Court File and Parties

CITATION: Kirby v. Kirby, 2017 ONSC 6695

COURT FILE NO.: 23210/01

DATE: 2017-11-06

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: IAN DAVID KIRBY, Applicant

AND:

KATHERINE LYNN KIRBY, Respondent

BEFORE: Gibson J.

COUNSEL: Karen S.K. Law, Counsel for the Applicant Katherine Kirby, Self-represented

COSTS ENDORSEMENT

[1] On September 20, 2017, I heard a motion brought by the Applicant Mr. Kirby regarding the sale of the matrimonial home of the Parties. The motion had been adjourned from September 13, 2017, at the request of the Respondent. I granted the relief sought by the Applicant Mr. Kirby. This costs endorsement pertains to these two dates.

[2] In my endorsement giving judgment, I invited written costs submissions from the parties, and specified deadlines to receive these. The Applicant Mr. Kirby has provided submissions as to costs. The Respondent Ms. Kirby has not. As I advised the Parties in my endorsement, I will thus proceed on the assumption that Ms. Kirby does not wish to make submissions as to costs.

[3] The Applicant submits that he should be entitled to costs on a substantial indemnity basis. He submits that the starting point is the presumption that the successful party is entitled to costs. He also canvasses the various factors enumerated at Rule 24 of the Family Law Rules. He submits that the Respondent’s behaviour was wholly unreasonable in this matter, in terms of resisting the sale of the matrimonial home, in not making any Offers to Settle, and particularly at the hearing.

[4] I agree with Mr. Kirby’s submissions. I wish to make some comments in particular regarding Ms. Kirby’s conduct at the hearing.

[5] Self-represented litigants appear frequently in our courts on family law matters. It is generally recognized that they may be at some disadvantage to parties who are represented by counsel, and that there is a duty on judges and court staff to recognize this.

[6] The Canadian Judicial Council has produced a Statement of Principles on Self-represented Litigants and Accused Persons, which it adopted in September 2006. In Pinteas v. John, 2017 SCC 23, Karakatsanis J. declared at para. 4 of the judgment that the Supreme Court of Canada endorses this Statement of Principles.

[7] The Statement sets out a number of statements and principles, with accompanying commentary, to the general effect that judges, the courts and other participants in the justice system have a responsibility to promote opportunities for all persons to understand and meaningfully present their case, regardless of representation. It suggests a number of accommodations that may be made to assist self-represented litigants.

[8] However, this is not a one-way street. The Statement of Principles recognizes that there are also corollary duties incumbent upon self-represented litigants. In particular, Para 4 of the Commentary to statement B provides:

Self-represented litigants, like all other litigants, are subject to the provisions whereby courts maintain control of their proceedings and procedures. In the same manner as with other litigants, self-represented persons may be treated as vexatious or abusive litigants where the administration of justice requires it. The ability of judges to promote access may be affected by the actions of self-represented litigants themselves.

[9] Paragraph 4 of the Commentary to statement C provides:

Judges and court administrators have no obligation to assist a self-represented person who is disrespectful, frivolous, unreasonable, vexatious, abusive, or making no reasonable efforts to prepare their own case.

[10] Rule 24 of the Family Law Rules deals with the question of costs in family law matters. Paragraph 24(11) details the factors that the Court shall consider in setting the amount of costs, including,

(b) the reasonableness or unreasonableness of each party’s behaviour in the case, and

(f) any other relevant matter.

[11] On the hearing of the motion, Ms. Kirby behaved very badly. She had to be frequently admonished by the Court. She consistently tried to take more time than she was allocated by the Court. She was rude to opposing counsel, and to the Court. She asserted that opposing counsel was lying. She frequently and repeatedly interrupted opposing counsel even after being instructed by the Court not to do so. She made both loud and sotto voce critical comments while the Court was speaking. She was observed by court staff to be trying to harass and physically bully opposing counsel in the hallway outside court during a break, and tried to intimidate her in court by crowding her and interjecting. Ms. Kirby’s conduct required the attendance of police officers in court during the hearing to maintain security, and to safely escort the opposing counsel out of the building after the hearing.

[12] Ms. Kirby undoubtedly has many difficulties in her life, and contends with some physical and mental health challenges. But there is no evidence to demonstrate that these are so severe as to render her incapable of behaving properly in Court.

[13] The Courtroom is not a school playground. The outcome is not governed by who shouts loudest. There are minimum rules of decorum, orderliness and courtesy which must be observed in order to ensure that all parties are afforded the opportunity to present their case fully and fairly, and to maintain the reputation of the administration of justice. It is not a spectacle. It is not a free-for-all in which litigants may indulge their tempers at whim if they don’t immediately get what they want. No party is entitled to be petulant, abusive or to attempt to bully another party.

[14] Self-represented litigants may be afforded some additional consideration consistent with the Statement of Principles, but they are not afforded some special licence to behave badly in court without consequence.

[15] The conduct of a party in the litigation may appropriately be reflected in the order for costs.

[16] As Pazaratz J. indicated at paragraphs 54 and 55 in Izyuk v. Bilousov, 2011 ONSC 7476, [2011] O.J. No. 5814 ( S.C.J.), in arriving at an overall award of costs which is fair and reasonable, the Court must take into account a party’s limited resources, as one of the relevant factors. But the three primary objectives of costs orders in family law proceedings are to partially indemnify successful litigants for the cost of litigation; to encourage settlement; and, to discourage and sanction inappropriate behaviour by litigants.

[17] In this case, given Ms. Kirby’s conduct during the hearing, the Applicant should be entitled to an order for substantial indemnity costs.

[18] The Respondent Ms. Kirby shall pay costs to the Applicant Mr. Kirby fixed at $10,800.

Gibson J.

Date: November 6, 2017