Gaffney v. Hyatt, 2015 ONSC 1856

Gaffney v. Hyatt, 2015 ONSC 1856

COURT FILE NO.: 11-348

DATE: 2015/03/23

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Lydia Crystal Gaffney, Applicant

AND:

Cody Daniel Hyatt, Respondent

BEFORE: Justice Rick Leroy

COUNSEL: Christopher Giggey, Counsel for the Applicant

Respondent is self-represented

HEARD: February 12, 2015

costs ENDORSEMENT

1The Applicant seeks the costs of issuing the application and the uncontested trial.

Facts

2The parties resided together for brief interludes of no more than three weeks per time over a period of four years. There is one child of this relationship, born on October 7, 2010 when the parties were 16 and 17 years of age. They separated for the last time on February 4, 2013. The child resided with the Applicant mother since birth.

3The application was issued on May 21, 2014, over fifteen months after separation. At the time, the Respondent was prohibited by terms of probation from communication with the Applicant unless through counsel for family court proceedings. Not surprisingly, the Applicant did not have the Applicant’s service address and obtained an order for substituted service on his parents.

4The Respondent did not respond to substituted service and the first date for uncontested trial was set for September 15, 2014. The Applicant obtained leave on that return to amend her claim to rescind an offering of access to the Respondent. The amended application was served by substituted service on the Respondent’s parents on October 2, 2014.

5The Respondent appeared at the next scheduled return on November 10, 2014. He delivered an affidavit deposed November 6, 2014 in which he denied communication of any kind with his parents between May 14^th, 2014 and July 16, 2014. He secured an interim order for supervised York Center access and leave to deliver responding documents on or before November 28, 2014 on terms he pay costs thrown away of $350.00. The Respondent did not fulfill the terms of that order. He did not deliver responding documents, attend to process access or pay the costs ward. He was noted in default and a fresh date for uncontested trial on February 12, 2015 was scheduled on December 12, 2014.

6That costs award did not include the costs of issuing the application and could not address costs of the ensuing uncontested trial.

7The file proceeded to uncontested trial before me on February 12, 2015.

8The father is disabled and receives ODSP benefits.

Law

9The Court of Appeal in Serra v. Serra, [2009] ONCA 395 and M.(A.C.) v. M.(D.) 2003 18880 (ON CA), [2003] O.J. No. 3707 explained the purposes of modern costs rules are to partially indemnify the successful litigants for the cost of litigation, to encourage settlement and discourage and sanction inappropriate behaviour by litigants. Offers to settle are significant considerations in quantifying costs. Rule 24 of the Family Law Rules applies. The presumption is that the successful party is entitled to costs. Each case has to be decided on its merits. The circumstances that can enter into consideration are myriad. One has only to do a cursory review of the jurisprudence to recognize that the factors articulated in Rule 24 are ascribed varying weight in direct response to the particulars of each case chronicle. The Court retains the discretion to award what the trial judge views as fair and reasonable in the circumstances and may neutralize the presumption.

10I agree with Justice Panet’s dicta in Nicholls v. Peterson 2007 CarswellOnt 6587. Concern for the adverse impact a costs award against an impecunious parent will have on the children at the center of the controversy is long standing. Otherwise, the facts in these two cases are distinguishable. In Nicholls, the Applicant failed to reasonably promote the issues she raised in her action. The same distinction is applicable to Brisson v. Brisson 2914 ONSC 7212 where the Applicant brought an unmeritorious motion to change, forcing the Respondent to defend.

11In the instant case a costs award against the Respondent will not have an adverse effect on the child as there is no relationship between them.

12I agree with the comments made by Justice Perkins in Benson v. Crawford 2012 CarswellOnt 13373. Rule 24 applies to uncontested trials.

13Proportionality is always a central consideration. The process emphasizes responsible efforts at timely least expensive, informed and considered resolution. The costs rules encapsulated in subrules 24(4)(7)(8)(10) and (11) reflect that paradigm.

Context

14It is inexpensive to begin an intimate relationship, to conceive a child or marry. It is inexpensive to terminate a brief intimate relationship when the parties have not married, commingled property or income or had a child.

15Family law in Ontario recognizes progressive legal consequences as the parties’ investment in the union increases. Here, but for the child, the usual legal consequences of the relationship breakdown were minimal and the parties would not be expected advert to post-separation matters.

16The conception and birth of a child raises obligation and expectation on the parties after separation. Here too, there are a myriad of factual experiences. Some parents are fully invested in post-separation continued relations with their child/ren. At issue are such matters as custody, access and child support.

17Our primary statutes for the unmarried couple are the Family Law Act and Children’s Law Reform Act. With rights are obligations and responsibilities. Child support terms need to be established. One or both parents need to have the authority to enroll the child in school, arrange travel, authorize medical treatment and generally to facilitate third party community resources. A parent qua parent is expected to facilitate.

18It is common for parents to settle these matters by agreement. Just because the parents can no longer reside in the same home does not mean their commitment to orderly best interests care of the children is necessarily compromised.

19Even the most committed parents can get to the point in negotiation where the evanescent prospect of out-of-court resolution is apparent. In the costs context, litigants often argue that the pre-court position advanced by the other side made resolution impossible, forcing the Applicant to resort to court process.

20In this case, there was no out-of-court initiative to settle the legal consequences of the relationship failure. The die was cast when the Respondent attracted criminal charges resulting in a probation order prohibiting contact with the Applicant, except through counsel in the family court context. The only route to any remedy for the parents pending completion of the probation order was by way of a family court application.

21But for the contact prohibition, the Applicant’s claim the costs of issuing the application was stronger. A Respondent parent has an affirmative duty to engage in some reasonable fashion with the Applicant or her counsel with a view to normalize post-separation child-care regimen. That is a reasonable expectation derived from conception. Here, the usual expectation was compromised by the contact prohibition. That the Respondent honoured the probation order is not probative evidence to suggest the Respondent was uninterested in a relationship with the child or negotiating/facilitating a childcare regimen with the Applicant.

Conclusion

22The claim for the costs of bringing the application is dismissed.

23The claim for costs associated with the fresh affidavit of uncontested trial and the attendances on December 12 and February 12 is granted. The Respondent engaged in the process with its attendant rights and obligations. He was introduced to the concept of costs thrown away by Justice Laliberté on November 10, 2014. He expressed a desire to cultivate a relationship with the child and participate in the process of normalizing post-separation child-care expectations. I conclude he weighed the merit of paying the costs ordered against the value of a meaningful relationship with the child and passed on the relationship.

24The Respondent’s neglect of the legal and moral expectations he assumed as parent and failure to fulfill that which he asked for before Justice Laliberté was unreasonable and put Legal Aid to unnecessary expense.

25As to quantification, the claim was not complex and the issues were not difficult. Neither party had the means to retain legal counsel from their own resources. Neither expected to pay costs. Both view the justice system and family court as a form of social welfare paid for by others. Neither is engaged in the matrix driving values of fair pay for honest work. Quantification of costs in any amount will cause hardship. The Applicant’s Bill of Costs does not unpack the time charges between the application and uncontested trial preparation. The Applicant is entitled to partial indemnity costs in relation to the trial, attendance and preparation, which I fix in the amount of $350.00 plus HST. The disbursements claimed relate to the application and service and are not payable by the Respondent.