Court File and Parties
COURT FILE NO.: FS-12-76705
DATE: 20200909
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CIPRIAN TEODOR BORS
Applicant
– and –
ANA CRISTINA BORS (BELEUTA)
Respondent
Heard: In writing
COSTS ENDORSEMENT
van melle, j.
[1] The assessment of costs in a trial such as this one is always difficult. The difficulty is compounded when both parties who were represented at trial are now representing themselves.
[2] Costs are addressed in the Family Law Rules. The relevant portions are:
- (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.
(10) Promptly after dealing with a step in a case, the court shall, in a summary manner,
(a) determine who, if anyone, is entitled to costs in relation to that step and set the amount of any costs; or
(b) expressly reserve the decision on costs for determination at a later stage in the case.
(11) 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 in the case.
(12) In setting the amount of costs, the court shall consider,
(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.
[3] This trial took place over 8 days in October and November 2019. S Bors v. Bors (Beleuta) 2019 ONSC 7029. The main issue was whether or not Ms. Beleuta had alienated the children from Mr. Bors and if so, the appropriate remedy. At the conclusion of the trial, I gave a decision orally and ordered custody of the two children of the marriage to Mr. Bors based on my finding that there had been alienation of the children by Ms. Beleuta. In my decision of December 4, 2019, I explained my reasons for finding that there had been a material change in circumstances. I said in my decision that I would deal with the issue of costs later to see whether or not the parties were cooperating with the therapy that I had ordered. Unfortunately, before I could assess the impact of my order, the COVID-19 situation intervened.
[4] On May 29, 2020 when the trial judgment was made into a court order, I made a further order requiring cost submissions, including directions regarding the submissions. Neither party followed those directions, thus much extraneous information, which has no bearing on costs, was presented.
[5] Ms. Beleuta restated the arguments she made at trial with no heed to my factual findings in regard to those allegations. She repeated her position that the children were always available for access, ignoring my explicit finding that she did everything in her power to thwart meaningful access. She said that the children continued to strive [which I take to mean thrive] in her care. They did not. By the time of trial C was refusing to attend his Grade 2 class. Both children were inexplicably afraid of their father.
[6] In her submission Ms. Beleuta sums up her view of Mr. Bors:
The Applicant’s Trial costs submission is exorbitant. This huge amount of money that he is asking for, strengthens once again, what I already know for a period of over eight years since the Applicant has been taking me through lawsuits constantly. His plan and only goal is to destroy me.
[7] In litigation, costs follow the event. Mr. Bors having been successful at trial is entitled to his costs. I accept that the trial could have been avoided but for Ms. Beleuta’s actions in alienating the children from their father. Over the years, she was told by different judges that she had to let Mr. Bors have a relationship with the children. At the commencement of trial, she gave lip service to this concept. Indeed, in her draft order filed at the opening of trial, she acknowledged that the children should go to reunification therapy but put all the blame for the problems at the feet of Mr. Bors.
[8] The issue now becomes quantum. Mr. Bors seeks full recovery costs of $288,704.42 all inclusive.
[9] It appears that Ms. Beleuta’s own legal fees for trial were $73,840.23 including $7,048.90 paid for trial transcripts for the appeal. The drafting of the Notice of Appeal, and the ordering of transcripts and other actions in connection with the appeal are all included under trial preparation. The time spent in connection with the appeal is not particularized. Any funds spent in connection with the appeal are irrelevant to my determination of the costs at trial.
[10] It makes sense that Ms. Beleuta’s fees would be significantly lower than Mr. Bors. Mr. Bors, as the applicant had the onus of proving his case. His counsel prepared voluminous document briefs to support his allegation of alienation at trial. Given the fact that this was so completely resisted by Ms. Beleuta it stands to reason that his costs would be considerably higher.
[11] Ms. Beleuta says that she does not have the ability to pay an award for costs as her income is $40,000 while Mr. Bors’ income has always been higher ($79,000 in 2018). The fact that Ms. Beleuta does not have the resources from which to pay costs, does not shelter her from an order for costs. While the financial implications of costs order must be taken into account it will be less of a mitigating factor when the impecunious party has acted unreasonably. Gobin v. Gobin, (2009) 2009 ONCJ 278.
[12] On May 30, 2019 Mr. Bors made an Offer to Settle. In it, he sought compliance with the Final Order of Justice Snowie dated May 11, 2015 and the subsequent orders of Justice Coroza (as he then was) dated June 29, 2018 and January 31, 2019. The offer contained provisions regarding parenting, therapy and police enforcement. There was also a provision for make up access.
[13] Under this scenario the children would have continued their primary residence with Ms. Beleuta and Mr. Bors would have had the access to which he was entitled under the Court Orders. The offer was open for acceptance until the hearing of the motion to change which motion was ultimately ordered to trial.
[14] It is clear that it was Ms. Beleuta who forced years of litigation through her stubborn refusal to accept Mr. Bors’ role in the lives of the children.
[15] Mr. Bors seeks costs on a full recovery basis as a result of Ms. Beleuta’s bad faith conduct and her ongoing breaches of Court Orders.
[16] Mr. Bors relies on Rule 24(11) (recently amended) which stipulates that costs can be awarded for steps taken in an action even if not awarded at a particular step. This is different from previous practice, where if costs were not specifically addressed at a step, no costs for that step would be awarded. Mr. Bors provided me with two orders for which he was seeking costs in addition to the trial. One was Justice Mossip’s order reserving costs to trial and the second was my order where after a motion for summer access, I made a specific order of no costs. An order for no costs means exactly that, therefore, the only costs, in addition to the trial, are the costs specifically reserved to me by Justice Mossip.
[17] While I find that Mr. Bors is entitled to a generous award of costs particularly given Ms. Beleuta’s failure to accept his settlement proposal and her unreasonable position on the issues, I must consider proportionality and the reasonableness of the claim of costs. As Justice Baltman said in Tone v. Tone ONSC 4622 at paragraph 14:
More recent jurisprudence has placed less emphasis on counsel's hourly rates and time spent, and instead focused on an award of costs that is proportional to the amount in issue and the outcome: Delellis v. Delellis, 2005 ONSC 36447, [2005] O.J. No. 4345 (Ont. S.C.J.), at para. 9. In Beaver v. Hill, 2018 ONCA 840 (Ont. C.A.), at para. 12, our Court of Appeal clarified that proportionality and reasonableness, the two key factors set out in r. 24(12)(a), are the touchstone considerations to be applied in fixing the amount of costs in family law matters.
[18] I have carefully reviewed the Bill of Costs prepared by Mr. Bors’ trial counsel. While I do not question the individual numbers in the Bill of Costs, I must consider all the factors. I therefore order Ms. Beleuta to pay costs to Mr. Bors in the amount of $125,000 inclusive of disbursements and HST.
Van Melle J.
Released: September 9, 2020
COURT FILE NO.: FS-12-76705
DATE: 20200909
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CIPRIAN TEODOR BORS
Applicant
– and –
ANA CRISTINA BORS (BELEUTA)
Respondent
COSTS ENDORSEMENT
Van Melle, J.
Released: September 9, 2020