ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-07-60498-00

DATE: 2014-01-24

B E T W E E N:

PRECYBON CHIN PANG

Applicant

Gordon Zlato Bobesich, for the Applicant

• and -

LESTER CHIN PANG

Silvano A.A. Del Rio, for the Respondent

Respondent

HEARD: January 11, 2013,
at Brampton, Ontario

Price J.

Costs Endorsement

Nature of the Proceeding

1Precybon Chin Pang and her husband, Lester Chin Pang, each sought changes to the consent order of Murray J., dated May 10, 2010. The order gave them joint custody of their five-year-old son, Jude Andrade, and provided that Jude would reside primarily with his mother. The order further provided that Mr. Chin Pang would have specified access to Jude, increasing until, by the time of these motions, Jude was to have been spending equal time with each parent.

2Mr. Chin Pang complained that Ms. Chin Pang was denying him equal access to Jude, as provided for in the consent order. He first sought to enforce the order but later amended his motion to request sole custody of Jude. Ms. Chin Pang claimed that Mr. Chin Pang was using his motion to harass her. She first sought to change the order to increase the amount of support that she was paid, but later amended her motion, also to request sole custody of Jude.

3I found that Ms. Chin Pang’s repeated breaches of the order had revived the parties’ conflict and prevented them from agreeing on a parenting schedule that would give effect to their settlement of the custody and access issue. I concluded that Ms. Chin Pang’s breaches of the order amounted to a material change in circumstances affecting Jude’s interests, by undermining his access to his father, thus justifying varying the order.

4I found that giving sole custody to Ms. Chin Pang, or even giving the parties joint custody, would result in marginalizing Mr. Chin Pang’s role in Jude’s life. I granted sole custody of Jude to Mr. Chin Pang, who had consistently asserted his willingness to facilitate Jude’s contact with both parents and who had shown restraint in asserting his rights.

5I directed that if the parties were unable to agree on costs, they could make written submissions. I have now reviewed their submissions and will address the costs issue.

Positions of the Parties

6Mr. Chin Pang claims costs in the amount of $29,249.30. Ms. Chin Pang submits that Mr. Chin Pang should not recover any part of his costs.

Analysis

7An appropriate costs order balances two conflicting principles:

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.

8The 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

9The 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 Family Law Rules, O. Reg. 114/99 (“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

10Historically, 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

11Rule 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

12The issues of custody and access were very important to both parties, as is evident from Mr. Chin Pang’s perseverance in the face of Ms. Chin Pang’s prolonged obstruction of his access, and her resistance to his requests for disclosure during the present proceeding.

13The issues of custody and access were not, in themselves, complex, but Ms. Chin Pang caused the motions to be factually complex by her denial of her breaches of Murray J.’s order, and her allegations of wrongdoing by Mr. Chin Pang, which I ultimately found to be unfounded.

Reasonableness of Each Party’s Behaviour

14Rule 24(4) of the FLR provides that: “Despite sub-rule (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).

15Rule 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.

16While costs are designed primarily to indemnify the successful litigant and not to punish the unsuccessful party, both the Rule and the jurisprudence recognize the sanctioning of unreasonable behavior as a valid 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.

17In Perri v. Thind et al., (2010),[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]

18Not every instance of unreasonable conduct attracts an order that costs be paid on a higher 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]

19In 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).

20I found Ms. Chin Pang’s allegations that Mr. Chin Pang had engaged in violent and controlling behaviour toward her to be vague and unsubstantiated, and drew an adverse inference from her failure to provide affidavits from her parents, with whom the parties resided when the incidents of violence were alleged to have occurred. I found that the staying of the criminal charges that Ms. Chin Pang had initiated, the conclusions of the doctors who had examined Ms. Chin Pang’s complaints of chronic pain, the evidence from the Supervised Access Centre, which had caused Lemon J. to terminate the supervision of Mr. Chin Pang’s access, and the finding of Sproat J. that Ms. Chin Pang had lied and evaded service, were substantial reasons to doubt Ms. Chin Pang’s truthfulness. Based on this evidence, I did not find merit in her complaints regarding Mr. Chin Pang. These complaints unnecessarily lengthened the proceeding and added to the costs.

21Apart from repeatedly breaching Murray J.’s order, which gave rise to the present motions,[9] Ms. Chin Pang acted in bad faith by making unfounded allegations of wrongdoing against Mr. Chin Pang and by resisting his requests for disclosure of documents needed to assess her allegations as well as the other issues in the motions. Bad faith is behaviour “carried out with intent to inflict financial or emotional harm on the other party or other persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court.”[10] Ms. Chin Pang’s conduct falls within this definition.

22Under the FLR, the traditional assumption that there are only two levels of costs (“party-and-party”/”solicitor-and-client”; or “partial indemnity”/”substantial indemnity”) no longer applies. The court simply considers the range between a nominal amount of costs and full recovery. It is not appropriate to award more than 85 per cent of a successful litigant’s bill, unless the unsuccessful litigant has acted unreasonably or in bad faith to the extent that censure is appropriate.[11]

23In a family law case, the court need not find “special circumstances” before ordering costs that approach substantial indemnity.[12] Applying this test, Ms. Chin Pang’s unreasonable conduct attracts an award of costs on a substantial indemnity, or full recovery, scale.

24Mr. Chin Pang took the position, during the proceeding, that he was willing to share Jude’s time equally with Ms. Chin Pang, provided the parties could agree on a schedule, and Ms. Chin Pang abided by it. While not a formal Offer to Settle, Mr. Chin Pang’s position, had Ms. Chin Pang responded favourably to it, would have resolved the motions and avoided time and cost to both parties. Mr. Chin Pang acted reasonably, and the fact that he did what he could to avoid a continuation of the proceeding should be taken into account.

The Lawyers’ Hourly Rates

25Mr. Chin Pang’s lawyer, Silvano Del Rio, was admitted to the Bar in 1988 and had practiced Family Law for 25 years when these motions were argued. Mr. Del Rio was assisted by Ms. Schlesinger, who was also admitted to the Bar in 1988, and practiced family law in the early years of her practice. Ms. Schlesinger has practiced exclusively criminal law for 20 years or more, and returned to the practice of family law in December 2012.

26The “Information for the Profession Bulletin”, from the Costs Sub-Committee of the Rules Committee (“the Costs Bulletin”),[13] suggests maximum hourly rates (on a partial indemnity scale) of $80 for law clerks, $225 for lawyers of less than 10 years’ experience, $300 for lawyers between 10 and 20 years’ experience, and $350 for lawyers with 20 years’ experience or more. These maximum rates are generally intended for the most complex and important of cases.

27Mr. Del Rio has claimed an average hourly rate of $83.45 for the legal work that he and Ms. Schlesinger performed, and an hourly rate of $25 for clerk-like work. I find these rates to be reasonable and, in fact, extremely conservative. Based on the Costs Bulletin and both lawyers’ experience, I find that $350 was a reasonable partial indemnity rate to have informed Ms. Chin Pang’s expectation of what she might pay if unsuccessful in the motions.

Time Properly Spent on the Case

28The custody and access issues were closely interwoven with the issue of child support. It is understandable that the time spent on the motions cannot be allocated precisely between these issues. I accept Mr. Del Rio’s estimate that 80 per cent of the time was spent on the custody and access issues and 20 per cent on the financial issues. Based on the total of 337.5 billable hours spent, exclusive of court attendances and attendances by Mr. Del Rio at the cross-examination of Ms. Chin Pang on financial issues on December 4, 2012, and the clerk-like work done in assembling documents, Mr. Del Rio’s 80 per cent allocation yields a total of 270 billable hours spent on custody and access issues.

29The hearing on September 10, 2012, required an initial affidavit and reply affidavit from Mr. Chin Pang, an affidavit which up-dated his financial statement, and a factum. Mr. Chin Pang’s lawyers were required to prepare, for purposes of the hearing on January 11, 2013, a Motion to Change custody, a Change Information Form, an affidavit in support of Mr. Chin Pang’s claim for custody, an updated affidavit, an affidavit up-dating Mr. Chin Pang’s financial information, a Response to Ms. Chin Pang’s motion to change, an affidavit in response to her motion, and a factum. Given these pleadings and the many documents that Mr. Chin Pang was required to file in response to Ms. Chin Pang’s allegations against him, I find that the time claimed was reasonable and necessary.

Expenses Paid

30Mr. Chin Pang claims solely for expenses related to the custody and access issues. I find the expenses claimed to be reasonable. Having regard to Ms. Chin Pang’s unreasonable conduct, these costs are allowed on a full indemnity basis.

Other Relevant Matters

31I must, at this point, “step back and examine the overall award with a view to determining whether it is ‘fair and reasonable’ for the kind of matter involved.” In determining what is fair and reasonable, I must take into account the reasonable expectation of the parties concerning the amount of costs.[14]

32Awards of costs in motions to change custody or access vary greatly, depending on their factual complexity, the extent of the change sought, and the reasonableness of the parties’ conduct. I have considered the following costs awards made in such cases:

(a) In Winton v. Lofranco, (2005), Himel J. awarded costs of $50,000 for fees and $11,000 for disbursements in a motion to change custody and cross-motion for support involving a three day hearing.[15]

(b) In Mooney v. Fast, (2013), Curtis J. awarded the mother costs of $8,000 in a motion to change a consent order that had awarded her sole custody of the parties’ six-year-old child with reasonable access to the father. In her motion, the mother sought supervised access for the father (and other claims), and the father sought joint custody (and other claims).[16]

(c) In Gallacher v. Gallacher, (2005), Wolder J. awarded the father his costs in the amount of $15,810.36 following a two day trial of the mother’s motion to change an order that had granted him sole custody of the children.[17]

(d) In Macdonald v. Magel, (2008), Olah J. awarded costs of $12,500 to a mother in a successful motion to change her access from supervised to unsupervised access.[18]

(e) In A.B. v. C.D., (2011), Mossip J. awarded the mother her costs of $50,000 after a one day hearing in which she successfully resisted the father’s motion to change a custody and access order by granting him access and obtained an order that the father have no access.[19]

(f) In Hall v. He, (2012), Linhares de Sousa J. awarded the mother her costs in the amount of $20,000 when she successfully resisted the father’s motion to change an order that provided that the parties’ child be principally resident with the mother, and to require that the child live with him while attending school.[20]

33Based on these awards, the costs claimed by Mr. Chin Pang are within the range of what Ms. Chin Pang should reasonably have expected to pay if unsuccessful.

34Ms. Chin Pang has argued that an order for costs would impose a financial hardship on her. The financial situation of the parties is properly taken into account in determining costs under either Rule 24 or Rule 18. While financial hardship is not among the specific factors listed in sub-rule 24(11), the sub-rule directs the court, additionally, to take into account "any other relevant matter".

35In C.A.M. v. D.M., (2003), the Court of Appeal for Ontario held that the FLR demand flexibility in examining the factors in sub-rule 24(11). It held that the financial position of the parties is a relevant consideration, especially where the impact of a costs award against a custodial parent would seriously affect the interests of the child.[21] The court added that the court may, for the same reason, exercise its discretion not to award costs on a full recovery basis against a custodial parent, even where the successful party has met the conditions in rule 18(14), which provides that "unless the court orders otherwise" the party is entitled to full recovery.[22]

36The financial impact of a costs order on Ms. Chin Pang is relevant, but is less determinative than it would be if she were Jude’s custodial parent. In C.A.M. the Court of Appeal, although finding that the trial judge was in error if he was of the view that the impact of the costs order on the unsuccessful party should not be considered, upheld the judge’s award of costs for reasons that are apt in the present case. Rosenberg J.A. stated, on behalf of the court:

If the trial judge was of the view that he had no discretion or that the financial position of the parties could not be a relevant consideration then he erred in principle. That said, I see no circumstances in this case that would lead me to interfere with the costs award in this case. The mother's conduct before and during the trial was unreasonable. As I have said, the trial judge found that she lied during the trial and attempted to fabricate evidence. She put the father through a nine-and-a-half-day trial and was completely unsuccessful. According to the trial judge, the father made an offer that was "spot on". This was a case for the costs consequences in Rule 18(14). In the circumstances, I do not see that the mother's financial circumstances are a reason to deprive the father of his costs. This was money he had to pay to defend this litigation that would otherwise have been available, at least in part, for the care of the child. Counsel for the mother did not suggest that the costs sought by the father were unreasonable. Accordingly, I would dismiss the appeal from the costs order.[23] [Emphasis added.]

37The fact that Ms. Chin Pang was funded by Legal Aid should not render her immune from liability for the costs she caused Mr. Chin Pang to incur. In Broz v. Broz, (1998), Campbell J. commented on the unfairness that would result if the court failed to hold a legally aided litigant accountable for the costs of unwarranted litigation. He stated:

It is unfair to Mr. Broz that Ms. Broz, with the funding resources of the state available to her, could prosecute her claims, achieve only partial success in the face of court criticism of her behaviour, and avoid any cost of the proceedings.[24]

38There is an element of behaviour modification to a costs order serving to encourage a change in attitude from a “litigate with impunity” mindset.[25] In Mooney, above, Curtis J. made the following observations, which I adopt:

Parties to litigation must understand that court proceedings are expensive, time-consuming and stressful for all concerned. They are not designed to give individual litigants a forum for carrying on in whatever manner they may choose, oblivious to the impact of that conduct on the other side and, perhaps most importantly for the purposes of this case, oblivious to the mounting costs of the litigation: Heuss v. Sarkos, 2004, Ont. Ct., supra, para. 20.

Matrimonial litigation is an occasion for sober consideration and thoughtfulness rather than intemperate behaviour: Heuss v. Sarkos, 2004, Ont. Ct., supra, para. 20.

One of the purposes of costs is to change behaviour. The justice system is a precious public resource. Access to the justice system by individuals must be balanced with the need to ensure that the resource is available for all those who need it. This is one of the purposes of Rule 2.

This case should not have come to court at all. These parents have been litigating for most of their son’s short life. They are educated, intelligent people. There are alternatives to litigation (mediation, a parenting co-ordinator, negotiations by lawyers) that ought to have been considered to resolve these disputed issues. Courts must have control over the time and resources allocated to one family. This family has had more than its fair share of those resources.

Unless courts discourage this behaviour, it will continue and increase. Orders for costs are one way to discourage this behaviour.[26]

CONCLUSION AND ORDER

39For the reasons stated, it is ordered that Ms. Chin Pang shall pay Mr. Chin Pang’s costs of the motions in the amount of $29,249.30, payable forthwith.

Price J.