COURT FILE NO.: 3007/14
DATE: 2019-03-19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KIRK STEELE
Applicant
– and –
KRYSTA BIG-CANOE
Respondent
Kirk Steele (self-represented)
Ursula Cebulak, counsel for the Respondent
HEARD: October 9, 10, 11,12, 15,16 and 17, 2018
Gibson J.
reasons on costs
Introduction
[1] Poor conduct and intemperate expressions of hurt and anger by the litigants are not uncommon in family law litigation. This may particularly be so in cases involving self-represented litigants, who do not feel constrained by the professional obligations incumbent upon counsel. But there are limits to what the Court can or should tolerate without adverse consequences for parties engaging in flagrant misconduct. There may also be systemic considerations which transcend the particular circumstances of an individual matter. That is so in this case.
[2] The Parties have been engaged in a bitter and protracted dispute for several years concerning the custody and access of their daughter Sydnee Marie Steele, born May 7, 2010 (“Sydnee”).
[3] By his Motion to Change the Order of Gray J. dated February 11, 2015, the Applicant Kirk Steele sought sole custody of Sydnee, with supervised access to the Respondent Krysta Big-Canoe.
[4] By her March 2016 Motion to Change the Orders of Rogers J. dated December 3, 2013, Gray J. dated February 11, 2015, and Gibson J. dated May 28, 2015, the Respondent Krysta Big-Canoe had sought sole custody of Sydnee with access by the Applicant, and a change in the amount of Child Support and s.7 expenses to be paid by the Applicant. However, her counsel confirmed that she has abandoned this motion, and that this trial was occurring primarily as a result of the Applicant’s Motion to Change seeking sole custody and primary residence of Sydnee with him.
[5] The matters were heard at a seven-day trial.
[6] The Applicant Mr. Steele was self-represented at trial. The Respondent Ms. Big-Canoe was represented by counsel.
[7] In my reasons for judgment dated February 11, 2019, I dismissed the Applicant Mr. Steele’s Motion to Change, and provided a detailed Order to attempt to assist the Parties with overcoming their continuing conflict.
[8] I encouraged the Parties to agree upon appropriate costs, but indicated that, if they were unable to do so, they might make written submissions to me. The Parties have now done so.
Positions of the Parties
[9] The Respondent Ms. Big-Canoe requests her full costs in the sum of $31,657.96.
[10] The Respondent, who was wholly successful at trial, accurately characterized Mr. Steele’s conduct throughout the entire proceeding as angry, hostile and unreasonable. As I noted at para. 41 of my reasons for judgment, Mr. Steele made a series of wild allegations against Ms. Big-Canoe and her mother, without any substantiation. The Respondent in her costs submissions asserts that Mr. Steele failed to act in the best interests of Sydnee, and that “his goal was to ‘punish’ Ms. Big-Canoe for her alleged wrongdoing.” This seems an accurate assertion in light of the conduct of the Applicant.
[11] The Respondent Ms. Big-Canoe made an Offer to Settle to the Applicant on August 27, 2018 offering Mr. Steele enhanced access time that was more advantageous to him than the outcome of the trial.
[12] The trial was much longer than it needed to be because of the Applicant’s insistence on presenting evidence that ultimately proved to be of marginal or no relevance to the issues at trial.
[13] I have reviewed the Bill of Costs submitted by the Respondent’s counsel and the costs claimed are reasonable for a seven-day trial.
[14] The Applicant Mr. Steele, in contrast, submits that the Respondent acted unreasonably, and should not be entitled to costs for this proceeding.
[15] There is no merit in the Applicant’s submissions.
Assessment
[16] Modern costs rules are designed to foster three fundamental purposes, namely to partially indemnify successful litigants for the cost of litigation, to encourage settlement, and to discourage and sanction inappropriate behaviour by litigants, bearing in mind that a cost award should reflect what the court views is a fair and reasonable amount that should be paid by the unsuccessful party: Serra v. Serra, 2009 ONCA 395 at paras. 8 and 12.
[17] The Court of Appeal for Ontario has recently emphasized that the touchstone principles in determining costs in family law cases remain the proportionality and reasonableness of the ultimate award: Beaver v. Hill, 2018 ONCA 840 at para. 4. Justice Nordheimer for the Court stated at paras. 9-13:
….What those other cases do establish is that under the Family Law Rules, O. Reg. 114/99, judges are not constrained to the normal scales of costs found in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, since no scales of costs are mentioned in the Family Law Rules. Also, the Family Law Rules expressly provide that, depending on the conduct of the parties and the presence or absence of offers to settle, a judge may increase or decrease what would otherwise be the appropriate quantum of costs awarded.
Second, the respondent’s assertion that this court’s decision in Berta v. Berta, 2015 ONCA 918, 128 O.R. (3d) 730 supports the “full recovery” approach to costs in family matters also reflects a failure to read the decision closely. What this court endorsed in that case was the principle that “a successful party in a family law case is presumptively entitled to costs” (at para. 94) subject, though, to the factors set out in Rule 24. This caveat is an important one since, as this court pointed out in Frick v. Frick, 2016 ONCA 799, 132 O.R. (3d) 321, the Family Law Rules “embody a philosophy peculiar to a lawsuit that involves a family” (at para. 11).
There is no provision in the Family Law Rules that provides for a general approach of “close to full recovery” costs. Rather, r. 24(12) sets out the appropriate considerations in fixing the quantum of costs. It reads:
(12) In setting the amount of costs, the court shall consider,
(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:
(i) each party’s behaviour,
(ii) the time spent by each party,
(iii) any written offers to settle, including offers that do not meet the requirements of rule 18,
(iv) any legal fees, including the number of lawyers and their rates,
(v) any expert witness fees, including the number of experts and their rates,
(vi) any other expenses properly paid or payable; and
(b) any other relevant matter
- As the wording of the rule makes clear, proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs.
[18] In the present case, it is clear that in the outcome the Respondent bested her Offer to Settle.
[19] Moreover, there are unique facets of this case which require further consideration of the import of Rule 24(12)(a)(i) (each party’s behaviour), and 24(12)(b) (any other relevant matter), as well as the fundamental purpose of discouraging and sanctioning inappropriate behaviour by litigants.
Inappropriate Behaviour of Self-Represented Litigants
[20] My reasons for decision in this case were released to the Parties by email on February 11, 2019.
[21] On February 12, 2019, my judicial assistant received an email from the Applicant Mr. Steele which read as follows:
Why is Gibson so vague and not in detail on the order, as far as I’m concerned he is a lazy Judge and the time period was ridiculous. Once again he has left open a court order to have more conflict instead of trying to help out a high conflict case It seems he sees this more as a business opportunity then helping the people. He should be ashamed of himself and really rethink his career choice because in my opinion and I hope he sees this reply he is the problem with the family court system and repeatedly represents incompetency. Child support was an issue and wasn’t handled I guess for the purpose of more law fee and court time. Pathetic, also the section 7 abandonment was an issue and brought to the courts attention. I needed that in an order to have it stopped and not accumulating more arrears Why didnt it get put on the endorsement? Again in my opinion he is a peice of genuine shit, and has shown me that the family courts is a joke and bares no weight on what is actually in the best intrest of anyone but the system! It seems to be a trend with the Milton courts to not have fathers involved and to approve a mothers choice to do as she pleases even if that means breaking court orders.
Sadly I now have no faith in our family court system. [sic-verbatim]
[22] The proceedings had not been concluded by this date, because of the remaining requirement to determine costs. I was not functus on February 12, 2019.
[23] What is the proper response of the Court in the context of family litigation when, in addition to being obstreperous with the other Party, Parties are so openly contemptuous of the Court and of the process?
[24] The conduct of a party in the litigation may appropriately be reflected in the order for costs.
[25] In both an individual and systemic context, one of the functions of costs can be behaviour modification. As Chappel J. noted at para. 23 in Thompson v. Drummond, 2018 ONSC 4762:
The decision respecting liability is ultimately a discretionary one that must be informed by the overall conduct of the parties and all of the circumstances and dynamics of the case. One of the most important functions of costs is to ensure that litigants conduct themselves in a manner that upholds the integrity of our justice system as a whole. A careful consideration of the conduct of the parties is therefore a key component to the costs analysis.
[26] As Spence J. aptly stated in Heuss v. Surkos, 2004 ONCJ 141 at para. 20:
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. Matrimonial litigation is an occasion for sober consideration and thoughtfulness rather than intemperate behaviour.
[27] As Campbell J. noted in Parsons v. Parsons, 2002 CarswellOnt 2536 (S.C.J.), there is an element of behaviour modification to a costs order in that it encourages a change in attitude from a “litigate with impunity” mindset. Evidence that a party engaged in litigation conduct that was disrespectful of the other participants or the Court, which unduly complicated the proceedings, which needlessly increased the costs of the litigation or which was otherwise unreasonable may lead to increased costs consequences.
[28] Self-represented litigants may be afforded some additional consideration consistent with the Court’s obligation to treat both parties fairly, but they are not afforded some special licence to behave badly without consequence. The reputation of the administration of justice requires an appropriate response. Moreover, other parties to the litigation who have behaved appropriately should not have to indefinitely absorb the misconduct of those who do not.
[29] 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.
[30] It is important to consider how these general principles should be applied in the particular context of cases involving self-represented litigants. As was stated at paragraphs 5-13 in Kirby v. Kirby, 2017 ONSC 6695:
[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.
[31] In Kirby, given Ms. Kirby’s conduct during the hearing, Mr. Kirby was found to be entitled to an order for substantial indemnity costs.
[32] Certain realities are evident in the context of family law proceedings. Emotions can run high. Litigation is not a tea party. Judges are not shrinking violets. In addition to integrity, impartiality and compassion, on occasion they need to have thick skins. As Henderson J. stated at para. 37 in Weaver v. Weaver, 2017 ONSC 827:
…if the courts refused a litigant their day in court because they have been disrespectful, insulting, unreasonable, uncooperative or short-sighted, on those grounds alone, they would be empty. In the end, his conduct may be redressed by an appropriate order for costs.
[33] The integrity of the justice system and respect for the reputation of the administration of justice must be preserved and, where necessary, enforced, if the Court is to effectively fulfil its function. No matter how limited their sophistication or how high their emotions run, the Court ought not to turn a blind eye to abusive or contemptuous behaviour by litigants, including those who appear self-represented. For reasons including necessary behaviour modification both of Mr. Steele individually and self-represented litigants generally, there must be some recognition of this in this case, and some sanction.
[34] In the present case, even absent Mr. Steele’s tirade, the Respondent has made a compelling case for an award of full costs. Consideration of Mr. Steele’s abusive conduct in the light of the provisions of Rule 24(12)(a)(i) (each party’s behaviour), and 24(12)(b) (any other relevant matter) further buttresses this assessment. There must be some sanction for inappropriate behaviour of this magnitude. I conclude that there ought to be an award of full costs in this case.
[35] The Applicant Kirk Steele shall pay costs to the Respondent Krysta Big-Canoe fixed at $31,658.00. Given Mr. Steele’s history of non-payment of costs awards in previous litigation between the Parties, these costs shall be payable forthwith.
[36] If the Applicant has not paid these costs in full by June 30, 2019, any unpaid amounts will be enforceable as child support by the Director of the Family Responsibility Office.
M. Gibson J.
Released March 19, 2019
COURT FILE NO.: 3007/14
DATE: 2019-03-19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KIRK STEELE
Applicant
– and –
KRYSTA BIG-CANOE
Respondent
REASONS FOR costs order
GIBSON J.
Released: March 19, 2019