COURT FILE NO.: FC-11-1862-3

DATE: 20190128

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MACEDOINE NDUWAYO Applicant

– and –

JOSEPHINE MUHONGA Respondent

Self-Represented

Concillia Muonde/Huyen Tran, for the Respondent

HEARD: In writing

decision on costs

aUDET j.

[1] On November 9, 2018, I released my Decision in this matter following a lengthy trial held in the context of the applicant father’s Motion to Change the custody and access provisions of the 2013 Final Order of Justice Smith. The father was seeking an order granting him sole custody of the parties’ three children, ages 7, 12 and 15, with primary residence to him and regular access to the mother. He also sought reimbursement for one half of a loan contracted by the parties in relation to the family’s immigration to Canada in 2008, which he had assumed on his own since the parties’ separation.

[2] The respondent mother sought the dismissal of the father’s claims, an order that access between the children and their father be at her sole discretion, child support including a contribution towards the children’s special and extraordinary expenses retroactive to October 2013, a restraining order, various orders related to parenting, as well as an order precluding the father from bringing any further Motion to Change without leave of the court.

[3] For reasons detailed in my earlier Decision, I dismissed the father’s motion and granted the mother most of the relief she was seeking. If the parties were unable to reach an agreement on the issue of costs, I invited them to make written submissions in that regard in accordance with a fixed schedule.

[4] I received the mother’s submissions on November 28, 2018, but did not receive any submissions from the father (they ought to have been submitted by December 18, 2018). Therefore, this is my decision on costs based on the submissions I have received from the mother and my own knowledge of this matter.

Analysis

[5] The mother seeks costs in the amount of $21,127.77 which include disbursements and HST. This amount represents the full costs paid by the mother to her counsel for all work related to the preparation for, and attendance at, this trial which lasted a total of eleven days. While two lawyers were present at all times on behalf of the mother during the trial, only one of the lawyer’s time was charged to the client. Counsel had six years of combined experience and charged $200 per hour, which is reasonable. She spent 10.44 hours in pre-trial preparation, 75.50 hours over the 11 days that this trial lasted (an average of a little less than 7 hours per day), and 3.26 hours in post-trial work (drafting final order and cost submissions). The mother did not seek any costs for any of the other (previous) steps in this case.

[6] I have reviewed Ms. Muonde’s invoices, and I find that the time and hourly rate charged were most reasonable.

[7] Modern costs rules are designed to foster four fundamental purposes (1) to partially indemnify successful litigants; (2) to encourage settlement, (3) to discourage and sanction inappropriate behaviour by litigants and; (4) to ensure that cases are dealt with justly under sub-rule 2 (2) of the Family Law Rules). See: Mattina v. Mattina, 2018 ONCA 867.

[8] Sub-rule 24(1) of the Family Law Rules, O. Reg. 114/99 (“the rules”) creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs: Sims-Howarth v. Bilcliffe (2000), 2000 CanLII 22584 (ON SC), 6 R.F.L. (5th) 430 (Ont. S.C.). To determine whether a party has been successful, the court should take into account how the order compares to any settlement offers that were made: Lawson v. Lawson 2008 CanLII 23496 (ON SC), [2008] O.J. No. 1978 (Ont. S.C.). The position each party took at trial should also be examined.

[9] I am unaware of any Offers to Settle that might have been exchanged between the parties.

[10] There can be no doubt that the mother was successful in this Motion to Change. The father’s Motion to Change was dismissed in its entirety and I granted the mother almost everything she asked for in terms of parenting orders, in addition to imposing substantial child support arrears on the father. It is also important to note that I have concluded at the end of this trial that the father’s position at trial was simply untenable.

[11] Based on the above, the mother is entitled to her costs for the trial.

[12] I am also of the view that the mother should be granted costs on a substantial basis, approaching full recovery costs, for the following reasons.

[13] I find that the father behaved unreasonably throughout this proceeding. A review of my prior decision confirms that the father conducted himself in ways aimed at deceiving the court, as well as the mother. He was found to have knowingly filed two false affidavits of service purporting to have served the mother personally when he had not, and to have made false representations to the Court at the various hearings which took place between February 2014 and April 2016. He failed to provide financial disclosure in any meaningful way despite the fact that child support was an important issue in the case and despite several orders compelling him to do so.

[14] I also found that the father’s evidence given during the trial was devoid of credibility. Not only was most of his allegations completely unsupported by any corroborating evidence, much of his testimony was inflammatory and filled with exaggerations and vexatious allegations. Despite this, the mother’s conduct throughout the trial was exemplary. Faced with the father’s unfounded accusations and allegations, she maintained decorum and behaved civilly and with sensitivity in her interactions with him (he was self-represented and therefore cross-examined her himself) and in the way she pursued her legal rights.

[15] Costs can be used to sanction behavior that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2002 SCC 25, 2002, S.C.C., para. 25.

[16] This trial was the second lengthy trial held between these parties on the issues of custody and access in five years, both of which were initiated by the father. The father brought a Motion to Change less than six months after Justice Smith’s Order was issued in 2013 and I found that he had no basis to do so. I found that his claims were devoid of merit.

[17] This particular trial required almost three weeks and the mother, who does not have access to legal aid, was required to pay significant legal fees to represent herself in this trial, with very limited income and while being the sole financial support for her and the three children since the parties’ separation in 2011. For those reasons I precluded the father from bringing any further motions to change the parenting provisions of my order without leave of the court.

[18] Based on the above, I find that it is both just and reasonable to award the mother her costs in the amount of $18,000, inclusive of disbursements and HST. Since a good part of this trial related to the issue of child support, including arrears, I also find it reasonable to order that the amount of $6,000 of my cost award shall be enforced through the Family Responsibility Office.

Madam Justice Julie Audet

Released: January 28, 2019

COURT FILE NO.: FC-11-1862-3

DATE: 20190128

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MACEDOINE NDUWAYO

Applicant

– and –

JOSEPHINE MUHONGA

Respondent

decision on costs

Audet J.

Released: January 28, 2019