COURT FILE NO.: FS-19-42281
DATE: 2021 02 22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
LYNN MARIE HODGSON
Applicant
S. Kalra for the applicant
- and -
DAVID PAUL HODGSON
Respondent
Self-Represented Respondent
HEARD: February 4, 2021 at Milton, by video-conference
Emery J.
REASONS FOR DECISION
[1] On July 2, 2020, Justice Coats made an Order at a Case Conference, on consent, which provided in part for the respondent to transfer a vehicle to the applicant, and to make disclosure in two ways.
[2] By his own admission, the respondent did not comply with the Consent Order in a timely manner. This non-compliance set off a chain of events that has culminated in the two motions before the court.
Rulings required
[3] The respondent was bound to transfer ownership of a 2014 Ford Edge to the applicant under the Consent Order. When he did not, the applicant brought an urgent motion on November 19, 2020. This urgent motion was resolved when the respondent transferred the vehicle to the applicant just before the day the motion was to be heard. The respondent objected to having Coats J. decide the costs of that motion, and the costs issue was adjourned. The costs issue left over from the motion in November 2020 is the first motion I am to decide.
[4] The applicant has also brought a motion to compel the respondent to satisfy the two items he was to disclose under the order made by Coats J. on July 2, 2020, and to strike out the respondent’s pleadings if he does not (the “disclosure motion”). This is the second motion I am to decide.
[5] The parties attended before Justice Kurz on January 26, 2021 for leave to bring the motion to strike pleadings and to schedule a date for both motions to be heard. Justice Kurz scheduled the motions for hearing on February 4, 2021. Kurz J. also awarded costs to the applicant in the amount of $1,500 to the applicant for that attendance. The respondent has not paid those costs to date.
[6] I have read the motion materials and reviewed two bills of costs submitted by the applicant. The respondent has filed no responding materials to either motion. However, I heard submissions from him as well as from counsel for the applicant based on the applicant’s materials before the court.
1. Costs of the urgent motion on November 19, 2020
[7] The motion before Coats J. on November 19, 2020 was brought to compel the respondent to transfer the Ford Edge to the applicant pursuant to the Consent Order. The applicant provided evidence on conduct of the respondent that delayed and hindered that transfer until the eve of the motion.
[8] The Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 confirmed that the modern rules for costs that apply in family law cases are designed to reinforce three fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants. To those purposes the Court has added a fourth principle to reflect the primary objective under FLR 2(2): to deal with cases justly.
[9] A successful party is presumed to be entitled to costs under FLR 24(1). The determination of which party was successful in a family law case is the starting point to any costs analysis: Sims-Howarth v. Bilcliffe, 2000 ONSC 22584. Whether a party has been successful may be determined by measuring the claims made in an application or an answer and the responding positions taken to oppose those claims, against the results achieved in the court process.
[10] The modern approach taken by the courts when awarding costs is to patrol against unreasonable litigation. There are simply too many cases, and too great a scarcity of judicial resources, to allow a party to disobey court orders or to deviate from the court process either by misconduct or misinformation without sanction.
[11] In the recent decision of Stewart and Bernard v. Fuhgeh, 2020 ONSC 4850, Justice Shelston of this court made the following statement: “Family law litigants are responsible and accountable for the positions they take in the litigation.”
[12] This view is continued in Derziyan v. Shebarin, 2021 ONCJ 17, where the court stated that the (financial) means of the unsuccessful party may not be used to shield that party from liability for costs, particularly when he or she acted unreasonably. The court in Derziyan concluded that all parties must understand that court proceedings are not designed to give individual litigants a forum for carrying on in whatever manner they may choose, oblivious to the impact on the other side and to mounting costs.
[13] The emerging principles in family law cases suggest that the respondent should be held accountable for the decisions he makes, and for his litigation strategy. His actions have provoked the applicant to take steps in which she has needlessly incurred costs. Under the current trend in the jurisprudence, the applicant should be entitled to her costs.
[14] The applicant seeks those costs on a full recovery basis for the urgent motion. She submits that the respondent’s failure to comply caused her to needlessly incur legal costs because he did not transfer the vehicle as required by the Consent Order. The applicant seeks costs at that level under FLR 24(6), submitting that the respondent’s failure to transfer the Ford Edge until the motion was brought amounted to bad faith.
[15] The respondent seeks to justify his non-performance of the Consent Order by arguing, without evidence, that he could not transfer the Ford Edge at the motor vehicle branch without paying outstanding 407 ETR charges, and because there was to ticket for running a red light to pay. He states that Justice Coats had told him in court that it would not cost him anything to transfer this vehicle to the respondent. I take it from his submissions that he was somehow relieved from that obligation by Justice Coats at the time the Order was made because of the outstanding traffic charges.
[16] I have no knowledge of the statement Justice Coats allegedly made at the Case Conference on July 2, 2020, or the greater context in which any statement was made by the judge or by the parties. Whatever the statement and whatever the context in which it was made, it is covered by settlement privilege. In any event, there was no evidence whatsoever of such a statement or discussion, and there were no transcript from that day filed or referred to me.
[17] I find that the conduct of the respondent that included the cancellation of the plates for the vehicle, failing to show up to sign the transfer papers, or refusing to cooperate with transferring the vehicle knowing that the applicant relied on having it to drive to work, constitutes bad faith. I have no difficulty in concluding that he intended to frustrate her efforts to drive the litigation forward.
[18] The respondent’s conduct necessitated the urgent motion and all associated costs in November 2020. He should be made to pay for those costs. As I have found the respondent’s conduct to constitute bad faith, FLR 24(6) applies. The applicant is therefore awarded her costs for the urgent motion in November 2020 on a full recovery scale.
[19] I have reviewed the bill of costs for the urgent motion in November 2020 in which she seeks $4,732.50 for full recovery fees, plus HST and disbursements of $282.50 inclusive of HST. This bill of costs contains time related to correspondence with the respondent, time for the preparation of materials and argument for the motion, and estimated time for her counsel to appear on the motion before me to make submissions on costs.
[20] The respondent had little to say about the amount of the costs the applicant is claiming.
[21] I find the costs requested by the applicant to be fair and reasonable, and to be proportionate to the amounts involved in the vehicle transfer. However, the time and estimated fees for the appearance before this court on February 4, 2021 at the same time as the disclosure motion should be dealt with separately as part of any costs for that motion. The applicant is therefore awarded her full recovery costs, trimmed back to $4,500 inclusive of HST and disbursements.
2. Motion to compel disclosure
[22] The respondent submits, again without evidence, that he has provided the applicant with specific documents from the TD Canada Trust. He acknowledges that he has yet to provide a record from the relevant Police Service what cash was in his wallet at the time he was arrested. Both are matters of disclosure required by the Consent Order. The applicant seeks an Order striking the respondent’s pleading for his failure to comply in each respect.
[23] It is clearly required that orders made by the court must be obeyed, and the party ordered to make disclosure must do so to comply with court ordered obligations. As J.W. Quinn J. famously said in Gordon v. Starr, [2007] OJ No. 3264 (SCJ), “an order is an order, not a suggestion. Non-compliance must have consequences.”
[24] Despite the submission of the respondent that he has provided the closing documents from TD Canada Trust, he has filed no proof. The respondent is ordered to provide that documentation to the applicant once again to bring certainty to both sides that he has complied with the Consent Order in that regard.
[25] The third and final matter under the Consent Order made by Coats J. required the respondent to obtain a record from the Police Service of what he carried in his wallet in terms of cash at the time of his arrest.
[26] The respondent states that he has not attended at the police station because of COVID-19.
[27] There are steps the respondent could have taken to comply with the order to make this disclosure, despite COVID-19. The police services across Ontario have been open to the public, subject to health and safety ordinances and protocols at the provincial and municipal levels.
[28] I held in a previous case that COVID-19 could not be used as an excuse for failing to take time limited steps under a court order. In Lima v.Ventura (Estate of) 2020 ONSC 3278, I wrote:
[26] Despite the precautionary measures that society has taken to protect individuals to the extent possible from exposure to COVID-19, parties are still expected to obey court orders in today’s environment. Chief Justice Morawetz confirmed this expectation in the Consolidated Notice to the Profession and others, effective May 19, 2020 and published on the ontariocourts.ca website, when he wrote under Part C, section 1:
“During this temporary suspension of in-court operations, counsel and parties are expected to comply with existing orders and rules of procedure, as well as procedures in this and other Regional Notices, to bring cases closer to resolution, to the extent they can safely do so through virtual means. This guidance also applies to self-represented parties.
[29] Parties to a family case are expected to obey court orders and abide by timelines set by the court in today’s pandemic laced environment. The respondent filed no evidence of any steps he has taken. There is no evidence that he has sent an email, written a letter or even placed a telephone call to the relevant Police Service with his request for that disclosure.
[30] There is no evidence that the respondent has made the request for the court ordered disclosure at all. It may be as simple for him to make the request to the Police Service as asking by telephone to have the information emailed, sent by regular post, or made available for pick up at the front desk. We just don’t know. The respondent has not filed an affidavit to give evidence about the efforts he has made, or any response he has received.
[31] I therefore find the respondent remains in breach of the Consent Order until he can prove that he has complied with the remaining two requirements for disclosure.
Remedy for non-compliance
[32] An order of the nature requested by the applicant for the respondent’s breach of the Consent Order is not beyond reach, as the law has moved to a certain extent from the traditional reluctance to make this kind of order expressed in Purcaru v. Purcaru, 2010 ONCA 92 and other cases. In Purcaru, it was held an order striking pleadings was a considered a remedy of last resort, and should be limited to exceptional circumstances.
[33] The modern expression of the law is found in paragraph 13 of the decision in Manchanda v. Thethi, 2016 ONCA 909. There, the Court of Appeal affirmed the decision of Myers J. at 2016 ONSC 1976 to strike the pleadings of the respondent for failure to make the disclosure required under previous court orders. See also Peerenboom v. Peerenboom, 2018 ONSC 5796 (affirmed at 2020 ONCA 240).
[34] Despite the evolution of the law on the power of the court to strike pleadings in a family case for non-compliance with disclosure orders, every motion must be viewed in context and on the facts of that case. The remedy to apply must be proportionate to the circumstances, including the extent of the non-compliance.
[35] In this case, I am of the view that the respondent’s failure to comply, although serious, is not so fundamental that an order be made to strike his pleadings under Family Law Rule 1 (8). The remedy should fit the breach for which the motion has been brought to enforce compliance.
[36] There was no order setting a deadline for this compliance in the initial Consent Order. I am setting March 15, 2021 as that deadline to provide the repsondent with one clear chance to avoid a finding that he has wilfully breached the Order made by Justice Coats. In my view, it would be disproportionate to impose the remedy of last resort to strike the respondent’s pleadings without allowing him an opportunity to fully comply by a specific deadline. It may not be so disproportionate on a motion to enforce next time.
Summary of Orders, and Costs
[37] The applicant is awarded the costs of the urgent motion on November 19, 2020 in the amount of $4,500.
[38] The applicant’s motion to compel the respondent to satisfy the disclosure requirements of the Consent Order dated July 2, 2020 is granted. The respondent shall provide an affidavit attaching the necessary materials for the account at TD Canada Trust, as well as record from the Police Service, to counsel for the applicant by March 15, 2021.
[39] The applicant has filed a second bill of costs for the disclosure motion heard on February 4, 2021. In that bill of costs, she seeks full recovery fees of $6,399.50 plus HST of $831.94, for a total of $7,231.44.
[40] The applicant is entitled to her costs of this motion as the successful party. However, I do not consider the respondent to have conducted himself in bad faith by failing to make this disclosure. In the absence finding of bad faith conduct and an applicable offer to settle, I am awarding the applicant her costs of the motion, but on a partial indemnity level. I am also exercising my discretion to refine the time and amount claimed for the preparation and attendance on the motion to avoid any duplication with the other motion over costs.
[41] The applicant is awarded a further $3,000 inclusive of HST on this motion for disclosure.
[42] Should the respondent not comply with this order by producing the affidavit and the documents he has been ordered to disclose by March 15, 2021, or if he should fail to pay the costs he has been ordered to pay, including the costs order of Kurz J. on January 26, 2021, the applicant is at liberty to bring a motion for an appropriate remedy, on notice to the respondent.
Emery J.
Released: February 22, 2021
COURT FILE NO.: FS-19-42281
DATE: 2021 02 22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LYNN MARIE HODGSON
Applicant
- and -
DAVID PAUL HODGSON
Respondent
REASONS FOR DECISION
EMERY J.
Released: February 22, 2021