COURT FILE NO. D-49/10

DATE: 2020-11-10

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Dawn Tracy Weber

Applicant

– and –

John Gerald Weber

Respondent

Elizabeth Porter, for the Applicant

Sam Garcea, for the Respondent

The Honourable Madam Justice Deborah L. Chappel

REASONS FOR JUDGMENT ON COSTS

PART I: INTRODUCTION AND THE PARTIES’ POSITIONS

[1] This Motion to Change Final Order involved a claim by the Applicant for child support for the adult child of the parties’ relationship, namely Tyler John Weber, born October 26, 1990 (“Tyler”). I presided over the trial for 9 days inclusive of a supplementary trial scheduling conference, spanning a period of several months from February 26, 2019 until January 22, 2020. I concluded that the Motion to Change Final Order should be dismissed, and I released my Reasons for Judgment on July 6, 2020. As I discussed at length in my Reasons, the evidence did not satisfy me that Tyler remained entitled to child support as of the date from which the Applicant claimed child support. In any event, I concluded that the evidence would not have supported a claim for child support at the quantification analysis, since it did not satisfy me that Tyler was unable to engage in income-earning activities to supplement his Ontario Disability Support Plan (“ODSP”) benefits so that he could cover his reasonable needs.

[2] In my Reasons for Judgment, I invited any party seeking costs to serve and file written submissions, a Bill of Costs, relevant legal authorities and any offers to settle. Counsel for the Respondent subsequently served and filed written submissions in support of a costs claim. There was a delay in addressing the issue of costs because the Applicant brought a motion to extend the time for her to serve and file submissions. I granted an extension, and the Applicant served and filed written submissions within the new deadline.

[3] The Respondent seeks costs from September 4, 2018 onward, which was the period during which he was represented by counsel. He claims full recovery costs of $40,903.17 inclusive of disbursement and HST. He argues that he is presumptively entitled to costs pursuant to Rule 24(1) of the Family Law Rules, O. Reg. 114/99, as amended, since he was entirely successful in the case and his position and litigation conduct were reasonable. He argues that there are no considerations in this case that would disentitle him to costs notwithstanding his success in the case. In addition, with respect to entitlement, he relies on Rule 1(8)(a) of the Family Law Rules, which stipulates that the court may deal with a party’s failure to obey an order in a case or a related case by making an order for costs. He relied on the Applicant’s failure to comply with numerous orders that I made during the trial, which I summarized in detail in my Reasons for Judgment. Counsel for the Respondent argued that the Applicant’s failure to comply with these orders led to significant delays and rendered the proceedings unnecessarily protracted and complicated.

[4] With respect to the appropriate quantum of costs, the Respondent argues that the amount that he incurred from September 4, 2018 onward was reasonable and proportionate having regard for the importance and complexity of the issues at stake. His position is that an award of full recovery costs is appropriate for several reasons. First, he contends that the Applicant engaged in highly unreasonable litigation conduct. In this regard, the Respondent relies on the following points:

1. The Applicant sought to rely on numerous medical reports at trial without serving a Notice of Intention to Adduce Practitioners’ Reports.

2. The Applicant’s counsel failed to take a clear position at the outset of trial regarding the legislation that applied in this case.

3. The Applicant and her counsel took inconsistent positions at the outset of the trial as to whether the proceeding should be properly characterized as an application or a Motion to Change Final Order.

4. The Applicant failed to comply with court orders that I made during the trial which were made to give her an opportunity to address potentially serious evidentiary gaps in her case.

5. Finally, the Respondent emphasized that the Applicant attempted to call Tyler’s family physician, Dr. Davis, as a witness rather than members of Tyler’s psychiatric treatment team who had directly diagnosed his mental health condition and formulated his treatment plan, and who could speak to his long-term prognosis.

[5] The Respondent submits that in considering the reasonableness of a party’s behavior for the purposes of the costs analysis, the court should take into consideration Rules 2(2) to (4) of the Family Law Rules, which deal with the primary objective of the Family Law Rules. He emphasizes that the primary objective is to enable the court to deal with cases justly, that parties and their counsel are required by virtue of Rule 2(4) to help the court to promote this primary objective, and that litigation conduct that frustrates this objective should be sanctioned through costs. Counsel for the Respondent also argues that the Applicant’s failure to comply with my court orders made during the trial and the extent of her unreasonable conduct support a finding that she acted in bad faith, which justifies an order for full recovery costs pursuant to Rule 24(8) of the Family Law Rules. In support of the amount of costs claimed, counsel asserts that the fees which he charged, and the amount of time spent on the case, were reasonable having regard for his year of call and experience in Family Law, and that the case was rendered unnecessarily complex and protracted due to the Applicant’s conduct.

[6] The Applicant requests that no costs be ordered against her. In the alternative, her position is that costs against her should be fixed at no higher than $5,000.00, inclusive of HST and disbursements. Her costs submissions are, quite frankly, very difficult to follow and comprehend. However, I was able to gather that the main grounds for her position are as follows:

1. First, she argues that the Respondent promised to help her to care for Tyler financially after he was diagnosed with mental health difficulties, and that he reneged on this promise by contesting her child support claim.

2. Second, she submits that she was partially successful, in that she established that there was a material change in circumstances, and that “the court found the child to be disabled contrary to the prolonged argument of the Respondent that it needed a Medical Doctor evidence to prove that.” She argues that once she provided proof that Tyler was eligible to receive ODSP benefits, the onus shifted to the Respondent to prove that Tyler was not disabled and not entitled to support. The Applicant’s view is that “the whole prolongation of the case” was attributable to the Respondent’s failure to acknowledge Tyler’s disability, which she argues constituted bad faith on his part.

3. Third, the Applicant states that a costs award will occasion hardship on her and will negatively impact Tyler’s best interests, as it will affect her ability to meet his ongoing financial needs.

4. The Applicant also notes that the Respondent failed to make an offer to settle, and that this is relevant to the determination of costs.

5. Finally, the Applicant notes that the Respondent was unsuccessful in his motion at the outset of trial to dismiss the proceeding summarily on the basis that there was no child support order in effect to vary. Her position is that any costs award that may be awarded against her should be reduced on account of the Respondent’s lack of success on that motion.

[7] For the reasons that follow, I conclude that the Respondent is entitled to costs from the Applicant, and that the sum of $8,000.00, inclusive of disbursements and HST, is a fair, reasonable and proportionate costs award having regard for all relevant considerations in this case. I am ordering that the Applicant pay these costs at the rate of $150.00 per month commencing January 1, 2021.

PART II: THE LAW RESPECTING COSTS

I. GENERAL PRINCIPLES AND PURPOSES OF COSTS AWARDS

[8] The starting point in addressing the issue of costs is section 131 of the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended, which provides that subject to the provisions of an Act or Rules of Court, costs are in the discretion of the court, which may determine by whom and to what extent the costs shall be paid. This section must be read in conjunction with Rules 24 and 18 of the Family Law Rules, which set out numerous principles to guide the court in the exercise of its discretion in the Family Law context.

[9] The traditional purpose of a costs award was to indemnify the successful party for the expenses they incurred in either defending a claim or in pursuing a valid legal right (Ryan v. McGregor (1926), 1925 CanLII 460 (ON CA), 58 O.L.R. 213 (Ont. C.A.), at p. 216; British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371 (S.C.C.), at paras. 21-24). However, the Supreme Court of Canada underlined in Okanagan Indian Band that the purpose of costs awards has broadened over the years, and that costs are now considered to be a valuable tool for furthering the efficient, orderly and fair administration of justice (at para. 25). It noted that costs awards are a means of sanctioning parties who refuse to initiate or participate in concerted settlement efforts, or who engage in behaviour that increases the duration and expense of litigation or that is otherwise unreasonable or vexatious (at paras. 25-26).

[10] The Ontario Court of Appeal has reiterated the importance of costs awards as a tool for promoting efficient, fair and meaningful access to justice in Fong v. Chan, 1999 CanLII 2052 (ON CA), 1999 CarswellOnt 3955, 181 D.L.R. (4th) 614, 46 O.R. (3d) 330 (C.A.), Serra v. Serra, 2009 ONCA 395 (C.A.) and Mattina v. Mattina, 2018 ONCA 867 (C.A.). In those cases, the court held that modern rules respecting costs aim to foster the following four fundamental purposes:

1. To partially indemnify successful litigants for the cost of litigation;

2. To encourage settlement;

3. To discourage and sanction inappropriate behaviour by litigants; and

4. To ensure that cases are dealt with justly, in accordance with the primary objective of the Family Law Rules set out in Rule 2(2).

[11] While these four objectives provide a general framework for the analysis of costs, the courts must also ensure that the law of costs does not become an impediment to the pursuit of justice. Accordingly, in seeking to advance these objectives, the court should also consider the importance of not unduly deterring potential litigants from pursuing legitimate claims for fear of overly burdensome costs consequences (Cassidy v. Cassidy, 2011 CarswellOnt 1541 (S.C.J.); Climans v. Latner, 2020 ONCA 554 (C.A), at para. 90).

[12] The Court of Appeal has highlighted the discretionary nature of costs awards and the importance of considering all relevant factors based on the unique facts of each case (Andrews v. Andrews (1980), 1980 CanLII 1913 (ON CA), 32 O.R. (2d) 29 (C.A.)). It has emphasized that although court rules respecting costs have circumscribed the broad discretion which section 131 of the Courts of Justice Act grants the court in regard to costs, they have not completely negated this discretion (M.(C.A.) v. M.(D.), 2003 CanLII 18880 (ON CA), [2003] O.J. No. 3707, 67 O.R. (3d) 181, 2003 CarswellOnt 3606 (C.A.); Fielding v. Fielding, 2015 ONCA 901 (C.A.)).

[13] The determination of costs is a two-stage process. First, the court must decide whether any party is liable for costs. If costs liability is established, the court must then determine the appropriate amount of the costs award. Rule 24(10) of the Family Law Rules establishes the general principle that the court shall promptly after dealing with a step in the case determine in a summary manner who, if anyone, is entitled to costs in relation to that step and set the amount of any costs, or alternatively shall expressly reserve the decision on costs for determination at a later stage in the case. However, Rule 24(11) provides that the court’s failure to act pursuant to Rule 24(10) in relation to a step in the case does not prevent a judge from awarding costs in relation to the step at a later stage in the case.

II. STAGE 1: DETERMINING LIABILITY FOR COSTS

A. Success in the Proceeding

[14] Rule 24 of the Family Law Rules sets several factors relevant to the preliminary issue of liability for costs. Rule 24(1) establishes a presumption that a successful party to a motion, enforcement, case or appeal is entitled to costs. This presumption may be rebutted having regard for all relevant considerations and the operation of other Rules, as discussed below. Rule 24(1) must be considered in conjunction with Rule 24(6), which provides that where success in a step in a case is divided, the court may exercise its discretion to order and apportion costs as appropriate. The determination of whether success was truly “divided” does not simply involve adding up the number of issues and running a mathematical tally of which party won more of them (Brennan v. Brennan, 2002 CarswellOnt 4152 (S.C.J.)). Rather, it requires a global and contextual analysis that takes into consideration the importance of the issues that were litigated and the amount of time and expense that were devoted to those issues (Jackson v. Mayerle, 2016 ONSC 1556 (S.C.J.), at para. 66; Slongo v. Slongo, 2017 ONCA 687 (C.A.), at para. 3; Vanleer v. Young, 2020 ONCA 459 (C.A.), at para. 46). Where the court concludes that success was in fact divided, it may decline to order costs, or may award costs to the party who was more successful overall or on the primary issues, subject to adjustments that it considers appropriate having regard for the lack of success on secondary issues and any other factors relating to the litigation history of the case (Gomez-Pound v. Pound, [2009] O.J. No. 4161 (O.C.J.); Boland v. Boland, [2012] O.J. No. 1830, 2012 ONCJ 239 (O.C.J.); Beaver v. Hill, 2018 ONCA 840 (C.A.)).

B. The Reasonableness of the Parties’ Legal Positions and Litigation Conduct

[15] The reasonableness of the parties’ legal positions, arguments and conduct in the litigation are also relevant to the issue of liability for costs. One of the most important functions of costs is to ensure that litigants conduct themselves in a manner that upholds the integrity of our justice system as a whole. Costs awards are a means of ensuring that litigation is not utilized as a tool to harass parties, that it is conducted in an organized and responsible manner and that the resources of the justice system are not unduly drained by clearly unreasonable claims. As Spence J. stated in Heuss v. Surkos 2004 ONCJ 141 (O.C.J.), at para. 20:

Parties to litigation must understand that court proceedings are expensive, time-consuming and stressful for all concerned. They are not designed to give individual litigants a forum for carrying on in whatever manner they may choose, oblivious to the impact of that conduct on the other side and, perhaps most importantly for the purposes of this case, oblivious to the mounting costs of the litigation. Matrimonial litigation is an occasion for sober consideration and thoughtfulness rather than intemperate behaviour.

[16] The importance of reasonableness in determining liability for costs is underscored in Rule 24(4), which stipulates that notwithstanding the presumption in Rule 24(1), a successful party who has behaved unreasonably during a case “may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs.”

[17] Rule 24(5) sets out factors that the court must examine when deciding whether a party has acted reasonably or unreasonably, as follows:

Decision on Reasonableness

24(5) 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

c) any offer the party withdrew or failed to accept.

[18] In considering the reasonableness of the parties’ conduct, the judge deciding costs should also address their mind to whether they have complied with court orders and the Family Law Rules during the proceeding. Rules 1(8)(a) and 1(8.1) provide that if a person fails to obey an order in a case or a related case or with the Rules, the court may deal with the failure by making an order for costs.

C. Absent or Unprepared Party: Rule 24(7)

[19] Rule 24(7) must also be considered in determining the preliminary question of liability for costs. It creates a presumption that a party will be held liable for costs if they do not appear at a step in the case, or they are not properly prepared to deal with the issues at that step or otherwise contribute to the step being unproductive, unless the court orders otherwise in the interests of justice:

Absent or Unprepared Party

24(7) If a party does not appear at a step in the case, or appears but is not properly prepared to deal with the issues at that step or otherwise contributes to that step being unproductive, the court shall award costs against the party unless the court orders otherwise in the interests of justice.

D. Bad Faith and Liability for Costs

[20] A finding that a party has acted in bad faith will result in liability for costs as against the offending party, regardless of that party’s success. Rule 24(8) provides that if a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately. The Family Law Rules do not define the phrase “bad faith.” However, the case-law provides guidance respecting the type of behaviour that falls within the scope of Rule 24(8). Bad faith is not simply poor judgment or negligence; it involves intentional duplicity, obstruction or obfuscation (Scipione v. Del Sordo, 2015 ONSC 5982 (S.C.J.), at para. 96). As the court noted in Hendry v. Martins[2001] O.J. No. 1098, 2001 CarswellOnt 952 (S.C.J.), at para. 4, citing Black’s Law Dictionary, 6th ed. (St. Paul, Minn: West Publishing Co., 1990), bad faith implies “the conscious doing of a wrong because of dishonest purpose or moral obliquity; it is different from the negative idea of negligence in that it contemplates a state of mind affirmatively operating with furtive design or ill will.” Bad faith can be established by evidence that the party intentionally failed to fulfill an agreement in order to achieve an ulterior motive, or intentionally breached a court order with a view to achieving another purpose (Biddle v. Biddle, 2005 CanLII 7660 (ON SC), 2005 CarswellOnt 1053, [2005] O.J. No. 1056 (S.C.J.), at para. 15; Scipione, at para. 100). In S.(C.) v. S.(M.), 2010 ONCA 196 (C.A.), the Ontario Court of Appeal upheld the costs award of the trial judge, Perkins J., and his finding that the father’s conduct amounted to bad faith justifying a full recovery costs award. Perkins J. described the concept of bad faith in that case as follows (S.(C.) v. S. (M.), 2007 CanLII 20279 (ON SC), [2007] O.J. No. 2164, 2007 CarswellOnt 3485 (S.C.J.), at para. 17):

In order to come within the meaning of bad faith in rule 24(8), behaviour must be shown to be carried out with intent to inflict financial or emotional harm on the other party or other persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court… The requisite intent to harm, conceal or deceive does not have to be the person's sole or primary intent, but rather only a significant part of the person's intent. At some point a party could be found to be acting in bad faith when their litigation conduct has run the costs up so high that they must be taken to know their behaviour is causing the other party major financial harm without justification.

[21] The Ontario Court of Appeal confirmed in Scalia v. Scalia, 2015 ONCA 492 (C.A.), at para. 68 that a finding of bad faith within the meaning of Rule 24(8) requires evidence of significant wrongdoing, dishonest purpose or moral iniquity.

E. The Importance of Offers to Settle in Determining Liability for Costs

[22] An important consideration in determining both liability and the quantum of costs is whether any party has served or accepted an offer to settle. As indicated above, Rule 24(5) specifically requires that in assessing whether parties have behaved reasonably or unreasonably, the court must consider whether they have made offers to settle, the reasonableness of any such offers, and any offers that they withdrew or failed to accept. In addition, Rule 18(14) establishes costs consequences for failing to accept an offer to settle that complies with the specific requirements of that Rule, as follows:

Costs Consequences of Failure to Accept Offer

18(14) 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 following conditions are met:

1. If the offer relates to a motion, it is made at least one day before the motion date.

2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.

3. The offer does not expire and is not withdrawn before the hearing starts.

4. The offer is not accepted.

5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer.

[23] In order for these costs consequences to come into play, the offer to settle must be signed by the party making the offer and their lawyer (Rule 18(4)). Failure to comply with this requirement may result in the offer not being a valid formal offer that attracts the consequences outlined in Rule 18(14) (Riss v. Greenhough, 2003 CarswellOnt 1450 (S.C.J.); Jakubowski v. Kopacz-Jakubowski, 2008 CarswellOnt 2149 (S.C.J.)).

[24] The costs consequences set out in Rule 18(14) do not automatically apply when the requirements set out in the Rule are satisfied. The Rule simply establishes a rebuttable presumption regarding costs, and the court ultimately maintains the discretion to determine whether the costs consequences are appropriate based on all of the circumstances of the case (M.(C.A.), at para. 43). With respect to the requirement that the order obtained be as or more favourable than the offer to settle, 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. Rather, what is required is a general assessment of the overall comparability of the offer as contrasted with the order that was ultimately made (Sepiashvili v. Sepiashvili, 2001 CanLII 25708 (ON SC), 2001 CarswellOnt 3459 (S.C.J.), additional reasons to 2001 CarswellOnt 3316 (S.C.J.); Jackson, at para. 47; Arthur v. Arthur, 2019 ONSC 938 (S.C.J.), at para. 21).

[25] Rule 18(16) directs that in exercising its discretion over costs, the court may also take into consideration any written offer to settle, the date it was made and its terms, even if the conditions and presumptive consequences set out in Rule 18(14) do not apply. The court may in the exercise of its discretion compare portions of any offer to settle dealing with discrete issues to the terms of the order that was made.

[26] A party’s failure to serve an offer to settle is also a relevant factor in determining both liability for costs and the appropriate amount of a costs award (M.(J.V.) v. P.(F.D.), 2011 CarswellOnt 13510 (O.C.J.), at para. 5; Menchella v. Menchella, 2013 ONSC 367 (S.C.J.), at paras. 19-21). As Zisman J. stated in Potter v. DaSilva, 2014 ONCJ 443 (O.C.J.), at para. 22:

Offers to settle play an integral role in saving time and expense by promoting settlements, focusing parties and often narrowing the issues in dispute. Offers to settle are therefore important in any consideration of the issue of costs. In my view, it is unreasonable behaviour for a party not to make an offer to settle.

[27] Notwithstanding the foregoing principles, the absence of an offer to settle should not be used against a party in determining costs if the situation is one where it is unrealistic to expect offers to settle to be made. For instance, this factor should not play a material role in determining liability or the appropriate quantum of costs if there was no realistic way of compromising on the central issue(s) in dispute (Beaver, at para. 15).

F. Financial Means of the Parties

[28] Although not specified in Rules 24 and 18 as factors in deciding costs, the financial means of the parties, their ability to pay costs and the effect of any costs ruling on the parties and any children are also relevant to the adjudication of both liability for costs and the appropriate amount of a costs award (Murray v. Murray (2005), 2005 CanLII 46626 (ON CA), 79 O.R. (3d) 147, [2005] O.J. No. 5379 (C.A.); Tauber v. Tauber, 2000 CanLII 5747 (ON CA), [2000] O.J. No. 2133; additional reasons at 2000 CanLII 22280 (ON CA), [2000] O.J. No. 3355 (C.A.); Cassidy v. McNeil, 2010 ONCA 218 (C.A.); M.(C.A.), at para. 42; Clark v. Clark, 2014 ONCA 175 (C.A.)). In most cases, a party’s limited financial means will be relevant to the appropriate quantum of costs and how payment should be carried out, rather than to the issue of liability for costs (Snih v. Snih, 2007 CarswellOnt 3549 (S.C.J.), at paras. 7-13; Izyuk v. Bilousov, 2011 ONSC 7476 (S.C.J.), at para. 51). However, the court may decline to order costs against an unsuccessful party if it is clear the party would be unable to pay the costs, and the practical effect of a costs order would be to destroy any chance that the party may have to achieve or maintain financial self-sufficiency (Murray, at para. 10). The financial means of a custodial parent may be particularly relevant in deciding both costs liability and quantum if an award would indirectly impact a child in a negative fashion. As the Ontario Court of Appeal stated in M.(C.A.), at para. 42, “[i]n fixing costs, the courts cannot ignore the best interests of the child and thus cannot ignore the impact of a costs award against a custodial parent that would seriously affect the interests of the child.”

III. STAGE 2: DETERMINING THE APPROPRIATE AMOUNT OF COSTS

A. General Principles and Rules 24(12) and 2(2) of the Family Law Rules

[29] Once liability for costs has been established, the court must determine the appropriate quantum of costs. The Ontario Court of Appeal has set out the following general principles relating to the quantification of costs awards:

1. Ultimately, costs decisions should reflect what the court considers to be a fair and reasonable amount that the unsuccessful party should pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant.

2. Costs need to be proportional to the issues and amounts in question and the outcome of the case.

3. Amounts actually incurred by the successful litigant are not determinative.

4. In assessing what is fair and reasonable, the expectation of the parties concerning the amount of a costs award is a relevant consideration.

(See Serra; Zesta Engineering Ltd. v. Cloutier, 2002 CanLII 25577 (ON CA), 2002 CarswellOnt 4020 (C.A.); Boucher v. Public Accountants Council (Ontario), 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634, 2004 CarswellOnt 2521 (C.A.); Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC, 2005 CanLII 1042 (ON CA), 2005 CarswellOnt 189 (C.A.); and Selznick v. Selznick, 2013 ONCA 35 (C.A)).

[30] In addition to these general principles, Rule 24(12) of the Family Law Rules prescribes factors which the court must consider in deciding the appropriate quantum of costs, as follows:

Setting Costs Amounts

24(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. O. Reg. 298/18, s. 14.

[31] In deciding the appropriate amount of costs, the court should also consider Rule 2(2), which provides that one of the primary objectives of the Rules is to ensure that cases are dealt with justly. Rule 2(4) is also relevant to the costs analysis. It stipulates that the court must apply the Rules to promote the primary objective set out in Rule 2(2), and that parties and their lawyers are required to help the court to do so. Rule 2(3) sets out ways in which cases are dealt with justly, as follows:

Dealing with Cases Justly

24(3) Dealing with a case justly includes,

a) ensuring that the procedure is fair to all parties;

b) saving expense and time;

c) dealing with the case in ways that are appropriate to its importance and complexity; and

d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

[32] If a party and their counsel do not comply with their obligation under Rule 2(4) to assist the court to deal with the case justly, this may be considered in the quantification of costs (Mooney v. Fast, 2013 CarswellOnt 15659 (O.C.J.)).

C. Reasonableness and Proportionality: the Touchstone Considerations

[33] Rule 24(12) and the case-law respecting costs establish that reasonableness and proportionality are “the touchstone considerations to be applied in fixing the amount of costs” (Beaver, at para. 12). The specific factors set out in Rule 24(12)(a)(i) to (vi) and any other relevant matter that the court considers pursuant to Rule 24(12)(b) must be assessed against these two fundamental guiding principles, taking into consideration the importance and complexity of the issues involved.

[34] Dealing first with reasonableness, in deciding upon a fair and reasonable amount of costs, the court should consider the amount that the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation (Lupien v. Carmichael, 2017 ONSC 2929 (S.C.J.), at para. 9; Darling v. Booth, 2017 ONSC 6261 (S.C.J.) at para. 12). Polowin J. commented on the general principles respecting the quantification of a reasonable costs award in Sommerard v. I.B.M. Canada Ltd., 2005 CanLII 40140 (ON CA), [2005] O.J. No. 4733 (S.C.J.) as follows, at paras. 53-59:

The fixing of costs is not a mechanical exercise of calculating hours times hourly rates. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding. In doing so, I must stand back from the fee produced by the raw calculation of hours spent times hourly rate and assess the reasonableness of the counsel fee from the perspective of the reasonable expectation of the losing party.

[35] The principle of proportionality must always remain an over-arching consideration in determining an appropriate amount of costs (Beaver, at para. 12). In Hryniak v. Mauldin, [2014] 1 S.C.R. 87, 2014 SCC 7 (S.C.C.), the Supreme Court of Canada recognized that timeliness, affordability and proportionality are essential components of a legal system that ensures true access to justice. In the context of the costs analysis, proportionality requires the court to ensure that expenses claimed make sense having regard for the importance and complexity of the issues that were litigated. If the case was complicated and involved novel or important issues, the principle of proportionality may support a higher award (L.(J.K.) v. S.(N.C.), 2009 CarswellOnt 1017 (S.C.J.), at para. 34; Goodwin v. Goodwin, 2011 ONSC 2402 (S.C.J.), at para. 35). By contrast, a high costs award may be inappropriate if the case does not involve any complex legal issues and should have been fairly straightforward.

C. Full Recovery Costs

[36] There is no provision in the Family Law Rules or presumption in the case-law favouring a general approach of awarding close to full recovery costs in Family Law litigation (Beaver, at paras. 9-11). However, as discussed in further detail below, Rule 24(8) directs that costs be ordered on a “full recovery” basis if a party has acted in bad faith, and Rule 18(14) creates a presumption in favour of full recovery costs from the date of service of an offer to settle that satisfies the requirements of the Rule. These provisions raise the question of what is meant by the phrase “full recovery costs.”

[37] The Family Law Rules do not refer to the “scales” or “ranges” for costs awards that are referred to in the Ontario Rules of Civil Procedure and the civil law costs case-law, namely “partial indemnity costs,” “substantial indemnity costs,” “solicitor and client costs” and “full indemnity” costs. The phrase “full recovery costs” that is used in the Family Law Rules is legally distinct from those terms. In Sims-Howarth v. Bilcliffe, 2000 ONSC 22584 (S.C.J), Aston J. held that the scales of costs that apply in the civil context do not extend to Family Law cases. In his words, “[h]aving determined that one party is liable to pay costs, the court must fix the amount at some figure between a nominal sum and full recovery” (at para. 4). The Family Law Rules demand flexibility in examining the list of factors in Rule 24(12) without any assumptions about categories of costs. The Ontario Court of Appeal supported this approach in M.(C.A.) and Beaver (see also Costa v. Perkins, 2012 ONSC 3165 (Div. Ct.); Vasilodimitrakis v. Homme, 2020 ONSC 4414 (Div. Ct.), at paras. 42-43). While the costs terms and scales that apply in the general civil context do not form part of the formal costs framework set out in the Family Law Rules and do not bind judges deciding costs in Family Law cases, courts may nonetheless as part of their discretionary authority consider those scales in carrying out the costs analysis. For instance, in Climans, the Ontario Court of Appeal concluded that an award of costs on a “partial indemnity basis” was warranted, and concluded that “the usual approach of treating partial indemnity costs as 60% of full indemnity costs” was appropriate in that case (at para. 108).

[38] The notion of “full recovery costs” under the Family Law Rules is distinct from the actual total costs that a lawyer or legal team has charged the party. The principles of reasonableness and proportionality come into play when the court decides to grant a full recovery award. In M.(C.A.), the Ontario Court of Appeal emphasized that in awarding full recovery costs under the Rules, the trial judge must ensure that the costs sought by the successful party are reasonable having regard for the issues involved in the case (at para. 43). Accordingly, the phrase “full recovery costs” means the total reasonable and proportional amount that a court determines the party should have appropriately spent in dealing with the case (Jackson, at para. 91; Arthur v. Arthur, 2019 ONSC 938 (S.C.J.), at para. 40).

D. The Bill of Costs

[39] It flows from the principles discussed above that in deciding costs, the court must as a starting point carefully review the specifics of the Bill of Costs to assess whether the items claimed are proper, reasonable and proportionate (Donnelly v. Donnelly, 2004 CarswellOnt 2076 (S.C.J.), at para. 16; Snelgrove v. Kelly, 2017 ONSC 4625 (S.C.J.), at par. 35; Beaver). The court must as part of this process consider whether the hours spent and fees charged can be reasonably justified having regard for the importance and complexity of the issues involved in the proceeding (Jackson; Snelgrove, at para. 35; Beaver). The assessment of the party’s Bill of Costs to determine the reasonableness and proportionality of the items claimed should be undertaken in a global fashion. The court is not required to embark upon a painstaking, line-by-line analysis of Bills of Costs and second-guess every hour and item docketed, unless there are clear concerns about excessive claims and overreaching (Docherty v. Catherwood, 2016 ONSC 2140 (S.C.J.), at para. 50; Snelgrove, at para. 35; Arthur, at para. 29). The goal of this exercise is to identify a reasonable and proportionate full recovery amount from which the balance of the quantification analysis can then be carried out. The court should then consider any other factors relevant to the costs analysis to reach an overall fair, just and proportionate award. The Ontario Court of Appeal has emphasized that the principles of reasonableness and proportionality must inform the costs analysis both at the initial stage in reviewing the Bill of Costs and once again at the conclusion of the quantification process after considering all relevant factors, as a “final check” for assessing whether the award being considered is fair and just having regard for the purposes of costs awards (Beaver).

[40] A useful point of reference for determining whether costs claimed are fair, reasonable and proportional is to consider the time that the other party has spent and the amount they have paid for their own legal fees and disbursements in the matter (Smith Estate v. Rotstein, 2011 ONCA 491 (C.A.); Scipione, at para. 126). Although there is no requirement that a party resisting costs file their own Bill of Costs, it is preferable that they do so to assist the court in dealing with costs in a fair and reasonable manner (Risorto et al. v. State Farm Mutual Automobile Insurance Co., 2003 ONSC 43566 (S.C.J.), at para. 10; Smith Estate, at para. 50). Failure on their part to provide details regarding their own time spent and costs incurred is a factor that the court may take into account in considering the reasonable expectations of the losing party, and may entitle the court to draw an adverse inference (Smith Estate, at para. 50; Scipione at para. 126; 206637 Ontario Inc. (c.o.b. Balkan Construction) v. Catan Canada Inc., 2013 ONSC 5448 (S.C.J.), at para. 7). In addition, a significant discrepancy in the amount of fees that the parties have incurred may prompt the court to embark upon a more detailed scrutiny of the costs claimed to ensure that the amount meets the overall objectives of a costs order (Jackson, at para. 99).

E. Degree of Success in the Case

[41] The degree of a party’s success in the case is a critical factor in determining the appropriate quantum of costs. If the case involves numerous issues, it is important to consider whether one party was more successful overall than the other(s). If one party was indeed the most successful overall, the court may nonetheless make adjustments to the costs award to take into account that party’s lack of success on certain issues in the proceeding (Beaver; A.A. v. Z.G., 2020 ONCA 192 (C.A.), at para. 28). The nature and extent of the adjustments will be a matter of discretion and will depend in part on the nature, importance and complexity of the issues on which the party was successful and unsuccessful (Eastern Power Ltd. v. Ontario Electricity Financial Corp., 2012 ONCA 36 (C.A.), at para. 18). The court should adopt a broad and flexible approach in making such adjustments. It is not appropriate to engage in a detailed costs analysis respecting each separate issue and then tally up an ultimate “costs score-sheet.” The Ontario Court of Appeal cautioned against adopting this type of approach to formulating a costs order, which it referred to as a “distributive costs award,” in Oakville Storage and Forwarders Ltd. v. Canadian National Railway, 1991 CarswellOnt 440 (C.A.).

F. Bad Faith and General Conduct of the Parties

[42] As indicated above, Rule 24(8) is relevant to both liability for costs and the appropriate quantum. It provides that where a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order that the party pay them immediately. The full recovery portion of the award should relate to the issues affected by the bad faith. Once the full recovery analysis is complete with respect to those issues, the court should assess costs in relation to the other issues by considering the overall circumstances of the case in light of the factors outlined in Rule 24(12), and should use the discretion permitted by that section to reach a correct overall result (Hunt v. Hunt, 2001 CarswellOnt 4548 (S.C.J.), at para. 13; Snelgrove, at para. 32).

[43] While the Family Law Rules outline certain circumstances in which full recovery costs are considered appropriate, the court is not limited to ordering a full recovery award or a close to full recovery amount in those specified situations (Sims-Howarth, at para. 11; Sordi v. Sordi, 2011 ONCA 665 (C.A.), at para. 21; Keresturi v. Keresturi, 2017 ONCA 162 (C.A.), at para. 12). It is ultimately a matter of judicial discretion to determine whether an award of elevated or full recovery costs is appropriate having regard for the particular circumstances of the case (Keresturi, at para. 12). The overall behaviour of the parties is an important factor in exercising this discretion. In Climans, at para. 90, the Ontario Court of Appeal emphasized that an unsuccessful party should not incur heightened costs consequences if their conduct and the legal position that they advanced were reasonable (see also Hunt v. TD Securities Inc. (2003), 2003 CanLII 3649 (ON CA), 66 O.R. (3d) 481 (C.A.), at para. 153; Foulis v. Robinson (1978), 1978 CanLII 1307 (ON CA), 21 O.R. (2d) 769 (C.A.), at p. 77). This principle is based on the fundamental tent of our legal system that litigants are entitled to require opposing parties to prove their claims (Climans, at para. 90; see also Richardson v. Richardson, 2019 ONCA 983 (C.A.), at para. 56). In assessing the parties’ conduct, the court should consider Rule 24(5), referred to above, which sets out factors that the court must examine when deciding whether a party has acted reasonably or unreasonably.

[44] By contrast, unreasonable conduct and legal positions may attract an award for elevated or full recovery costs. In carrying out the costs analysis, the court should consider whether the parties and their counsel behaved in ways that saved time and expense for the parties and minimized strain on the court’s resources (Cornwall v. Jevons, 2015 ONCJ 772 (O.C.J.), at para. 1). As Campbell J. highlighted in Parsons v. Parsons, 2002 CarswellOnt 2536 (S.C.J.), at para. 14:

[W]hen the respondents have acted unreasonably, the applicants should not have to financially "pick-up" or absorb the result of those respondents' impulsive and punitive decisions. While the court recognizes that costs orders may "fan the fires", I interpret the rules as recognizing that there must be consequences for unreasonableness.

There is an element of behaviour modification to a costs order in that it encourages a change in attitude from a "litigate with impunity" mindset.

[45] Evidence that a party engaged in litigation conduct that was disrespectful of the other participants or the court, which unduly complicated the proceedings, which needlessly increased the cost of the litigation or which was otherwise inappropriate may lead to increased costs consequences (Parsons, at para. 14). Similarly, a high or full recovery costs award may be justified where a party persists in advancing unreasonable claims or arguments (Lawrence v. Lawrence, 2017 ONCJ 431 (O.C.J.), at paras. 58-60; Westendorp v. Westendorp, 2000 CarswellOnt 2047 (S.C.J.), at para. 4; Ojo v. Ojo, 2005 CarswellOnt 1239 (S.C.J.), at para 16).

G. Offers to Settle

[46] As discussed above, a party who serves an offer to settle which meets the requirements of Rule 18(14) is presumptively entitled to full recovery of costs from the date the Offer was served. Rule 18(16) clarifies that the court may consider as a favourable factor in the costs analysis any offer to settle, even if the offer does not meet the formal requirements of Rule 18(14). Furthermore, Rules 24(5)(b) and (c) require the court to consider the reasonableness of any offer that a party made, withdrew or failed to accept in deciding costs. However, in quantifying costs, the court should be cautious about relying too heavily on an offer to settle that does not meet the requirements of Rule 18(16) (Beaver, at para. 16). In addition, the failure of an offer to settle to contain a true element of compromise is a factor to be considered in assessing the weight that should be accorded to the offer in the costs analysis (Beaver, at para. 16). A party’s failure to serve an offer to settle may also be viewed as an adverse factor in determining the quantum of costs (M. (J.V.), at para. 5). This is so even if the party was the successful litigant (Smith v. Smith, 2007 CarswellOnt 1538 (S.C.J.)). However, as noted above, the failure to make an offer to settle will not impact the costs analysis if the issues were such that compromise was not realistically possible (Beaver).

H. Financial Means of the Parties

[47] As previously discussed, the financial means of the parties is a relevant factor in the quantification of a costs award. Costs orders must take into consideration the reasonable prospects of a party being able to pay and the impact of an award on the ability of the party to meet their basic needs and those of any children in their care. This factor is properly considered at the end of the costs analysis. The court may in the exercise of its overriding discretion reduce the quantum of costs that a party would otherwise have to pay on the basis of their financial condition, and may order a payment plan that relieves the potential hardship of an award (Beaver at para. 18; S. (S.T.) v. E.(B.), 2016 ONSC 2142 (S.C.J.); Remillard v. Le, 2016 ONSC 3116 (S.C.J)). The party seeking to rely on this factor to reduce their costs liability should adduce some evidence in support of their position (Levin v. Levin, 2020 ONCA 675 (C.A.), at para. 3). However, the discretion to adjust a costs awards based on a party’s financial circumstances does not apply in reverse; the Ontario Court of Appeal has held that it is not appropriate to increase the amount of costs that a party may otherwise have to pay based solely on that party’s significant financial resources and ability to pay (Beaver, at para. 18). In other words, the financial ability of a party to pay a costs award that the hearing judge has determined to be fair, reasonable and proportionate is relevant, but it is not a basis for artificially boosting that quantum.

[48] A litigant’s limited financial means is often given less weight in the costs analysis than the court’s determination regarding overall success in the litigation (Gobin v. Gobin, 2009 CarswellOnt 3452 (O.C.J.), at para. 24; Mooney, at para. 45). Ability to pay alone cannot override the other factors set out in Rule 24(12) (Peers v. Poupore, 2008 ONCJ 615 (O.C.J.), at para. 42). A party’s constrained financial means will typically be accorded less weight in quantifying costs if the court finds that the party acted unreasonably (Gobin, at para. 24). As Curtis J. stated in Mooney, it must be made clear to Family Law litigants that “the right to a day in court is tempered by the requirement that the parties take a clear-headed look at their case before insisting on their day in court.”

PART III: ANALYSIS

I. LIABILITY FOR COSTS

[49] The Respondent was entirely successful in this case and is therefore presumptively entitled to costs by virtue of Rule 24(1) of the Family Law Rules. I do not agree with the Applicant’s suggestion that she was partially successful. While she established that there had been a material change in circumstances since the June 1, 2010 had been made in that Tyler had experienced significant mental health difficulties, she did not adduce sufficient evidence to prove that Tyler continued to be entitled to child support as of January 2015, which was the date from which she requested support, or that he became entitled to support after that time. In addition, the evidence did not satisfy me that an order would have been appropriate at the quantification stage of the child support analysis even if entitlement had been established. Furthermore, I found that her retroactive claim would not have succeeded in any event based on the evidence adduced at trial. With respect to the retroactive component of her claim, I note that given my conclusion that the Applicant had not established support entitlement past late 2012, any retroactive claim would have related to the period from June 2010 to late 2012. The evidence indicated that the Respondent was enrolled in full-time studies during that entire time to upgrade his training and skills so that he could support himself and meet his basic needs. I found that even with this upgrading, the Respondent continued to struggle financially as of the date of trial and had no significant savings for his retirement. His decision to undertake these studies was therefore in my view eminently reasonable and necessary. Accordingly, his ability to pay additional child support from June 2010 until late 2012 would have been highly questionable. Accordingly, the Applicant was ultimately not successful on any of the material issues that had to be determined at trial.

[50] I have considered the reasonableness of the parties’ positions, arguments and general litigation conduct in determining the issue of entitlement to costs. The Respondent’s overall position respecting the child support issues to be determined in this case was reasonable and ultimately prevailed. However, as I indicated in my trial Reasons for Judgment, he brought a motion seeking to dismiss the Motion to Change Final Order outright at the commencement of the trial on the basis that the June 1, 2010 order was not a child support order, or alternatively that the order had expired such that there was no order in effect to vary. As part of that motion, Mr. Garcea suggested that if there was no order in effect, the proceeding should have been an initial application, which would raise the question of whether Tyler was entitled to child support as of the date when the proceeding was commenced. I dismissed that motion. I found that the June 1, 2010 order was in fact a child support order, and that the Motion to Change Final Order procedure was the correct one. I reserved costs in connection with the motion. I conclude that the outcome of this preliminary motion is relevant to the issue of quantification of costs rather than to the question of liability. Many of the issues raised by Mr. Garcea on the motion have been the subject of extensive judicial consideration over the years, and were thankfully addressed by the Supreme Court of Canada in Michel v. Graydon, 2020 SCC 24 (S.C.C.), which was released shortly after I released my decision in this case. Prior to that time, it remained to be determined by the Supreme Court of Canada whether a child support order such as the June 1, 2010 order, which had been satisfied by the Respondent and could arguably have been characterized as having expired, could be changed through variation proceedings. Accordingly, although the Respondent’s argument did not prevail on the motion, it was not unreasonable.

[51] The Respondent’s litigation conduct was for the most part responsible and reasonable. He streamlined his case appropriately, relying solely on his own evidence in support of his defence to the child support claim. He agreed to a mid-trial settlement conference with Pazaratz J. His counsel was well prepared and was extremely pragmatic and reasonable in his response to the many challenges that arose regarding the presentation of the Applicant’s case, which I discuss below. The Applicant and her counsel suggested many times during the trial that the Respondent had pressured Tyler into stonewalling the Applicant’s efforts to obtain medical disclosure. However, I concluded in my Reasons for Judgment that the evidence as a whole did not support this allegation, and that the Respondent had also attempted without success to obtain Tyler’s consent to disclosure of medical information.

[52] The Respondent’s conduct is worthy of sanction on one front. As I indicated in my Reasons for Judgment, the Respondent presented as extremely angry, resentful and inappropriate during much of his examination in chief and cross examination, and at times failed to answer the questions put to him. Unfortunately, his conduct unnecessarily heightened the tension and stress surrounding the litigation and resulted in some wasted time at trial. However, when I consider the Respondent’s position, arguments and conduct globally, I am not satisfied that he demonstrated bad faith, or that his behaviour was so unreasonable that it should negate his entitlement to costs.

[53] The reasonableness of the Applicant’s claims, her arguments advanced at trial and her overall litigation conduct is also an important factor in deciding liability for costs. While the Applicant’s claim for child support for Tyler was unsuccessful in the end, I am not satisfied that it was unreasonable. I found that Tyler’s mental health deteriorated significantly after the June 1, 2010 order was made, that he remained entitled to support for a significant period of time thereafter, and that the Applicant bore the entire responsibility of supporting Tyler emotionally, practically in providing hands-on care and financially. Unfortunately, her ability to prepare her case in a timely way and to prove her case were greatly hampered by Tyler’s active resistance to her seeking support and obtaining disclosure respecting his medical condition, treatment and prognosis. She found herself in the extremely unfortunate situation of seeking financial assistance to support an adult child who did not want her to pursue this relief.

[54] While the Applicant’s overall child support claim was not in my view unreasonable, I find by contrast that several of the arguments that her counsel advanced at trial were highly unreasonable, resulted in unfortunate delays and caused the trial to become unnecessarily complicated and protracted. For instance, the issue of whether the proceeding was properly a Motion to Change Final Order or should be treated as an application had been addressed at the settlement conference before Madsen J. on September 4, 2018, and agreement had been reached at that time that it should proceed as a Motion to Change Final Order with an oral hearing. Notwithstanding this conclusion, counsel for the Applicant raised this issue again at the outset of trial, and “flip-flopped” back and forth on his position regarding this issue. This resulted in a great deal of confusion and wasted time at trial.

[55] The Applicant and her counsel also persisted at trial in arguing that a finding that Tyler qualified to receive ODSP benefits was sufficient to establish entitlement to child support, and that this would shift the onus to the Respondent to disprove entitlement. It appeared that this position was a major consideration behind the decision of the Applicant and her counsel to not call any medical professionals to give evidence at trial. This is not an accurate interpretation of the law, and I granted the Applicant numerous indulgences throughout the trial process to adduce appropriate medical evidence to support her child support claim. After being granted these indulgences, she chose to attempt to call Tyler’s family physician Dr. Davis as a witness rather than any members of his past or current psychiatric treatment team. As I indicated in my Reasons for Judgment, Dr. Davis’ evidence would not have provided meaningful assistance to the court in addressing the child support entitlement issue, as she has had minimal contact with Tyler in recent years and would have had to rely on information provided by other professionals to address Tyler’s mental health diagnosis, overall treatment plan and prognosis. Notwithstanding these concerns, the Applicant and her counsel persisted in arguing in closing submissions, as well as in their costs submissions, that proof of Tyler’s entitlement to ODSP benefits operated to create a reverse onus situation. Mr. Ayoola spent a great deal of time in closing submissions outlining the legal criteria for receipt of ODSP benefits and advancing this onus of proof argument. This line of argument was in my view very unreasonable and resulted in an unnecessary protraction of the trial.

[56] In addition to these concerns, I find that the Applicant’s case was not advanced in an organized and reasonable manner. Frankly, it is difficult to determine whether the problematic arguments advanced and the concerns regarding the management of the litigation were attributable to the Applicant herself, her counsel or both. The Applicant does not address this issue in her costs submissions, and therefore I am not in a position to determine where blame properly lies. I summarized in great detail in my Reasons for Judgment the problems and delays that arose in attempting to complete the trial due to the failure of the Applicant and/or her counsel to properly direct the litigation. By way of reiteration, the problems were as follows:

1. At the outset of trial, counsel for the Applicant argued that there was an issue respecting Tyler’s capacity to testify or answer questions about his financial situation. Notwithstanding this position, he indicated that the Applicant did not intend to call any medical professionals to address Tyler’s mental health status and capacity. Considerable time was spent addressing the question of whether the Applicant should be permitted to adduce Tyler’s income tax documents without calling Tyler as a witness.

2. I inquired of Mr. Ayoola at that juncture as to whether the lack of medical evidence could potentially be problematic on a more general level in relation to the Applicant’s position that Tyler remained entitled to support. Upon considering this issue, Mr. Ayoola requested an adjournment of the trial to determine which medical professional(s) he should call to testify. After spending a considerable amount of time addressing these issues and objections on the part of the Respondent, I granted the Applicant the very significant indulgence of adjourning the trial to allow her to adduce medical evidence respecting Tyler’s mental health difficulties. I scheduled another trial scheduling conference for March 25, 2019 and gave the Applicant a deadline of March 11, 2019 to advise the Respondent in writing of her proposed additional witnesses, and to produce any relevant notes or other records of the proposed witnesses. Furthermore, I specifically directed that if any motions were required to obtain the relevant notes and records, the Applicant was to make the motions originally returnable by no later than March 1, 2019. The clear goal of this latter term was to ensure that the trial could proceed without further interruption upon the return date.

3. At the trial scheduling conference on March 25, 2019, Mr. Ayoola advised that instead of calling any psychiatric professionals who had been involved with Tyler as witnesses, he wished to call Tyler’s family physician, Dr. Davis, to testify. However, he had had not complied with my February 27, 2019 order requiring that the Applicant produce all relevant notes and records of any proposed additional witnesses by March 11, 2019, or that she return any necessary motions to address production of the notes and records by no later than March 1, 2019. Nonetheless, having regard for the importance of the child support issue to the Applicant and Tyler, I granted the Applicant further indulgences. I made an order granting her leave to call Dr. Davis as a witness at trial, on the condition that she serve the Respondent with copies of all of Dr. Davis’ notes and records respecting Tyler that she had not yet produced by April 5, 2019.

4. At the trial scheduling conference, the Applicant also submitted a draft Motion to Change Final Order setting out the relief that the Applicant was requesting. This amendment was necessary because the Applicant had commenced the proceeding as an original application. The draft Motion to Change Final Order did not set out the requested commencement date for retroactive relief, which I had specifically indicated on the first date of trial should be addressed in the amended pleading. This problem required further time to resolve. I granted the Applicant leave to file the Motion to Change Final Order by March 27, 2019, on the condition that it be amended to reflect the requested commencement date for retroactive relief. I scheduled additional trial time of 3 to 4 days to the trial sittings commencing April 29, 2019.

5. The trial resumed on May 21, 2019. At that time, the Applicant’s counsel advised that he still wished to call Dr. Davis as a witness, but that Tyler had not consented to Dr. Davis producing her records or sharing information about his medical history, diagnosis, medication and prognosis. Accordingly, the Applicant had not produced the records to the Respondent, which was a condition of my March 25, 2019 order granting her leave to call Dr. Davis as a witness. Furthermore, Mr. Ayoola had not brought a motion prior to the resumption of trial to request an order for production of the records. Although the Applicant had again failed to comply with my disclosure condition for calling Dr. Davis as a witness, and had not brought a motion to address the disclosure issues in advance of the resumption of trial, I granted her a further indulgence and directed that the issue of disclosure of Dr. Davis’ records could be addressed on May 22, 2019.

6. Dr. Davis appeared in court on May 22, 2019. She confirmed at that time that Tyler did not consent to the disclosure of her clinical notes and records respecting him. In addition, she emphasized that she was not a psychiatrist, and that any information that she could provide about Tyler’s psychiatric condition would essentially be that which she had obtained from his mental health specialists. The Applicant and her counsel nonetheless persisted in their decision to call only Dr. Davis as a witness. I determined that a motion was required, on notice to Tyler, to determine whether Dr. Davis’ clinical records should be produced and whether Dr. Davis should be permitted to testify about information obtained in the course of assessing and treating Tyler. This motion proceeded on May 24, 2019. Tyler was given notice. He appeared in court and consulted with duty counsel. He relayed his very strong objection to the clinical notes and records being produced and to Dr. Davis testifying about his mental health issues for the purposes of this hearing. After hearing from Tyler and counsel for the parties, I declined to order production of Dr. Davis’ records and concluded that Dr. Davis should not be permitted to testify. My decision was based in large part on concerns respecting procedural fairness and prejudice to the Respondent due to the delays in the case attributable to counsel for the Applicant’s problematic litigation strategies, the Applicant’s failure to comply with my orders respecting disclosure and deadlines for dealing with disclosure problems and the fact that the Respondent had still not received Dr. Davis’ records and notes.

[57] Unfortunately, the additional time required at trial to address the issues of Dr. Davis’ records and notes and whether she should be permitted to testify resulted in the court being unable to complete the trial in May 2019. The trial was delayed by 8 months and did not conclude until January 22, 2020.

[58] The problems outlined above unfortunately resulted in the trial becoming unnecessarily complicated, interrupted and protracted. The strategies adopted and decisions made by the Applicant and/or her counsel that created these problems were highly unreasonable. Mr. Ayoola and the Applicant were not properly prepared to deal with the issue of medical disclosure and the calling of medical evidence at trial due to these strategies and poor decisions, and this resulted in many unproductive days at trial. These conclusions support a presumption of liability for costs by virtue of Rule 24(7) of the Family Law Rules.

[59] Neither party served and filed an offer to settle in this case. I have not given this factor significant weight in reaching my decision respecting liability for costs or the appropriate quantum of costs. The case ultimately turned on whether there was support entitlement or not. Given the nature of the issue at stake, there was no real room for compromise between the parties.

[60] Finally, I have considered the Applicant’s financial means in deciding the issue of liability for costs. As I discussed in my Reasons for Judgment, the Applicant is of very limited financial means. She struggles to make ends meet and relies on some of Tyler’s ODSP funds to cover their housing expenses. I found at trial that her 2019 income was likely to be in the range of only $25,208.00. As of the trial, she had incurred credit card and line of credit debts totalling $18,883.18 and had an outstanding mortgage of $111,458.12. She indicated in her Financial Statement sworn March 26, 2019 that the value of her home was only $133,000.00, and therefore her equity in the home was not large. The Applicant’s financial means and her ability to pay costs is relevant to liability. However, upon weighing the considerations outlined above respecting the unreasonable arguments that she and her counsel advanced, their misguided litigation strategies, the disorganized manner in which her counsel advanced her claims, and the resulting cost and inconvenience to the Respondent, I conclude that her limited financial means should not shield her from liability for costs. Rather, on the facts of this case, the Applicant’s limited financial means are more appropriately considered at the quantification stage of the analysis.

II. THE APPROPRIATE AMOUNT OF COSTS

[61] Turning to the appropriate amount of costs in this case, the Respondent is seeking full recovery in the amount of $40,903.17, inclusive of disbursements and HST. I am not satisfied that a full recovery amount is warranted in this case. As I have stated, the Applicant’s general child support claims were reasonable, even though she was ultimately unsuccessful at trial. While the concerns outlined above respecting the unreasonable arguments, strategies and litigation conduct are significant, they do not in my view amount to bad faith such as to trigger the operation of Rule 24(8) of the Family Law Rules. As I discussed above, a finding of bad faith requires more than evidence of poor judgment or negligence. There was no evidence in this case that the Applicant or her counsel engaged in intentional duplicity, obstruction or obfuscation in relation to the litigation. There was no suggestion that they had an intent to harm, conceal information or deceive the Respondent or the court. While their misguided decisions and approaches resulted in an unfortunate protraction of the trial and ran up costs significantly, the concerns in this regard are not of such a magnitude as to cross the threshold into the sphere of bad faith. Furthermore, while the arguments and litigation conduct of the Applicant and her counsel were highly unreasonable, other factors in this case as discussed below militate against a full recovery award.

[62] I have carefully considered the Respondent’s Bill of Costs to determine whether the amounts claimed, and the rates charged, were reasonable and proportionate. I find that the items, time and rates claimed are all proper and reasonable. Mr. Garcea charged the Respondent $400.00 per hour, which is very fair having regard for his year of call, his experience, his level of expertise in Family Law and the nature of the issues in this case. Questions respecting entitlement and quantification of support for adult children who suffer from disabilities are complex and require experience and skill to address properly and efficiently. The child support issue was extremely important to both parties. The amount of time charged was also very fair and reasonable in the circumstances. From September 18, 2018 until July 26, 2020, Mr. Garcea only charged for 3.7 hours for numerous meetings, calls and correspondences with the Respondent, reviewing the file and preparing for and attending the trial scheduling conference. He only billed 14.8 hours for court appearances and trial preparation from the fall of 2018 until late February 2019. Furthermore, he only charged 69 hours for 9 days of attendance at trial and the mid-trial trial scheduling conference, attendance at a mid-trial settlement conference before Pazaratz J. on October 7, 2019 and reviewing my Reasons for Judgment. Finally, Mr. Garcea billed 3 hours for preparing his Bill of Costs, reviewing the law and preparing costs submissions, which is also a reasonable amount. The total charge for disbursements was only $117.50. I have compared the Respondent’s Bill of Costs with that of counsel for the Applicant, who charged a total of $26,521.10 at a rate of $275.00 per hour. The difference in the total amount is entirely attributable to the different rate, which was much lower due to Mr. Ayoola’s more limited experience as a lawyer and in the area of Family Law.

[63] Notwithstanding the foregoing, there are a number of factors which support a costs award significantly lower than the full recovery amount that the Respondent claims. First, I have taken into consideration the Respondent’s failed motion at the outset of trial that I referred to earlier in these Reasons, which consumed a significant amount of time. Second, as I have indicated, the Respondent was often unresponsive to questions, argumentative and unnecessarily heightened the stress of the trial by answering questions with anger and resentment towards the Applicant that can best be described as seething in nature. I had to redirect him several times. A reduction of the costs award is appropriate to address time wasted and by way of sanction for his inappropriate behaviour.

[64] In deciding the appropriate amount of costs, I have also considered the fact that the Applicant found herself in an unfortunate catch-22 situation in attempting to advance her claims. Tyler clearly suffered major mental health difficulties after the June 1, 2010 order was made, and the Applicant has been his primary caregiver and source of emotional and financial support since that time. I am satisfied that she honestly believes that Tyler has remained unable to withdraw from her charge and to meet all of his financial needs since that time. However, her ability to obtain the information required to advance her child support claim was severely hampered by the fact that Tyler is an adult, is entitled to his privacy respecting his medical condition, refused to cooperate in sharing that information and actively blocked her efforts to obtain it through legal means. While evidence from medical professionals is not always necessary to support a claim for child support entitlement based on disability, this was a case in which it was clearly required. Although the Applicant was unable to meet the test for entitlement due to the shortcomings in the medical evidence, it was clear from her testimony that Tyler has continued to reside with her, that he has required her emotional and practical support on a regular basis, that he has not been earning any significant income and that he recently started to work with a psychiatrist and occupational therapist to explore strategies and opportunities to become more productive. Tyler’s role in actively frustrating the Applicant’s efforts to advance her claim for support so that she could continue to assist him is a major mitigating factor with respect to costs in this case.

[65] I have considered Tyler’s active stone-walling of the Applicant’s efforts to obtain disclosure in conjunction with the Applicant’s very limited financial means, as the two factors combined shed light on the Applicant’s persistence in advancing her claims despite the obstacles that Tyler created. The Applicant has been faced with the reality that Tyler has not earned income since 2010. Given the significance of Tyler’s mental health difficulties in the past as compared to his relatively stable condition in recent years, it is entirely understandable why the Applicant as a loving mother has continued to support and assist him financially. In addition, it was clear from the evidence that the Applicant has attempted to motivate Tyler to become more productive over the last couple of years, but that she felt powerless in this regard since the motivation had to come from Tyler himself. Parents in this type of situation walk a fine line between trying to support and encourage their child to move forward but fearing that too much pressure will impact negatively upon the child’s mental health. The Applicant has been the one walking that line, and she has clearly suffered financially as a result of her role as Tyler’s primary caregiver. I accept her evidence that she struggles from month to month to meet the financial needs of herself and Tyler, even with Tyler contributing some of his ODSP benefits to cover household expenses. She testified that her ability to earn income suffered because she had to care for Tyler while he was hospitalized, had to monitor him regularly after his discharge from hospital and has had to accompany him to numerous appointments over the years. As I have indicated, her current income is below the minimum wage level. She has a very large debt load considering her income level. She testified that she had to find new housing to accommodate Tyler after he became sick, and as a result she now carries a mortgage on her home. Weighing all of these considerations, it is understandable that she was quite desperate for financial help so that she could continue to assist Tyler and maintain him in the home where he is happy, comfortable and safe. A high costs award would in my view render the Applicant unable to meet her own basic needs, quite apart from assisting Tyler in meeting his needs.

[66] While the award that I am ordering will no doubt be difficult for the Applicant to pay, I am satisfied that she will be able to manage it with the payment term that I am ordering of $150.00 per month. Unfortunately, she will likely have to draw on all or part of the monthly contribution that she receives from Tyler to pay this award. However, in reviewing the Applicant’s Financial Statement sworn March 26, 2019, I note that there is some room for cost-cutting for items such as meals outside the home, entertainment, vacations and debt repayment. Regrettably, the unreasonable litigation strategies and conduct of the Applicant and her counsel require some degree of sanction.

[67] I have considered the fact that the Respondent is of very limited financial means and has been seriously burdened by the cost of this litigation. However, to order costs of more than $8,000.00 would in my view force the Applicant to sell her home, relocate and terminate all financial assistance to Tyler. This outcome would not serve the interests of this family or foster a positive, meaningful and supportive relationship between Tyler and his parents. Tyler has struggled and suffered greatly over the years due to his mental health difficulties. Unfortunately, this litigation placed him in the middle of a hotly contested dispute relating to his care and financial needs, and the evidence clearly indicated that the conflict between his parents caused him great distress. Tyler would in my view be the person most negatively impacted by a high costs award in this case. He has already suffered far too much.

[68] Finally, as I have indicated in these Reasons, it is unclear whether the unreasonable litigation strategies and conduct on the Applicant’s side were attributable to the Applicant, her counsel or both. As the Applicant did not address this issue in her costs submissions, I am ordering that this costs award will be payable by her. However, this order does not preclude her from bringing a motion pursuant to Rule 24(9)(b) of the Family Law Rules to request that some of this costs award be payable by her counsel if there is evidence to support such a request. It is important that any issues respecting costs be finalized as soon as possible. Accordingly, I am ordering that if the Applicant intends to bring a motion pursuant to Rule 24(9)(b) of the Family Law Rules, she must make the motion originally returnable by no later than December 18, 2020. Furthermore, since Mr. Ayoola is no longer associated with Ms. Porter’s firm, any such motion should be on notice to both him and Ms. Porter.

PART IV: TERMS OF ORDER TO ISSUE

[69] For the reasons set out above, an order shall issue as follows:

1. The Applicant shall pay the Respondent costs in the amount of $8,000.00, inclusive of disbursements and HST.

2. This costs award shall be payable at the rate of $150.00 per month, commencing January 1, 2021 and continuing on the first day of each month that follows until it is paid in full.

3. In the event that the Applicant decides to bring a motion pursuant to Rule 24(9)(b) of the Family Law Rules, she shall serve the motion materials on both Ms. Porter and Mr. Ayoola and shall make the motion originally returnable by no later than December 18, 2020. If she does so, the payment terms set out paragraph 2 herein shall be suspended and appropriate terms of payment shall be addressed in the context of that motion.

The Honourable Madam Justice Deborah L. Chappel

Released: November 10, 2020

COURT FILE NO. D-49/10

DATE: 2020-11-10

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Dawn Tracy Weber

Applicant

– and –

John Gerald Weber

Respondent

REASONS FOR JUDGMENT

Chappel J.

Released: November 10, 2020