Court File and Parties

COURT FILE NO.: FS-14-14792 DATE: 20200514 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Daniel W. Snively Applicant – and – Shauna L. Gaudette Respondent

Counsel: The Applicant father was self-represented Joel Wright, for the Respondent

HEARD BY TELECONFERENCE: May 13, 2020

ENDORSEMENT AS TO SANCTION AND COSTS AFTER A CONTEMPT HEARING

BONDY J.

1) Introduction

[1] This is an endorsement as to sanction for content and costs for a contempt hearing.

[2] The applicant, Daniel W. Snively (“Mr. Snively”), and the respondent, Shauna L. Gaudette (“Ms. Gaudette”), separated in January 2014 after a nine year relationship. They have two children, Daniel Snively (“Daniel”) born November 15, 2007, and Carter Snively (“Carter”) born April 27, 2009. Accordingly, the children are 12 and 11 years of age respectively.

[3] This was a contempt motion brought by the respondent mother for the failure of the applicant father to return children after an access visit.

[4] According to the applicant father, custody was hotly disputed and as a result took approximately five years to resolve. Both the Windsor Essex Children’s Aid Society (“CAS”) and the Office of the Children’s Lawyer (“OCL”) were involved with the parties. The applicant father deposed that the CAS did not have any difficulty with either party having custody of the children, provided that the applicant father completed the Triple P (Positive Parenting Program). The applicant father maintains that he did complete the program. In the end, I found that the applicant father had materially misrepresented what both the CAS and the OCL had recommended.

[5] Ultimately, a consent order was signed by Hebner J. on June 6, 2019. As a result of that order, the parties have joint custody of the two children with primary residence being with the respondent mother. The applicant father has specified access.

[6] Consistent with the terms of that order the children spent March Break with the applicant father this year. Once March Break was finished the respondent mother requested that the children continue to stay with their father until the issue of potential cases of COVID-19 at the respondent mother’s place of employment had been resolved. Those messages were dated March 16 and March 24, 2020. In the end, no employee or inmate of the Southwest Detention Centre had tested positive for the COVID-19 virus. Although there was an employee of a contract worker who had tested positive and had attended the facility, that worker had not infected anyone at the facility.

[7] Once those potential COVID-19 cases were resolved the respondent mother asked the applicant father to return the children to her care. The respondent father refused.

[8] After a hearing for contempt, I found that the respondent father had materially misrepresented facts relating to his decision to breach the court order. I also found that he had likely exposed the children to unnecessary risks with respect to the COVID-19 crisis. I also concluded that his motives were not related to the children’s safety. One possibility was related to money.

[9] Importantly, after my finding of contempt, but before the hearing with respect to sanction for that contempt and costs for the motion, the applicant father purged his contempt by returning the children. That weighed significantly in his favour.

2) The appropriate remedy for the applicant father’s contempt

a) Introduction

[10] Rule 31(5) of the Family Law Rules, O Reg. 114/99 provides as follows:

31(5) If the court finds a person in contempt of the court, it may order that the person,

(a) be imprisoned for any period and on any conditions that are just;

(b) pay a fine in any amount that is appropriate;

(d) do anything else that the court decides is appropriate;

(e) not do what the court forbids;

(f) pay costs in an amount decided by the court; and

(g) obey any other order.

b) The appropriate sanction in the circumstances of this case

[11] Although the applicant father’s blatant disregard for the best interests of the children may in other circumstances warrant imprisonment, I do not find it appropriate at this point in time. That is because of the unusual risks posed by the COVID-19 virus.

[12] It seems to me the most appropriate remedy would be for the applicant father to pay a penalty to the respondent mother. I say a penalty and not a fine because, as is more fully considered below, the children will be the net beneficiaries of a penalty but not a fine.

[13] I am aware that the respondent father is living on a disability pension. That clearly puts downward pressure on his ability to pay.

[14] However, the respondent mother is responsible for feeding, clothing, and housing the children. She does not receive any assistance in that regard from the applicant father because he does not pay child support. As a result, any legal fees paid by the respondent mother will come directly out of the mouths of the children.

[15] In summary, the financial position of the applicant father is significantly blunted by the fact that he had no reasonable excuse for the conduct that gave rise to the litigation, and because the respondent mother’s ability to provide for the children will be directly, negatively and significantly impacted by this unnecessary litigation.

[16] In the circumstances of this case, the imposition of a penalty will both serve to punish the applicant father for his behaviour and at the same time provide financial assistance to the respondent mother or the children.

[17] The respondent mother has lost $252 in pay as a result of attendances required by this motion. She seeks only to recover that amount as a penalty. Having weighed all of the factors of this case with particular emphasis on the needs of the children, the respondent mother’s ability to meet those needs, the seriousness of the applicant father’s conduct, and the applicant father’s ability to pay, I find that a penalty payable by the applicant father to the respondent mother in the amount of $252 would be appropriate.

3) Costs

a) The positions of the parties

[18] The respondent mother seeks full indemnity costs in the amount of $3,968.81, all-inclusive.

[19] The applicant father maintains that he is on ODSP disability and accordingly has limited ability to pay costs.

b) Costs principles

[20] Modern costs rules are designed to advance five purposes in the administration of justice:

(1) to indemnify successful litigants for the costs of litigation, although not necessarily completely;

(2) to facilitate access to justice, including access for impecunious litigants;

(3) to discourage frivolous claims and defences;

(4) to discourage and sanction inappropriate behaviour by litigants in their conduct of the proceedings; and

(5) to encourage settlements.

See: Vester v. Boston Scientific Ltd., [2017] O.J. No. 2079, 2017 ONSC 2498; Hamilton-Wentworth (Regional Municipality) v. Hamilton-Wentworth Save the Valley Committee, Inc. (1985), 51 O.R. (2d) 23 (H.C.J.); Fellowes, McNeil v. Kansa General International Insurance Co. (1997), 37 O.R. (3d) 464 (Gen. Div.); Fong v. Chan (1999), 46 O.R. (3d) 330 (C.A.); Somers v. Fournier (2002), 60 O.R. (3d) 225 (C.A.); British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371 (S.C.C.); 1465778 Ontario Inc. v. 1122077 Ontario Ltd. (2006), 82 O.R. (3d) 757 (C.A.); Reynolds v. Kingston (City) Police Services Board (2007), 2007 ONCA 375, 86 O.R. (3d) 43 (C.A.).

[21] The jurisdiction to award costs is found in s. 131 of the Courts of Justice Act R.S.O. 1990 c. C.43. The discretion granted by that section is subject to the overriding principle of reasonableness: see Davies v. Clarington (Municipality), [2009] O.J. No. 4236, 2009 ONCA 722, at para. 52. Similarly, at para. 26 of the decision in Boucher v. Public Accountants Counsel for the Province of Ontario (2004), 71 O.R. (3d) 291, Armstrong J.A. held that the fixing of costs is not to be regarded as a mere mechanical exercise. Rather, “the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant.” The failure to address the overriding principle of reasonableness, can produce a result that is contrary to the fundamental objective of access to justice: see Boucher, at para. 37; see also Delellis v. Delellis, [2005] O.J. No. 4345, at para. 9. Consistent with that observation, costs in family law matters must be proportionate to the issues and results given that the primary objective of the rules is to enable the courts to deal with cases justly.

[22] In summary, as was observed by Nordheimer J.A., “proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs”: see Beaver v. Hill, [2018] O.J. No. 5412, 2018 ONCA 840, at para. 12.

[23] The reasonable expectations of the parties is also a relevant factor: see Boucher, at para. 38. Those expectations can be measured by two methods. To be clear, they are not mutually exclusive. The first method is by the unsuccessful party revealing what their costs were, and the second method is by application of the principles delineated in the rules: see Hague v. Liberty Mutual Insurance Co., [2005] O.J. No. 1660, [2005] O.T.C. 290, at para. 15.

[24] As to the first method, the applicant was self-represented and accordingly did not provide a bill of costs, and accordingly I was unable to obtain any guidance through this method.

c) Analysis

24(1) Successful party presumptively entitled to costs

[25] The respondent was the successful party, and accordingly she is presumptively entitled to costs.

24(4) Successful party who has behaved unreasonably

[26] The respondent was reasonable throughout, and accordingly this factor does not apply.

24(5)&24(12) The reasonableness or unreasonableness of each party’s behaviour in the case

[27] Rule 24(5) provides that in deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

(a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

(b) the reasonableness of any offer the party made; and

[28] See my comments below related to reasonableness of the parties.

24(6) Divided success

[29] Success was not divided, and accordingly this factor does not apply.

24(7) Absent or unprepared party

[30] This factor does not apply.

24(8) Bad Faith

[31] The applicant father demonstrated bad faith in that I found many of the representations made as to his parenting ability to have been exaggerations or untruths, and because I found that his breaching a court order was for reasons other than the best interests of the children.

24(10) Costs to be decided at each step

[32] I can see no reason, nor was I given any reason, not to decide costs of this motion at this stage. To the contrary, I expect this motion to put an end to the conflict between the parties, and accordingly costs should be decided now.

24(12)(a)(i) The reasonableness and proportionality of each party’s behaviour as it relates to the importance and complexity of the issues

[33] I reiterate that I found the applicant father has been less than truthful in his affidavit. I also found that he was most likely motivated by the possibility of changing the primary residence of the children, possibly for nothing more than financial reasons. This litigation should have never happened.

24(12)(a)(ii) The reasonableness and proportionality of the time spent by each party as it relates to the importance and complexity of the issues

[34] See my comments immediately above with respect to the applicant father. As to the respondent mother, I found the time spent proportional to the importance and complexity of the issues. While the issues were not at all complex, they were highly important to the best interests of the children.

24(12)(a)(iii) The reasonableness and proportionality of any written offers to settle, including offers that do not meet the requirements of rule 18 as it relates to the importance and complexity of the issues

[35] I am not aware of any written offers to settle.

24(12)(a)(iv) The reasonableness and proportionality of any legal fees, including the number of lawyers and their rates as it relates to the importance and complexity of the issues

[36] As said above, the respondent mother seeks all-inclusive costs of $3,968.81 on a full indemnity basis. Those costs include $3,480 for legal fees, and $452.40 for HST on legal fees.

[37] In this case respondent mother’s counsel, who has been at the bar for 24 years, seeks $300 per hour on a full indemnity basis. I find that amount reasonable.

[38] I say that because the Costs Subcommittee of the Civil Rules Committee suggests a maximum of $350 per hour for lawyers with 20 years or more experience when fixing partial indemnity costs [emphasis mine]: see Geographic Resources Integrated Data Solutions Ltd. v. Peterson, 2013 ONSC 1041, [2013] O.J. No. 717, at para. 13. Price J. suggests that based upon the Bank of Canada Inflation Calculator the 2014 equivalent of the hourly rates in the Cost Bulletin is $409.16 for lawyers of over 20 years experience: see J.J.A.S. Catering and Banquet Inc. v. Vesia, 2015 ONSC 1417, [2015] O.J. No. 1151, at para. 21. Six years have passed since then. Respondent mother’s counsel's partial indemnity equivalent of the requested fees are well below that amount.

[39] I also found the time claimed appropriate both in the context of the amounts claimed and the results achieved. I found the time spent for each docketed task reasonable, and I found each such task reasonably necessary for a matter of this importance and complexity.

24(12)(a)(v) The reasonableness and proportionality of any expert witness fees, including the number of experts and their rates as it relates to the importance and complexity of the issues

[40] This factor does not apply.

24(12)(a)(vi) The reasonableness and proportionality any other expenses properly paid or payable as it relates to the importance and complexity of the issues

[41] See my comments below as to disbursements.

24(12(b) Any other relevant matter

[42] The heading “other matters” includes the ability to pay costs: see, for example, Biant v. Sagoo, [2001] O.J. No. 3693, [2001] O.T.C. 695, 20 R.F.L. (5th) 284, at para. 17 & 21; C.A.M. v. D.M. [2003] ONCA, O.J. No. 3707, (2003), 67 O.R.(3d) 181, at para. 42.

[43] As said above, in this case the applicant father is living on a disability pension. That clearly puts downward pressure on his ability to pay. On the other hand, the respondent mother is responsible for feeding, clothing, and housing the children. She does not receive any help in that regard from the applicant father because he does not pay child support. As a result, any legal fees paid by the respondent mother will come directly out of the mouths of the children.

[44] In summary, the financial position of the applicant father is significantly blunted by the fact that he had no reasonable excuse for the conduct that gave rise to the litigation, and because the respondent mother’s ability to provide for the children will be directly and negatively impacted by this unnecessary litigation.

24(12.1) Any claim for costs respecting fees or expenses shall be supported by documentation satisfactory to the court

[45] I found the documentation submitted by respondent mother’s counsel appropriate.

d) Conclusions as to fees

[46] For all of these reasons, I find this is one of those rare cases where full indemnity costs are appropriate. I also find the amount claimed, that is $3,480 plus HST of $452.40 for a total of $3,932.40 appropriate for fees.

e) Disbursements

[47] I find the disbursements claimed, and the amount of those disbursements, both proportionate and reasonable in the context of a matter of this nature and complexity. Accordingly, I find the claim for $32.22 plus HST for disbursements reasonable. As a result, I would allow 36.41 inclusive of HST for disbursements.

f) Conclusions as to the total all-inclusive amount of costs

[48] For the reasons above, I find an award of costs on a full indemnity basis in the amount of $3,968.81 fair and reasonable in the circumstances.

4) Order

a) Order as to sanction for the applicant father’s contempt

[49] The applicant, Daniel W. Snively, shall pay the respondent, Shauna L. Gaudette, the sum of $252 as a penalty for his contempt.

b) Order as to costs

[50] Costs are fixed at $3,968.81 payable by the applicant, Daniel W. Snively, to the respondent, Shauna L. Gaudette.

c) Time

[51] The applicant shall pay the penalty of $252 and the costs of the $3,968.81 for a total of $4,220.81 at a rate of $200 per month on the first of every month commencing June 1, 2020 until that amount is paid in full.

d) Interest

[52] This costs order shall bear interest in accordance with the Courts of Justice Act R.S.O. 1990 c. C.43, commencing the date of the first default of a monthly payment.

Christopher M. Bondy “Electronically signed and released by Bondy J. ” Justice