Court File and Parties

COURT FILE NO.: FC-14-952 DATE: 2018/07/19 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sushmita Maan, Applicant -and- Eric Poirier, Respondent

BEFORE: Justice D. Summers

COUNSEL: Gonen Snir for the Applicant Self- Represented Respondent

HEARD: In writing

COSTS ENDORSEMENT

[1] This cost decision arises out of Ms. Maan’s contempt motion against Mr. Poirier. The allegations in the motion related to disclosure orders and conditions in access orders.

[2] The motion was dismissed.

Positions of the Parties

[3] As the successful party, Mr. Poirier seeks $7,706.00 in costs. Ms. Maan argues that Mr. Poirier behaved unreasonably and that his failure to comply with court orders should not be rewarded with costs. She contends that a just result would be no costs payable by either party.

Presumption of Costs to the Successful Party

[4] Rule 24(1) of the Family Law Rules, O. Reg. 114/99 (“FLRs”) presumes that a successful party is entitled to costs. However, under rule 24(4), this presumption may be rebutted with proof that the successful party behaved unreasonably and, if so, the court may deprive that party of costs, in whole or in part.

Determining Whether a Party Has Behaved Unreasonably

[5] When deciding whether a party behaved unreasonably, rule 24(5) of the FLRs requires the court to look at three factors.

1. The Party's Behaviour in Relation to the Issues from the Time They Arose, Including Whether the Party Made an Offer to Settle

[6] In this case, two of the four breaches alleged by Ms. Maan related to interim disclosure orders that had been superseded by a final settlement. For contempt to be an available remedy, a live and operative order must exist. Here, the disclosure orders were no longer in effect or enforceable and, it was for that reason that the contempt allegations failed. However, it remains the case that Mr. Poirier did not comply with the orders in question at the relevant time when he was obliged to do so. In that regard, I find his actions were unreasonable and should not be overlooked now.

[7] Ms. Maan’s third allegation of contempt turned on Mr. Poirier’s failure to advise that the court, in another proceeding, terminated his obligation to pay spousal support to his first wife. This claim by Ms. Maan failed on the first part of the three pronged test for contempt which requires that the order breached must clearly and unequivocally state what should and should not be done. Here, the order in question directed that Mr. Poirier tell Ms. Maan of any change in income or in his obligation to support his three children from his prior marriage. Although this information was relevant to the terms of the consent order that permitted Mr. Poirier to pay less than the Guideline amount of support for their two children, it was not the disclosure that he was ordered to provide. I found that Mr. Poirier’s failure to advise Ms. Maan did not constitute contempt but, it was at odds with the spirit of the order. For that reason I find his behaviour was unreasonable. Mr. Poirier has been in litigation with his former spouses over parenting and support issues for many years now. I am satisfied he understood that the termination of spousal support to his first wife impacted his ability to pay increased child support to Ms. Maan.

[8] Ms. Maan’s fourth allegation of contempt failed for lack of evidence. She alleged that Mr. Poirier failed to submit to hair follicle testing, as ordered. He denied it. The third leg of the contempt test requires that the breach be proven beyond a reasonable doubt. In the face of scant and conflicting evidence, the benefit of doubt belonged to Mr. Poirier.

[9] Ms. Maan made one Offer to Settle. Mr. Poirier did not make any. The failure to make an offer to settle has been held to be unreasonable behaviour. See Potter v. DaSilva, 2014 ONCJ 443; and Brown v. Pulley, 2015 ONCJ 238. At least one offer to settle should be a fundamental step in any family law case. See F.(H.) v. H.(M.), 2014 ONCJ 526.

[10] In addition, the Family Law Rules impose a duty on parties and their lawyers to deal with cases justly. This includes taking appropriate steps to save time and expense. See rule 2(2), (3) and (4) of the FLRs. Offers to settle play an important role in saving time and expense by promoting settlements, focusing parties and often narrowing issues in dispute: Laing v. Mahmoud, 2011 ONSC 6737. The failure to serve an offer to settle will be an adverse factor when assessing costs.

[11] Emails produced by Ms. Maan confirm that she also made attempts to have discussions with Mr. Poirier to resolve their issues out of court. Mr. Poirier did not provide any evidence that he was open to an out of court settlement.

2. The Reasonableness of any Offer the Party Made

[12] The terms of Ms. Maan’s Offer were reasonable and underscored that the primary goal of her motion was information, not punishment. She was prepared to withdraw her motion in return for Mr. Poirier’s compliance with prior disclosure orders including production of his hair follicle test results. In the alternative, she was prepared to accept an explanation as to why he did not or could not produce the information she sought. Ms. Maan also wanted Mr. Poirier to honour the requirement that he take a parenting course. Again, in the alternative, she was willing to accept an explanation why he did not or should not take the course. Her Offer was made 12 days prior to the motion. The terms of her Offer were neither onerous nor unreasonable yet, Mr. Poirier did not accept or respond.

3. Any Offer the Party Withdrew or Failed to Accept.

[13] As already stated, Ms. Maan’s Offer was reasonable. It did not expire and remained open for acceptance for 10 minutes into the motion. It was unreasonable of Mr. Poirier not to have accepted her offer.

[14] For the reasons given, I find that Mr. Poirier behaved unreasonably. I must now decide if he is to be deprived of any costs and if so, in what amount.

The Amount to be Paid

[15] Rule 24(11) requires the court to consider the following factors when determining the amount of costs to be paid.

1. The Importance, Complexity or Difficulty of the Issues

[16] The importance of complying with court orders is self-evident. Our legal system expects orders to be carried out voluntarily. When they are not, the court has the power to enforce its own process. Contempt is one of its most important and powerful tools to do so but, it is generally seen to be the enforcement option of last resort, especially in family law matters. See Hefkey v. Hefkey, 2014 ONCA 44.

[17] A contempt finding requires the moving party to satisfy a three part test. The burden of proof is beyond a reasonable doubt. Meeting that threshold may, in some circumstances, require oral evidence. While it was not so in this case, contempt proceedings can be complex and difficult to prove.

2. The Reasonableness or Unreasonableness of Each Party’s Behaviour in the Case

[18] Although I found that Mr. Poirier’s behaviour fell below reasonable in relation to the issues, I also find that Ms. Maan’s decision to proceed with a contempt motion was ill-considered in these circumstances. She states it was her only option. I do not agree. Of the four orders in question, two of them were interim and rendered defunct by final orders. The third order that required information disclosure from Mr. Poirier lent itself to a motion to change once Ms. Maan learned that his ability to pay full Guideline support had changed in her favour. The fourth and final order for hair follicle testing was more appropriately addressed in other ways. See rule 1(8) of the FLRs.

3. The Lawyer’s Rates

[19] Mr. Poirier represented himself throughout these proceedings. His claim for costs in the amount of $7,706.00 is based on a per diem rate of $560.00. He calculates this amount by dividing his annual Federal Government salary of $134,500.00 by 240 days. This math is flawed. As an employee, Mr. Poirier enjoys paid vacation, therefore, to arrive at a per diem rate, his salary should be divided by 260 days for a result of $517.00.

[20] Moreover, Mr. Poirier does not state that he lost pay for the time spent on this matter. I have not been provided with any evidence to determine whether a per diem calculation provides a reasonable lens through which to consider his claim for costs.

[21] Ms. Maan’s counsel submitted the detail of her fees and disbursements for this motion in the amount of $4,559.55 inclusive of HST and $500.00 for the preparation of costs submissions. This information provides a point of comparison for the determination of what is a fair and reasonable amount that the unsuccessful party might expect to pay in costs.

4. The Time Properly Spent on the Case and Expenses Properly Paid

[22] Ms. Maan challenges the time claimed by Mr. Poirier. Included in his claim is an amount for time spent over 7 days on matters unrelated to the contempt motion. Based on his per diem calculation of $560.00 per day, I reduce his claim by $3,920.00. This time has no relationship to the matter before the court. On the contempt motion itself, Mr. Poirier states that he spent 6 ¾ days. He does not provide any detail that would allow me to determine how his time was distributed between preparation and attendance and whether it was reasonable.

5. Any Other Relevant Matters

[23] The Court of Appeal in Serra v. Serra, 2009 ONCA 395 confirmed that modern costs rules are designed to foster three fundamental purposes:

(i) to partially indemnify successful litigants for the cost of litigation; (ii) to encourage settlement; and (iii) to discourage and sanction inappropriate behaviour by litigants bearing in mind that the awards should reflect what the court views is a fair and reasonable amount that should be paid by the unsuccessful party.

Disposition

[24] Mr. Poirier’s success on the motion is tempered by my finding that he behaved unreasonably and I reduce the cost award accordingly. Applying the Serra principles to this case, I find it fair and reasonable that Ms. Maan pay costs to Mr. Poirier of $1,000.00. Payment shall be made in 5 monthly instalments of $200.00 each. The first payment is due August 1, 2018 and thereafter, on the first day of September, October, November and December 2018.

Madam Justice D. Summers Date: July 19, 2018

COURT FILE NO.: FC-14-952 DATE: 2018/07/19 ONTARIO SUPERIOR COURT OF JUSTICE RE: Sushmita Maan, Applicant -and- Eric Poirier, Respondent BEFORE: Justice D. Summers COUNSEL: Gonen Snir for the Applicant Self- Represented Respondent COSTS ENDORSEMENT SUMMERS J. Released: July 19, 2018