Court File and Parties

COURT FILE NO.: 931/19

DATE: 2020-11-18

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Laura Laidman, Applicant

AND:

Christina Jessica Pasalic and Marcel Richard William Laidman, Respondents

BEFORE: The Honourable Mr. Justice A. Pazaratz

COUNSEL: David Walkling, Counsel, for the Applicant Jennifer Vandenberg, Counsel, for the Respondent, Christina Jessica Pasalic

HEARD: In Chambers

COSTS ENDORSEMENT

[1] Pursuant to my motion endorsement of September 21, 2020, I have now reviewed and considered written costs submissions filed on behalf of Jessica Pasalic and Laura Laidman.

a. Laura Laidman is the Applicant in file 931/19. She is the paternal grandmother seeking access to a three year old child in an originating application currently on the trial list. The mother Jessica Pasalic and the father Marcel Laidman are named as Respondents.

b. In file 1116/17 Jessica Pasalic is the Applicant and Marcel Laidman is the Respondent. That file involves is an outstanding motion to change a final order as between the parents, also relating to the same child.

c. Pursuant to a final order in file 1116/17 the mother has sole custody. The father was having access on certain terms. The paternal grandmother was supervising his access. The father’s access has now been interrupted for more than a year as a result of multiple criminal charges against him relating to the mother. As a result, the paternal grandmother’s contact with the child has also been interrupted.

d. The mother brought a motion to change/restrict the father’s access.

e. The paternal grandmother commenced file 931/19 to secure her own access to the child.

f. The paternal grandmother then brought a motion to consolidate the two files, so that the issues could be determined at the same time.

g. The father supported the paternal grandmother’s request (although he did not file any materials).

h. The mother opposed the request.

i. I decided in favour of the mother and dismissed the paternal grandmother’s motion.

j. In my 39 paragraph endorsement I outlined my analysis of Rule 12(5) considerations in relation of consolidation. I concluded that we are dealing with two fundamentally different proceedings – a motion to change and a trial – with different timelines, evidentiary issues, and priorities.

[2] The current costs dispute is between the paternal grandmother and the mother. The father is not involved.

[3] The mother’s position in relation to costs:

a. This was a one-issue motion, and the mother was successful in having the paternal grandmother’s motion dismissed.

b. As a successful party, she is presumptively entitled to costs.

c. She did not behave unreasonably. She opposed the consolidation motion on the basis that the request was prejudicial to her, and the resulting delay could potentially threaten her safety and that of her child.

d. Her lawyer’s bill of costs in relation to this motion totals $6,316.14 inclusive of HST and disbursements.

[4] The paternal grandmother’s position in relation to costs:

a. She was simply seeking an assurance that she would have access to her granddaughter, unrelated to whether the father was allowed access.

b. The request to consolidate the proceedings was not unreasonable. She did not act in bad faith.

c. She acknowledges that the mother was successful and presumptively entitled to costs.

d. She requests that costs on this motion be reserved to be dealt with upon the conclusion of her application. She suggests this would allow the court to examine the overall reasonableness of the conduct of the parties.

e. In the alternative she proposes that the mother should be awarded no costs for this motion.

f. She opposes the mother’s apparent request for full recovery of her legal fees.

g. She submits she shouldn’t be “punished” for advancing a position which she legitimately believed was in the child’s best interests.

h. She asks the court to consider her limited ability to pay. She describes herself as a factory worker who rents her home and earns $18.00 per hour.

i. She submits the bill of costs submitted by the mother is excessive, both in terms of the amount of time spent and the applicable hourly rate. She submits a “Legal Aid rate of $136.43 per hour might reasonably apply, regardless of whether Ms. Pasalic is or is not financially assisted with her retainer.”

[5] In her reply submissions, the mother stated the following:

a. If the paternal grandmother was simply seeking her own access to the child unrelated to the father’s access, there was no reason for her to attempt to consolidate her case with the father’s case.

b. “Ability to pay” should not be a factor with respect to an unnecessary procedural motion which the paternal grandmother could and should have avoided.

c. However, if “ability to pay” is to be considered, the grandmother’s stated income of $37,500.00 is more than double the mother’s 2019 income of $16,647.00.

d. In assessing costs, it makes no difference whether the successful party is legally aided or not.

ANALYSIS

[6] Costs rules are intended to foster four fundamental purposes:

a. To partially indemnify successful litigants;

b. To encourage settlement;

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

d. To ensure that cases are dealt with justly pursuant subrule 2(2) of the Family Law Rules ("the Rules") Mattina v. Mattina 2018 ONCA 867(Ont CA); Serra v. Serra 2009 ONCA 395(Ont CA).

[7] Costs awards are discretionary. In exercising that discretion, the court should be mindful of two touchstone considerations: reasonableness and proportionality. Beaver v. Hill, 2018 ONCA 840(Ont. CA).

[8] Costs are an important tool to promote the efficient use of judicial resources and the orderly administration of justice. Access to the justice system by individuals must be balanced with the need to ensure that the resource is available for all those who need it. Costs can be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, 2003 S.C.C. 71 (SCC); Lewis v. Silva 2019 ONCJ 795(OCJ); Lawrence v. Lawrence 2017 ONCJ 431 (OCJ); Peladeau v Charlebois 2020 ONSC 6596 (SCJ).

[9] Rules 18 and 24 govern the determination of costs in family law proceedings.

[10] Consideration of success is the starting point. Rule 24(1) creates a presumption of costs in favour of the successful party. Sims-Howarth v. Bilcliffe 2000 22584 (SCJ). In this case the paternal grandmother acknowledges that the mother was entirely successful on this one-issue motion.

[11] To determine whether a party has been successful, the court should take into account how the eventual order compares to any settlement offers that were made. Lawson v. Lawson, 2008 23496 (SCJ); Ajiboye v. Ajiboye 2019 ONCJ 894 (OCJ). Rule 18(14) sets out the consequences of a party's failure to accept an offer to settle that is as good or better than the hearing's result.

[12] In this case, neither party filed an offer to settle.

a. Offers to settle play an integral role in saving time and expense by promoting settlements, focusing parties, and often narrowing the issues. In most cases it is unreasonable behaviour for a party not to submit an offer to settle. Potter v. DaSilva, 2014 ONCJ 443(OCJ); Laing v. Mahmoud 2011 ONSC 6737 (SCJ); Menchella v. Menchella 2013 ONSC 367(SCJ); J.S. v. M.M. [2016] O.J. No. 1566 (SCJ).

b. However, 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 be made. Beaver v Hill 2018 ONCA 840 (ON CA). This factor should not play a material role in determining liability or quantum of costs, if there was no realistic way of compromising on the central issue(s) in dispute. Weber v. Weber, 2020 ONSC 6855 (SCJ).

c. In this case I agree with counsel that the absence of offers should not impact on the costs determination. The parties presented a binary choice (consolidate or not) with no room for compromise.

[13] Rule 24(4) provides that in some circumstances a successful party can be deprived of their costs – or even ordered to pay costs -- if they have behaved unreasonably. Ajiboye v. Ajiboye 2019 ONCJ 894(OCJ). However, in this case I find that the mother’s approach to this litigation was entirely reasonable and her position in relation to Rule 12(5) was legally correct. There is no basis for the paternal grandmother’s alternate request that the successful mother should be entirely deprived of any costs

[14] I agree with the mother that costs of this motion should be dealt with at this stage and not reserved to the trial judge, as proposed by the paternal grandmother.

a. Rule 24(10) 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. Bortnikov v. Rakitova 2016 ONCA 427(Ont CA); Islam v. Rahman 2007 ONCA 622(Ont CA); Weber v. Weber, 2020 ONSC 6855 (SCJ).

b. 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.

c. Nonetheless, the presumption remains that costs should be determined at each stage, and there are good reasons for this. Parties should have an ongoing awareness of the cost consequences of litigation decisions they make. Reserving costs may impede final resolution by needlessly inflating and complicating the list of future issues still to be dealt with. A judge who has just completed a step in a case will usually be in the best position to evaluate all of the relevant Rule 18 and 24 considerations. Reserving costs to a future event – often to a different judge – can result in later confusion and controversy about what really happened at the earlier step.

d. In this case the paternal grandmother elected to bring a procedural motion which was unsuccessful. The issues were distinct and will not be the subject of the eventual trial on the issue of her access. This is not a situation in which the trial judge will eventually attain a better sense of who was right and who was wrong on this motion. The motion has been decided and costs should also presumptively be decided now.

[15] The mother apparently seeks full recovery of the $6,316.14 set out on her lawyer’s bill of costs.

[16] There is no presumption in the Rules that provides for a general approach of "close to full recovery" costs. Rules 18 and 24 expressly contemplate full recovery only in specific circumstances:

a. Matching/exceeding an offer to settle (Rule 18(14)).

b. Bad faith (Rule 24(8)). Beaver v. Hill.

[17] Neither of those aggravating factors apply in this case. There is no indication the paternal grandmother acted in “bad faith.”

[18] And even in circumstances in which Rules 18(14) or 24(8) trigger "full recovery costs", the court still has an overriding discretion and responsibility to determine a costs award that is proportional, fair and reasonable in all the circumstances. Chomos v. Hamilton 2016 6232 (SCJ).

[19] As stated, I have no difficulty finding that the successful mother is entitled to costs. I have considered the Rule 24(12) factors with respect to quantum.

[20] Determining costs requires more than a simple mathematical totalling of how much the successful party paid their lawyer. The overall objective in is to fix an amount that is fair and reasonable from the unsuccessful party’s perspective. This includes consideration of the unsuccessful party’s reasonable expectations as to the potential costs claim which might arise. Boucher v. Public Accountants Council of Ontario 2004 14579 (ON CA). As stated, the touchstone considerations are reasonableness and proportionality.

[21] As often happens, the unsuccessful party now complains that the successful party’s bill of costs is too high – but the unsuccessful party has failed to disclose their own bill of costs, for purposes of comparison.

a. A useful benchmark for determining whether costs claimed are fair, reasonable and proportionate is to consider the amount that the unsuccessful party paid for their own legal fees and disbursements in the same matter. Smith Estate v. Rotstein 2011 ONCA 491(Ont CA); Durbin v. Medina 2012 ONSC 640(SCJ); Scipione v. Del Sordo 2015 ONSC 5982(SCJ); Goldstein v. Walsh 2019 ONSC 3174(SCJ); Steinberg v. Steinberg 2019 ONSC 3870(SCJ); Kang v. Kang 2020 ONSC 2571(SCJ); Snively v. Gaudette 2020 ONSC 3042(SCJ); Zhang v. Guo 2019 ONSC 5767(Div Ct); F.K. v. A.K. and CAS of Hamilton 2020 ONSC 4927 (SCJ).

b. 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 (SCJ); Smith Estate. 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; Scipione; 206637 Ontario Inc. (c.o.b. Balkan Construction) v. Catan Canada Inc., 2013 ONSC 5448(SCJ); Steinberg v. Steinberg 2019 ONSC 3870 (SCJ); Weber v. Weber, 2020 ONSC 6855 (SCJ).

c. A significant discrepancy in the amount of fees charged by the respective lawyers 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 reasonableness and proportionality. Consideration of the other party's bill of costs is particularly helpful if that party challenges a costs claim on the basis of alleged excess and over-lawyering. Mullin v. Sherlock 2017 ONSC 6762 (SCJ); Brar v. Brar 2017 ONSC 6372 (SCJ); Bielak v. Dadouch 2017 ONSC 4255 (SCJ).

d. It’s easy for the losing party to complain the winner shouldn’t have fought so hard to protect themself -- from the loser. The bottom line: if the loser is going to complain the winner’s legal bill is too high, the loser would be well advised to reveal their own bill, for purposes of comparison.

[22] The single issue herein was important but not terribly complex.

a. The paternal grandmother’s request to consolidate was more strategic than urgent. Success on the motion wouldn’t have resulted in her getting access any sooner. But presumably she felt she would be better positioned at trial if the motion to change the father’s access had not yet been dealt with.

b. The issue was more pressing for the mother who established that consolidation would create delay in relation to the resolution of the motion – and that the resulting delay might create risk for herself and the child.

c. In that context, the presentation of materials and submissions on behalf of the mother was both skilled and efficient. I find that the time spent and the amount charged by Ms. Vandenberg is quite reasonable, having regard to her experience and the importance of the issue to the mother and to the child.

[23] I also reject the paternal grandmother’s submission that the costs claim should be reduced because the mother might be in receipt of Legal Aid. The case law is well settled that the receipt of Legal Aid is not a factor in determining costs. Ramcharitar v. Ramcharitar (2002) 2002 53246 (ON SC), 62 O.R. (3d) 107 (SCJ); Alvarez v. Smith 2008 10047 (ON SC), [2008] O.J. No. 941 (SCJ); Loncar v. Pendlebury 2015 ONSC 4673(SCJ); S.G. v. A.S. 2015 ONSC 1882(SCJ); Dhillon v. Gill 2020 ONCJ 68(OCJ); Holt v. Anderson 2005 44179 (ON SCDC), [2005] O.J. 5111(Div Ct.) ;Trudel v. Trudel 2010 ONSC 5177, [2010] O.J. No. 3961 (SCJ); Fazuludeen v. Abdulrazack 2020 ONSC 3394(SCJ); W. v. K. 2019 ONSC 3341(SCJ); Leveridge v. Stephenson 2019 ONCJ 309(OCJ); Goffi v. Goffi 2019 ONSC 2160(SCJ); Sabeeh v. Syed 2018 ONCJ 580(OCJ); C.A.B. v. A.E.H. 2018 ONCJ 178(OCJ); Seman v. Handl 2018 ONSC 1218(SCJ); F.K. v. A.K. and CAS of Hamilton 2020 ONSC 4927 (SCJ).

[24] The paternal grandmother asks that any costs order should take into account her ability to pay. The financial implications of legal fees - and costs orders - must be form part of the costs analysis. But this can be a complicated issue.

a. A costs order should take into consideration the ability of a party to pay costs. MacDonald v. Magel (2003) 2003 18880 (ON CA), 67 O.R. (3d) 181 (Ont CA).

b. Although they are not specified in Rule 24 as factors in determining costs, the financial means of the parties, their ability to pay a costs order, and the effect of any costs ruling on the parties and the children are relevant considerations in reaching a determination on the issue of costs. Fyfe v. Jouppien 2012 ONSC 97(SCJ).

c. A party's limited financial circumstances cannot be used as a shield against any liability for costs. Ability to pay will be taken into account regarding the quantum of costs. Snih v. Snih 2007 20774 (SCJ); Dhillon v. Gill 2020 ONCJ 68(OCJ). But ability to pay will be less of a mitigating factor when the impecunious party has acted unreasonably, or where their claim was illogical or without merit. Gobin v. Gobin (2009) 2009 ONCJ 278, 71 R.F.L. (6th) 209 (OCJ).

d. Parties cannot expect to be immune from an order of costs based on their limited financial resources. If this were the case, parties would be free to conduct litigation as they wished without fear of reprisal in the form of adverse costs orders and this would be contrary to the philosophy and requirements of the Rules. Culp v. Culp 2019 ONSC 7051(SCJ); Mark v. Bhangari 2010 ONSC 4638(SCJ).

e. Ability to pay alone cannot, nor should it, over-ride the other factors in Rule 24(12). Peers v. Poupore 2008 ONCJ 615(OCJ); Lawrence v. Lawrence 2017 ONCJ 431 (OCJ).

f. Those who can least afford litigation should be the most motivated to seriously pursue settlement and avoid unnecessary proceedings. Mohr v. Sweeney 2016 ONSC 3238(SCJ); T.L. v. D.S. 2020 ONCJ 9(OCJ); Balsmeier v. Balsmeier 2016 ONSC 3485(SCJ).

g. All family law litigants are responsible for and accountable for the positions they take in the litigation: Heuss v. Surkos 2004 ONCJ 141.

[25] The impact of a costs determination on household budgets applies to both unsuccessful and successful parties. An onerous costs order against an unsuccessful custodial parent may impact on that parent's ability to provide for a child in their care. But equally, an inadequate costs order in favour of a successful custodial parent may result in similar deprivation for a child in their care. In both instances, we want to ensure that litigation expenses do not impoverish the household where the child resides. D.D. & F.D. v. H.G. 2020 ONSC 1919(SCJ); F.K. v. A.K. and CAS of Hamilton 2020 ONSC 4927 (SCJ).

[26] In this case I place limited weight on the paternal grandmother’s “ability to pay” argument for a number of reasons.

a. Her approximately $34,440.00 annual income is quite modest – but still more than double the mother’s income. She should have been more careful about unaffordable legal fees she was needlessly creating for each of them.

b. The mother was forced to incur legal expenses for the benefit of a child in relation to a claim commenced by a non-parent. The grandmother has simply created a financial drain on the custodial mother’s household, without contributing in any way.

c. The paternal grandmother is entitled to pursue a claim for access, and I make no comment as to the likely result of that pending trial. But this consolidation motion was an optional, interlocutory step which should have been avoided by a litigant of modest means.

d. Since the paternal grandmother insists she is pursuing her own access claim independent of the father’s position, there was no compelling reason that her multi-day oral hearing needed to be consolidated with the parties’ relatively straightforward motion based on written materials.

[27] In summary:

a. This was a single-issue motion.

b. The subject matter was important, relating to the best interests of a child.

c. The mother was entirely successful in having the motion dismissed.

d. The $6,316.14 bill of costs submitted by the mother’s lawyer is quite reasonable.

e. There are no factors here which would justify full recovery.

f. The mother’s position and litigation behaviour was entirely reasonable.

g. I am mindful of the limited financial circumstances of both of these parties. People need to be careful about the legal expense they create for others.

h. The mother is entitled to costs and the issue should be determined at this time.

[28] The paternal grandmother Laura Laidman shall pay to the mother Christina Jessica Pasalic costs in relation to the consolidation motion fixed in the sum of $4,700.00 inclusive of HST and disbursements.

Pazaratz J.

Date: November 18, 2020