SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: FS-09-354422
DATE: 20141229

RE: Michelle Ann Ignjatov, Applicant

AND:

Marco Di Lauro, Respondent

BEFORE: Harvison Young J.

COUNSEL: Michelle Ann Ignjatov, appearing in person

Michael J. Stangarone, for the Respondent

COSTS ENDORSEMENT

[1] The respondent Mr. Di Lauro (the “father”) seeks costs on a full recovery basis in the total amount of $13, 539.00 in relation to the motion heard July 8, 2014 with respect to which I released my reasons on July 17, 2014.

[2] The father sought a number of heads of relief relating to access to the children of the marriage, Contessa and Scarlett who at the time of the hearing were approximately 10 and 7 respectively. These included:

a. An order rescheduling the child Contessa’s First Communion which the the applicant, Ms. Ignjatov, (the “mother”) had unilaterally cancelled at the last minute;

b. An order for police enforcement of access in light of the history of incidents and a pattern of conduct that frustrated his access and which, I found, were designed to marginalize his role in the childrens’ lives;

c. A non-disparagement order in light of the pattern of inappropriate and disparaging conduct such as referring to the father as “donkey”;

d. An order permitting the father to obtain “firefly mobile” cell phones for the girls;

e. Costs of the cancelled event in the amount of $1, 261.76 from the mother to cover the costs incurred and thrown away as a result of the last minute cancelation of the festivities that had been planned to celebrate Contessa’s First Communion;

f. An order for make up access to compensate for the time lost due to the mother’s conduct which had frustrated his access on a number of specific occasions.

[3] The father was successful on all these issues. The mother acknowledges that the father was successful and is entitled to his costs. She disputes the quantum and submits that the amount of $7,500 would be reasonable and submits that the amount sought by the father is unreasonable.

[4] The remaining issue to be determined is the quantum of costs to be awarded against the mother.

Considerations to be applied

[5] The factors to consider in determining the amount of costs in family law matters are set out in Rule 24(11) of the Family Law Rules O. Reg. 114/99 as follows:

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.

[6] Of course, reasonableness is the overriding important principle: see Boucher v. Public Accountants Council (Ontario), 2004 14579 (ON CA), 2004 CarswellOnt 2521 (C.A.).

[7] Ability to pay may be relevant to the issue of the quantum or scale of costs, but not to another party’s entitlement to costs: Izyuk v. Bilousov, 2011 ONSC 7476.

[8] As Curtis J. notes in Blanchard v. Walker, 2012 ONCJ 799 at para. 15, modern costs rules are designed to foster three fundamental purposes:

[9] To indemnify successful litigants for the cost of litigation;

a. To encourage settlement; and

b. To discourage and sanction inappropriate behavior by litigants.

[10] At para. 21 of Blanchard, Curtis J. states:

An order as to costs may be designed to penalize a party who has refused a reasonable settlement offer. Costs can also be used to sanction behavior 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: British Columbia (Minister of Forests) v. Okanagan Indian Band, [2003] 3. S.C.R. 371.

Analysis

The Quantum of Costs

[11] On behalf of the father, Mr. Stangarone submits that the amount sought is justified on the basis that the mother’s conduct was entirely unreasonable and amounted to bad faith, justifying an award of costs on a full recovery. He also asks that costs be set off against child support on the basis that the mother will refuse to pay any costs ordered against her, consistent with her past pattern of conduct. According to the written submissions on costs filed, she has not paid the costs of the cancelled first communion in the amount of $1,261.76 as I ordered.

[12] The mother was unrepresented at the time of the hearing, but retained counsel to assist her with the preparation of the cost submissions. In these submissions, Mr. Finlayson concedes on her behalf that the father was “almost entirely successful” on the motion and that the mother is obligated to pay costs, but submits that there are a number of factors that should reduce the amount to the $7,500 sum that, in his submission, would be reasonable in these circumstances.

[13] Mr. Finlayson bases the request for a lower quantum than that sought by the respondent on a few considerations. First, he submits that that there should be a “modest reduction” to the Bill of Costs submitted by the father to reflect the entries relating to his attempt to have his version of the draft Final Order reflecting the Minutes of Settlement entered (following a lengthy period of dispute about the content of this order). While it is true that I decline to make that order, this was an incidental issue in the motion and I would not reduce the bill of costs on that basis.

[14] Second, Mr. Finlayson submits that the mother’s “misguided conduct” arose out of her frustration that Czutrin J’s endorsement incorporating the Minutes of Settlement into a final order on September 20, 2014 had not been taken out. This meant that the higher amount of child support set out in the Minutes was not, in the meantime, being paid or enforced. She submits that this is conduct that I should also take into account.

[15] As I noted in the course of my reasons, there was no material properly before the court relating to any of the child support issues the mother raised at the oral hearing. She could have brought a motion (or cross-motion) relating to the enforcement of child support but did not. She chose to embark on a course of a course of conduct which reflected a

…systematic attempt to minimize and marginalize [his] role in his children’s lives, and to denigrate and degrade him in their eyes, with a lack of consideration of either their best interest of insight into the importance of a strong and healthy relationship with him to their continuing development. (Endorsement, para. 16)

[16] While the cancellation at the last minute of their daughter Contessa’s First Communion was the most shocking and flagrant expression of this, the record before me was replete with a series of actions on her part which interfered with his access to the children in a number of ways over a significant period of time. My endorsement outlines the conduct in issue and it need not be repeated here. Suffice it to say that her conduct has been egregious. The fact that, as of the time of the costs submissions, she had not satisfied the order that she pay the costs thrown away for the cancelled First Communion raises some concern as to whether she has mended her ways.

[17] This is clearly a case in which the unsuccessful party has acted unreasonably in a manner that requires the award of costs on a full recovery basis to sanction this conduct. It is not necessary to determine whether her conduct meets the standard of bad faith as it is clear that full recovery costs may be granted if a party has acted unreasonably: see Blanchard, para. 35.

[18] Turning to the other factors set out in Rule 24(11), the issues were important and while they were not legally complex, the history and context of this high conflict access case required extensive documentation and a number of affidavits. The mother’s conduct meant that expending resources on settlement attempts at this stage would have been futile.

[19] In my view, taking all these factors into account, the lawyer’s Bill of Costs was reasonable. This was a time consuming file. The mother’s relentless and unabating conduct meant that the ground kept shifting as more problems arose which required the father’s counsel to spend more time on the matter. There were a number of different orders sought which required somewhat different evidentiary support and different legal arguments. The fact that there had been Minutes of Settlement and a subsequent order incorporating them which had not been taken out added another level of factual and legal complexity.

[20] I also note that Mr. Stangarone’s Bill of Costs shows that he assigned significant portions of the file to less costly legal professionals and wrote off some time spent by juniors. In the circumstances of this case, awarding less than full recovery would effectively penalize the father. Given the facts of this case, that would be unconscionable.

[21] The mother does not claim impecuniosity in her costs submissions. In the course of the motion, she indicated that she had become unemployed, but there is no current evidence of her financial situation nor any evidence whatsoever as to the extent of financial contributions made by her new husband.

[22] She claims that she had not satisfied the “costs thrown away” order (relating to the cancelled First Communion) because she thought that “costs” remained outstanding and thus were not yet due. She does not claim she cannot afford it. There is no evidence before me that she is any more or less able to absorb a costs award than the father is able to absorb the legal expense to which he was put.

[23] At the end of the day, the only remaining reason for hesitating to award the amount claimed is the fact that the amount claimed is a higher amount than is generally awarded in family motions. While that may be true, do not think that this concern should prevail in the circumstances.

[24] Having seriously considered the submissions of the parties, and for the reasons I have set out above, I would order that the mother pay costs in the total amount of $12,000 on a full recovery basis. This is not quite the total amount claimed by the father. While I would allow some amount for the preparation of submissions on costs, the amount sought in this respect is, in my view, excessive and I have thus reduced the total amount accordingly to $12,000. This amount approximates full recovery by the father of his costs, and is an amount that will serve to sanction the mother for her conduct in the hopes that she will mend her ways. I am satisfied that a lesser amount would not approximate full recovery in this case. In all the circumstances of this case, and in light of the factors set out in Rule 24(11), I find this amount to be fair and reasonable.

The Request to Set Off the Costs against Child Support

[25] I also conclude that it is appropriate in this case to order that the costs award be set off against child support.

[26] The father makes this request because the mother’s past conduct suggests that she may not pay and that the costs award might not be enforceable.

[27] Courts should generally be reluctant to order such a set off because child support is intended for the benefit of the children, but it may be appropriate in some circumstances: see Peers v. Poupore 2008 ONCJ 615; Starr v. Starr CarswellOnt 2008.

[28] I agree that, given the mother’s pattern of conduct, there is serious reason for concern whether she will pay the costs awarded and whether the costs order will be enforceable. For this reason, I would order that a set off be ordered unless the costs award is paid in full no later than March 1, 2015.

[29] If the full amount is not paid by March 1, 2015, any unpaid amounts are to be credited against child support by FRO and enforced by set off. To be clear, will have no obligation to pay child support from March 1, 2015 until the costs award is satisfied in full.

Conclusion

[30] An order shall issue as follows:

a. The mother shall pay the father costs in the amount of $12,000 inclusive of disbursements and GST.

b. This amount shall be paid in full no later than March 1, 2015.

c. Any outstanding amounts from this order after March 1, 2015 shall be credited against child support so that the father will have no child support obligations until the full costs amount has been satisfied.

Harvison Young J.

Date: December 29, 2014