Court File and Parties
COURT FILE NO.: 15-127 (M 1) DATE: 2019-05-06 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Robert Nicholas Cassidy Applicant
Anteneh F. Kassa, for the Applicant
- and -
Anne Elizabeth Cassidy Respondent
Glenna G. McClelland, for the Respondent
HEARD: In Writing
Costs Endorsement
BARNES J.
[1] Ms. A. Cassidy was the successful party after a family law trial. She brought a motion to change what was described as the April and August orders in Cassidy v. Cassidy, 2018 ONSC 7222. She seeks her costs in the amount of $124,511.88, $116,342.64 of which is associated with retained counsel and $8,169.24 of which is for costs for a period of time when she was self-represented. Ms. Cassidy is awarded costs in the amount of $75,622.72, payable within four months of the date of this endorsement.
Offers to Settle – R. 18
[2] Subject to the discretion of the court, a party whose offer is rejected is entitled to full recovery costs from the date the offer was served if certain conditions are met, including that “[t]he party who made the offer obtains an order that is as favourable as or more favourable than the offer”: Family Law Rules, O. Reg. 114/99, r. 18(14) (the “Rules”).
[3] Each party made offers to settle. The decision was as favourable or more favourable to Ms. Cassidy on issues of disclosure; calculation of annual incomes; ongoing child support; the “deletion of the 20 percent reduction clause”; calculation of ongoing child support; ongoing spousal support; retroactive child support; retroactive s. 7 expenses; retroactive spousal support; and who should have custody of the children’s passports.
[4] At the February 8, 2017, trial management conference, Mossip J. offered to assist the parties in working out a settlement. Mossip J. left the offer of settlement discussions open, even after the trial management conference. Ms. Cassidy did not respond to Mr. R. Cassidy’s overtures for the parties to take Mossip J. up on her offer. Settlement with Mossip J.’s assistance was not guaranteed; however, Ms. Cassidy’s refusal closed a possible avenue to resolution and to avoiding costs associated with a trial. I consider this factor in assessing what quantum is reasonable and proportionate in all the circumstances.
[5] The offers exchanged by the parties complied with the conditions stipulated by r. 18(14). Ms. Cassidy secured a decision more favourable than her offer; however, her reaction to potential settlement discussions at the trial management conference dissuades me from concluding that she is entitled to full recovery of her costs at this juncture.
Successful Party’s Presumed Entitlement to Costs – R. 24(1)
[6] There is a presumption that a successful party is entitled to recover their costs of a “motion, enforcement, case or appeal”: Rules, r. 24(1). This presumption is rebutted if the successful party has behaved in an unreasonable manner: Rules, r. 24(4). Ms. Cassidy was the successful party.
Reasonableness and Bad Faith – RR. 24(4), (5), (8)
[7] The parties have leveled multiple allegations against each other on a number of procedural matters. For example, each takes issue with the other’s conduct in preparing and responding to a Request to Admit; failure to grant each other indulgences on document filings; setting dates for motions, timing of amending and withdrawing pleadings; manner of court testimony; and the nature of trial submissions. Except for specific instances, none of these warrant special attention. This is a high-conflict case that has spanned several years with different discrete instances of litigation. The parties have a history of mutual unreasonableness with each other. I have considered all the allegations leveled by the parties and only make mention of significant instances of unreasonable behaviour.
[8] Ms. Cassidy’s refusal to at least attempt settlement discussions with Mossip J. was unreasonable. This conduct directly relates to the cost of the litigation. A potential settlement would have significantly reduced the costs. The fact that a settlement was not guaranteed is irrelevant. It is the parties’ attitudes towards a potential settlement that is under scrutiny. In this case, the outcome of the settlement discussions was unknown. It was, thus, unreasonable for Ms. Cassidy to have turned down the offer. This finding rebuts the presumption: Rules, r. 24(4), (5).
[9] As previously noted, both parties made offers to settle. Ms. Cassidy obtained a decision more favourable than her offer. Normally, particularly given the unreasonable and bad faith conduct on the part of Mr. Cassidy, this would entitle Ms. Cassidy to full recovery of her costs. However, given her unreasonable conduct highlighted above, and given issues of proportionality discussed later in these reasons, she is not entitled to full recovery of her costs. Rules, r. 24(5), (8), (12).
[10] Mr. Cassidy adopted an unreasonable interpretation of previous orders on the following: 1) his income disclosure obligations, specifically with regards to not disclosing and adjusting his income in accordance with judicial orders; 2) refusing to implement orders that increased spousal support from $600 to $725; and 3) insisting that he was entitled to payment of $9,235.41 when there was no reasonable basis to arrive at that conclusion because of previous judicial decisions: see Cassidy (2018), at paras. 17–20, 61–71. Mr. Cassidy’s interpretation of court orders governing these items was simply unreasonable. This approach lengthened the trial and the litigation, increasing associated costs.
[11] It was quite reasonable for the parties to seek judicial guidance in resolving the periodic 20 percent reduction in child support order stipulated in the April order and to seek clarification on how to address the post-secondary expenses of the children. However, Mr. Cassidy’s stance on the issues previously described, in the face of clear judicial direction, is baffling.
[12] Mr. Cassidy’s conduct amounts to an intent “to inflict financial [and] emotional harm” on Ms. Cassidy. As such, it constitutes bad faith: Buchanan v. Buchanan, 2009 ONSC 6831, at para. 29. The persistent and unreasonable refusal to provide disclosure drove up the cost of this litigation, and for the reasons articulated, constitutes bad faith: Singh v. Khan, 2010 ONCJ 730, at para. 8. Such bad faith would normally entitle Ms. Cassidy to full recovery of her costs, were it not for her own unreasonable conduct and other factors relating to proportionality, discussed below: Rules, r. 24(8), (12).
Reasonableness and Proportionality – R. 24(12)
[13] The purpose of a cost award is to 1) partially indemnify successful litigants for their costs of the litigation; 2) encourage settlement; and 3) discourage inappropriate behaviour by litigants: Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, at para. 8. A cost award should reflect what is fair and reasonable in the circumstances: Serra, at para. 12. In awarding costs, the Rules must be applied justly: Bridge v. Laurence, 2017 ONSC 1655 (Div. Ct.), at para. 10. Thus, it follows that costs should be assessed in a manner that does not impede a litigant’s access to justice.
[14] Factors to consider in assessing costs are set out in r. 24(12). It is appropriate to consider a party’s ability to pay in addressing a cost award: M. (C.A.) v. M. (D), 2003 ONCA 18880, 67 O.R. (3d) 181 (C.A.). Rule 24(11) allows a party to seek costs for a previous step in the case where the court has failed to address costs in regards to that step.
[15] Mr. Cassidy submits that his monthly net income is $12,934.44. The decision at trial requires him to make monthly payments of $3,000 for spousal support; $3,197 for child support; and $4,000 per month in retroactive child support. Mr. Cassidy asserts financial hardship and suggests that costs to Ms. Cassidy be limited to $20,000. Absent the onetime retroactive child support payment, his monthly support obligations account for less than half of his monthly income.
[16] Mr. Cassidy did not provide any information on whether he has any savings or other investments he can draw on to satisfy these financial obligations. Claims of undue hardship must be supported by sufficient evidence. Mr. Cassidy’s claim is supported by insufficient evidence. The deficiencies in the evidence advanced will go to weight.
[17] I have carefully considered Mr. Cassidy’s ability to pay. He has explained that he will experience financial hardship if costs of over $20,000 are awarded. However, as previously noted, there are questions about his financial circumstances; Mr. Cassidy’s conduct was unreasonable and constitutes bad faith. His conduct caused Ms. Cassidy to incur additional litigation expenses. Mr. Cassidy and Ms. Cassidy have been embroiled in discrete instances of family law litigation over several years. He has been the subject of previous cost awards. It is reasonable to conclude that as the unsuccessful litigant, he contemplated a significant costs award in favour of the successful party.
[18] The issues raised in this case were of moderate complexity and of paramount importance to the parties. Counsel’s bill of costs are reasonable, considering the issues, items billed, rates charged and counsel’s expertise in family law and experience as a lawyer; however, concerns about proportionality lead me to conclude that Ms. Cassidy is entitled to recover 65 percent of her counsel’s costs.
[19] The court is not obliged to simply award costs in accordance with a mathematical computation of the items in the bill of costs submitted by counsel. Instead, I must balance the factors set out in r. 24(12) and determine what is fair and reasonable in all the circumstances. Taking into account all of the circumstances, it is fair and reasonable to award 65 percent of counsel’s costs, which is $75,622.72, payable in four months. This order pertains to issues on support and shall be enforced by the Family Responsibility Office.
[20] Ms. Cassidy was self-represented for a period of time prior to trial. She seeks costs as a self-represented litigant in the amount of $8,169.24. To promote access to justice for all litigants, irrespective of their representation, a successful self-represented litigant may be granted costs: Cassidy v. Cassidy, 2011 ONSC 791, at paras. 40-43.
[21] A court may exercise its discretion to award costs to a self-represented litigant when these conditions are satisfied: 1) she can prove that she devoted time and effort to the work ordinarily done by a lawyer; and 2) that as a result, she incurred an opportunity cost by foregoing remunerative activity: Tiago v. Meisels, 2012 ONSC 5090, at para. 6.
[22] A rigid approach to the interpretation of “remunerative activity” will unfairly penalise self-represented litigants who for one reason or another are not engaged in an activity for which they receive remuneration. For example, a parent who stays at home to raise children. Such a circumstance would mean that a party who is represented can litigate to the extent to which their financial resources will permit, with the assurance that irrespective of the outcome, there is no threat of a cost award against them because the self-represented litigant will never be able to demonstrate that they have incurred an opportunity cost by forgoing remunerative activity. In such an instance, it should be possible for the self-represented litigant to argue that she satisfies this requirement, by analogous reference to a remunerative activity in accordance with her skill and expertise.
[23] The decision to award costs to a self-represented litigant and the method used to determine what is fair and reasonable is discretionary and dependant on the circumstances of each case. One approach is to determine quantum by deducting the amount of money she would have earned elsewhere and which she lost by doing the work as a litigant from the hourly rate reasonably charged by a lawyer for the same work: Cassidy v. Cassidy, 2011 ONSC 791, at paras. 40-43. In other circumstances, self-represented litigants are entitled to a reasonable and moderate allowance and not costs that could be attributed to having a lawyer: Fong v. Chan, 1999 ONCA 2052, [1999] OJ No 4600 (Ont. C.A.); Fortier v. Lauzon, 2018 ONSC 946, at para. 30.
[24] The evidence advanced by Ms. Cassidy is insufficient to satisfy the two prong test articulated in Tiago v. Meisels. In addition, her reaction to Mossip J’s offer of settlement discussions was unreasonable. Therefore, she is not awarded any costs as a self-represented litigant.
Barnes J.