COURT FILE NO.: D25027/15
DATE: 2018/06/14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Jennifer Lynn Arndt
Virginia L. Workman, for the Applicant
Applicant
- and -
Joshua Emil Arndt
Self-represented
Respondent
The Honourable Justice T. Maddalena
COSTS ENDORSEMENT
[1] I rendered my Reasons for Judgment after this 11 day trial on April 13, 2018.
[2] I requested written submissions on costs. The applicant’s submissions were due May 4, 2018 and the respondent’s submissions were due by May 25, 2018. I have received the applicant’s submissions on May 4, 2018, but have received no submissions from the respondent.
[3] There is no explanation provided to the court from the respondent as to why he has filed no costs submissions. There is also no request from the respondent for an extension of time for his submissions.
[4] Based on all of the aforementioned, the court is proceeding with the adjudication of costs in the absence of the respondent’s submissions.
Position of the Applicant
[5] The applicant seeks her costs on a full recovery basis, fixed in the amount of $54,228.87 inclusive of disbursements plus H.S.T.
[6] The applicant further seeks a finding that one-third of these costs are enforceable as support, given that approximately one-third of the trial time dealt with issues of child and spousal support.
Analysis
[7] The applicant is the successful party. Therefore, pursuant to Rule 24(1) of the Family Law Rules, the applicant is entitled to her costs.
[8] Rule 24(11) sets out some of the factors for the court’s consideration in the assessment of costs.
[9] Rule 24(5) permits the court to consider the reasonableness or unreasonableness of a party in assessing an award of costs.
[10] Rule 18 of the Family Law Rules deals with offers to settle. Specifically, Rule 18(14) deals with the cost consequences of the failure to accept an offer to settle. Rule 18 is applicable in the instant case. The applicant’s offer to settle was dated and served September 26, 2016. The offer to settle was not withdrawn.
[11] A comparison of the applicant’s offer to settle and the court order indicates the following:
• The parenting times are approximately the same in the offer to settle of the applicant and the court order;
• The child support amount in the offer to settle is less than in the order of the court;
• The offer to settle provides for no retroactive support whereas the court order makes provision for retroactive support;
• The offer to settle has spousal support as payable for a period of 40 months whereas the court order has no time limitation and any change would be based on a material change in circumstance.
[12] There is no Rule 18 offer to settle of the respondent.
The Issue of Reasonableness
[13] Although the respondent was self-represented at the trial, the respondent did have the benefit of counsel early in the proceedings.
[14] The respondent continued to request throughout the trial that the court order the applicant and the two children to move to Toronto so that he would have the children with him on a week about basis. Alternatively, he requested sole custody to him.
[15] The respondent took the aforementioned position notwithstanding that the applicant had consented to a week about regime with the children as long as the respondent lived Niagara, which is where the applicant and children reside. In fact, this had been made into a temporary consent order, however the respondent chose not to move to Niagara and continued to insist that the applicant move to Toronto.
[16] The alternative that the respondent proposed would require the court to move the two children from their home in Niagara and move them to Toronto to reside with him. This would effectively disrupt the children’s lives in Niagara where they had already lived for several years and were doing well.
[17] The respondent further continued to believe throughout the course of the trial that the applicant had “tricked” him into moving to Niagara. The court found no evidentiary basis for his belief.
[18] In addition, the parties had the benefit of a midtrial pretrial. They were offered more than one, but this was not agreed. Despite all of this, the matter took 11 days of trial.
[19] Further, the respondent throughout the trial continued to insist that child support be based on less than the guideline amount. This request was supported by no evidence.
[20] In addition, the responded requested spousal support be based on less than his income for Canada Revenue Agency (“C.R.A.”) purposes. Again, this request was made but based on no supporting evidence.
[21] Cases on costs have held that self-represented litigants cannot proceed to trial and take unreasonable, unsupported positions, without impunity.
[22] Clearly this case should not have gone to trial. The respondent’s position was not only unsupported by any evidence, but in the case of requesting that the court order the mother to move to Toronto, the court had no jurisdiction.
[23] In the case of Blanchard v. Walker, 2012 ONCJ 799, the court found in paras. 33, 34 and 36 as follows:
33 Family law litigants are responsible for and accountable for the positions they take in the litigation: Heuss v. Sarkos, 2004 ONCJ 141, 132 A.C.W.S. (3d) 1112 (Ont. Ct.), and Peers v. Poupore, 2008 ONCJ 615, 2008 O.N.C.J. 615 (Ont. Ct.), para. 62.
34 The unreasonable conduct of an unsuccessful litigant is a factor in both the awarding of costs and in fixing the amount of costs. The court should express disapproval of a litigant who proceeds to trial without adequate evidence to prove her claims, and should send the message that the successful party should have redress by awarding costs on a full recovery basis.
- Parties to litigation must understand that court proceedings are expensive, time-consuming and stressful for all concerned. They are not designed to give individual litigants a forum for carrying on in whatever manner they may choose, oblivious to the impact of that conduct on the other side and, perhaps most importantly for the purposes of this case, oblivious to the mounting costs of the litigation: Heuss v. Sarkos, 2004, Ont. Ct., supra, para. 20.
[24] Further, in para. 45 of Blanchard v. Walker, the court noted as follows:
45 The mother is 29 years old. She is young, and has many years in which to earn sufficient money to contribute towards a costs award. Her unreasonable behaviour in choosing to go to trial in the face of the strong evidence against her position requires a strong message. The mother is the author of her own misfortune. Had she acted reasonably, she could have avoided a trial altogether, and avoided liability for costs. The mother should not be shielded from liability for costs in this case merely due to a current limited ability to pay costs. To do this would allow those of limited financial means free license to litigate unreasonably. That is not consistent with the current law of costs.
[25] Further, in paras. 51 and 52 of Blanchard v. Walker the court stated as follows:
51 This is a clear case for costs on a full recovery basis. It must be made clear to family law litigants that there is no right to a trial, or at least, that the right to a trial is tempered with the requirement that the parties take a clear-headed look at their case before insisting on their day in court. The court must sanction this behaviour clearly, or it will invite more of this behaviour.
52 No finding of bad faith is required to support full recovery of costs, as there is ample evidence that the mother’s behaviour was unreasonable (under Rule 24(11)(b) and Rule 24(5)). Full recovery of costs is the appropriate remedy here.
[26] I adopt the reasoning of the court in Blanchard v. Walker.
Conclusions and Orders Made
[27] I have considered the principles in Rule 18 of the Family Law Rules, as well as those factors set out in Rule 24(11) of the Family Law Rules.
[28] I have considered the reasonableness or unreasonableness of the position taken by the parties.
[29] I have noted as well that cases in the past have held that the overall objective regarding costs is to fix an amount that is fair and reasonable, having regard to a broad range of factors, rather than an amount fixed by actual costs.[^1]
[30] I therefore fix the costs payable by the respondent to the applicant in the amount of $54,000.00.
[31] I order that one-third of those costs - that is, $18,000.00 - be enforced as support by the Family Responsibility Office.
Maddalena J.
Released: June 14, 2018
COURT FILE NO.: D25027/15
DATE: 2018/06/14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Jennifer Lynn Arndt
Applicant
- and –
Joshua Emil Arndt
Respondent
COSTS ENDORSEMENT
Maddalena J.
Released: June 14, 2018
[^1]: Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291