Children’s Aid Society of Ottawa v. A.V., 2016 ONSC 2084
CITATION: Children’s Aid Society of Ottawa, v. A.V., 2016 ONSC 2084
COURT FILE NO.: FC-1159-2 and FC-13-2783
DATE: 2016/04/05
ONTARIO
SUPERIOR COURT OF JUSTICE
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990
AND IN THE MATTER OF J.M. (born xx-xx-2002) and C.M. (born xx-xx-2004)
BETWEEN:
THE CHILDREN’S AID SOCIETY OF OTTAWA Applicant
– and –
A.V. Respondent
-and-
S.M.
AND BETWEEN:
A.V. Applicant
-and-
S.M. Respondent
Counsel: Karine Jackson, Counsel for the Applicant Marie-Hélène Godbout and Yanik S. Guilbault, Counsel, for the Respondent A.V. David J. Hughes, Counsel for the Respondent (on the first day of the motions) Malina Feeley, Counsel for the children Marie-Helene Godbout and Yanik S. Guilbault, Counsel for the Applicant S.M. Self-represented
HEARD: By written submissions
decision on costs
LABROSSE J.:
[1] My Endorsement in this matter was released on August 7, 2015 following a three day proceeding which involved a Motion for Withdrawal by the Children’s Aid Society of Ottawa (the “Society”) within Court File No. FC-13-2783 (“Child Protection Proceedings”) and a Motion to Change the Final Order of Justice Linhares de Sousa dated June 13, 2012 (the “Final Order”) brought by the Applicant in Court File No. FC-11-59-2 (the “Divorce Proceedings”). The Respondent Father also made various claims for relief in his Response to Motion to Change within the Divorce Proceedings. The Society sought to withdraw from the Child Protection Proceedings on the condition that the Applicant Mother was successful in amending the Final Order so that she would have sole custody of the children. The Respondent Father also sought custody of the children and to change the Final Order seeking that the Applicant pay him both child and spousal support and that the amount of income imputed to him in the Final Order be reduced to reflect his reported income. The Respondent later changed his position and sought a continuation of the joint custody order. Other ancillary relief was claimed by both parties.
[2] As part of my August 7, 2015 Endorsement, the parties were invited to make written costs submissions. In response to the Respondent Father’s claim for costs against the Society, the Society also filed a Costs Submission. I considered all the submissions prior to making this Decision on Costs.
[3] The Society was successful on its Motion for Withdrawal and did not request costs for that motion. However, following the Respondent’s claim for costs against both the Applicant and the Society, the Society now seeks $1,000 in costs against the Respondent as a result of the requirement to respond. The Applicant Mother seeks substantial indemnity costs against the Respondent Father throughout the Child Protection Proceedings and the Motion to Change. The Respondent seeks costs against both the Society and the Applicant. For the reasons which follow, I am of the view that the Applicant Mother is entitled to the payment of her legal costs by the Respondent Father for the Motion to Change. These costs are payable at a rate which is slightly higher than the partial indemnity rate as a result of the Respondent Father’s unreasonable behaviour for having filed an excessive amount of material which was not necessary to the proper adjudication of the issues.
Position of the Parties
The Applicant Mother
[4] The Applicant takes the position that she is entitled to an award of substantial indemnity costs for both the Child Protection Proceedings and the Motion to Change within the Divorce Proceedings. The Applicant provided a Bill of Costs setting out legal fees of $46,205.35 plus disbursements of $464.74 and applicable taxes for a total amount of $52,736.76. Her written costs submission seeks a cost award of $50,000.
[5] The Applicant’s original Costs Submission does not provide a detailed rationale as to why she is entitled to the payment of costs at the substantial indemnity rate throughout the Child Protection Proceedings. In her Reply Costs Submissions, she relies on case law which sets out the circumstances where costs are awarded in child protection proceedings and on the issue of costs involving self-represented litigants.
[6] The Applicant relies on CAS Region of Halton v. J.S., 2014 ONCJ 38 and Norland v. Norland, 2007, CarswellOnt 3573 in support of her position that costs should be payable by the Respondent in both the Child Protection Proceedings and Divorce Proceedings.
[7] The Applicant’s Costs Submission relies principally on the issue of the Respondent’s behaviour throughout these proceedings where he caused delays, filed voluminous repetitive materials that were not in compliance with the Family Law Rules and contrary to the orders made during these proceedings.
[8] In opposing the Respondent Father’s claim for costs, the Applicant relies on Fong v. Chan, 1999 CanLII 2052 (ON CA), 1999 CarswellOnt 3955 and Cassidy v. Cassidy, 2011 ONSC 791 in support of her position that the Respondent is not entitled to any cost award.
The Respondent Father
[9] The Respondent’s Costs Submissions are 22 pages in length and ignore my three page limit as set out at paragraph 145 of my Endorsement. Although mindful that the courts should not encourage the Respondent to disregard court orders limiting the volume of the materials to be filed, I have still reviewed his Costs Submission in its entirety.
[10] In his Costs Submission, the Respondent states that he was not allowed to make submissions on the matter of custody and that on June 19, 2015 he was only entitled to address the financial issues.
[11] The Respondent opposes the Applicant’s request for costs in the Child Protection Proceedings and states that both the Applicant and the Society acted inappropriately in those proceedings and that he should not have to pay costs in those proceedings as a result of their behaviour. Further, the Respondent states that he was not entitled to make a full answer to the allegations made against him in these proceedings.
[12] The Respondent submits that the Applicant’s Offer to Settle dated June 14, 2015 should have no effect on this costs decision given the ultimate result. Further, the Respondent submits that the amount of costs claimed by the Applicant is unreasonable given her limited success.
[13] With respect to the financial issues which formed part of the Motion to Change, the Respondent states that he was more successful in having his imputed income reduced to $30,000 per annum. He further states that his financial circumstances are such that he has run out of money and has no ability to pay costs. The Respondent relies in large part on the analysis of Pazaratz J. in Izyuk v. Bilousov, 2011 ONSC 7476 in support of his arguments.
[14] He claims payment of self-represented fees of $7,675 from the Applicant Mother in the Divorce Proceedings. He also claims costs in the Child Protection Proceedings of $52,344.28 but is not clear if it is against the Society, the Applicant Mother or both.
The Children’s Aid Society of Ottawa
[15] The Society has presented a Costs Submission following the claim by the Respondent Father that the Society should pay him costs as a result of their unsuccessful Motion for Withdrawal.
[16] The Society filed a concise Costs Submission setting out a summary of the proceedings and relying on my findings at para. 19 and 20 of my Endorsement to support its position that the Society was not biased in favour of the Applicant Mother.
[17] The Society relies on Rule 24(2) of the Family Law Rules in support of its position that there is no presumption that the successful party in a child protection case is entitled to costs. Further, as stated by the Court of Appeal in L.(R.) v. Children’s Aid Society of Niagara Region (2003) O.J. (C.A.), where unsuccessful parties are motivated by the best interest of the children a “no costs” award may be appropriate. Further, in CAS of Ottawa v. S. (2003) 2003 CanLII 88994 (ON SCDC), O.J. No. 945, the Divisional Court stated that an entitlement to a costs award must be based on something more than merely the outcome of the case.
[18] The Society also disputes any claim for costs made by the Respondent against the Society and relies on Children’s Aid Society of Halton Region v. A.R., 2011 ONCJ 681 in support of its position that costs against the Society should only be awarded in exceptional circumstances. Here, the Society states that those circumstances do not exist.
Applicable Law on Costs
[19] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395 has provided guidance to the courts in identifying the three fundamental purposes of the costs rules:
a. To indemnify successful litigants for the costs of litigation;
b. To encourage settlement; and
c. To discourage and sanction inappropriate behaviour by litigants.
[20] Further, Rule 2(2) of the Family Law Rules adds a fourth fundamental purpose for costs: to ensure that the primary objective of the rules is met – that cases are dealt with justly. (See Blanchard v. Walker, 2012 ONCJ 799 at paras 15-16).
[21] Where offers to settle have been made Rule 18 provides that where a party makes an offer to settle and where the order is as favourable as or more favourable than the offer, the party who made the offer is entitled to full recovery costs from the date the offer was served, provided the other requirements of the rule have been met.
[22] Rule 24(1) of the Family Law Rules provides that the successful party is presumed to be entitled to costs however this presumption does not apply to child protection cases (Rule 24(2)).
[23] Rule 24(5) provides criteria for determining the reasonableness of a party’s behaviour in a case. Of relevance here is Rule 24(5)(a) which requires that the court shall examine the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle.
[24] As set out in the Society’s Costs Submissions, in child protection cases often the Court will favour a no costs award and will only award costs against a party where it is looking to sanction inappropriate behaviour by a party.
Analysis
[25] My analysis begins with the question of entitlement. The presumption of entitlement to the successful party in these proceedings requires that a determination firstly be made if any party was substantially successful to merit an award of costs.
[26] The Respondent Father makes it clear in his Costs Submission that he feels that he was treated unfairly in not being able to argue the issue of custody on June 19, 2015. This date was indicated in error as being June 14, 2015 in my Endorsement. There was also an error where the second date of the motion was indicated as being May 4, 2015, when it should have been May 11, 2015.
[27] The Respondent Father’s allegations that he was not allowed to fully argue the custody issues is without merit given that he had that opportunity on May 11, 2015. He was cautioned by the Court on this date that he should not use his time reading from transcripts of recordings he had made, but he chose to use the significant time afforded to him to do just that. In the end, the Father had a full opportunity to make all of his arguments, his affidavits were fully considered and he was permitted to file additional material after becoming self-represented.
[28] On the Motion for Withdrawal, the Society was successful but it made no requests for costs. I am unable to agree with the Respondent that the Society was not successful on this motion and as such there is no basis for a cost award against the Society.
[29] Upon considering the Applicant Mother’s claim for costs in the Child Protection Proceedings, I have considered this claim in light of the words of the Divisional Court in CAS of Ottawa v. S. (2003) 2003 CanLII 88994 (ON SCDC), O.J. No. 945, where an award of costs in a child protection proceeding must be based on something more than merely the outcome of the case. In the context of the Child Protection Proceedings, the issues which may have been relevant in a costs award were not present.
[30] I also deny the Society’s request for a cost award against the Respondent given that they were required to oppose the Respondent’s request for costs.
[31] I now turn to the Divorce Proceedings and the Applicant Mother’s claim for substantial indemnity costs for the Motion to Change. The key issue to decide when considering success is the relief sought by the Applicant in the Motion to Change and the relief sought by the Respondent in the Response to Motion to Change. The parties’ respective claims are set out in my Endorsement. In the end, the Applicant Mother was substantially successful on the issues of custody, supervised access, ongoing obligation to pay child support, the ability to apply for new passports for the children and that communications be through www.ourfamilywizard.com. Further, the Applicant was successful in defeating the Respondent’s claim for child support and spousal support. Conversely, the Respondent was partially successful on having his imputed income reduced to $30,000 per annum. It is clear that the Applicant was the more successful party in the Divorce Proceedings and, as such, she is entitled to an award of costs.
[32] I must now address the scale upon which the Respondent is liable to pay costs in the Divorce Proceedings. I have reviewed the case law provided by the Applicant in her costs submission, along with the Offer to Settle dated June 17, 2015. I am also mindful of the steps taken by the Respondent in the proceedings which led to delay and which included the filing of a significant amount of additional material after I had made an order that no further affidavits could be filed without leave of the Court.
[33] In the Motion to Change, the Respondent was initially represented by counsel and he filed a significant amount of affidavit material which included recorded conversations and unofficial transcripts of these recordings. When he became self-represented, the Respondent obtained leave to file a significant amount of additional affidavit evidence, recordings and transcripts. While leave was granted to file them, this does not shelter the Respondent from costs consequences if he is not successful.
[34] I am influenced by the analysis in Norland v. Norland and the principle of proportionality which requires a common sense approach in awarding costs. The voluminous material filed by the Respondent clearly required several hours of additional time to review. Further, these additional affidavits, which included pages of transcripts of recordings, were of very little value to the Court in the Divorce Proceedings and I conclude that it was unreasonable for the Respondent to have filed the additional evidence beyond that which had been filed by his previous counsel. Some of the recordings and transcripts related to events which pre-dated the Final Order of Justice Linhares de Sousa. It was unreasonable to have filed this evidence. I therefore conclude that the award of costs in favour of the Applicant must reflect the additional time required for review of the additional evidence.
[35] In the end, I am unable to conclude that the scale of costs should be on a substantial indemnity basis throughout the Divorce Proceedings. However, there must be an adjustment to the partial indemnity rate to reflect the time spent on the Respondent’s additional evidence. I accept the submissions of the Applicant that most of the costs incurred after a certain date were related to the Divorce Proceedings. In my review of the Settlement Statements filed by the Applicant, I have determined that the starting date for the payment of costs in the Divorce Proceedings should be August 14, 2014.
[36] The total fees as set out in the Applicant Mother’s two Settlement Statements dated September 1, 2015 (shown as files 34867Y and 33156H) are $45,618.10, and disbursements are $478.14. I have calculated the amount of fees, which pre-date August 14, 2014, as being $9,590.50 and the disbursements are $158.68. As such, partial indemnity costs should be payable on the difference of $36,027.60. The corresponding partial indemnity rate would be $21,616.56.
[37] The assessment of costs is not a mechanical issue (see Boucher et al v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.) at para 26, 2004 CanLII 14579 (ON CA)). As stated by the court in Delellis v. Delellis, 2005 CanLII 36447 (ON SC), 2005 CarswellOnt 4956, at para 9 (Ont. S.C.): “The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant.” See also Serra v. Serra.
[38] When I consider the Applicant Mother’s entitlement to costs at a partial indemnity rate and the need to increase this amount to reflect the time spent reviewing and considering the voluminous evidence filed by the Respondent, I will exercise my discretion to fix the costs payable by the Respondent to the Applicant in the amount of $28,000 (inclusive of HST) plus disbursements of $319.46 (inclusive of HST).
Conclusion
[39] I thereby conclude that the Applicant is entitled to a costs award in the amount of $28,319.46 inclusive of taxes and disbursements and that pursuant to section 9.2 of my Order dated August 7, 2015, this cost award shall be enforced through the Family Responsibility Office.
Mr. Justice Marc R. Labrosse
Released: April 5, 2016
CITATION: Children’s Aid Society of Ottawa v. A.V., 2016 ONSC 2084
COURT FILE NO.: FC-1159-2 and FC-13-2783
DATE: 2016/04/05
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990
AND IN THE MATTER OF J.M. (born xx-xx-2002) and C.M. (born xx-xx-2004)
BETWEEN:
THE CHILDREN’S AID SOCIETY OF OTTAWA Applicant
-and-
A.V. Respondent
-and-
S.M. Respondent
AND BETWEEN:
A.V. Applicant
-and-
S.M. Respondent
DECISION ON COSTS
Labrosse, J.
Released: April 5, 2016