CITATION: Giron v. Giron, 2017 ONSC 6721
COURT FILE NO.: FC-10-961-1
DATE: 2017/11/14
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Adonay Francisco Giron, Applicant -and- Anna Marcela Giron (nee Campos), Respondent
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: The Applicant, self-represented Audra Bennett, for the Respondent
HEARD: Written Submissions
COSTS ENDORSEMENT
Introduction
[1] The trial of this application was heard over the course of 15 days in 2015 and 2016. The primary issues determined were:
Was the parties’ marriage to be annulled or was a divorce order to issue?
What custodial arrangement is in the best interests of the parties’ two children?
What terms of access are in the best interests of the children?
What amount of child support, if any, is to be paid by the non-custodial parent to the custodial parent? and
Is the applicant father entitled to a restraining order against the respondent mother?
[2] The outcome of the trial was addressed in a 40-page decision. The relief granted is set out in a 36-paragraph order that comprises five pages of the decision. The respondent was successful and the applicant entirely unsuccessful on all of the issues.
[3] The parties were invited to deliver written submissions in the event they were unable to reach an agreement with respect to the costs of the trial. They were unable to reach such an agreement. I received written submissions from the respondent’s counsel. I received no written submissions from or on behalf of the applicant. Based on one post-trial appearance before me, I understand that the applicant continues to be self-represented (as he was at trial).
[4] My ruling with respect to costs is therefore based on the manner in which the trial was conducted and the written submissions received from the respondent’s counsel.
[5] The respondent requests that the applicant be ordered to pay costs on a full indemnity basis in the total amount of $80,000 (fees, disbursements, and HST). The respondent also requests that the costs award be considered a “support order” within the meaning of section 1(1) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996 c.31, and for the purpose of the support deduction order.
Analysis
[6] Based on the Mother’s success on all of the issues, she is entitled to her costs of the trial.
[7] The costs award in favour of the respondent follows rule 24 (1) of the Family Law Rules: the presumption that the successful party is entitled to their costs (R.R.O. 1990, Reg. 114/99). I find that there was no unreasonable behaviour on the part of the respondent. There is no basis upon which to deprive the respondent of any portion of the costs to which she is entitled. For the same reasons, there is no basis to order that the respondent pay all or a part of the applicant’s costs.
[8] The issues to be addressed include (a) the scale on which costs are awarded, and (b) the quantum of costs.
[9] Before I address factors specific to the conduct of the trial, I first want to make a few remarks about the conduct of the respondent’s counsel. For counsel handling any matter, let alone a trial, when faced with an opposing party who is self-represented presents challenges. A number of my colleagues have observed that dealing with a self-represented party provides the opposing party’s counsel with an opportunity to shine before the Bench. Without affecting their duty to the client, counsel can demonstrate their understanding of their duty to the court by being scrupulously fair and decent to the self-represented party.
[10] Without fail, the respondent’s counsel conducted herself in exactly that manner. She did so despite a level of frustration she might understandably have been feeling from time to time as a result of the manner in which the trial was conducted by the applicant. The respondent’s counsel was a model of professionalism and civility.
Issue No. 1 – Scale of Costs
[11] There is nothing in the Family Law Rules that dictates the scale upon which costs are ordered.
[12] The factors, specific to the conduct of the trial, which I have considered to determine the scale on which costs are awarded, include items (a) through (c) below. I find that the respondent is entitled to her costs on a full indemnity basis.
a) The Length of the Trial
[13] The trial was originally scheduled for three days. Prior to the trial, the applicant, whose first language is Spanish, was asked to consider whether to request an interpreter for the trial. The applicant chose not to make such a request prior to the commencement of the trial. On the first day of the trial, however, the applicant requested an interpreter. As a result, the start of the trial was delayed by a day and the length of the trial was at least doubled. The need for and benefit of having an interpreter was a matter that the applicant should have addressed in a timely manner.
[14] I agree with the submission made on behalf of the respondent—the applicant was not prepared for trial. It was clear from the manner in which the applicant presented his case and responded to the evidence called on behalf of the respondent, that the applicant did little, if anything, to organize documents produced prior to trial for the purpose of (a) presentation to the court as evidence, and (b) cross-examination of witnesses. The applicant had to repeatedly be reminded to have multiple copies of documents available.
[15] Despite those reminders, the applicant continued to attend court with a single copy of documents. Breaks were required on a number of occasions to allow the applicant to make the requisite number of copies of documents to which he referred when giving evidence or when questioning or cross-examining a witness. The end result of the applicant’s failure to properly prepare documents was to add to the length of the trial.
[16] The applicant’s inability to manage and failure to prepare the documentary aspect of his case was also reflected in his failure to fully disclose to counsel for the respondent, prior to trial, all of the documents upon which the applicant intended to rely at trial. At all times counsel for the respondent handled the circumstances fairly and reasonably. At times, breaks in the proceeding were taken to allow counsel for the respondent to seek instructions and prepare submissions, the latter when required. Once again, however, it was the applicant’s conduct that caused delays in and protraction of the length of the trial.
[17] It was clear from the manner in which the applicant presented his case, cross-examined the respondent, and cross-examined other witnesses called on behalf of the respondent that the applicant’s focus was the parties’ historical, dysfunctional relationship and historical events—neither of which had any bearing on the outcome of the trial. Whether it was by reason of direction from the court or a ruling in favour of the respondent on an objection made by her counsel, the applicant was repeatedly advised to focus on matters relevant to the case and to move on from historical events. Despite these repeated directions, the applicant frequently continued to re-hash irrelevant, historical events. Once again, the applicant’s conduct resulted in the trial being longer than was necessary.
b) The Applicant’s Position was Unreasonable
[18] The applicant was unrelenting in his pursuit of sole custody of the children, despite the total lack of evidence to support such an award in his favour. If his pursuit of an award of sole custody was a reflection of his love for and devotion to his children, then that pursuit was admirable on a human level. Relevant to the issue of costs, however, are the merits of the applicant’s position in the context of the litigation.
[19] The applicant’s position that he should not be required to pay child support flies in the face of his stated love for and devotion to his children. That position lacked merit; it was not supported by the limited financial disclosure made by the applicant.
[20] The applicant’s request for an annulment, as opposed to a divorce, was (a) driven entirely by self-interest, and (b) in disregard of the best interests of the parties’ two children.
[21] Lastly, the applicant relied on evidence that was a number of years old, even disregarding the lack of merit in the evidence, in pursuit of a restraining order against the respondent.
[22] The applicant mentioned on a number of occasions during the trial that he found the trial to be a “learning experience”. The applicant chose the hands-on experience of conducting a trial over (a) consideration of the merits of his positions on the various issues, and (b) resolution prior to trial. The choice made by the applicant is not without consequences when it comes to the financial costs of the trial.
c) Offers to Settle
[23] I have reviewed the offers to settle made by the respondent. There were three such offers—October 2013, January 2015, and June 2015. The offer made in October 2013 does not address the issues at trial in the same detail as do the January 2015 and June 2015 offers. The latter two offers are all but identical.
[24] I am satisfied that the outcome at trial was as or more favourable to the respondent (on an issue-by-issue basis) than the terms of the offers to settle. The terms of the offers are in keeping with the relief granted.
Quantum of Costs Awarded
[25] The bill of costs included in the written submissions delivered on behalf of the respondent begins at May 21, 2015. The work reflected on that date includes counsel’s attendance at the settlement/trial management conference. I find that preparation for trial commenced on that date. The submissions include a computer printout setting out the work, as docketed, from May 2015 to June 2017 (when the trial decision was released).
[26] The printout also includes the work done to prepare the written submissions with respect to costs. I reduce the fees for work done with respect to the trial by the $1,140 in work done by the junior lawyer with respect to costs. As such, the total full indemnity fees identified for the trial work are $67,670.
[27] The disbursements claimed total $8,224.35. The number of pages of fax transmissions and of photocopies appears to be high. I find, however, that they reflect (a) the caution and fairness in counsel’s approach with the self-represented applicant, and (b) counsel’s preparedness for trial. No reduction is warranted in the disbursements for fax transmissions and photocopies. The specific reduction, if made would amount only to several hundred dollars. Given the overall amount of costs awarded, no specific reduction is required for these disbursement items.
[28] I note the following from the computer printout of docketed work:
• The dockets are detailed and allow the reader to understand the work done and the purpose for which the work was done;
• The work, whether by senior counsel, junior counsel, or the articling student was done efficiently;
• There is no evidence of duplication of effort as between the timekeepers; and
• The work was done by various timekeepers with a view to cost-effectiveness.
[29] I highlight the manner in which the work was done by counsel for the respondent, junior counsel, and the articling student to emphasize that there is no basis for a reduction in the amount claimed for fees.
[30] I am satisfied that the full indemnity hourly rate for senior counsel is reasonable: $300, based on 11 years at the bar. I find that the hourly rate of $200 for junior counsel, two years at the bar, is high; I allow $150 for junior counsel. I also find that the hourly rate of $150 for the articling student is high; I allow $120.
[31] Based on the computer printout, I have identified 4.5 hours docketed by junior counsel and 27.25 hours by the articling student. The total fees of $67,670 are reduced by $225 (4.5 x $50) for junior counsel and by $817.50 (27.25 x $30) for the articling student. The full indemnity fees are, therefore, $66,627.50. The total full indemnity fees, disbursements, and HST are:
Fees $ 66,627.50
HST on Fees $ 8,661.58
Disbursements $ 8,224.35
HST on Disbursements $ 1,069.17
Total: $ 84,582.60
[32] The fees for the costs submissions are based on 5.7 hours of the work of junior counsel - $855 (plus HST). That amount would, if awarded, be added to the figure immediately above.
[33] The request on behalf of the respondent for full indemnity costs in the matter of $80,000, all-inclusive, is reasonable. I award that amount to the respondent for her costs of the trial and with respect to the costs submissions.
[34] Based on the evidence of the applicant at trial, it is clear that, regardless of the amount of the costs awarded in this matter, the applicant is going to be challenged in fulfilling his financial obligations with respect to arrears of support, ongoing support, and costs. The applicant is a person of modest means. The applicant’s evidence at trial was that he has a sympathetic employer. Although the applicant was laid off as of the end of the trial, there is no evidence to support a finding that the applicant is unemployable or that he would have difficulty finding work. In summary, I find that the applicant has the ability to pay the costs awarded—even if it may take some time for the applicant to pay the award in its entirety.
Enforcement of the Costs Award
[35] The offers to settle made in 2015 each included a term that provided for an acknowledgement of no arrears of child support. The applicant chose not to accept the offers. He also chose not to attempt, prior to trial, to resolve the discreet issue of child support.
[36] With respect to the applicant’s historical child support obligations, I note the following:
• Prior to trial, the most recent child support order (a) was based on the applicant being in receipt of unemployment insurance, and (b) called for the applicant to pay child support in the amount of $437 per month;
• That child support order was made in 2014. The applicant resumed working prior to the commencement of the trial but did not notify the respondent of same;
• The applicant paid a total of $1,510 for child support in 2013; and
• My decision at trial is that, for the period 2012 through 2016, the applicant’s child support obligation is $29,254 (to be reduced by the $1,510 paid in 2013 and increased by $1,062, the latter for child support for the months of November and December 2016). The end result is a child support obligation in the amount of $28,806 for 2012 through 2016.
[37] I agree with the submissions on behalf of the respondent that the applicant “has historically underpaid child support and avoided his financial obligations”. The respondent relies on a 2012 decision of the Ontario Court of Appeal, in which an order was made that costs in a family law matter (a) be treated as child support, payable pursuant to the Family Responsibility and Support Arrears Enforcement Act 1996 (S.O. 1996, c. 31, and “the Act”), and (b) form part of the support deduction order: see de Somer v. Martin, 2012 ONCA 908.
[38] The copy of the addendum to the decision of the Ontario Court of Appeal in de Somer does not identify whether the decision appealed from related exclusively to child support or addressed child support and other issues. I raise that point because in section 1(g) of the Act, “support order” is defined as follows:
1(1) In this Act,
“support order” means a provision in an order made in or outside Ontario and enforceable in Ontario for the payment of money as support or maintenance, and includes a provision for,
(g) interest or the payment of legal fees or other expenses arising in relation to support or maintenance.
[39] In a 2014 decision, the Ontario Court of Appeal addressed the extent of the discretion a trial judge has to order that costs payable be subject to enforcement by the Family Responsibility Office pursuant to the Act. In Clark v. Clark, the Court of Appeal held that it is entirely within the jurisdiction of the trial judge to order that all costs awarded in a multi-issue trial form part of a support deduction order (2014 ONCA, 175, at paras. 80-82).
[40] The request on behalf of the respondent in this matter for the entire amount of the costs awarded to be subject to a support deduction order falls within the scope of orders that I have the discretion to make. For a number of reasons, I decline to order that the entire amount of costs awarded be subject to a support deduction order:
• I am able to estimate the costs associated with the issues of child support and Section 7 expenses (i.e. separating them from the costs associated with the other issues determined at trial); and
• If the costs awarded are added to the arrears in child support, the total figure is slightly in excess of $100,000. I do not want to crush the applicant while he attempts to rebuild his relationship with his two daughters and to fulfil his obligations to his young son (the applicant’s child with his current partner). The trial had to be adjourned briefly because of medical issues the applicant’s son faces.
[41] As a result, I find that the costs award may be treated as a support order for the purpose of the support deduction order, but only to the extent that the costs awarded relate to the issue of child support.
[42] Counsel for the respondent did not include any submissions in that regard. Based on my Reasons for Judgment, I note the following:
• Of the 33 pages of substantive text:
− 2 pages address the Background and Procedural History;
− 7.5 pages of the remaining 31 pages of substantive text relate to child support and Section 7 expenses (i.e. 25 per cent of the substantive decision); and
• Of the 36 numbered paragraphs in the disposition, 7 paragraphs relate to child support and Section 7 expenses (i.e. 20 per cent of the terms).
[43] In the circumstances it is reasonable for 25 per cent of the costs awarded to be considered a “support order” within the meaning of section 1(1)(g) of the Act. That percentage is in keeping with the percentage of trial time taken for the issues of child support and Section 7 expenses.
[44] In summary, $20,000 of the costs awarded shall be subject to the support deduction order.
Summary
[45] In summary, I order as follows:
The applicant shall pay to the respondent her costs of the trial on a full indemnity basis in the amount of $80,000 for all fees, disbursements, and H.S.T.
From the costs awarded, $20,000 shall be treated as a “support order” within the meaning of the Family Responsibility and Support Arrears Enforcement Act and, therefore, enforceable pursuant to the Act as part of a support deduction order.
CITATION: Giron v. Giron, 2017 ONSC 6721
COURT FILE NO.: FC-10-961-1
DATE: 2017/11/14
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Adonay Francisco Giron, Applicant -and- Anna Marcela Giron (nee Campos), Respondent
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: The Applicant, self-represented Audra Bennett, for the Respondent
COSTS ENDORSEMENT
Madam Justice Sylvia Corthorn
Released: November 14, 2017