The mother did not present an offer to settle to the court. That is unreasonable conduct.

[23] Both parties acted reasonably by focusing the issues and evidence for the trial, reducing time and expense.

[24] At paragraph 13 of its reasons for decision, the court commented that the father was surprised and shook up by the mother attending in person at the trial, since he had been previously advised that she would be participating remotely from CAMH. In fact, the mother’s counsel had emailed both the court and father’s counsel at 3 p.m. the day before, informing them that the mother would be attending in person. The mother did not act unreasonably.

[25] The mother submitted that the time and rates claimed by the mother are unreasonable because both parties are in receipt of legal aid.

[26] However, the case law is well settled that the receipt of legal aid is not a factor in determining costs. See: Ramcharitar v. Ramcharitar, (2002), 62 O.R. (3d) 107 (S.C.J.); Alvarez v. Smith, [2008] O.J. No. 941 (SCJ); Loncar v. Pendlebury, 2015 ONSC 4673; S.G. v. A.S., 2015 ONSC 1882.

[27] The rates claimed by the father’s counsel ($250 per hour) are very reasonable for a 2014 call to the bar.

[28] The father included significant time in his bill of costs for prior steps in the case. This included time spent for a First Appearance Court attendance, two case conferences, a settlement conference, a default hearing where the court granted the father final decision-making responsibility for the children and other incidents of parenting, an unsuccessful motion by the mother to set aside that order and trial management conference appearances.

[29] Subrule 24 (11) 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.

[30] However, courts continue to be cautious about awarding costs at the trial stage where costs were not awarded at earlier steps in a case. See: Baezner v. Brunnenmeir, 2018 ONCJ 956; Nabwangu v. Williams, 2019 ONCJ 171.

[31] In Laidman v. Pasalic and Laidman, 2020 ONSC 7068 the court set out that the presumption remains that costs should be determined at each stage, and there are good reasons for this. Parties should have an ongoing awareness of the cost consequences of litigation decisions they make. Reserving costs may impede final resolution by needlessly inflating and complicating the list of future issues still to be dealt with. A judge who has just completed a step in a case will usually be in the best position to evaluate all of the relevant Rule 18 and 24 considerations. Reserving costs to a future event – often to a different judge – can result in later confusion and controversy about what really happened at the earlier step.

[32] In Berge v. Soerensen, 2020 ONCJ 265 Justice Roselyn Zisman set out the following circumstances where costs of a prior step should be awarded:

a) Costs have been reserved to the trial judge.

b) When, considering subsequent events, the trial judge is better situated to determine the costs of the prior step than the judge presiding over the step or,

c) In exceptional circumstances.

[33] Costs were not ordered or reserved by the presiding judges at any of these prior steps in the case.

[34] This court finds that it is not better situated than the judges who heard the case conferences, the settlement conference, the default hearing and the motion to set aside the default judgment, to decide costs for those prior steps.

[35] In particular, the father should have claimed costs for the default hearing and the motion to set aside the default judgment when those matters were heard. That is also when he should have made his submission that the mother acted unreasonably by trying to set aside the default judgment.

[36] There are no exceptional circumstances that warrant ordering costs for those prior steps.

[37] This does not preclude the court from awarding costs accrued from activity not specifically related to a step in the case. Activity not requiring judicial intervention is often better dealt with at the end of the case and not by the case management judge. See: Houston v. Houston, 2012 ONSC 233; Walts v. Walts, 2014 ONSC 98; F.S. v. M.B.T., 2023 ONCJ 144. The court will award costs for this activity which includes the drafting and review of pleadings, review of children’s aid society disclosure, ORB documentation, hospital records and medical reports.

[38] The court will also order costs for the preparation for and attendance at First Appearance Court. These are appearances before a court clerk to ensure that the case is ready to send to a judge for a case conference. There should be no expectation that costs will be addressed at this step of a case. See: Thomas v. Saunchez, 2022 ONCJ 532.

[39] The court would have awarded the father costs of the trial management conference appearances (three) as it is generally more appropriate for the trial judge to determine costs for the trial management conference step in a case. However, Justice Melanie Sager, at the final trial management conference on February 6, 2023, endorsed the following:

Today was scheduled for a TMC to complete the trial planning for this case which is in the February 27th to March 7th trial sittings. This is the second time counsel for the father did not attend in the last three appearances.

[40] Justice Sager completed the trial planning process just with the mother’s counsel. This was unreasonable conduct by the father, disentitling him to costs for these appearances.

[41] The mother claims that the time spent by the father was excessive.

[42] Subrule 24 (12.2) provides that 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. An adverse inference may be drawn against the party who fails to provide such documentation. See: S.W.-S. v. R.S., 2022 ONCJ 11; M.H.S. v. M.R., 2022 ONCJ 28; Kasmieh v. Hannora, 2023 ONSC 1643; Morsillo v. Quartarone, 2022 ONCJ 591.

[43] The mother did not submit her own bill of costs with her costs submissions. An adverse inference is drawn against her.

[44] The court recognizes that additional time was required as the father required a translator.

[45] The court finds that the time claimed by the father, except for the prior steps, is reasonable.

[46] The modest expenses claimed by the father are also reasonable.

[47] The court should also take into consideration the ability of a party to pay costs. See: MacDonald v. Magel (2003), 67 O.R. (3d) 181 (Ont. C.A.). The mother is detained at CAMH and receives limited social assistance.

[48] However, parties cannot expect to be immune from an order of costs based on their limited financial resources. If this were the case, parties would be free to conduct litigation as they wished without fear of reprisal in the form of adverse costs orders and this would be contrary to the philosophy and requirements of the rules. See: Culp v. Culp, 2019 ONSC 7051; Mark v. Bhangari, 2010 ONSC 4638.

[49] 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.

[50] Taking into account all of these considerations, the court finds it reasonable and proportionate to order the mother to pay the father’s costs fixed at $8,500, inclusive of fees, disbursements and HST. The mother should have expected to pay these costs if she was unsuccessful.

Part Five – Payment of costs order

[51] These are unusual circumstances. The mother is detained at a mental health facility. She has no assets, no income and no ability to pay the costs order at this time. This may or may not change. There is some room for optimism as the evidence at trial indicated that there have been some improvements in the mother’s mental health and just prior to the trial she was given permission to attend school outside CAMH on her own.

[52] In these circumstances, the court is going to suspend payment of the costs order until the earliest of the mother obtaining employment, receiving Ontario Disability Support Payments (ODSP), or her being released from CAMH. She is to immediately notify the father when any of these events happen. At that time, if the parties cannot negotiate a payment arrangement, either may bring a Form 14B motion, on notice to the other party, seeking an order for how the costs are to be paid.

Part Six – Conclusion

[53] A final order shall go on the following terms:

a) The mother shall pay the father’s costs fixed at $8,500, inclusive of fees, disbursements and HST.

b) Payment of these costs is suspended until the earliest of:

i) The mother obtaining employment,

ii) The mother being in receipt of ODSP; or

ii) The mother being released from CAMH.

c) The mother is to immediately notify the father’s counsel in writing if she obtains employment, including the name, address and phone number of the employer, her work hours and rate of pay.

d) The mother is to immediately notify the father’s counsel if, and when she starts receiving ODSP and provide an ODSP payment stub.

e) The mother is to immediately notify the father’s lawyer when she is released from CAMH.

e) If the parties cannot negotiate a payment agreement once the mother obtains employment, receives ODSP, or is released from CAMH, either party may bring a Form 14B motion, on notice to the other party, seeking an order for how costs are to be paid, with submissions not exceeding two pages.

Released: April 25, 2023

Justice Stanley B. Sherr