ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 07-1039
DATE: 2014/01/24
BETWEEN:
VINCENCO CICCONE
Applicant
(Respondent by counter-application)
– and –
YOLANDE CÔTÉ
Respondent
(Applicant by counter-application)
ISABELLA MARIA CICCONE
Respondent
THE PUBLIC GUARDIAN AND TRUSTEE
Respondent
Edward C. Castle, for the Applicant
Yolande Côté, unrepresented
Jocelyne Paquette-Landry, for Isabella Maria Ciccone
Elaine F. Rufiange, for the Public Guardian and Trustee
HEARD: By Written Submissions
DECISION ON COSTS
Kane J.
APPLICATION AND CROSS-APPLICATION
[1] Mr. Ciccone and Ms. Côté are the parents of their 42 year old daughter who has mental development limitations and is completely dependent upon them and others.
[2] Each parent brought an application under the Substitute Decisions Act, 1992, S.O. 1992, c. 30, to be appointed as the Guardian of Isabella’s property and her person. Given their respective ages of 72 and 70 and this daughter’s level of need, appointment of either parent was and will be of a temporary nature, conditional upon the parents’ continuing good health.
[3] These parents have each been unable to corroborate, communicate or see beyond their dislike of one another for decades, even regarding the care and needs of this daughter. Their animosity towards one another has defeated past orders of this court which created a shared framework to care for and protect this daughter using the strengths of each parent. Their level of animosity towards one another, after 32 years of separation, and rigidity, defeated that protective framework.
[4] At the time of separation, this couple had three children. They agreed to an order of joint custody in 1984 however the children ended up living with their mother. Somehow, no child support was ever claimed or paid to the mother.
[5] Mr. Ciccone sees no connection between his failure to pay child support for this daughter for decades and his present claim for costs in proceedings necessitated because of the decreased energy level of the mother who single-handedly cared for this child. I disagree. As to conduct, there is a direct connect.
DECISION
[6] In its interim order, this court, naively in retrospect, hoped that provincial authorities could and would respond with group home accommodation for this daughter, as both parents recognized that is where she should be. The parties incurred the additional cost of re-attending in court to report on the inability of provincial authorities to respond to this need. It apparently is necessary for a mentally challenged person to be forced onto the street before the Province of Ontario will, potentially, respond.
[7] The added cost and hours searching for group home availability and then reporting thereon is not an appropriate cost award.
POSITION OF THE PARTIES AS TO COSTS
[8] The respondent submits that there should be no order as to costs.
[9] The applicant seeks an award of costs on a substantial indemnity scale in the amount of $34,077, inclusive of tax and disbursements on the basis of:
(a) his success in this proceeding,
(b) his offer of settlement, dated May 21, 2013,
(c) the April 13, 2012 order of Leroy J. who found the respondent in contempt and liable for costs in the amount of $10,000. Enforcement of that cost award was by its terms suspended indefinitely to be reviewed on the then next return date,
(d) legal services provided to the applicant from April 13, 2012 until November 27, 2013, totalling 107 hours at an hourly rate of $300, and
(e) court attendances before trial on September 14, December 7, 2012 and January 8, May 27, June 12, June 17, and trial dates of June 24 to 28 and July 2 and October 22, 2013. Other than the settlement and trial management conferences on May 27 and June 17, 2013, I do not know the purpose or outcome of the other court dates prior to trial.
[10] The court attendance on July 25, 2013 related to a motion for leave to appeal the interim order of this court brought by the Public Guardian and Trustee. This work is not an appropriate subject for cost against the respondent.
[11] Leroy J. suspended payment of the $10,000 cost award for unknown reasons. The subject of that order and why the judge suspended payment was not dealt with at a later date. That is a matter to be considered and determined by Leroy J.
OFFERS
[12] The applicant filed an offer in what appears to be part of his settlement conference brief. That settlement conference was unsuccessful. The written offer does not state whether it survives an unsuccessful settlement conference so I do not know if it remained open for acceptance thereafter.
[13] Terms of that offer provide that:
(a) the father is to be sole guardian of the person and property of the daughter. The applicant was fully successful as to this element.
(b) the mother is entitled to reasonable access which, given the dysfunctional nature of the parents’ relationship, is unworkable. This court determined that, globally, the daughter was to reside with the father during the period equivalent to a university academic school year, and otherwise with her mother. The applicant failed to offer access equal to or in excess of the access offered.
(c) the mother was required to pay the applicant the cost of the daughter’s future care, plus any cost awards against her. This court was not asked to and did not create a future care cost obligation on the respondent. As stated, the suspended cost award of Leroy J. is to be determined by him.
[14] The applicant’s written offer, if it survived, was not equal to or in excess of the relief awarded the applicant.
LEGISLATIVE PROVISIONS
[15] Subject to legislation and rules of the court, cost entitlement and quantum are at the discretion of the court. (Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131(1))
[16] These rules provide that:
(1) A successful party is presumptively entitled to costs of a motion ─ Rule 24(1);
(2) Unless ordered otherwise, an offer of settlement will entitle the issuer to costs to the date of serving the offer and full recovery thereafter if the offeror proves that; (a) it is served one day before the motion or seven days before the trial, (b) the offer remained open for acceptance and was not accepted and (c) the offer equals or exceeds the order ─ Rule 18 (14) and (15);
(3) In exercising its discretion as to costs, the court may take a written offer to settle into account, the date thereof and it’s terms - even if entitlement is not established under Rule 18 (14) ─ Rule 18 (16);
(4) A successful party may however be deprived of costs or ordered to pay the unsuccessful party’s costs in the event of unreasonable behaviour ─ Rule 24 (4);
(5) As to whether conduct is reasonable or unreasonable, the court is directed to consider behaviour in relation to the issues, whether an offer was made, the reasonableness thereof and any offer withdrawn or not accepted ─ Rule 24 (5);
(6) Where success on the motion is divided, the court may apportion costs ─ Rule 24 (6);
(7) In setting costs, the court is to consider:
(a) the importance and complexity of the issues, reasonable and unreasonable conduct by a party,
(b) the lawyers hourly rates,
(c) the time property expended in the matter as well as appropriate expenses paid, and
(d) any other relevant matter. Rule 24 (11)
ANALYSIS
[17] I will not exercise the authority under the rules to rely indirectly upon this offer of the applicant for the following reasons.
[18] Mr. Ciccone avoided his legal and parental responsibilities for decades to financially support this daughter in the form of child support. He justified that and deprived this daughter of the financial support she was entitled to because of his dislike of the respondent and despite the negative impact his withholding of support imposed on his daughter.
[19] I consider this failure and the resulting financial gain to the applicant, as “conduct” and “other reasons” sufficient to deny him costs against the respondent, notwithstanding his success in these applications. His legal costs herein, are partial payment towards his long overdue financial support of this daughter.
[20] I am not prepared to award costs against the Office of the Children’s’ Lawyer. The OCL represented the daughter and sought the consent or obligation of the Public Guardian to assume the appointment of the person. The OCL and the daughter were not parties to this action.
[21] Advisedly, the applicant is not seeking costs against the estate of the daughter.
[22] The Office of the Public Guardian and Trustee had the power, given the facts of this situation, to accept guardianship of the person under the interim order or thereafter. It chose to refuse to do so.
[23] To the extent I have jurisdiction in exceptional cases to award costs against a non-party, I refuse to do so in this case.
DECISION
[24] For the above reasons, there shall be no order as to costs.
Kane J.
Released: January 24, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
VINCENCO CICCONE
Applicant
(Respondent by counter-application)
– and –
YOLANDE CÔTÉ
Respondent
(Applicant by counter-application)
ISABELLA MARIA CICCONE
Respondent
THE PUBLIC GUARDIAN AND TRUSTEE
Respondent
DECISION ON COSTS
Kane J.
Released: January 24, 2014