Court File and Parties

Court File No.: FC-13-1417 Date: 2020/03/09 Superior Court of Justice - Ontario

Re: P.B., Applicant And: C.A.O., Respondent

Before: Justice A. Doyle

Counsel: Erin Lepine, Counsel, for the Applicant Respondent: Self-represented

Date: In writing

Costs Endorsement

[1] On December 10, 2019, after a 6-day trial, the Court ordered, among other things; the following:

• The Applicant father, P.B., shall have sole custody and primary residence of C.A.B. born […], 2013;
• C.A.B.’s residence shall not be moved outside the City of Ottawa without the prior consent of the parties or Court order;
• Mr. P.B. will be authorized to apply for a passport for C.A.B., without the consent or signature of the Respondent mother, C.A.O.;
• Mr. P.B. may travel with C.A.B. within Canada or the United States without the consent of Ms. C.A.O.;
• Ms. C.A.O. will have regular access schedule parenting time with C.A.B. as follows:
  • Every Wednesday from 2:30 P.M. (when she will pick him up from school) until 6:15 P.M. and the parenting exchange will take place at the St. Laurent Shopping Centre at 6:15 P.M.;
  • Every alternate weekend as follows:
    • From 9:00 A.M. until 6:15 P.M. on Saturday with drop off at the mother’s residence in the morning and pick-up at the St. Laurent Shopping Centre.
    • From 9:00 A.M. until 6:15 P.M. on Sunday with drop off at the mother’s residence in the morning and pick-up at St. Laurent Shopping Centre.

[2] The Final Order also provided for access to the mother during Christmas Holidays, summer holidays, March Break and Mother’s Day.

[3] There will be a review of mother’s access to C.A.B. after June 2022 at which time, C.A.B. will have had a few years of therapy and completed some occupational therapy at the Children’s Hospital of Eastern Ontario. At that time, C.A.B. will be a little older and the structure and routine of this current schedule will have been in place for 2.5 years.

[4] Commencing January 1, 2020, Ms. C.A.O. will pay the amount of $79 per month as child support based on an imputed employment income of $15,000.

[5] There are no child arrears. At this time, the mother is not required to contribute to s. 7 of the Child Support Guidelines, O. Reg. 391/97, special and extraordinary expenses given her modest income and being a single parent to two young children.

[6] Commencing June 1, 2020, Ms. C.A.O. will provide her most recent tax return and notice of assessment to Mr. P.B..

[7] Ms. C.A.O. continues to be responsible for the cost awards of Justice Toscano-Roccamo and Justice Labrosse totaling $1,850.

[8] If the parties were unable to agree on the issue of costs, they were to provide written submissions. After considering the submissions, the Family Law Rules, O. Reg. 114/99 (“FLRs”) the Bill of Costs and Offers to Settle, the Court awards costs to the Applicant to be paid by the Respondent in the amount of $20,000.

Father’s Position

[9] The father is requesting costs on a full recovery basis in the amount of $121,595.48 plus HST and disbursements. He submits as follows:

• He was the successful party;
• The issues were important;
• There were numerous court appearances; and
• The mother was not prepared.

[10] In addition, the Applicant father submits that the mother:

• Was not cooperative as she refused to accept an agreed statement of facts,
• Provided no documents in advance of the trial;
• Unsuccessfully brought a motion for police records mid-trial;
• Withheld information about her employment until on the witness stand;
• Filed inaccurate financial statements;
• Failed to properly subpoena her witnesses;
• Filed inaccurate financial statements;
• Repeatedly denied that C.A.B. had special needs;
• Denied evidence of her prior conduct;
• Brought a claim for undue hardship regarding child support with no supporting evidence;
• Amended her pleadings on the second last day of trial; and
• Relied on opposing counsel for documents for her own case.

[11] The Applicant submits his offer to settle mirrored the final Court order.

Mother’s Position

[12] The mother submits that there should be no costs awarded for the following reasons:

• The Office of the Children’s Lawyer (“OCL”) and Dr. Roberge were biased;
• She did not have enough time to prepare for the trial;
• She was not unreasonable;
• She was disadvantaged as she had no lawyer at trial;
• She is currently on Ontario Works and does not have funds; and
• She declared bankruptcy and hence she should not be responsible for the costs awarded against her by Justice Labrosse and Justice Toscano-Roccamo.

Legal Principles

[13] In Mattina v. Mattina, 2018 ONCA 867, [2018] O.J. No. 5625, the Court of Appeal confirmed the purposes of costs: (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 r. 2(2) of the FLRs.

[14] Subrule 24(1) of the FLRs 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] O.J. No. 330 (S.C.). To determine whether a party has been successful, the Court should consider how the order compares to any settlement offers that were made. Lawson v. Lawson, [2008] O.J. No. 1978 (S.C.).

[15] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519.

[16] One of the considerations in an assessment of costs is to fix costs in an amount that is “fair and reasonable” for the unsuccessful party to pay in a particular proceeding.

[17] In Fong v. Chan, 46 O.R. (3d) 330, the Ontario Court of Appeal stated:

It is apparent… that the preponderance of modern authority supports the contention that both self-represented lawyers and self-represented lay litigants may be awarded costs and that such costs may include allowances for counsel fees.

[18] An inability to pay should not be used as a shield against liability for an unsuccessful party’s unreasonable conduct. See J.Y. v. L.F.-T., 2017 ONSC 6039.

[19] Family law litigants are responsible and accountable for the positions they take in the litigation: Heuss v. Surkos, 2004 ONCJ 141.

[20] Subrule 24(5) states that the Court can consider if a party was unreasonable in determining costs and s. 24(7) provides that the Court can also consider if the party was not properly prepared and the Court can award costs, unless it is not in the interests of justice.

[21] Rule 24(10) states that:

Promptly after dealing with a step in the case, the court shall:

(a) make a decision on costs in relation to that step; or

(b) reserve the decision on costs for determination at a later stage in the case.

[22] However, r. 24(11) states that:

The failure of the court to act under subrule (10) in relation to a step in a case does not prevent the court from awarding costs in relation to the step at a later stage.

Analysis

[23] The father was the successful party in that he was awarded sole custody and primary residence and obtained some ancillary orders dealing with travel and passports.

[24] Rule 24(11) requires the court to consider the following factors:

The reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

Each party’s behaviour:

[25] The mother was not well prepared for trial. She filed an amended pleading long after the timeline provided in a Court order, failed to have her documents ready for trial and failed to arrange for her witnesses. All of this caused delays in the progress of the trial.

[26] She was not represented by counsel and hence, understandably, she is not well versed in court procedures.

Time spent by each party;

[27] I have reviewed the Bill of Costs filed by the father’s counsel and I note the following:

• I am not prepared to award costs for attendances at the Settlement conference and trial management conference conducted by the Case management Judge, Justice Labrosse. He was overseeing the file and was closely involved with the progress of the file. Costs were not awarded at these hearings and despite r. 24(11) that states that costs can be awarded even though an endorsement is silent on the issue, I am not inclined to award costs for those appearances before the Case management Judge. Costs could have been addressed at the time of those hearings. There is no indication of whether a party was not prepared or there was an unreasonable position taken at the conference that required the imposition of costs. These steps were mandatory steps that were required to move the matter along to trial. A settlement conference and trial management conference are important and necessary steps that serve to focus the parties on the outstanding issues, discuss settlement and resolve trial management issues.
• All steps shown on the Bill of Costs, including trial preparation, attendances with client, and correspondence involve at least two lawyers. There are no details of the lawyer’s respective tasks. The Court cannot discern if there was any duplication or overlapping of any functions.
• Justice Labrosse did reserve the costs of one court appearance to the Judge hearing the motion but this was never determined by the Motion’s Judge.
• He dealt with costs on his June 7, 2019 Endorsement where he ordered costs against the mother in the amount of $100 inclusive of HST.
• Justice Labrosse, as the Case management judge, also dealt with numerous motions and appearances and did not reserve the issue of costs of these appearances to the trial judge.
• Counsel spent over 220 hours in preparation for trial which was 6 days and less than 30 hours. These hours of preparation are not proportionate to the issues before the Court which were not complex. Granted the history has been long and there have been many events, steps and hearings in this matter, but in my view, the numerous hours spent on preparation for trial were not proportionate to the issues involved.
• I also note that two lawyers were present throughout the trial. This was not proportionate to the issues involved. It is not reasonable for issues of this nature to require the losing party to expect to pay for two lawyers to be present throughout the trial. This is especially so when one counsel was only dealing with the issue of child support and hence her role was not a significant aspect of the trial.

Any written offers to settle, including offers that do not meet the requirements of rule 18;

[28] The offers to settle presented by the father do not meet the requirements of r.18 as the Final Order was not more favourable than the offer to settle.

[29] However, the father obtained sole custody of the child, primary residence and child support. His offer to settle did not expand mother’s access on a regular basis and failed to offer any holiday time. In addition he requested $10,000 in support arrears and support based on an imputed income of $27,500. He was not successful on those issues.

[30] However, the mother could not accept the offers to settle which imposed a significant imputed income, significant support arrears and no expansion to her current access or any offer regarding holidays. Although the Court found that C.A.B.’s structure, consistency and routine are important, it was also found that it is in his best interests that he have quality time with his mother and siblings and that there be time spent with them on special occasions such Christmas, summer and mother’s day.

[31] Nevertheless, the father was largely successful on the major issues of custody and primary residence for C.A.B..

Any legal fees, including the number of lawyers and their rates;

[32] The rates of the lawyers are reasonable given the years from their call to the bar. Again, the Court questions why four lawyers were required to work on the file. Even though there were many documents which consisted of emails, police reports, psychiatrists’ reports, Family Wizard correspondence, it was not reasonable nor proportionate to the issues before the court to require four lawyers to work on the file thereby causing possible duplication of efforts.

Any other expenses properly paid or payable;

[33] The Bill of Costs states that disbursements including HST total $2,570.72. There is no itemized list or receipts attached identifying the disbursement. For that reason, the Court will not award any costs for disbursements incurred.

Any other relevant matter.

[34] This is not a case where the mother has behaved in such a manner that requires the Court to impose full recovery of costs so that she be punished.

[35] The Court agrees with Justice Curtis’ comments in Blanchard v. Walker, 2012 ONCJ 799, [2012] O.J. No. 6269, where she states at para. 36 that parties who litigate must appreciate that court proceedings are expensive and that they must be mindful of costs of litigation. See Heuss v. Surkos. In that case, the evidence against the mother was overwhelming and she refused to consider her position. Certainly costs are meant to also discourage this type of behaviour.

[36] However, as stated above, although the mother could not accept the offers to settle as presented by the father, she could have reconsidered her position regarding custody and primary residence in a counter-offer.

[37] There was no evidentiary foundation for a joint custody order or a change of C.A.B.’s residence. The OCL’s report was a compelling and thorough report that clearly indicated that it was in C.A.B.’s best interests to continue to reside with his father. The mother failed to appreciate C.A.B.’s special needs and due to her own mental health issues and she could not appreciate the impact of her actions on the child.

[38] In C.A.M v. D.M. (2003), 67 O.R. (3d) 18, the Court of Appeal stated that a party’s limited financial circumstances will not be used as a shield against any liability for costs but will be considered when determining the quantum of costs, particularly when they have acted unreasonably and are the author of their own misfortune. Snih v. Snih. In the case of Takis v. Takis, [2003] O.J. No. 4059 (S.C.) the Court found that the respondent’s lack of income and assets, though a relevant consideration, could not be used as a shield in unnecessary litigation.

[39] The mother was on a contract of employment at the time of the trial. She is a person with modest means and two young children who have no contact with their fathers nor support from them.

[40] If the costs ordered by Justice Labrosse and Justice Toscano-Roccamo are captured by the bankruptcy, then the mother through the trustee in bankruptcy can determine their status. Otherwise, if they have not been dealt with in the bankruptcy, then they continue to be owing.

[41] Accordingly, a fair reasonable and proportionate award of costs for this 6-day trial is the amount of $20,000.

Justice A. Doyle Date: March 9, 2020