Court File and Parties

COURT FILE NO.: 1764-10 DATE: 2016 05 12

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DUSKO JANJIC V. JELENA JANJIC

BEFORE: LeMay J.

COUNSEL: Both parties self-represented M. Demeda, for the Office of the Children’s Lawyer

Heard: In Writing

ENDORSEMENT

LeMay J.

[1] This matter was a ten-day trial that proceeded before me in March and April of 2015. Since that time, I have considered a number of management and implementation issues relating to this matter in appearances in August, September and December 2015, and March 2016. At each of these appearances prior to the March 2016 appearance, I reserved the question of costs for both the trial and each of the subsequent appearances before me to be determined at the end of the process. It now comes time to pay the bills.

[2] I have received detailed costs submissions from both the Applicant, Dusko Janjic (“Dusko”) and the Respondent, Jelena Janjic (“Jelena”). Although the Office of the Children’s Lawyer participated in this case, they are not seeking costs and neither party is seeking costs against them.

[3] I will outline which of the factors under the Family Law Rules that I view as most relevant. I will then address each of the types of costs that Jelena has sought in this case.

The Factors to Consider in Assessing Costs

[4] I was not directed to any Offers to Settle that would trigger the cost consequences of the Family Law Rules. As a result, the relevant provisions of the Rules guide me to the following considerations as being the most relevant in this case:

a) The successful party is presumptively entitled to costs (see Rule 24(1))

b) A party that has behaved unreasonably may either be deprived of costs or may be required to pay additional costs to the other party (Rules 24(4),(5) and (11 b))

c) The importance, complexity and difficulty of the issues are to be considered (see Rule 24(11)(a))

d) A party that conducts themselves in a bad faith manner shall be required to pay full indemnity costs immediately (Rule 24(8)).

[5] As can be seen from the Reasons for Judgment that I gave, bad faith is a significant issue in this case. I will address it separately.

[6] In terms of the other factors I have listed, I note as follows:

a) Jelena was the successful party in this case. It was a motion to change brought by Dusko for an adjustment to his support obligations. Ultimately, Dusko did not argue significant portions of that motion. At the same time, Jelena sought, and won, significant remedies with respect to custody and access of the children. She is presumptively entitled to costs.

b) On the conduct of the parties, Dusko clearly behaved unreasonably. This factor suggests that an enhanced costs award is appropriate. I will review Dusko’s conduct in more detail in the discussion on bad faith.

c) On the complexity and importance of the issues, I note that these issues were factually complex, consumed ten days of Court time and were very important as they involved serious issues relating to the custody of two children. Again, this factor suggests that an award of costs on the higher end of the scale is appropriate.

The Conduct of the Parties - Does Bad Faith Exist?

[7] Under Rule 24(8), I must consider whether Dusko’s actions in this case amount to bad faith. I start with considering Dusko’s conduct in this case:

a) Dusko deliberately overstated the problems with Jelena’s parenting skills.

b) Dusko deliberately interfered with Jelena’s relationship with Anica, the parties daughter. One example will suffice. In the fall of 2014, after the OCL had helped Jelena start repairing her relationship with Anica, Dusko decided that the next access visit needed to take place at a police station. This location was chosen, on Dusko’s evidence, because Anica did not want to be alone in public with her mother. I rejected this evidence and found that the reason for the visit at the police station was that Dusko did not want the relationship between Anica and Jelena to improve, and that he had been concerned about the improvements that had started in the summer of 2014.

c) Dusko’s communications with Jelena went beyond inappropriate. These are detailed in my reasons. However, it should be remembered that on one occasion, in front of the children, he referred to Jelena as “a dirty whore” in Serbian.

d) Dusko deliberately ignored, without good explanation, a series of Court Orders made in this matter. His explanation was generally that his decisions were “good for the children”. In other words, he knew better than the judges who made the decisions.

[8] This conduct is clearly unreasonable. The question is whether it amounts to bad faith conduct. A number of decisions have considered what conduct will amount to bad faith. I find the decision in S.(C.) v. S.(M.), 2007 ONSC 20279, 38 R. F.L.(6th) 315, aff’d 2010 ONCA 196 to be the most helpful. This decision was not provided to me, but I was given Izyuk v. Bilousov, 2011 ONSC 7476 (Pazaratz J.), which contains detailed quotes from S.(C.). One of those passages, at paragraph 21, states:

There are, however, some aspects of the father’s behaviour in this case, as found in my reasons of 27 February 2007, that do fall within “bad faith” as intended by the rule. He deliberately did not obey court orders in the case, including orders to which he consented. He made complaints against lawyers and other professionals, when he was unhappy with the way they performed their duties, not merely to report what he believed to be negligence or misconduct, but also as his form of punishment and vengeance. Most significantly, though, the father waged a campaign against the mother, both through and with the children, to alienate the children from her, a form of emotional harm to the children and to her, and to cause her emotional distress. This was done in the guise of forging closer ties with the children. It is true that the mother was not blameless in dealing with the children but, as between two parents, I found his motives were to cause harm to the existing bond between the children and the mother, whereas the mother was trying to hang on to her relationship with her children rather than to harm the feather’s relationship with them.

[9] There are elements of Dusko’s conduct that are the same as the bad faith described in this paragraph. These include his attempt to alienate Anica from Jelena, as well as his deliberate disobedience of Court Orders.

[10] I also note that Dusko’s costs submissions are very revealing. He continues to make assertions that are contrary to the findings of fact in my original decision. He also makes statements that are not true on the evidence I have. For example, at paragraph 8 of his submissions, he states “Today the children do not want any contact with [Dusko] and they do not want to go to his place.” This is untrue.

[11] As of last September, Dusko made a decision that he did not wish to exercise his rights to access. He did not seek to exercise those rights at all between September of 2015 and March of 2016. The children expressed some disappointment and anger that Dusko had chosen not to see him. To blame either Jelena or the children for this state of affairs demonstrates a complete disregard for what has actually taken place in this case.

[12] In addition, Dusko states at paragraph 4 that, at trial, it was proven that Jelena had been leaving Anica behind at school at the end of the day. I did not make that finding. Instead, the finding I made was that Jelena was forced to leave Anica behind at daycare because Dusko, by his conduct, had ensured that Anica would not go home with Jelena.

[13] Dusko asserted he was right, even in the face of overwhelming evidence (and, indeed, factual findings) that he was wrong. This behaviour was a significant problem throughout the case, it exacerbated the relationship problems between Dusko and Jelena, it was a significant cause of the relationship problems between Jelena and Anica, and it was a significant reason why this litigation was necessary.

[14] In the circumstances, I find that some of Dusko’s conduct amounted to bad faith conduct within the meaning of the Rules. I also find that, even in instances where he did not engage in bad faith conduct, his conduct was unreasonable and resulted in this matter having to proceed to trial. As a result, when this conclusion is considered against all of the other observations I have set out above, Dusko should be required to pay full indemnity costs in this case. This brings me to the question of what the full indemnity costs should be.

Calculating the Costs

[15] There are three issues to be determined in calculating the costs in this matter:

[16] a) What amount, if any, should Jelena be paid for the work that was performed by her solicitor, Mr. Dino Mazzorato? Mr. Mazzorato did not appear at trial as counsel. b) What amount, if any, should Jelena be paid for the time that she has personally expended on the preparation and presentation of this trial? c) What amount, if any, should Jelena be paid for the disbursements that she has claimed?

a) Mr. Mazzorato’s Work

[17] Mr. Mazzorato did some work for Jelena in preparation for this trial. It amounts to approximately 22.4 hours at a rate of $300.00 per hour. In total, costs of $6,700.00 plus HST are claimed to have been incurred by Mr. Mazzorato. Jelena seeks reimbursement for these costs.

[18] I agree with Dusko that I should not be awarding costs for any settlement conferences that the parties attended at, and I decline to do so. Trial management conferences are a different issue. Preparation for, and attendance at, a Trial Management Conference is necessarily part of the work that has to be done to prepare for trial. Mr. Mazzorato, however, identifies three TMC’s that he attended. It is unlikely that these conferences were solely for the purpose of trial management, and Jelena should not be entitled to recover all of the costs associated with these TMC’s.

[19] However, the rest of the costs incurred by Mr. Mazzorato appear to me to be entirely reasonable especially when considered against the principles that I have outlined above. In the circumstances, I fix the costs payable by Dusko on account of Mr. Mazzorato’s work in the sum of $5,000.00 inclusive of HST and disbursements.

b) Jelena’s Work

[20] Jelena makes a claim for the work that she did to prepare for and conduct this trial. She has claimed that she has done approximately 300 hours of work, and seeks a rate of $30.00 per hour for this work. There have been a number of cases that set out some guiding principles for the calculation and awarding of costs for self-represented litigants.

[21] I start with the Court of Appeal’s decision in Fong v. Chan, where the Court stated:

[24] A rule precluding recovery of costs, in whole or in part, by self-represented litigants would deprive the court of a potentially useful tool to encourage settlements and to discourage or sanction inappropriate behaviour. For example, an opposite party should not be able to ignore the reasonable settlement offer of a self-represented litigant with impunity from the usual costs consequences. Nor, in my view, is it desirable to immunize such a party from costs awards designed to sanction inappropriate behaviour simply because the other party is a self-represented litigant.

[26] I would also add that self-represented litigants, be they legally trained or not, are not entitled to costs calculated on the same basis as those of the litigant who retains counsel. As the Chorley case, supra, recognized, all litigants suffer a loss of time through their involvement in the legal process. The self-represented litigant should not recover costs for the time and effort that any litigant would have to devote to the case. Costs should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation and that, as a result, they incurred an opportunity cost by forgoing remunerative activity. As the early Chancery rule recognized, a self-represented lay litigant should receive only a “moderate” or “reasonable” allowance for the loss of time devoted to preparing and presenting the case. This excludes routine awards on a per diem basis to litigants who would ordinarily be in attendance at court in any event. The trial judge is particularly well-placed to assess the appropriate allowance, if any, for a self-represented litigant, and accordingly, the trial judge should either fix the costs when making such an award or provide clear guidelines to the Assessment Officer as to the manner in which the costs are to be assessed.

[22] In addition, I was provided with the decisions in Llewellyn v. Llewellyn, 2015 ONSC 8116, and Rashid v. Shaher, 2011 ONSC 852. Those decisions set out a detailed analysis of the factors to consider in assessing the rate and amount of time that a self-represented litigant should be compensated at. I have considered all of those factors.

[23] First, on the rate that is being claimed, I note that Jelena is claiming an hourly rate for her work of $30.00 per hour. When I consider the discussion on the rate that was ordered payable in various cases set out above, this is an entirely reasonable rate and I will compensate Jelena for her assessable time at this rate.

[24] Second, there is the amount of time that Jelena is claiming. She is seeking reimbursement for 300 hours of work. I agree with Dusko that this is excessive for two reasons:

a) Jelena is not entitled to a fee for attending at trial or the subsequent appearances. She was a litigant and would have to attend at trial regardless of whether she was represented or not. The trial was ten days, and the subsequent appearances were one to two hours each. As a result, I would reduce the time claimed by Jelena by 100 hours on account of this time.

b) Jelena is claiming reimbursement for time spent on both the trials and the motions. However, as Dusko correctly points out in his materials, he has already paid costs for these motions. In the circumstances, I would reduce the amount claimed on account of this issue by 50 hours.

[25] As a result, I find that Jelena should be paid the sum of $4,500.00, inclusive of HST and disbursements, for the work that she performed to prepare for this trial.

c) The Disbursements

[26] Jelena claims the sum of $2,000.00 for photocopying and an additional $500.00 for gas for travelling to and from Court. She has not provided receipts for any of these expenses.

[27] The travel to and from Court is an expense that Jelena would have had to bear regardless of whether or not she was representing herself. It is also not an expense that the Court generally awards to counsel when they live in the same jurisdiction as where the trial has taken place. As a result, this is an improper claim, and I decline to award it.

[28] This brings me to the photocopies. While there was a lot of paper in this case, $2,000.00 seems excessive for photocopying. I am not prepared to allow that amount in the absence of proof that the monies were actually expended. Instead, I am going to fix the amount of $500.00 on account of photocopies (inclusive of HST) as a reasonable amount in this case.

Disposition

[29] For the foregoing reasons, I order Dusko to pay Jelena costs and disbursements in the sum of $10,000.00 inclusive of HST within thirty (30) days of the release of this endorsement.

[30] I further Order that Dusko’s approval as to the form and content of this Order is dispensed with.

[31] The final matter is the question of whether I should make this Order enforceable through the Family Responsibility Office. In the circumstances, I decline to make this Order as the issues in this case involved primarily custody and access, and did not involve support.

LeMay, J. DATE: May 12, 2016