Court File and Parties

COURT FILE NO.: FC-52980/17 DATE: 2019-09-25 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: DEVORRA SABIJAN, Applicant AND: KRESO SABIJAN, Respondent

BEFORE: The Honourable Madam Justice D. Piccoli

COUNSEL: Ms. Heather R. Caron, Counsel for the Applicant Ms. Heather Geertsma, Counsel for the Respondent

COSTS endorsement

[1] On August 22, 2019, I released an endorsement relating to a motion heard on July 24, 2019. Under the heading Orders Made, found at page 8 of the endorsement, paragraph 5 reads:

In my view the mother was more successful on this motion. The parties are unable to resolve the issue of costs. The mother will make written costs submissions (limited to 4 pages) within 14 days and the father has 7 days thereafter to reply (limited to 4 pages).

[2] Accordingly, I must now address the issue of costs.

[3] I received the Applicant’s costs submissions on September 5, 2019 and the Respondent’s costs submissions on September 12, 2019.

[4] The bill of costs submitted by the Applicant requests fees of $11,019 and H.S.T. of $1,432.47, for a total of $12,451.47.

[5] The dockets for the bill of costs provided by the Applicant commence on March 21, 2019. The notice of motion is dated July 11, 2019. It appears from the dockets that the drafting of the motion started July 10, 2019. Dockets that predate July 10, 2019 are disregarded. Those dockets total $3,497. The attendance in court on July 17 and the associated dockets of $510 are also removed from the bill of costs. The result of these changes are that if the Applicant were to receive the full amount of her costs she would receive $7,012.

[6] The starting point in addressing the issue of costs is s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 as amended, which provides that subject to the provisions of an Act or Rules of Court, costs are in the discretion of the court, which may determine by whom and to what extent the costs shall be paid. This section must be read in conjunction with Rule 24 of the Family Law Rules, O. Reg 114/99.

[7] Rule 24(1) creates a presumption that “a successful party is entitled to costs of a motion.” An award of costs however, is subject to the factors listed in Rule 24(11), the directions under Rule 24(4) (unreasonable conduct), Rule 24(8) (bad faith) and Rule 18(14) (offers to settle) and the reasonableness of the costs sought by the successful party. Paragraph 94 of Berta v. Berta, 2015 ONCA 918, 128 O.R. (3d) 730, states:

Thus, a successful party in a family law case is presumptively entitled to costs. An award of costs, however, is subject to the factors listed in r. 24(11), the directions set out under r. 24(4) (unreasonable conduct), r. 24(8) (bad faith) and r. 18(14) (offers to settle), and the reasonableness of the costs sought by the successful party: M.(A.C.), at paras. 40–43.

[8] Jackson v. Mayerle, 2016 ONSC 1556, 130 O.R. (3d) 683, Justice Pazaratz succinctly summarizes the analysis a court is to undertake in determining costs. In doing so, he cites Serra v. Serra, 2009 ONCA 395, [2009] O.J. No. 1905, which confirmed that cost rules are designed to foster three important principles:

i. To partially indemnify successful litigants for the cost of litigation; ii. To encourage settlement; and iii. To discourage and sanction inappropriate behavior by litigants.

[9] He also points out that the assessment of costs is not a mechanical exercise. It is not just a question of adding up a lawyer’s dockets. The overall purpose it to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case. See: Jackson v. Mayerle, 2016 ONSC 1556, 130 O.R. (3d) 683, at paras. 16-21.

[10] In applying the Family Law Rules to this matter, I note:

[11] Rule 18 – There was no formal offer made to settle the motion or the amended motion.

[12] Rule 24(5) – The Applicant did not, at all times, behave reasonably. For example, the original notice of motion included requests that were dealt with by virtue of the Order of Justice Braid, and the amended notice of motion sought relief for which the court had no jurisdiction, e.g., asking that the Family Responsibility Office enforce Justice Braid’s costs Order when it was clear that that costs Order had nothing to do with support.

[13] Although the Respondent did not come to court with clean hands, he did respond in a timely fashion (i.e. five days) to the Applicant’s proposal for a joint listing. Of the nine issues before the court on July 24, 2019, only two were argued; namely, dispensing with the Respondent’s signature to sell the matrimonial home and the Applicant’s request to strike pleadings. I made an order dispensing with the Respondent’s signature to list and sell the matrimonial home, but I did not make an order striking pleadings. Instead, I made an order that until the Respondent has paid all outstanding costs, he shall not be permitted to file further motions, without leave of the court.

[14] Rule 24(8) – In Jackson v. Mayerle, 2016 ONSC 1556, 130 O.R. (3d) 683, Pazaratz J. reviews the case law regarding bad faith and in so doing cites at para. 57 the decision of Justice Perkins in S.(C). v. S.(M.), 2007 CanLII 20279 (ON SC), [2007] O.J. No. 2164, which states:

In order to come within the meaning of bad faith in rule 24(8), behaviour must be shown to be carried out with intent to inflict financial or emotional harm on the other party or other persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court… The requisite intent to harm, conceal or deceive does not have to be the person's sole or primary intent, but rather only a significant part of the person's intent. At some point a party could be found to be acting in bad faith when their litigation conduct has run the costs up so high that they must be taken to know their behaviour is causing the other party major financial harm without justification.

[15] At paras. 58-64 of Jackson, Pazaratz J. continues his review of the jurisprudence, holding bad faith implies the conscious doing of a wrong because of a dishonest purpose or moral obliquity – it involves intentional duplicity, obstruction or obfuscation. The act is done knowingly and intentionally. The breach of the order or agreement must be done to achieve an ulterior motive or with a view to achieving another purpose. To establish bad faith there must be some element of malice or intent to harm.

[16] I have found that the Respondent took numerous steps to frustrate the Order of Justice Braid, and that he frustrated the sale of the matrimonial home as set out in para. 19 of my endorsement of August 22, 2019. That said, the Respondent’s evidence was that the delay was a result of his efforts to renovate the matrimonial home to achieve the best possible sale price. In totality, I do not find that the Respondent’s frustration of the Order meets the threshold of “bad faith”.

[17] Rule 24(6) - Although the Applicant was more successful than the Respondent there was divided success on the motion as a whole.

Quantum of Costs

[1] Once liability for costs has been established, the court must determine the appropriate quantum of costs. Rule 24(12) of the Family Law Rules prescribes some of the factors which the court must consider in deciding the appropriate quantum. They are as follows:

(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.

[18] In Serra, Boucher v. Public Accountants Council (Ontario), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291, [2004] O.J. No. 2634 (C.A.) and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC, 2005 CanLII 1042 (ON CA), 75 O.R. (3d) 638, 2005 O.J. No. 160 (C.A.), the Court of Appeal for Ontario set out the following additional general principles relating to quantum:

(i) Ultimately, costs decisions should reflect what the court considers to be a fair and reasonable amount that the unsuccessful party should pay. (ii) Costs need to be proportional to the issues and amounts in question and the outcome of the case. (iii) Amounts actually incurred by the successful litigant are not determinative. (iv) In assessing what is fair and reasonable, the expectation of the parties concerning the amount of a costs award is a relevant consideration.

(See also Selznick v. Selznick, 2013 ONCA 35, [2013] W.D.F.L. 1013).

Entitlement and Analysis

[19] Applying the principles of success to this case, the Applicant is entitled to her costs of the portion of the motion that dealt with dispensing the Respondent’s consent to list and sell the house, and a portion of her costs as it pertained to the issue that I deemed best resolved by way of an order that the Respondent not be permitted to bring any further motions without leave of the court.

[20] Having said that, the Applicant was not reasonable in all aspects of the litigation and I cannot find that the Respondent acted in bad faith.

[21] There were no offers to settle exchanged by the parties with respect to the issues before me on the motion.

[22] In my view, it is appropriate to order costs on a partial indemnity basis having regard to this matter and the fact that at the eleventh hour the Applicant only proceeded to argue two of the nine issues outstanding. I have already noted the issues with the bill of costs.

[23] The Respondent has asked me to consider his argument that he is in receipt of Ontario Disability Support Program (ODSP). The Applicant is in receipt of Ontario Works (OW). In comparing the parties’ financial position relative to one another, I consider this to be a neutral factor.

[24] For all the above noted reasons therefore, I make the following order:

(a) Within 45 days, the Respondent shall pay to the Applicant the sum of $4,500 in costs, inclusive of H.S.T. and disbursements.

D. Piccoli J

Released: September 25, 2019