Court File and Parties
Court File No.: FC-11-2362-1 Date: 2020-06-15 Ontario Superior Court of Justice
Between: Salama Shabani, Applicant – and – Kimbombo Karerama, Respondent
Counsel: Odette Rwigamba, for the Applicant Self-represented, for the Respondent
Heard: September 23, 24, 25 and 26, 2019
Reasons for Decision
Audet J.
[1] On November 19, 2019, I released my decision in the above-noted matter following a four-day trial. The only issues before me were parenting and child support, including retroactive child support. The applicant mother was wholly successful on all issues. I allowed the parties to provide me with submissions on costs in the event that they could not resolve the issue, and the mother provided her submissions, but the father did not.
[2] The mother seeks her full costs in the amount of $45,937.59 (inclusive of taxes and disbursements). Although this application was initiated back in 2011, the mother is only seeking costs from the moment her current counsel was retained to represent her in the context of the trial, being from the end of April 2019 to the end of trial.
[3] This is my decision on the issue of costs.
Analysis
[4] 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, O. Reg. 114/99 (“the rules”) (Mattina v. Mattina, 2018 ONCA 867, 2018 CarswellOnt 17838).
[5] Costs can be used to sanction behaviour 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, 2003 SCC 71, [2003] 3 S.C.R. 371 at para. 25).
[6] Sub-rule 18(14) of the rules provides that a party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the conditions set out therein are met. The court is not required to examine each term of the offer as compared to the terms of the order and weigh with microscopic precision the equivalence of the terms. What is required is a general assessment of the overall comparability of the offer as contrasted with the order (Wilson v. Kovalev, 2016 ONSC 163, 72 R.F.L. (7th) 362).
[7] I have already stated that the mother was wholly successful in this trial. As such, she is presumed entitled to her costs on a partial indemnity basis. The mother also made two offers to settle, one on May 17, 2019 and one on September 17, 2019. Both offers would have provided quicker and more expansive access to the father than what I ultimately ordered. In both of her offers, the mother waived retroactive child support and proposed to set proper payment of child support “once the father resumed working”. These offers were significantly more generous to the father, from a financial perspective, than what he obtained at trial.
[8] Based on the above only, and in light of the clear wording of sub-rule 18(14), the mother is entitled to her costs on a full recovery basis from the date of her first offer to the end of trial. Given her more favourable offers to settle, it is not necessary for me to deal with the mother’s argument that an award of costs on a substantial indemnity basis would be appropriate in this case based on the father’s unreasonable behaviour during the course of this litigation.
[9] Turning now to quantum, the mother produced a Bill of Costs confirming that she was charged a total of $45,937.59, comprising of 119 hours of work by her lawyer (at $325 per hour), 8.5 hours by her assistant, and disbursements in the amount of $840.23 (for a four-day trial). The mother’s counsel was called to the Bar in 2003 and had 16 years of experience as a lawyer at the time she completed the work, and she charged an hourly rate of $325. I find that the hourly rate and the hours charged by her were reasonable (half the time was for actual trial time, and the other half was related to her preparation for trial).
[10] However, given the parties’ very modest means and the fact that the issues raised by this trial, although very important, were not particularly complex, I question whether the father could reasonably expect to pay such a significant amount of costs in the event that he was unsuccessful at trial. Based on the evidence heard during the trial, the father was at times represented by lawyers from Legal Aid.
[11] Although the father did not file cost submissions, I am mindful of my duty to be fair towards self-represented parties who may not fully understand the court process and the impact of their failure to file cost submissions. In this particular case, I am required to consider the father’s ability to pay any cost award that I make. In my trial decision, I imputed a minimum wage annual income of $20,000 per annum for the purpose of determining the father’s child support obligation for the period of October 1, 2011 to and including December 31, 2017. From January 2018 on, an income of $26,000 per annum was imputed to him.
[12] In light of his child support obligations, and the level of income imputed which is quite low, any amount that I order in costs will be difficult for him to pay, unless he secures more gainful employment. At the same time, the mother was required to pay over $45,000 of legal fees to be properly represented in the context of this trial which raised the very important issue of the children’s care, despite earning a very low income herself and caring for two children on her own without any financial support from the father (since their separation).
[13] In Heuss v. Surkos, 2004 ONCJ 141, the court stated that family law litigants are responsible and accountable for the positions they take in the litigation. In Snih v. Snih, the court confirmed that a party’s limited financial circumstances cannot be used as a shield against any liability for costs but will be taken into account regarding the quantum of costs, particularly when a litigant has acted unreasonably and is the author of his/her own misfortune.
[14] I have made significant adverse findings against the father in my earlier decision as it relates to his position on the issues of parenting and child support, and in the way that he conducted this litigation. In light of the significantly more advantageous offers to settle made by the mother, including one made in May 2019 before the mother incurred any of the costs for which she now claims compensation, it is my view that the father’s current limited financial circumstances should not serve to shield him from the significant cost liability that would otherwise be imposed upon him given the mother’s success, her most reasonable offers to settle, and the father’s overall position and conduct in this litigation.
[15] Considering all the above factors, I make the following order:
- The respondent father shall pay to the applicant mother costs in the amount of $30,000, all inclusive.
- As a portion of this trial related to the issue of child support, a proportional part of the above cost award, which I set at $10,000, shall be enforced by the Family Responsibility Office as child support, payable at the rate of $200 per month.
- The above cost award bears interest at the post-judgment interest rate, in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43.