COURT FILE NO.: D20365/06
DATE: 2019-09-18
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Alexander Kates, Applicant AND: Doris Kates, Respondent
BEFORE: The Honourable Justice N. Gregson
COUNSEL: Self-represented Applicant Bruce Macdonald, for the Respondent
C O S T S E N D O R S E M E N T
[1] The Respondent (moving party) Doris Kates brought a Notice of Contempt Motion against the Applicant (responding party) Alexander Kates.
[2] The Respondent sought a finding that the Applicant was in contempt of the final order of the Honourable Mr. Justice J.E. Sheppard made on May 2, 2008 for not complying with paragraph six of the order by listing the property at 4556 Simcoe Street, Niagara Falls, Ontario for sale.
[3] The Applicant opposed the Notice of Contempt Motion. Ultimately, a viva voce hearing was heard in this matter on August 8, 2019. The Applicant who had previously been represented by legal counsel represented himself at the hearing. The Respondent was represented by legal counsel, Mr. Bruce MacDonald.
[4] I released my Reasons for Decision on August 15, 2019 dismissing the Respondent’s Contempt Motion and provided for timelines regarding written submissions on costs if same were being requested. As a result, the Applicant seeks costs in the amount of $100,000.00 against the Respondent.
[5] The general basis for the Applicant’s request is as follows:
- Loss of income for attending in excess of 100 hours with his legal counsel. As the Applicant operates his own business as an automotive mechanic and charges $80.00 per hour this was a loss to him of $8,000.00 in potential income;
- His attendance for the Contempt Hearing and loss of income therefrom;
- Daycare expenses for his son to deal with this legal matter;
- General pain and suffering from this proceeding;
- The sum of $3,500.00 in legal fees paid to Mr. Covello; and
- The Respondent’s malicious behaviour.
[6] The Applicant also seeks an order to have the Respondent remove the lien she has secured on the property. This request has no bearing on the issue of costs and cannot be granted at this time.
[7] The Respondent opposes any award of costs. In the alternative, if costs are payable, it was suggested they be credited against substantial support arrears owing to the Applicant which have perhaps accrued in this matter over the years.
[8] It should be noted that jurisprudence on whether a costs order may be set-off against an order for child support is divided. However, as was noted in Conceicao v. Abraham (July 24), 2019 ONCJ 539, per Justice L. Parent, I decline to consider same as: a) it would not address the principles established in Mattina v. Mattina, 2018 ONCA 867; b) the motion heard did not relate to the issue of child support; and c) it is premature to order a set-off when the issue of the existence of child support arrears has yet to be determined by the court.
THE LAW ON COSTS
[9] The court has a broad discretion to award costs. The general discretion of the courts regarding costs is contained in the Courts of Justice Act, R.S.O. 1990, c. C. 43, as amended. Subsection 131(1) sets out the following specific principles regarding costs:
(a) Costs of a case are in the discretion of the court; (b) The court may determine by whom costs shall be paid; and (c) The court may determine to what extent the costs shall be paid
[10] The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867, stated costs are designed to foster three fundamental purposes:
(1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement: and (3) to discourage and sanction inappropriate behaviour by litigants.
[11] Rule 2(2) of the Family Law Rules, O. Reg. 114/99 adds a further fourth fundamental purpose, namely to ensure that cases are dealt with justly.
[12] Rule 24 of the Family Law Rules sets out a framework for awarding costs for family law cases. Rule 24(1) creates a presumption that a successful party is entitled to costs of a motion, enforcement, case or appeal. This presumption does not require that the successful party always be entitled to costs, especially in circumstances where the successful party has behaved unreasonably.
[13] Rule 24(12) of the Family Law Rules states that 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.
[14] The Ontario Court of Appeal recently provided direction regarding the issue of costs in family law matters in Beaver v. Hill 2018 ONCA 840 noting the court should approach the exercise of its discretion in determining costs in family law matters on the basis of reasonableness and proportionality and that it is an error in law to apply full recovery of costs save and except in specific circumstances.
[15] Accordingly, the Family Law Rules expressly contemplate full recovery costs where a party has acted in bad faith or has obtained an order that is more favourable than an offer to settle under Family Law Rule 18(14).
[16] The Applicant was the successful party on the contempt motion considering it was dismissed. He is therefore entitled to seek his costs.
[17] Justice Sharpe J.A. of the Ontario Court of Appeal noted in Fong v. Chang 1999 CanLII 2052, [1999] O.J. No. 4600, at paragraphs 25 and 26 of his reasons, Sharpe J.A. wrote:
I would add that nothing in these reasons is meant to suggest that a self-represent litigant has an automatic right to recover costs. The matter remains fully within the discretion of the trial judge, and as Ellen Macdonald J. observed in Fellowes, McNeil v. Kansa, supra, there are undoubtedly cases where it is inappropriate for a lawyer to appear in person, and there will be cases where the self-represented litigant’s conduct of the proceedings is inappropriate. The trial judge maintains a discretion to make the appropriate costs award, including denial of costs.
I would also add that self-represented litigants, be they legally trained or not, are not entitled to costs calculated on the same basis as those of the litigant who retains counsel. As the Chorley case, supra, recognized, all litigants suffer a loss of time through their involvement in the legal process. The self-represented litigant should not recover costs for the time and effort that any litigant would have to devote to the case. Costs should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation and that, as a result, they incurred an opportunity cost by foregoing remunerative activity. As the early Chancery rule recognized, a self-represented lay litigant should receive only a “moderate” or “reasonable” allowance for the loss of time devoted to preparing and presenting the case. This excludes routine awards on a per diem basis to litigants who would ordinarily be in attendance at court in any event. The trial judge is particularly well-placed to assess the appropriate allowance, if any, for a self-represented litigant, and accordingly, the trial judge should either fix the costs when making such an award or provide clear guidelines to the Assessment Officer as to the manner in which the costs are assessed.
[18] Fong was applied by Gauthier J. in Logtenberg v. Ing Insurance Company (2008), CarswellOnt. 2930. In paragraph 16 (d) Gauthier J. held that: “ …self-represented litigants should be awarded costs only when they can show that they devoted time and effort to do the work ordinarily done by a lawyer, and, that, as a result, they lost the opportunity to engage in remunerative activity.”
[19] Absent evidence of lost opportunity, Gauthier J. denied costs to the successful plaintiff adding at paragraph 35:
- Once again, the discretion accorded a court pursuant to Section 131 of the Courts of Justice Act, does not provide the basis to award costs for loss of time and energy, or for physical and mental fatigue, whether the result of disabilities or otherwise. There is no authority to award costs for time taken away from family, or for reduced quality of life, as claimed by the Plaintiff.
[20] As was noted by Jennings J. in the decision of Mustang Investigations v. Ironside, 2010 ONSC 3444 of the Ontario Superior Court of Justice Divisional Court at paragraph 27:
- As I have said, Master Dash, and several trial judges, seem to have interpreted Fong as saying that even in the absence of proof of an opportunity cost, one may assume that … because the lay person was involved in the litigation preparing material that might otherwise be prepared by a lawyer, he or she should nevertheless be entitled to nominal costs. With great respect to the Master and those judges, I’m unable to find that the language in Fong permits an award to be made without the self-represented litigant demonstrating that, as a result of the lawyer-like work put in on the file, remunerative activity was foregone. Simply stated, no proof of opportunity cost, no nominal costs available.
ANALYSIS
[21] I have considered the legal principles regarding costs and the factors as set out in Rule 24(12) of the Family Law Rules as well as the parties’ written submissions on costs.
[22] It is clear the Respondent wishes to obtain her interest from the matrimonial home as specified in the 2008 final order. The Respondent believed if the Applicant was found to be in contempt of the order, it would allow for the strict compliance of the terms granted eleven years ago.
[23] To be clear, I never concluded the home should not be sold in the future or that the Respondent no longer had an interest in the home. These remain undetermined issues. My only focus was whether I believed the Applicant was in contempt of the final order as a result of an alleged breach of the terms. Although I came to the conclusion the breach of the order was not willful, the fact is, Justice Sheppard’s order remains unsatisfied. I agree the order will have to be addressed in another manner and this court will have to determine the appropriate remedy in the future.
[24] The Applicant did not provide any of Mr. Covello’s Bill of Costs which would have set out his time spent on defending the Notice of Contempt Motion. There was a suggestion by the Applicant during the hearing that some of these legal fees paid to Mr. Covello were returned to him. The Applicant provided no supportive evidence of any kind of lost wages for his attendance at the motion.
[25] The Applicant provided no evidence of how he was financially impacted by the Contempt Motion proceedings. A similar request was considered by Justice Fryer in Browne v. Cesara 2018 ONSC 2242 and she stated:
[26] If a self-represented litigant, in performing the tasks that would normally been performed by a lawyer, lost the opportunity to earn income elsewhere, this may be a relevant factor. But costs for self-represented parties are not the same as damages for lost income. Remunerative loss is not a “condition precedent” to an award of costs.
[27] There was no evidence of bad faith on the part of the Respondent in bringing the Contempt Motion. There were no Offers to Settle provided to me.
[28] In my view, there was a bona fide issue in dispute between the parties that required judicial intervention.
[29] Accordingly, considering all of the above, there shall be no costs payable by either party to the other on the Contempt Motion which in my view is reasonable and proportionate considering all of the above circumstances.
N. Gregson, J.
DATE: 2019-09-18
COURT FILE NO.: D20365/06 DATE: 2019-09-18
O N T A R I O
SUPERIOR COURT OF JUSTICE
RE: Alexander Kates, Applicant AND: Doris Kates, Respondent
COUNSEL: Self-represented Applicant Bruce MacDonald, for the Respondent
COSTS ENDORSEMENT
N. Gregson J.
DATE: September 18, 2019