COURT FILE NO.: F630/10

DATE: June 27, 2013

SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT

RE: LLEWELYN MARK COLE, applicant

AND:

CHRISTINE MARIE COLE, respondent

BEFORE: VOGELSANG J.

COUNSEL: David J. Ashford for the applicant
The respondent in person

HEARD: written submissions filed

ENDORSEMENT ON COSTS

[1] The trial of this motion to change the terms of a separation agreement began – for a short while – on October 23, 2012 and resumed the following Monday, October 26, taking the whole day to complete.

[2] The issues were quite simple: (1) Mr. Cole’s hours of work (and forms of remuneration) changed and he said he made less money; (2) the parties seemed not emotionally able or mature enough to effect the set-off of unused daycare expenses to which they had already agreed in the February 5, 2010 separation agreement.

[3] The parties made their way through the required r. 17 conferences. Their respective positions were discussed at length, I am sure, and disclosure was made. Ms. Cole refused to countenance the possibility that Mr. Cole’s income for support purposes had, in fact, been reduced. She took that position in the negotiations, at trial and even in her costs submissions. She is adamant that she is the person obliged to make sure that Mr. Cole is paying the “appropriate amount” (the maximum) of child support, and insists that he be put to the strictest proof of his allegations of reduced income. Ms. Cole’s intractable position made this trial unavoidable. She would have been in a much improved position, unfortunately, if she had accepted Mr. Ashford’s June, 2012 offer, which was repeated (and again rejected) at the September 17, 2012 trial management conference.

[4] In Tomlinson v. Hornick, [2008] O.J. No. 1193 (Sup. Ct.), Pazaratz J. made the following comments concerning parties acting without counsel, the effects of the rules concerning spurned settlement offers and the serious consequences of the impact of fees on a represented party who is forced through a trial:

11 The Respondent also argues strenuously that costs should not be awarded because he can't afford to pay them. The financial situation of the parties - both parties - can and should be taken into account in making an overall determination of costs. But financial impecuniosity on the part of an unsuccessful litigant does not afford immunity from exposure to costs (although it may affect the amount of an award).

12 Similarly, self-represented parties are not protected from an award of costs. They must make a reasonable assessment of their chance for success and their potential exposure to an adverse award of costs. Rules 18 and 24 would become irrelevant if they did not apply equally to the ever-increasing number of self-represented litigants appearing in Family Court. Most people who represent themselves do so reluctantly, and only as a result of the painful realization that legal fees can be onerous and accumulate very quickly. Having shown prudence in electing to avoid incurring legal fees themselves, self-represented litigants should not be permitted to ignore - or potentially exploit - the prohibitive impact of legal fees on the other party.

[5] In MacDonald-Sauer v. Sauer, [2010] O.J. No. 1373 (Sup. Ct.), Turnbull J. emphasized that even where full recovery of costs may be mandated by rule 24, the quantum of costs may be tempered by proportionality or what should have been the reasonable expectation of a party to litigation.

[6] I am trying to view the issue of costs of this trial in a flexible and balanced way, recognizing the wide discretion afforded by r. 24 of the Family Law Rules, O. Reg. 114/99: Ostapchuk v. Ostapchuk, 2003 57399 (ON CA), 2003 CarswellOnt 1661, [2003] O.J. No. 1733 (C.A.). Mr. Ashford’s client is entitled to his costs, but the quantum to be paid must reflect the factors in r. 24(11) viewed flexibly: C.A.M. v. D.M. (2003), 2003 18880 (ON CA), 67 O.R. (3d) 181 (C.A.). The costs award, as well, must represent a fair and reasonable amount that should be paid by Ms. Cole, rather than any exact measure of the actual costs to Mr. Cole: Zestra Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] O.J. No. 4495 (C.A.).

[7] I am required to step back and make an assessment of a sensible and fair result consistent with what the unsuccessful party might reasonably have expected to have to pay: Moon v. Sher (2004), 2004 39005 (ON CA), 246 D.L.R. (4th) 440, [2004] O.J. No. 4651 (C.A.). The costs assessment, as well, must reflect some form of proportionality to the actual issues argued, rather than an unquestioned reliance on billable hours and documents created: Pagnotta v. Brown, 2002 CarswellOnt 2666 (Sup. Ct.). To my mind, a balanced, fair costs award to Mr. Cole to reflect his significant success is $3,950, inclusive of recoverable disbursements and H.S.T.

[8] In the circumstances of this case, the costs awarded shall be paid at the monthly rate of $220, commencing July 30, 2013.

“Justice Henry Vogelsang”

Justice Henry Vogelsang

Date: June 27, 2013