NEWMARKET COURT FILE NO.: FC-04-17930-00
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Richard DeBiasio Applicant
– and –
The Director, Family Responsibility Office for the benefit of Joanne DeBiasio Respondent
Annamaria Perruccio, for the Applicant
Kristen A. Kizoff, for the Director/Respondent
HEARD: January 12, 2016
COSTS DECISION
NELSON J.
Introduction
1On December 10, 2015 I granted the applicant, Richard DeBiasio, a refraining order. I adjourned the issue of costs sought by the applicant against the Director of Family Responsibility Office (“Director”) to January 12, 2016 in order to give the Director the opportunity to respond.
Background
2Richard DeBiasio (the “payor”) and Joanne DeBiasio (the “recipient”) were divorced on July 31, 2008. They have three children. Prior to their divorce, Rowsell J. ordered that the recipient have custody of the two younger children and that the payor have custody of the eldest child. Rowsell J. also ordered that the payor make monthly child support payments to the recipient in the amount of $1,803. This figure was arrived at by including a set-off for the child who remained in the payor’s custody.
3One of the children for whom support was being paid moved in with the payor in either October, 2014 or February, 2015 (the date is disputed between the payor and the recipient). The second child for whom support was being paid moved in with the payor on July 6, 2015.
4Negotiations between the payor and the recipient regarding a change to the support arrangement began around August 19, 2015.
5The Family Responsibility Office (“FRO”) caseworker advised the payor by letter dated August 21, 2015 that he was being reported to the Credit Bureau.
6The payor and recipient signed a Form 15D: Consent Motion to Change Child Support. The recipient signed the consent on August 21, 2015; the payor on August 24, 2015.
7On August 27, 2015 the payor’s counsel wrote to the caseworker stating that the parties had negotiated a consent to terminate child support. The letter indicated that arrears from July 6, 2015 forward were cancelled.
8The necessary materials to effect the change to Rowsell J.’s order were filed with the Newmarket Court on August 27, 2015.
9On September 10, 2015 the payor’s counsel received notice that Bennett J., on September 3, 2015 had refused to grant an order relieving the payor of his child support obligations as His Honour required further details about the situation and wanted to know if the recipient had received independent legal advice.
10On September 29, 2015 the payor was informed by the Department of Justice that the Federal Government had been served with a Garnishee Summons by FRO.
11On October 8, 2015 the payor’s counsel wrote to FRO and the Department of Justice explaining that the recipient had consented to a termination of child support and that a motion to change would proceed.
12On October 11, 2015 the payor’s counsel wrote to the recipient’s counsel enclosing a Notice of Withdrawal to FRO for the recipient’s signature. Although the payor’s counsel indicated that the payor, if forced to proceed with the motion to change, would be seeking full indemnity costs, there was no response from the recipient.
13On October 23, 2015 the payor’s counsel wrote to FRO advising that the motion to change was scheduled for December 30, 2015 and requested that the Federal Garnishment be vacated.
14On October 26, 2015 the payor’s counsel spoke with the caseworker who expressed “sympathy” but advised that FRO could not look behind a court order and was compelled to enforce as long as it was in existence.
15At this point in the narrative, the evidence of the payor and FRO differs.
16The payor’s evidence is that his counsel and the caseworker reviewed the case and discussed the fact that,
(a) The payor had been reported to the Credit Bureau on August 21, 2015;
(b) FRO served the Federal Government with a garnishee on September 25, 2015;
(c) FRO initiated a writ in September 2015 with respect to the payor’s personal property;
(d) The payor owed support arrears in a disputed amount.
17The payor then states that the caseworker agreed that no further enforcement steps would be taken. The affidavit delivered by the caseworker indicates that she only agreed to put a hold on any monies received from a payment source.
18In early November 2015 the payor’s counsel informed the FRO worker about the progress of the payor’s motion to change which was scheduled for December 30, 2015. In fact, the payor’s motion materials were sent to FRO.
19On November 13, 2015 the payor received a letter from FRO notifying him that further enforcement steps were being taken, namely, that a First Notice to Suspend Driver’s Licence had been issued. This came as a surprise to the payor given his understanding of the October 26, 2015 telephone conversation between his lawyer and the FRO caseworker.
20The payor’s response to the First Notice to Suspend his driver’s licence was to institute a motion for an order to the Director to refrain from suspending his licence.
21Prior to the motion for the refraining order, the payor’s counsel called the caseworker (November 26, 2015) to attempt to discuss settlement. She was told that external phone calls could not be transferred to Legal Services. She was given a fax number for Legal Services.
22On November 27, 2015 the payor’s counsel wrote directly to Legal Services (copying the caseworker) asking that FRO hold-off further enforcement measures until after the motion to change. Counsel also requested that a FRO representative contact her to discuss alternative measures to avoid the refraining motion.
23Counsel’s request went unanswered.
Refraining Order
24The refraining order was granted on December 10, 2015 with no payment terms.
Position of the Payor
25The payor seeks costs based on his success in obtaining the refraining order on December 10, 2015. He takes the position that he is entitled to costs because the Director did not exercise his discretion to enforce in an appropriate manner. The payor also submits he is entitled to costs because the FRO caseworker and legal department failed to respond to his counsel’s efforts to deal with the issue in a manner that could have avoided the refraining motion.
Position of the Director
26Counsel for the Director submits that the payor’s claim for costs be dismissed because:
(a) the Director has a statutory mandate to enforce a support order;
(b) the payor could have avoided the refraining motion by way of other options open to him;
(c) costs orders against the Director should not be made in the absence of special or unusual circumstances which were not present in this case;
(d) the level and quality of communication by FRO was adequate and reasonable.
Analysis
Discretion to Order Costs Against the Director
27The court has the jurisdiction and the discretion to award costs on a motion against the Director (see Rule 24(3) of the Family Law Rules, O. Reg. 144/99 (“FLA”). The Rule reads as follows:
COURT’S DISCRETION – COSTS FOR OR AGAINST GOVERNMENT AGENCY
(3) The court has discretion to award costs to or against a party that is a government agency, whether it is successful or unsuccessful.
28Rule 24(11)(b) reads as follows:
FACTORS IN COSTS
(11) A person setting the amount of costs shall consider,
(b) the reasonableness or unreasonableness of each party’s behaviour in the case;
29There have been a number of cases in which costs, for varying reasons, have been ordered against the Director. See, for example, Figliola v. Ontario (Director of Family Responsibility Office), 2008 ONCJ 366, 2008 ONCJ 1366, 56.R.F.L. (6th) 457; Ontario (Director, Family Responsibility Office) v. O’Neill, 2009 CanLII 80105 (ONSC), 85 R.F. L. (6th) 46; Phippen v. Ontario (Director, Family Responsibility Office), 2014 ONCJ 730, 50 R.F.L. (7th) 225; Emhecht v. Family Responsibility Office Legal Services, 2011 ONSC 2644, [2011] W.D.F.L. 4233; Moberg v. Peterson, 2001 CanLII 28262 (ON SC), 25 R.F.L. (5th) 133; Ontario (Director, Family Responsibility Office) v. Ramsay, 2005 ONCJ 324, [2006] W.D.F.L. 936; Paradisi v. Paradisi, 2007 CanLII 52436 (ONSC), [2008] W.D.F.L. 1335; Marion v. Ontario (Director, Family Responsibility Office), 2005 ONCJ 306, [2005] W.D.F.L. 528.
Director’s Exercise of Discretion to Enforce – Reasonable or Unreasonable
30The Director’s mandate to enforce all support orders that are filed in the Director’s office is found in s. 5(1) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, C. 31 (“FRSAEA”). It reads as follows:
Duty of Director
- (1) It is the duty of the Director to enforce support orders where the support order and the related support deduction order, if any, are filed in the Director’s office and to pay the amounts collected to the person to whom they are owed.
31Counsel for the payor submits, however, that while the Director is mandated to carry out his duties in the manner that appears practical to the Director, the Director has discretion when choosing the means available to enforce an order. She points to s. 6(1) of the FRSAEA which states:
Powers
- (1) The Director shall carry out his or her duties in the manner, if any, that appears practical to the Director and, for the purpose, may (my underlining) commence and conduct a proceeding and take any steps in the Director’s name for the benefit of recipients, including,
(a) enforcing support deduction orders that are filed in the Director’s office, as provided by this Act;
(b) employing any other enforcement mechanisms expressly provided for in this Act;
(c) employing any other enforcement mechanisms not expressly provided for in this Act.
32While I agree with counsel for the Director that the Director has a statutory mandate to enforce support orders that are filed, it is clear that the FRSAEA is permissive in the manner in which the Director can choose to enforce the order. That is why the word “may” is used in the legislation, as opposed to the mandatory term “shall”.
33As Timms J. stated in O’Neill (cited above),
While the Director has a statutory duty to enforce support orders, it [sic] nonetheless has a discretion in the manner of so doing. (para. 11)
34In Phippen (cited above), Rogers J. stated,
[I]t is in the Director’s sole discretion as to how and when it enforces support orders, and if that discretion is exercised unreasonably, then the Director may be liable for costs. (para. 19)
Unreasonable Exercise of Discretion
35In addressing the issue of costs, the issue of whether the Director exercised discretion in a reasonable manner must be discussed.
36There are a number of cases addressing what constitutes an unreasonable exercise of discretion on the part of FRO. Generally, where there is a real and substantial dispute between the parties regarding the amount to be enforced and the parties have taken action before the courts to settle the dispute, aggressive enforcement actions on the part of FRO could constitute an unreasonable exercise of the Director’s discretion.
37In Phippen, the payor sought costs against FRO after a motion to refrain the suspension of his driver’s license. He received a First Notice and retained counsel, who negotiated the withdrawal of the license suspension process with an employee in the Director’s office. The enforcement action was put on hold, provided counsel confirmed in writing that a motion to change would be issued within two weeks. The motion to change was issued, but was adjourned by the recipient’s counsel, then adjourned again for a case conference. Counsel advised FRO of the dates and the reasons for the motion to change by letter. No response was received. In September, FRO issued another First Notice, in response to which counsel sought a refraining order.
38Rogers J. considered that the Director had the opportunity to revoke the First Notice, but proceeded anyway, requiring a motion to be brought. She found that this was not reasonable, especially “in light of the provisions in the FRSAEA that give the Director the absolute discretion regarding enforcement procedure and given the Director’s prior agreement not to pursue such enforcement if [the applicant] commenced a motion to change” (para. 25). She continued, “I have determined that, in failing to exercise its discretion appropriately, the Director of FRO has behaved unreasonably.” Her Honour awarded $7,141.60 in costs against FRO, representing the full recovery costs of the refraining motion.
39In Figliola, the payor sought costs against FRO arising from a motion to refrain the suspension of his driver’s license. He and his ex-wife had entered into a separation agreement that had been amended to change the amount of support he was paying monthly. She filed the unamended agreement with FRO. Upon receiving notice of this, the payor retained counsel and commenced a motion to change. FRO then contacted the payor asking for proof that he did not agree with the arrears; his counsel responded, enclosing the amended separation agreement and sworn affidavit in support of his client’s motion to change. FRO did not respond, but rather issued a First Notice, which then required that counsel seek a refraining order.
40In making an award for costs against FRO, Zisman J. stated, at para. 28:
It is simply not acceptable to ignore correspondence from legal counsel and to take the position that the F.R.O. has the discretion to enforce in any manner it desires. As indicated, I do not disagree that the F.R.O. had the right to choose a method of enforcement and not wait for the outcome of the motion to change. However, in doing so, it exposed itself to the sanctions of a cost order.
41The payor was awarded costs of the motion, fixed at $1,617.
42In Emhecht, the payor sought costs against FRO for a motion to refrain from the suspension of his driver’s license. In awarding costs against FRO, Coats J. stated:
It should have been clear to the Family Responsibility Office that there was a real and substantial dispute between the parties as to the arrears alleged by Ms. Lake to be outstanding and owing to her by Mr. Emhecht. … Notwithstanding the apparent disagreement between the parties concerning the interpretation of the 2005 order, the Family Responsibility Office enforced the arrears as submitted by Ms. Lake, necessitating the refraining order (para 6.1). [Emphasis added.]
43It was later stated:
In the vast majority of cases, the Family Responsibility Office relies on a Statement of Arrears filed by the recipient and enforces. Ms. Oliver agrees that this is appropriate except in the circumstances where the Family Responsibility Office has information that there is a real and substantial dispute regarding the interpretation of the order and the recipient has changed her position on the interpretation in her Statement of Arrears. I agree with Ms. Oliver. This situation should have been an exception to the Family Responsibility Office's usual approach (para. 6.8). [Emphasis added.]
44The court awarded costs against FRO fixed in the amount of $4,000.
45In Tsaros v. Ontario (Director, Family Responsibility Office), 2012 ONSC 2449, 23 R.F.L. (7th) 320, on an application for judicial review of the Director’s refusal to enforce a support order, the court considered whether the Director had acted reasonably. In the face of a dispute over whether the arrears in question were owing, the court held that the Director acted reasonably in refusing to enforce the order. The applicant had previously insisted that arrears were not owing, then waited six years to reinstate the arrears. The panel found:
[I]t was reasonable for the Director to conclude that there was a real and substantial dispute over the question of these arrears, that he could not take sides and that it was an appropriate issue for resolution by a court. … Accordingly, it was reasonable for the Director to conclude that it was "unreasonable or impractical" to enforce the arrears and also for him to exercise his discretion by refusing to enforce the arrears pursuant to s.7(1)(k) of the Act (para. 10, 12). [Emphasis added.]
46Therefore, it is reasonable for FRO to refrain from enforcing an order where it is the subject of a “real and substantial dispute” between the parties that is pending a decision of the court. Although FRO has the discretion to continue to escalate enforcement in such a situation, its decision to do so may make it subject to a costs award.
47In this case it was made clear to the FRO caseworker that there was a dispute over the amount of arrears owing. It was made abundantly clear that there had been a material change because of the move of the children. While I understand that FRO has a mandate to enforce, it seems to me that insisting on enforcement by way of licence suspension, when it is likely that the matter will be before the court within a very short period of time, is an unreasonable exercise of the Director’s mandate to enforce.
48In this case, the caseworker was kept fully apprised of all relevant information about the motion to change. The refraining motion was December 10, 2015; the motion to change was scheduled for December 30, 2015. The insistence by the Director on proceeding with enforcement under such circumstances is not only costly to the individual involved but costly to the court in terms of time allotted to the case.
49The fact that the payor knew that some arrears may have been owing, does not, in my view, excuse the aggressive enforcement action taken. There was clearly a dispute over the amount of arrears. This dispute was to be reviewed and likely resolved by the court within a very short period of time. That process should have been allowed to proceed before any further enforcement action was taken. What FRO was doing, in effect, was continuing to enforce monthly payments and calculating arrears pursuant to the original order.
50The Director submits that the payor could have paid all of the arrears owing or entered into a Voluntary Arrears Payment Schedule. Paying arrears which were under dispute and close to being the subject of a motion to change makes little sense given the short timelines involved in the case between the refraining motion (December 10) and the motion to change (December 30). The point here is that arrears under the original order were continuing to mount and were being enforced by other means. Even a hold on funds to the recipient would not assist the payor with his cash flow until dealt with on the motion to change.
51While I cannot find, on the evidence before me that the caseworker promised not to take further enforcement steps, as alleged by the payor, I do not think that that fact is particularly relevant because, as I have found, even placing a hold on funds would not particularly solve anyone’s problem – payor or recipient – until the motion to change was heard.
Communication Failure Between FRO and Payor
52Courts have made costs awards against FRO where it has failed to provide an adequate level of communication, ignored correspondence or failed to respond to the parties or their counsel. FRO has an obligation to communicate with and provide information to the parties it deals with in a timely and respectful manner. Where it has failed to do so, courts have awarded costs against it.
53In Moberg v. Peterson, 2001 CanLII 28262 (ON SC), 25 R.F.L. (5th) 133, Aitken J. heard a motion to vary child support provisions, which had been adjourned several times for a variety of reasons, including the applicant’s difficulty in obtaining necessary information from FRO. It took from October 4, 2000 to March 8, 2001 for FRO to respond to simple questions concerning entries in a Statement of Arrears it had provided for the purpose of the legal proceedings. Counsel had to call and write several times to get a response. In making a costs award against FRO, Aitken J. stated, at para. 20,
… It is incumbent on the Family Responsibility Office to respond in a timely fashion to the queries of payors, recipients, counsel and the courts and to provide meaningful explanations of accounting entries together with copies of supporting documentation as reasonably requested by payors, recipients, counsel and the courts. [Emphasis added]
54Aitken J. ordered costs against FRO fixed in the amount of $500.
55In Ontario (Director, Family Responsibility Office) v. Ramsay, 2005 ONCJ 324, [2006] W.D.F.L. 936, Clark J. heard an application for costs against FRO regarding a withdrawn default hearing. It was held that the FRO’s failure to respond to correspondence from 14 October on was “not acceptable” (para. 28(b)). Counsel contacted FRO by letter on October 14, October 19 and October 21, and did not receive a response regarding the default hearing scheduled for October 25. Clark J. found that this correspondence set forth specific details of the status of the file in a “meaningful and detailed manner that ought to have prompted a timely, if not immediate, response from someone in the FRO office (para.28(c)). Clark J. stated, “The fact that no one responded to Mr. Furlan's correspondence renders the F.R.O.'s position quite cavalier, amounting to special and unusual circumstances,” and further, “Costs are awarded not because the F.R.O. did not keep accounting records up to date but because it did not respond in a timely fashion or take the necessary steps to confirm the status of this file prior to 25 October 2005” (para. 28(d)). [Emphasis added.]
56Costs of the application were fixed at $1,562.20.
57In Figliola, Zisman J. heard a motion for an order refraining FRO from suspending the payor’s driver’s license and for costs against FRO. Counsel had sent FRO written proof on May 7, as requested, that the payor did not agree to the amount of arrears stated, and included an affidavit sworn in support of the motion to change indicating the grounds of dispute. There was no response to this correspondence. On June 13, FRO issued a First Notice. The payor served FRO with motion materials for the refraining order along with an offer to settle, and again received no response. Zisman J. considered that “There have been numerous cases in which it has been determined that the F.R.O. is required to respond to correspondence and enquiries in a timely fashion” (para. 23).
It is simply not acceptable for the F.R.O. to ignore correspondence from counsel. It is incumbent on the legal department of the F.R.O. to respond in a timely fashion to any such correspondence. If it has been determined as a matter of expediency that correspondence directed to enforcement officers will not be brought the attention of legal counsel, then the F.R.O. must then be responsible for any sanctions directed by the court that may result in this type of policy (para. 26). [Emphasis added.]
58Costs were awarded in the amount of $1,617.
59In Paradisi, Pazaratz J. ordered costs against FRO for legal fees generated as a result of its method of enforcement of an ambiguous order. The payor’s lawyer contacted FRO in March requesting a detailed statement of account. On May 31, FRO provided an arrears statement without an explanation of its position. Counsel followed up with correspondence dated June 1 and August 3 but received no response, so she filed a notice of motion to deal with the issue in November. In response to the notice of motion, FRO issued an updated statement of arrears showing its internal records had been amended on September 4. This had not been communicated to the payor. At para. 31, Pazaratz J. stated:
[B]y failing to communicate to Applicant's counsel that the correction had been made, F.R.O. failed in its responsibility to keep the parties reasonably informed. This simple failure to communicate — in the face of repeated requests by Ms. Hilliard for a response — led to further and unnecessary legal costs (beyond September 4th, 2007), which the Applicant should not have been required to incur.
60His Honour ordered costs fixed in the sum of $1,000.
61In Marion, Bishop J. heard a motion for costs against FRO where it had erred in assessing the payor’s obligation and issued a statement of arrears. Counsel wrote to FRO informing it of the error and stating that any attempts to enforce the alleged arrears would be contested in court. FRO did not respond, but instead issued a First Notice. The payor brought a motion to refrain, commenced an application to have arrears corrected, and sought costs against FRO. Bishop J. held:
The Director failed to respond to the support payor's letter of 5 August, 2003, which letter should have triggered an immediate inquiry from the Director as to the true state of affairs as to payments or non-payments. The Director of the Family Responsibility Office is an agency of the state and that position carries with it a very high responsibility to do the job in a professional and fair manner, not just to the recipient but also to the support payor. … The Director has a responsibility to respond to an officer of the court, who was making bona fide efforts to correct a wrong. To be met only with silence and a continuing enforcement process without any internal review to correct the mistakes of the Director cannot be acceptable or tolerated (paras. 26-27). [Emphasis added.]
62Costs were awarded against FRO in the amount of $2,690.
63In Emhecht, there was a “real and substantial dispute between the parties as to the arrears alleged” owing by the payor, and yet FRO continued to enforce the arrears. In deciding to award costs against the FRO, Coats J. considered that:
The Family Responsibility Office's guiding principles include "We respect our clients and treat them fairly" and "We take responsibility for our actions". Mr. Emhecht was not treated with respect or fairness. His lawyer's correspondence was essentially ignored” (para. 6.10).
64The court went on to state:
Ms. Oliver sent a final letter to the Family Responsibility Office counsel August 3, 2010. It was a meaningful and detailed letter. The Family Responsibility Office did not respond except with the cursory letter of September 10, 2010 which did not address any specifics raised in Ms. Oliver's letter (para 6.11).
65Costs fixed in the amount of $4,000.
66Evidently, where FRO has failed to respond to inquiries from payors or their counsel in a timely and meaningful manner, courts have awarded costs against it.
Was Communication Between FRO and Payor’s Counsel Adequate?
67There is then no shortage of case law establishing that FRO has a duty to provide timely and meaningful responses to inquiries from payors and their counsel. In some cases, the court has awarded costs based on only several days or weeks without a meaningful response. For example, in Ramsay, costs were awarded based on FRO’s failure to respond to correspondence from counsel dated October 14 prior to the motion on October 25.
68It is also important to note that courts have required FRO to provide meaningful responses to counsel’s concerns, and not merely form letters restating the position of the agency. In Emhecht, Coats J. stated:
Ms. Oliver sent a final letter to the Family Responsibility Office counsel August 3, 2010. It was a meaningful and detailed letter. The Family Responsibility Office did not respond except with the cursory letter of September 10, 2010 which did not address any specifics raised in Ms. Oliver's letter (para 6.11).
69If enforcement agents are constrained by their statutory duty, then providing a meaningful response may require the involvement of FRO counsel. In Figliola, Zisman J. explicitly stated that it was incumbent on the legal department [emphasis added] of FRO to respond to counsel’s inquiries.
If it has been determined as a matter of expediency that correspondence directed to enforcement officers will not be brought the attention of legal counsel, then the F.R.O. must then be responsible for any sanctions directed by the court that may result in this type of policy” (para. 26).
70Therefore, in order to fulfill FRO’s obligations, communication with payors must be prompt, address the specific concerns raised by counsel and, where appropriate, be addressed by the legal department. It is costly and inefficient to have a caseworker state that an inquiry cannot be transferred to legal counsel as happened in this case.
Areas of Inadequacy
71There are several instances in which FRO failed to fulfill its duty to correspond in a timely and meaningful way with the payor’s counsel:
(a) The payor’s counsel first notified FRO that they were proceeding with a consent to terminate child support on August 27. FRO did not respond to this correspondence; rather, on September 25, almost one month later, the payor’s caseworker advised by letter that a Support Deduction Notice has been sent by FRO to Her Majesty the Queen in Right of Canada.
(b) The payor’s counsel then wrote to FRO on October 8 to address the Garnishee Summons, and notified FRO that a motion to change had been initiated. Counsel wrote to FRO again on October 23, setting out the date the motion to change was to be heard and requesting that FRO lift the garnishment. The payor’s caseworker responded by phone on October 26, over two weeks after the initial letter, advising of options to have the garnishment lifted, and agreed to place a hold on funds on the account. On October 30, counsel left a voicemail regarding a fax sent to FRO confirming the date of the motion to change.
(c) On November 4, FRO issued the First Notice. The payor’s caseworker spoke with counsel to confirm the same and discuss his options. On November 9, she faxed counsel a copy of the First Notice and left a confirming voicemail. Counsel spoke with the caseworker on November 24 to confirm FRO had received the materials for the motion to change, and November 26, when she provided counsel with Legal Services’ contact information. Prior to this date, despite copying Legal Services on all correspondence with FRO, Legal Services had not responded to any of the payor’s counsel’s letters. Therefore, from November 4 – November 26, correspondence from FRO was limited to telephone conversations with the caseworker, confirming the sending and receipt of documents.
(d) On November 27, the payor’s counsel contacted Legal Services directly, requesting that FRO refrain from further enforcement and that a representative contact them to discuss options regarding the motion to refrain. Counsel contacted FRO three more times before receiving a response, twice with Offers to Settle and once to provide a copy of correspondence with the recipient. On December 22, three weeks after counsel initially contacted Legal Services directly, Legal Services contacted counsel to inform them they were awaiting instructions regarding the offer to settle. No further response was provided.
72FRO submitted that at all meaningful times its caseworker was in regular and timely contact with the payor’s counsel. This is not correct. FRO argues that “the Enforcement Officer is constrained by her statutory duty to enforce existing orders” (para. 52, Factum of FRO). If this is the case, then the Legal Services should have involved itself much earlier, especially given that all written correspondence addressed to the caseworker was also copied to the Legal Services. The Legal Services ignored these communications until December 22. Again, as Zisman J. stated in Figliola:
If it has been determined as a matter of expediency that correspondence directed to enforcement officers will not be brought the attention of legal counsel, then the F.R.O. must then be responsible for any sanctions directed by the court that may result in this type of policy (para. 26).
73In summary, due to the fact that the Legal Services failed to respond to any correspondence from the payor’s counsel before December 22, as well as the fact that the majority of contact with the caseworker consisted of voicemails to confirm the receipt or sending of documents, I find FRO failed to provide timely and meaningful responses to the inquiries of the payor’s counsel.
74FRO’s counsel are lawyers. They are governed by the same Rules of Professional Conduct as lawyers in private practice. They owe the same duty of responsibility to other counsel as does any lawyer in Ontario. Timely and meaningful communication is the expected standard of behaviour.
Special or Unusual Circumstances
75The Director submits that the court should apply a higher standard in awarding costs against the Director rather than simply relying on Rule 24(3) of the FLA which allows the court to exercise its discretion against a party that is a government agency regardless of success.
76Counsel for the Director relies on Van Mourik v. Ontario (Director, Family Responsibility Office), 1999 CanLII 15069 (ON SC), [1999] CarswellOnt 2657, (1999) 1999 CanLII 35015 (ON SC), 3 R.F.L. (5th) 306 and Walde v. Podwysocki, [1992] W.D.F.L. 46 (Alta. C.A.) which stand for the proposition that costs should only be awarded against the Director in “special or unusual circumstances.” This, it is submitted, is a higher standard than a simple exercise of discretion. It is also submitted that the reason for applying a higher standard is because the Director has a unique position as a facilitator of support payments for the benefit of recipients and children. The Director’s role is distinct from an ordinary family law litigant and, therefore, the Director should not be penalized for carrying out a statutory mandate.
77While I do not disagree with the argument that costs awards against a government agency should not be routine, I am of the view that no different standard should be applied as between the Director and any other family law litigant that appears before our court. The FLA, and especially Rule 24(11) which sets out factors to be taken into consideration when awarding costs, provides a sufficient guide in the assessment of the issue. Rule 24(3) says nothing about limiting the court’s discretion in awarding costs against a government agency. It does not remotely suggest that a different or higher standard should apply. In fact, it is, if anything, more expansive as the FLA makes it clear that costs can be awarded whether or not there has been success.
78In the event, I am incorrect in this approach, I do find that special and unusual circumstances exist in this case because of both the timing issue and the lack of timely communication that should have come from both the caseworker and Legal Services.
Factors in Costs
79The payor has submitted a Bill of Costs and requests partial indemnity of $9,745.69.
80Rule 24(11) of the Family Law Rules sets out a non-exhaustive list of the factors that the court should consider when making a costs award as outlined in subparagraphs (a) to (f) below.
(a) The importance, complexity or difficulty of the issues:
While the issue of the licence suspension and the refraining order was very important to the payor, it was not a legally complex or particularly difficult issue.
(b) the reasonableness or unreasonableness of each party’s behaviour in the case:
This aspect of the matter has been discussed earlier in this decision.
(c) the lawyer’s rates:
Given the year of call to the Bar and the hourly rates charged by the lawyers who provided services for the payor, I have no issue on this point. I would note that other than submitting that the services performed were excessive, counsel for the Director had no specific complaint about the rates charged.
(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:
While the payor provided a detailed outline of costs I had some difficulty determining the costs that were directed to the actual refraining order motion. As well, although the bulk of the work was performed by Ms. Perruccio there were a total of four individuals, including a law clerk and article student, working on the file. This led to a small amount of duplication of effort.
(e) expenses properly paid or payable:
These expenses total $926.04 and are acceptable.
(f) any other relevant matter:
The payor served an offer to settle on FRO to attempt to settle the issue. While little emphasis was placed on the details of the offer to settle during submissions, I note that FRO did not respond to the payor’s attempt to settle. The Director, of course, as with any other litigant, is not required to respond by way of a counter-offer to settle. In fact, the Director is of the view that any offer to settle that would compromise the original order should not be entertained. I am of the view, however, that this position is inappropriate in a situation where the Director can exercise discretion. As typically occurs during the process, counsel representing FRO requests financial disclosure in order to attempt to assess the issue of ability to pay. It seems to me that there is no reason that FRO could not make an offer amounting to less than the original order pending the return of the motion to change. Further, it would appear to me that FRO should be encouraged either to respond to a payor’s offer to settle or serve its own offer to settle, in order to try to temporarily settle cases pending the hearing of the motion. This would result, in appropriate cases, in lowering costs and saving valuable court time.
Order
81Based on the findings I have made, I order that the Director forthwith pay the sum of $7,500 to the payor. This sum includes H.S.T.
Justice C.S. Nelson
Released: April 4, 2016