ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 18152/12
DATE: 20131121
B E T W E E N:
C.G.
Unrepresented
Appellant
- and -
NORTH EASTERN ONTARIO FAMILY AND CHILDREN’S SERVICES
Justin Ellery, for the Respondent
Respondent
CORRECTED DECISION:
June 19, 2014: Initials substituted for identifying names in Citation, title of proceedings, and paragraph 12.
D E C I S I O N
WILCOX, J.
[1] The Appellant appealed an interim interim order without prejudice made by Carr J. of the Ontario Court of Justice on July 16, 2012 on the first return date of a motion brought by the Respondent. The appeal was eventually heard on September 12, 2013 and was dismissed. The situation was more fully detailed in the written decision on the appeal, which was released September 26, 2013. In it, the parties were invited to make written submissions as to costs.
[2] On 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,
- the court may determine by whom and to what extent the costs shall be paid.
[3] Modern costs rules are intended to serve three purposes:
- 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.)
[4] The 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.).
[5] Family 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.
[6] The Respondent was the successful party in this matter and is presumptively entitled to costs.
[7] I now turn to the Rule 24 factors. The matter was important, involving as it did the court’s decision about the placement of a child. It was not, however, inherently complex or difficult. The statutory scheme within which the order appealed from was made was clear and the factual situation was not complicated.
[8] The court finds that the Appellant’s behaviour in the case was unreasonable. The OCJ had no other realistic option in the circumstances than to make the order that it did. It was no more than an adjournment on terms with no precedential value. The Appellant could and should have dealt with that order within the further child protection proceedings that would have followed in the usual course of events in the OCJ. Instead, she embarked on the appeal process which consumed about 14 months. That was time in which the merits of the child protection case could not be dealt with. Furthermore, the Appellant filed large amounts of materials on the appeal that appeared, at least in part, to be downloaded from the internet and which dealt with a variety of legal concepts such as Charter rights and fundamental justice. While these are not irrelevant to child protection cases, there were no coherent submissions as to how they were relevant to this appeal. However, reviewing them was unnecessarily time-consuming for the court and, no doubt, for responding counsel.
[9] NEOFACS’ counsel pointed out in his costs submissions that the Appellant had taken the position that the OCL was not a proper party to the proceedings (despite a court order appointing them). Consequently, it had fallen to NEOFACS to provide documents to the OCL which should have been provided by the Appellant, to keep the OCL apprised of them. I note that OCL counsel attended at the appeal hearing.
[10] NEOFACS’ counsel filed a Bill of Costs indicating an hourly rate of $350, which rate I take no issue with, given his 27 years of experience. The 23.7 hours he docketed is not excessive, particularly in light of the quantity of material filed by the Appellant.
[11] In view of the above, this is an appropriate case for substantial indemnity costs. Behaviour such as the Appellant’s must be discouraged as it unreasonably interferes with dealing with the merits of the case, to the possible detriment of the child involved.
[12] Therefore, there shall be an order for the Appellant C.G. to pay forthwith to NEOFACS costs of $7,500 inclusive of fees, disbursements and HST.
Justice James A. S. Wilcox
Released: November 21, 2013