ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: FS-09-65257-00
Date: 2013-12-09

Between

GUILLERMO ANTONIO MONDELLO

Karen Cunningham, for the Applicant

Applicant

• and -

JESSICA MONDELLO

Lance Carey Talbot, for the Respondent

Respondent

Heard: April 26, 2013,
at Brampton, Ontario

Price J.

Costs Endorsement

Context of Endorsement

1Tzimas J. made an order on November 22, 2012, with the consent of all parties, directing that this high conflict family law proceeding, involving contested claims for custody of two children, 11 and 8 years old, respectively, at the time of the parties’ separation, and now 16 and 13 years old, be tried at the blitz sittings of the Court on the week of May 6, 2013, for an estimated 5 to 10 days.

2On April 11, 2013, three weeks prior to the scheduled trial, the Office of the Children’s Lawyer applied to adjourn the trial for eight months, to the sittings in January 2014, owing to a conflict in the lawyer’s trial commitments and the illness of the clinical investigator who had conducted the assessment of the children. The request was supported by the children’s mother, with whom the children were residing, and opposed by their father.

3The Court granted the adjournment, but to an earlier date, being the week of August 6, 2013, peremptory to the OCL and Ms. Mondello. Ms. Mondello now seeks her costs of the adjournment in the amount of $738.84.

Background Facts

4Mr. Mondello’s opposition to the adjournment was based on the following:

a) He began this proceeding on January 25, 2009, after Ms. Mondello began to deny him access to the parties’ children.

b) On May 28, 2009, Seppi J. granted Mr. Mondello temporary access to the children. After his first five visits, Ms. Mondello, from his perspective, began obstructing and interfering with his access by planning events for the children on his access days, coaching the children not to go with him by telling them that they did not have to go if they did not want to, and changing the telephone number he used to speak to the children.

c) In August 2009, the Office of the Children’s Lawyer became involved.

d) During the OCL assessment, the children saw a child therapist and social worker, Wendy McKenzie. Ms. McKenzie recommended that the children see a child psychiatrist. On June 6, 2012, the court referred the parties to a child psychiatrist, Dr. Gerard Kimmons.

e) On November 13, 2012, Dr. Kimmons concluded that parental alienation by Ms. Mondello had eroded the children’s relationship with their father. He recommended that the youngest child, Matthew, be removed immediately from the custody of his mother and that Mr. Mondello be granted sole custody with no access to his sister or their mother, Ms. Mondello. Mr. Kimmons found that it may be too late to salvage the older child, Mellissa’s, relationship with her father.

f) The urgency of the situation caused Tzimas J. to expedite the trial by her Order dated November 22, 2012, which scheduled the trial for the week of May 6, 2013, with the consent of all parties, including the Office of the Children’s Lawyer.

g) When the Children’s Lawyer applied to adjourn the trial due to a conflict in her schedule and the illness of the clinical investigator, she did not provide the details of the conflict or of the clinical investigator’s illness.

h) The action has dragged on for over four years and Mr. Mondello had reasonably expected, based on Tzimas J.’s Order, that it would finally be resolved in May, 2013.

5In the circumstances, it was reasonable for Mr. Mondello to oppose the Children’s Lawyer’s request for adjournment.

6On April 26, 2013, when the Court indicated that it was considering, as a term of the adjournment, removing Matthew from Ms. Mondello’s care and granting temporary custody to Mr. Mondello, the Children’s Lawyer advised the Court that she could be ready to proceed in August 2013. As a result, the Court adjourned the trial to the week of August 6, 2013, peremptory to the OCL and to Ms. Mondello. While the adjournment was granted, it was to a date five months earlier than the OCL and Ms. Mondello had requested. I regard this as divided success.

7An appropriate costs order balances two conflicting principles, namely, that:

a) A blameless litigant who is successful in a proceeding should not be required to bear the costs of prosecuting or defending the proceeding.

b) Citizens should not be made to feel unduly hesitant to assert or defend their rights in court by the prospect that, if unsuccessful, they will be required to bear all the costs of their opponent.

The Supreme Court of Canada has held that the ultimate objective in balancing these two principles is to ensure that the justice system works fairly and efficiently.¹

The Discretion to be Exercised

8The entitlement to costs and the amount to be paid are “within the court’s discretion.”² The court must exercise its discretion with due regard to the objectives of costs awards, and to rule 24(11) of the FLR which sets out the factors that are relevant to how the objectives are best attained in the circumstances of a particular case.

Objectives to be Served

9Historically, the court’s paramount consideration when awarding costs was indemnifying the successful party. More recently, the Supreme Court of Canada has stated that costs orders serve broader objectives in the administration of justice, including penalizing a party who has refused a reasonable settlement offer, and sanctioning unreasonable 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.”³

Factors to be Considered

28Rule 24(11) of the FLR lists the factors the court should consider when quantifying costs:

24. (11) A person setting the amount of costs shall consider,

(a) the importance, complexity or difficulty of the issues;

(b) the reasonableness or unreasonableness of each party’s behaviour in the case;

(c) the lawyer’s 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.

Importance, Complexity, and Difficulty

10The outcome of the adjournment request was important to Mr. Mondello because of the urgency arising from the observations of Ms. McKenzie and Dr. Kimmons, and reflected in the Order of Tzimas J. expediting the trial. The issue was not complex. It involved the inadequate detail offered by the Children’s Lawyer to explain why it was necessary for it, three weeks before a trial date it had consented to five months earlier, to ask to adjourn the trial to a date eight months into the future.

Reasonableness of Each Party’s Behaviour

11Rule 24(4) of the FLR provides that: “Despite subrule (1) (providing that a successful party is presumed to be entitled to costs), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs” (emphasis added).

12I find that the Children’s Lawyer acted unreasonably in failing to provide sufficient detail to enable Mr. Mondello and his lawyer to assess her request for adjournment and in failing to seek, at the outset, the earliest available alternative date for trial. There was no evidence of negotiation, any Offer to Settle the issue, or meaningful suggestions for compromise.

13Rule 24(5) of the FLR provides:

24. (5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

(a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle.

14While costs are designed primarily to indemnify the successful litigant and not to punish the unsuccessful party, sanctioning unreasonable behavior is nevertheless a recognized objective of a costs order. Costs must always be proportional to what is at stake in the case, and to the unsuccessful party’s reasonable expectations. However, unreasonable behavior may, in appropriate circumstances, result in an award of costs on a higher scale.

15In Perri v. Thind et al.,⁴ Henderson J. granted leave to appeal to the Divisional Court from a costs award that was a marked departure from the normal or routine costs made in motions court. In doing so, he stated that costs orders are not designed mainly to be a punishment. In that case, however, the motion judge had awarded costs four times greater than the successful litigant’s substantial indemnity costs. Henderson J. himself noted that costs, when awarded on a substantial indemnity scale, can serve to express the court’s disapproval of unreasonable conduct.⁵

16Not every instance of unreasonable conduct attracts an order that costs be paid on a substantial indemnity scale. Substantial indemnity costs, like their predecessor, solicitor and client costs, are exceptional. Mark M. Orkin, in The Law of Costs,⁶ cites the Supreme Court of Canada in Young v. Young, in this regard: “Solicitor and client costs are generally awarded only where there has been reprehensible, scandalous, or outrageous conduct on the part of one of the parties.”⁷

17In Empire Life Insurance Co. v. Krystal Holdings Inc., Archibald J. stated: “Substantial indemnity costs are an exceptional award, saved for extenuating circumstances such as situations where there has been egregious conduct … or where a motion has been brought unreasonably”⁸ (emphasis added.)

18The Children’s Lawyer’s request for adjournment cannot, itself, be considered unreasonable. Scheduling conflicts and illness sometimes arise in circumstances that are unavoidable and give rise to the necessity of adjourning a trial even where urgent circumstances require trial on the earliest available date. Where such circumstances arise, it is incumbent on the party requesting the adjournment to seek to minimize the adverse impact it will have on the other parties, including and especially, the children.

19While the Children’s Lawyer, in the present case, may not have shared the concerns earlier expressed by Ms. McKenzie and Dr. Kimmons, it is necessary for both counsel and the court, where concerns have been expressed that a continuation of the status quo may entail harm to the children, to approach temporary orders affecting the children with caution, by examining the potential impact of any proposed course on the children through the filters of all those whose observations of and experience with the children entitle them to deference, even though their interpretations and recommendations may differ. Had this approach been taken in the present case, it would have dictated a more conciliatory approach to Mr. Mondello and a request for a shorter adjournment from the outset, which could have avoided a contested motion altogether.

CONCLUSION AND ORDER

20Based on the foregoing, it is ordered that none of the parties shall be required to pay another’s costs of the motion for adjournment.

Price J.

Footnotes

1. 1British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371, at paras. 25, 26 [Okanagan].
2. 2Courts of Justice Act, s. 131.
3. 3Okanagan, at para. 25.
4. 4Perri v. Thind et al. (2010), 2009 34977 (ON SC), 98 O.R. (3d) 74 (S.C.), Henderson J. [Perri].
5. 5Perri, at paras. 24- 26, 32- 33.
6. 6M. M. Orkin, The Law of Costs, 2d ed., looseleaf (Aurora, Ont.: Canada Law Book, 1987), at p. 2-46 [Orkin]; Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, at p. 154, re-stated in Perri.
7. 7Orkin, at p. 2-48.
8. 8Empire Life Insurance Co. v. Krystal Holdings Inc, [2009] O.J. No. 1095 (S.C.), at para. 19.