ONTARIO
SUPERIOR COURT OF JUSTICE
TORONTO
COURT FILE NO.: FS-12-382562-0000
DATE: 2013/12/20
BETWEEN:
William Thomas Gordon
Self-Represented Applicant
Applicant
- and -
Ilena Loredana Gordon
Respondent
Self-Represented Respondent
HEARD: September 30; October 1, 2, 3, 4, 8, 9, 10, 2013
Endorsement on Costs
HARPER J.:
Issues at Trial
[1] The following four issues were considered at trial:
Custody of the child WTG, born […], 2009;
Access to the child WTG;
Whether the Applicant, father, William can move to Edmonton Alberta with the child;
Child Support
Significant Findings at Trial
[2] In my reasons for judgment, I found that there had been a long and tortuous pattern of multiple allegations of sexual abuse were made by Ileana and her mother against William. Ileana testified that she started to have concerns as early as the child being only two months old. That would have been approximately November of 2009.
[3] Ileana stated that she did research on her own by looking on the internet and other books about child sex abuse. She testified at the trial that her research gave her cause to be concerned that William was sexually abusing her child.
[4] Over the years Ileana’s allegations precipitated numerous very intrusive investigations by the police and the Children’s Aid Society of Toronto. The child was also taken to a number of doctors, including pediatricians, and doctors at the SCAN unit at Toronto’s Sick Children’s Hospital. All of the investigations concluded that the sexually abuse allegations were not verified.
[5] I also made the following finding in my reasons for judgment:
I have no doubt that Ileana loves her child deeply. However, that love does not overcome the problems that she has with her distortions of reality. Even in her final submissions Ileana told the court that she would not tell her child anything more about his past experiences and she would just focus on the future. She also stated that she would not spend money on more psychiatrists. She wanted to use the money she had in order to further her education and care for her son.
In my view, the child WTG, cannot wait for his mother to possibly engage in successful treatment when the risk of further harm to the child is so great. There is no question in my mind that Ileana and her mother will subject WTG to further unwarranted investigations that will severely traumatize him.
Ileana has sent numerous emails and placed notations on Facebook that calls William a pedophile. William now has limited resources in the Toronto area. He has cared for the child solely for the last 11 months. The Children’s Aid Society has continued to monitor the child, and Ms. Henry stated that the child is well cared for and meeting all his milestones. The child needs the opportunity to grow and develop in an environment that is free of Ileana’s harmful obsessions that are echoed by Ileana’s mother, Ms. Simbotean. The conduct of the mother and her mother is emotionally abusive to WTG, and I am of the view that it simply will not stop.
[6] Both parties withdrew their application for child support. William stated that he was not pursuing child support given the mother’s finances and her need to spend whatever money she had on potential treatment. The only evidence before me was that she earned $850 per month as a cleaner at her condominium complex. She does not earn enough income to pay child support.
The Law and Analysis
RULE 24: COSTS
SUCCESSFUL PARTY PRESUMED ENTITLED TO COSTS
- (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. O. Reg. 114/99, r. 24 (1).
NO PRESUMPTION IN CHILD PROTECTION CASE OR IF PARTY IS GOVERNMENT AGENCY
(2) The presumption does not apply in a child protection case or to a party that is a government agency. O. Reg. 114/99, r. 24 (2); O. Reg. 544/99, s. 10 (1).
COURT’S DISCRETION — COSTS FOR OR AGAINST GOVERNMENT AGENCY
(3) The court has discretion to award costs to or against a party that is a government agency, whether it is successful or unsuccessful. O. Reg. 114/99, r. 24 (3); O. Reg. 544/99, s. 10 (2).
SUCCESSFUL PARTY WHO HAS BEHAVED UNREASONABLY
(4) Despite subrule (1), 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. O. Reg. 114/99, r. 24 (4).
DECISION ON REASONABLENESS
(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;
(b) the reasonableness of any offer the party made; and
(c) any offer the party withdrew or failed to accept.
O. Reg. 114/99, r. 24 (5).
DIVIDED SUCCESS
(6) If success in a step in a case is divided, the court may apportion costs as appropriate. O. Reg. 114/99, r. 24 (6).
ABSENT OR UNPREPARED PARTY
(7) If a party does not appear at a step in the case, or appears but is not properly prepared to deal with the issues at that step, the court shall award costs against the party unless the court orders otherwise in the interests of justice. O. Reg. 114/99, r. 24 (7).
BAD FAITH
(8) If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately. O. Reg. 114/99, r. 24 (8).
COSTS CAUSED BY FAULT OF LAWYER OR AGENT
(9) If a party’s lawyer or agent has run up costs without reasonable cause or has wasted costs, the court may, on motion or on its own initiative, after giving the lawyer or agent an opportunity to be heard,
(a) order that the lawyer or agent shall not charge the client fees or disbursements for work specified in the order, and order the lawyer or agent to repay money that the client has already paid toward costs;
(b) order the lawyer or agent to repay the client any costs that the client has been ordered to pay another party;
(c) order the lawyer or agent personally to pay the costs of any party; and
(d) order that a copy of an order under this subrule be given to the client.
O. Reg. 114/99, r. 24 (9).
COSTS TO BE DECIDED AT EACH STEP
(10) Promptly after each step in the case, the judge or other person who dealt with that step shall decide in a summary manner who, if anyone, is entitled to costs, and set the amount of costs. O. Reg. 114/99, r. 24 (10).
FACTORS IN COSTS
(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. O. Reg. 114/99, r. 24 (11).
PAYMENT OF EXPENSES
(12) The court may make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including a lawyer’s fees. O. Reg. 114/99, r. 24 (12).
[7] Rule 24 provides that the successful party is entitled to their costs. In this case, William is successful on all of the issues at the trial.
[8] Neither party was represented at trial. However, they both had counsel for much of the time these proceedings were before this court. William has submitted a bill of costs that outlines the significant legal costs that totals for fees, disbursements and taxes, $42,325.43. The costs are broken down as follows:
[9] Fees - $35,697.50
[10] GST on Fees - $4,640.71
[11] Disbursements - $1,783.56
[12] GST on Disbursements - $203.66
Complexity
[13] This case, as with many cases driven by something other than logic, was only complicated by the need to make multiple findings of fact given allegations that spanned a number of years.
Importance of the Issue
[14] The best interest of the child is one of the most important issues that a court can deal with. This is exacerbated when one parents’ involvement with the child may be significantly limited by a mobility issue and other findings that may require that parents contact to be severely limited.
Bad Faith
[15] I found at trial that Ileana was fixated on her view that William was a pedophile. She could not and would not accept any other finding regardless of who did the investigation. I also found that in conducting herself in the manner that she did, she emotionally abused her child by subjecting him to numerous intrusive examinations and investigations, many of which were surrounded by turmoil and trauma. I find that Ileana did act in bad faith. She caused both serious cost and anguish to William and her son by the manner in which she conducted herself from the start of these proceedings until their conclusion. Except for the considerations outlined below, William would have been otherwise entitled to full indemnity costs.
Bill of Costs
[16] I have reviewed the bill of costs of the lawyers who acted for William during the course of these proceedings and I do not find the hourly rates or the time spent to be out of line with the matters that had to be completed.
[17] On July 19, 2013, the parties entered into partial minutes of settlement with respect to property issues. That agreement also provided that for the issues that were the subject of the agreements each party released each other with respect to costs. I could not find any other endorsement or court order that dealt with the issue of costs relative to the matters that I considered at trial. I do not allow for any of the preparation or attendances for any of the case conferences and motions that were argued before the court. The rule 24 requires that costs be fixed at step in the proceeding. This was not done relative to the issues of case conferences or any of the motions that went before the court.
[18] In the Ontario Court of Appeal decision in Islam v. Rahman, 2007 ONCA 662, 2007 ONCA 662, CarswellOnt 5718 the stated that a court does not have the ability to order costs if those costs were not dealt with by the judge who heard an earlier step in the proceedings or reserved those costs for a future determination.
[19] Rule 24(10) provides that:
Promptly after each step in the case, the judge or other person who dealt with that step shall decide in a summary manner who, if anyone, is entitled to costs, and set the amount of costs.
[20] A significant portion of the costs claimed by counsel for William are costs relative to preparing for and attending to argue various motions of preparing for and attending conduct case conferences. The issue of costs should have been addressed at those stages and they were not. I could find no reservation of the issues of costs for each of those attendances.
[21] I feel that I must disallow a substantial portion of the costs claimed by William having regard to the above analysis. However, it would not be fair to disallow all of the costs given the manner in which Ileana acted throughout these proceedings.
[22] In addition to the above considerations, I must take into account the impact of an order for costs would be on Ileana. Although I found that she acted in bad faith and drove this litigation in an unreasonable manner, I cannot disregard William’s testimony and representation to the court, that he was not pursuing child support as he felt that Ileana would need whatever resources she had in order to get the therapy she needed if she would ever be in a position to have a relationship with her child. I do not feel I can order any significant amount of costs as a result of this consideration alone.
[23] The whole purpose of costs is to arrive at and reasonable and fair amount of costs that a payor should pay under all of the circumstances of the case. As a result of the above considerations, I find that William should be compensated in costs for all of the fees related to the preparation of the material that was used at this trial and for some of the contacts with the professionals that would have been necessary for both the trial and motions and case conferences.
[24] Ileana shall pay costs to William in the amount of $25,000 inclusive of fees, disbursements and taxes.
Justice R. John Harper
Released: December 20, 2013
COURT FILE NO.: FS-12-382652-0000
DATE: 2013/12/20
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
William Thomas Gordon
Applicant
- and -
Ileana Loredana Gordon
Respondent
Endorsement on Costs
HARPER J.
Released: December 20, 2013