Court File and Parties

ONTARIO COURT OF JUSTICE DATE: February 5, 2024 COURT FILE No.: DFO-20-15753

BETWEEN:

Maria Netkal Applicant

— AND —

Yahya Gulma Respondent

COSTS ENDORSEMENT

HEARD IN CHAMBERS

Counsel: Susan Blackwell, for the applicant Yahya Gulma, acting in person

JUSTICE W. KAPURURA:

Part One – Introduction

[1] This is the applicant’s (the mother’s) request for costs against the respondent (the father) with respect to his motion to change child support that was withdrawn on November 27, 2023. She seeks costs in the amount of $7,800.00.

[2] The father seeks costs against the mother in the amount of $7,647.75.

[3] The mother was legally represented. The father was self-represented.

[4] The court must decide the following issues:

a. Has the father rebutted the presumption that he should pay the mother’s costs? b. If costs are payable, what is the amount of costs that the court ought to order?

Part Two – Background Information and Procedural History

[1] The parties have a 7-year-old child together, M (the child), residing primarily with the mother.

[2] On January 11, 2022, Justice B. Scully made a final order (the existing order) requiring the father to pay support to the mother, for the child, in the amount of $1,040.00 per month, based on an imputed annual income of $116,611.69. He was ordered to pay child support arrears in the amount of $11,749.49, with a payment plan provided in the order. He was also ordered to pay a total of $5,900.00 in costs.

[3] The existing order was made on an uncontested basis after the father’s pleadings were struck due to his failure to comply with court orders pertaining to financial disclosure.

[4] On June 13, 2023, the father filed a motion to change the existing order, seeking to have child support recalculated based on an annual income of $49,400.00. He argued that the amount that was imputed on him in the existing order did not reflect his actual earnings. He sought to have the costs award in the existing order to be ‘voided’, or in the alternative, be ‘adjusted’.

[5] The father provided the following additional reasons in support of his claims:

i. He can no longer afford support based on the imputed income. ii. He has another child who was born in 2022 after the existing order was granted. The child has significant health issues. He is paying additional costs for the child’s medical needs. iii. He is in receipt of employment insurance. iv. His child support arrears have risen to $7,801.00.

[6] The father’s financial disclosure reflects his income as follows:

2020 – Notice of assessment - $103,062 2021 – Notice of assessment - $49,400 (he received a CRA refund of $6,911). 2022 – Employment income - $89,938

[7] The mother filed a response to the motion to change dated July 20, 2023.

[8] In her response, the mother stated that the father’s reasons for seeking a change was previously considered and rejected by Justice Scully before the granting of the existing order. She identified the following challenges with respect to his motion to change:

i. The facts and reasons provided by the father in his motion to change did not meet the relevant legal test on a motion to change child support. ii. She claimed that he had failed to provide required financial disclosure as part of his request to vary the existing support order.

[9] The parties attended at first appearance court on July 26, 2023, on the motion to change. On November 2, 2023, the parties had their first case conference. At the case conference, some of the issues raised by the mother were discussed and the father was encouraged to seek independent legal advice regarding his claims.

[10] On November 27, 2023, the father filed a Form 12 Notice of Withdrawal, withdrawing his claims completely.

Part Two – Legal Considerations and Analysis

2.1 General principles

[11] Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, provides that costs orders are in the discretion of the court.

[12] Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.

[13] 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).

[14] While these four objectives provide a general framework for the analysis of costs, the court must also ensure that the law of costs does not become an impediment to the pursuit of justice. Accordingly, in seeking to advance these objectives, the court should also consider the importance of not unduly deterring potential litigants from pursuing legitimate claims for fear of overly burdensome costs consequences. See: Weber v. Weber, 2020 ONSC 6855 (Ont. S.C.J.) at para. 11.

[15] 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.

2.1 – Withdrawal of a claim

[16] The request for costs against a party who withdraws their application is governed by subrule 12(3) of the Family Law Rules, O. Reg. 114/99 (Rules), which provides as follows:

(3) A party who withdraws all or part of an application, answer or reply shall pay the costs of every other party in relation to the withdrawn application, answer, reply or part, up to the date of the withdrawal, unless the court orders or the parties agree otherwise. O. Reg. 114/99, r. 12 (3).

[17] In Dixon v. McGhann, 2021 ONCJ 72, Justice R. Spence stated that subrule 12(3) of the Rules does not provide any guidance for how costs are to be determined, in the same way that Rules 18 and 24 provide courts with guidance and factors to consider when ordering costs following trials or motions. In that case, the claim was withdrawn after a negative paternity case. The court declined to order costs because the application was made in good faith, was uncomplicated, the moving party unreasonably alleged bad faith and the mother had limited financial circumstances.

[18] Subrule 12(3) of the Rules creates a presumption that the withdrawing party must pay the costs of the other parties. However, that is a rebuttable presumption.

[19] In B.L. v. M.L., 2003 ONSC 1948, Justice David Aston declined to make a costs order when an applicant withdrew her application. He found that the applicant had commenced her application in good faith.

[20] In Gorman v. Gorman, 2023 ONSC 6837 (para 28), Justice H. McGee stated that the failure to properly plead one’s claims is not a defense to being subject to a costs award upon their withdrawal.

[21] Justice Desormeau stated in Carmichael v. Carmichael, 2019 ONSC 7224 that:

12 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: Lawrence v. Lawrence, 2017 ONCJ 431, at para. 52.

13 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: Lawrence v. Lawrence, supra, at para. 54.

Part Three - Analysis

[22] The mother is presumptively entitled to costs pursuant to subrule 12(3) of the Family Law Rules. The issue is whether the father has rebutted that presumption.

[23] The history of this litigation is relevant in the assessment of the costs issue. At the time the existing order was made, the court had to impute income on the father after his pleadings were struck due to his failure to comply with court orders pertaining to financial disclosure. In his motion to change, his position was that the final order was based on erroneous information as the imputed amount did not reflect his actual earnings. He tried to explain his failure to provide the financial disclosure that had been ordered by Justice Scully by stating that he was out of the country at the time.

[24] The father did not seek to set aside both the order striking his pleadings, and the order imputing his income.

[25] The existing order was not appealed.

[26] The father’s reasoning was problematic. A motion to change is not an opportunity to try and relitigate issues that were previously addressed at the time the final order was made. The legal test at the motion to change child support stage is whether there is a material change in circumstances.

[27] Through his motion to change, the father unnecessarily dragged the mother back into the court process.

[28] What is even more disturbing is that the same disclosure challenges that the mother went through at the time the existing order was made were still evident during the father’s motion to change. He sought to adjust child support based on an annual income of $49,400.00. However, his Form 13 Financial statement dated May 4, 2023, shows an amount of $33,176.00 in income based on ‘social assistance income’. The Form 13 also shows that his income for the previous year was $89,938.00. He did not provide sufficient details and materials to explain the changes in his income.

[29] Further disclosure challenges identified by the mother are as follows:

i. He concealed additional income as a Lyft driver, and failed to disclose details of his bank account where the Lyft earnings are deposited. ii. He moved out of his condo and was renting it out. The current market value for renting out the condo is approximately $2,800.00 per month. This information was not included in his motion to change materials. He admitted in his affidavit dated January 31, 2024, that he previously rented out the property. iii. Details of his current employment remained a challenge. His main employer, the Toronto Transit Commission (TTC), notified the Family Responsibility Office (FRO) that he is not currently working as he had taken leave from work. The mother received this information from the FRO on November 20, 2023. She struggled to receive details from him about the status of his employment with the TTC.

[30] In its endorsement dated November 2, 2023, this court made a disclosure order. The father withdrew his claims before he could provide the materials.

[31] The father disagreed with the income that was imputed on him in the existing order. His request to vary the existing order was tantamount to a request to set aside the existing order.

[32] It is not open to a litigant to fail to produce financial information, run the risk that a trial judge will impute income, and then come back to a new court and suggest that the imputed income was wrong. Support claimants should not be required to go through this two-step process. Our family court system cannot afford it. See: Trang v. Trang, 2013 ONSC 1980; Ruffolo v. David, 2016 ONSC 754 (Ont. Div. Ct.).

[33] The court finds that the father has failed to rebut the presumption of costs in favour of the mother.

[34] The mother is entitled to her costs. The court will exercise its discretion by making an order of costs in her favour.

[35] Subrule 12(3) of the Family Law Rules provides that the party withdrawing their claim “shall pay” the costs of the other party “unless the court orders or the parties agree otherwise”.

Part Four - Factors in Determining Costs

[36] Given his lack of preparedness, the father’s motion to change should have never been brought to court, particularly in the absence of full and frank financial disclosure. His attempts to relitigate issues that were addressed at the time of the granting of the final order were unreasonable.

[37] Both parties acted unreasonably by filing costs submissions in excess of what was ordered by the court. In its endorsement dated November 27, 2023, the court ordered the costs submissions not to exceed 3 pages of narrative, excluding any bill of costs or offers to settle. Both parties filed detailed affidavits supplementing their costs submissions. That was contrary to the page limits set by the court.

[38] The mother acted reasonably by making an offer to settle before the claim was withdrawn. She delivered an offer to the father dated October 14, 2023. She offered to adjust the father’s income for support purposes from the current $116,611.69 (with a current Guideline amount of $1,040.00) to $94,000.00 (Guideline amount for one child is $863.00 per month).

[39] The father acted reasonably by:

i. Withdrawing his claims following the first case conference. ii. Not keeping his claims in court after obtaining input from the case management judge.

[40] The father acted unreasonably by:

i. Attempting to relitigate the income that was used to calculate support in the existing order. ii. Attempting to ‘set aside’ the costs in the existing order. iii. Failing to accept the mother’s reasonable offer to settle before he withdrew his claims. iv. Failing to provide financial disclosure to assess his current income for support purposes. v. Failing to disclose all sources of income. vi. Failing to appreciate the unnecessary costs that the mother had to incur after he brought his motion to change. In his claim for costs against her, he accuses her of wanting ‘to turn the court system into a means of tax-free income.’

[41] The mother’s counsel, Ms. Blackwell, was called to the bar in 1997. Her regular hourly rate is $275.00 per hour. In this matter, she used a reduced rate of $225.00 per hour. Her hourly rates are reasonable.

[42] The court considered the father’s financial circumstances in making this order. [See: MacDonald v. Magel, 2003 ONCA 18880, 67 O.R. (3d) 181 (Ont. C.A.)]. He is currently paying child support based on an annual income of $116,611.69. He has the means to pay a costs order.

[43] The father states that he has an infant in his home with significant medical needs. He states that the child requires $228.12 in monthly medical costs.

[44] The court will address any hardship to the father, by permitting him to pay an affordable amount of costs over a reasonable amount of time.

[45] The court also considered the following:

(a) 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 (Ont. S.C.J.); Mark v. Bhangari, 2010 ONSC 4638 (Ont. S.C.J.). (b) Ability to pay alone cannot, nor should it, over-ride the other factors in Rule 24(12). See: Peers v. Poupore, 2008 ONCJ 615 (Ont. C.J.); Lawrence v. Lawrence, 2017 ONCJ 431, 2017 CarswellOnt 9843 (Ont. C.J.). (c) Those who can least afford litigation should be the most motivated to seriously pursue settlement and avoid unnecessary proceedings. See: Mohr v. Sweeney, 2016 ONSC 3238 (Ont. S.C.J.); T.L. v. D.S., 2020 ONCJ 9 (Ont. C.J.); Balsmeier v. Balsmeier, 2016 ONSC 3485 (Ont. S.C.J.). (d) Family law litigants are responsible for and accountable for the positions they take in the litigation. See: Heuss v. Surkos, 2004 ONCJ 141 (Ont. C.J.). (e) Impecuniosity does not grant a litigant the right to unrestricted access to the courts. Such access has to be exercised responsibly and reasonably. See: G.W.S. v. C.S., 2018 ONCJ 378.

[46] The court considered the fact that the father was self-represented.

[47] Self-representation cannot be used to shield or insulate a litigant from a costs award, otherwise it would create a two-tiered system. Any such consideration is outweighed by the need to ensure that the objective of sanctioning/discouraging inappropriate behaviour is met. At a time when our family court system is seeing ever-increasing numbers of self-represented parties, it is important to reaffirm that costs sanctions apply equally whether parties have counsel or not. No one should get a “free pass.” See: M.A.L. v. R.H.M., 2018 ONSC 2542 (par. 100); Barran v. Schanck, 2019 ONCJ 218.

[48] 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.

[49] The father’s costs claim of $7,647.75 against the mother is strong evidence of what he reasonably expected to be the costs involved.

[50] The court will not award the full amount of costs requested by the mother for the following reasons:

i. The mother’s bill of costs shows 75 hours of work. The only issue that was before the court was child support. The parties had one appearance in the first appearance court. They attended one case conference after which the father withdrew his claims. The mother’s counsel had to prepare submissions for costs. The amount of time claimed by the mother is disproportionate to the issues. Further, she prepared and filed an affidavit (with exhibits) to supplement her costs submissions, in breach of the page limits set by the court. ii. She unnecessarily added to her costs when she prepared a detailed affidavit to supplement her costs submissions, in breach of page limits set by the court. iii. The court considered the several factors outlined above in determining the quantum of costs.

[51] The court finds that it is reasonable and proportionate in the circumstances for the father to pay the mother’s costs in the amount of $4,000.00 inclusive of fees, disbursements, and HST. He will be allowed to pay the costs at the rate of $300.00 per month until the full amount is paid.

Part Five - The Mother’s Request for FRO Enforcement of the Costs Order

[52] The mother seeks an order that her costs be payable as support and enforced as an incident of support by the Director pursuant to clause 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, 1996.

[53] The court has discretion to allocate what portion of the costs are attributable to support, particularly when there are multiple issues being litigated. See: Sordi v. Sordi, 2011 ONCA 665.

[54] A flexible approach has been endorsed when the court is determining what proportion of costs should be allocated to the support issues. See: Shelley v. Shelley, 2019 ONSC 2830.

[55] The court considered the following factors:

a. The amount of time that was spent in this proceeding. b. The number of issues involved. c. The litigation history. d. The history of support. e. Payment history

[56] The court will grant the mother’s request for FRO enforcement of the costs order.

Part Six - Order

[57] Balancing all the above considerations, an order shall go on the following terms:

a. The father shall pay the mother costs fixed at $4,000.00, inclusive of fees, disbursements, and HST. b. The father shall pay the costs at the rate of $300.00 each month, starting on March 1st, 2024. However, if he is more than 30 days late in making any costs payment, the full amount of costs then owing shall immediately become due and payable. c. This costs award is a support order within the meaning of section 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, 1996, and as such, it is enforceable by the Director of the Family Responsibility Office. d. The father shall be required to provide proof of compliance with this costs order before bringing a motion to change child support. e. The father’s request for costs is dismissed. f. Support deduction order to issue.

Released: February 5, 2024 Signed: Justice Wiriranai (Wiri) Kapurura