ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: 5219/10
Date: 2013-11-08

Between

NATALIE MARY CHARTRAND

Wayne Stickland, for the Applicant

Applicant

• and -

SIMON ALAIN CHARTRAND

The Respondent on his own behalf

Respondent

DECISION ON COSTS

WILCOX, J.

1The Applicant commenced a family law application in the face of an existing separation agreement between her and the Respondent. A trial was conducted on the sole issue of whether the agreement should be set aside, in whole or in part. In the result, the separation agreement was set aside in full and the application allowed to proceed.

2That decision was released on September 13, 2013. The parties had 20 days to file written submissions regarding costs. Submissions were received on behalf of the Applicant but not from the Respondent.

3On the subject of costs, s. 131(1) of the Courts of Justice Act provides as follows:

• subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court,

• and the court may determine by whom and to what extent the costs shall be paid.

4Modern costs rules are intended to serve three purposes:

1. to indemnify successful litigants for the cost of litigation 2) to encourage settlements, and 3) to discourage and sanction inappropriate behaviour by litigants. (Fong v. Chan (1999) 1999 2052 (ON CA), 46 O.R. (3d) 330 (Ont. C.A.)

5The Ontario Court of Appeal has held that cost awards should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual cost to the successful litigant. (Boucher v. Public Accountants Council for the Province of Ontario (2004) 2004 14579 (ON CA), 71 O.R. (3d) 291 and Serra v. Serra 2009 ONCA 395, [2009] O.J. No. 1905.) It has been held that the ability of a party to pay a substantial cost award was not a relevant consideration. (Robb v. Saint Joseph’s Health Care Centre [1999] O.J. No. 1461 (S.C.J.)). However, the court retains the discretion not to award a successful party its costs in appropriate circumstances, such as where it would have a devastating effect on the party that would otherwise pay (Murray v. Murray (2005) 2005 46626 (ON CA), 79 O.R. (3d) 147 (Ont. C.A.).

6Family Law Rule 24 commences with the presumption that a successful party is entitled to its costs. The factors that shall be considered in setting the amount of costs are:

a) the importance, complexity or difficulty of the issues; b) the reasonableness or unreasonableness of each party’s behaviour in the case; c) the lawyers’ rates; d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order; e) expenses properly paid or payable; and f) any other relevant matter.

7The Applicant was the successful party in this matter and is presumptively entitled to costs.

8Turning to Rule 24(11)(a), this matter was very important to the Applicant. She had entered into an unfavourable separation agreement which the Respondent was trying to use as a defence to her application for family law relief. If the Respondent had been successful, the Applicant would not have had the opportunity to have the issues arising out of the separation dealt with on their merits in the court proceedings. She would have been left with the terms of a separation agreement which was found to deviate so far from the provisions of the Family Law Act and Rules that they were not fair to her.

9Dealing with Rule 24(11)(b), the Respondent forced the matter on to trial. Several conferences were required prior to that. The Applicant had to front the money for and do the legwork to get the Respondent’s pension valued. The Applicant’s counsel also indicates that orders were required to get basic financial information from the Respondent. At trial, the Respondent continued to defend the separation agreement, despite there being serious shortcomings in the information used in negotiating it. He did so in the face of advice to the contrary that he received at a settlement conference, according to the Applicant’s counsel. The Respondent’s argument in support of the agreement that the Applicant was aware of the law because of some advice she had allegedly received in 1993 regarding child support for a child from a previous relationship was untenable, to put it mildly. His position in submissions was just that the agreement had been negotiated in good faith and therefore should be upheld, without any legal basis for that being provided to the court. His approach amounted to passive resistance, forcing the matter to go through the court process without offering much assistance in resolving it. People are entitled to be self-represented, but should not expect the courts to do their legal work for them. I find the Respondent’s behaviour in this matter to be unreasonable.

10Rule 24(11)(c)(d) and (e) are covered by the Applicant counsel’s written submissions and bill of costs. I see nothing inappropriate in the costs sought. However, I am not persuaded that this is a situation where full indemnity costs are appropriate.

11In light of the above, I order that the Respondent pay costs of $11,000 inclusive of fees, disbursements and taxes, to the Applicant forthwith.