COURT FILE NO.: 563/06

DATE: 20210803

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: F. (M.L.), Applicant

AND:

B. (I.E.), Respondent

BEFORE: Justice D.A. Broad

COUNSEL: Applicant – self-represented

Respondent – self-represented

COSTS ENDORSEMENT

[1] The parties have been unable to resolve the issue of costs and have each submitted written submissions on costs.

[2] The applicant submits that he was the successful party as he received the orders that he “needed and asked for.” In his submissions he reviewed various issues that were addressed in the Reasons for Decision upon which he says he was successful. He claims costs totaling $2,828 in respect of six out of the seven days he was required to book time off work in order to attend the various court proceedings from January 2020 to April 2021 at the rate of $471.44 per day.

[3] The respondent states that, although the applicant was successful with respect to certain of the issues, her position was upheld on others and that therefore neither party should be regarded as the “successful” party. She submits that she should be awarded costs for her attendances on January 5, 2020, December 7, 2020, and March 9, 2021 as the applicant was not ready for trial. She claims $377.19 for her attendances on those dates totaling 11 hours based upon her hourly work rate of $34.29.

Guiding Principles

[4] Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C. 43 provides that the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.

[5] Pursuant to sub-rule 24(1) of the Family Court Rules, the successful party is presumed to be entitled to recover costs. Sub-rule 24(11) requires the court, in setting the amount of costs, to consider a number of factors including the importance, complexity and difficulty of the issues, the reasonableness or unreasonableness of each party's behavior in the case, the lawyer's rates, the time properly spent on the case, expenses properly paid or payable, and any other relevant matter. These factors are to be applied flexibly (see M. (C.A.) v. M. (D.) 2003 CanLII 18880, (2003), 67 O.R. (3d) 181 (Ont. C.A.) at para. 42).

[6] Consideration of the relative success of the parties on the issues in the case is the starting point in determining costs (see Butty v. Butty, 2009 CanLII 23111 (ON SC), [2009] O.J. No. 1887 (Ont. S.C.J.) at para. 4, citing Sims-Howarth v. Bilcliffe, 2000 CanLII 22584 (ON SC), [2000] O.J. No. 330 (Ont. S.C.J.)). In the case of Johanns v. Fulford, 2010 ONCJ 756 (Ont. C.J.) at para. 13, it was held that, for the purpose of sub-rule 24(1), "success" is assessed by comparing the terms of an order against the relief originally requested in the pleadings and against the terms of any offers to settle.

[7] The Court of Appeal has observed that modern costs rules are designed to foster three fundamental purposes: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behavior by litigants (see Fong v. Chan, [1999] O.J. No. 3707 (Ont. C.A.) at para. 24).

[8] Importantly, the case law directs that a costs award must represent a fair and reasonable amount that should be paid, rather than an exact measure of the actual costs, must be consistent with what the unsuccessful party might reasonably have expected to have to pay, and must reflect some form of proportionality to the actual issues argued, rather than an unquestioned reliance on billable hours and documents created (see Mason v. Smissen, [2013] O.J. No. 4229 (Ont. S.C.J.) at paras. 5 and 6 and the cases therein referred to).

[9] In the case of Ramsay v. Ramsay, 1999 CanLII 15027 (ON SC), [1999] O.J. No. 4835, Aston J. stated, at para. 10:

[…] the “presumption” [in sub rule 24(1)] that success determines entitlement to costs does not mean that a successful party is always entitled to costs, unless that party has “behaved unreasonably” as contemplated under sub-rule 24(4). In my view, the court’s discretion under section 131 of the Courts of Justice Act is wider than that and still allows for consideration of the factors expressed by Katarynych J. in Beaumont v. Fransden, supra. There may be an increased emphasis on the outcome or “success” as a factor, but the fact that success is only presumptive under Rule 24(1) invites consideration of other factors. Otherwise, Rule 24(1) would simply read “A successful party is entitled to costs”.

[10] This passage from Ramsay was endorsed by the Court of Appeal in M. (C.A.) v. M (D.), at para. 41.

Discussion

[11] Both parties in the case at bar were self-represented throughout the proceeding. In the case of Fortunato v. Afandy, 2013 ONSC 5654 (S.C.J.) Stinson, J. addressed the principles to be applied in respect of a claim for costs by a self-represented party at para. 5 as follows:

In Ontario, a judge may exercise his or her discretion to award costs to a self-represented litigant only if (1) the litigant devoted time and effort to do the work ordinarily done by a lawyer; and (2) that as a result she or he incurred an opportunity cost by foregoing remunerative activity. If an opportunity cost is proven, a self-represented litigant should only receive a nominal, moderate or reasonable allowance for the loss of time devoted to preparing and presenting the case. To meet the second part of the test, a self-represented litigant must prove that he or she gave up remunerative activity. The judgment of the Divisional Court in Mustang Investigations Inc. put it succinctly: "Simply stated, no proof of opportunity cost, no nominal costs available." See Mustang Investigations Inc. v. Ironside, supra, at para. 27.

[12] More recently Chappel, J. in the case of Laramie v. Laramie, 2018 ONSC 4740 (S.C.J.) observed at para. 108 that “the more prevalent trend in recent years has been to allow costs to self-represented parties regardless of whether they have foregone remunerative activity to work on their case, provided that the costs claimed relate to tasks that would typically be carried out by legal counsel.”

[13] At the same paragraph Chappel, J., in reliance on the Court of Appeal decision in Fong v. Chan, emphasized that a self-represented party should not be compensated for costs relating to time and effort that any litigant would have reasonably had to devote to the case if they were represented by counsel.

[14] It is noted that both parties seek costs for their attendances at various court hearings, on which they would have been in attendance even if they were represented by counsel. Parties who are represented by counsel who attend court proceedings are not compensated by an award of costs for their time for doing so regardless of their success in the proceeding and there is no reason to provide for such compensation in cases where the parties are not represented by counsel. It is clear that an award of costs may only be made to a self-represented litigant in respect of time and effort to do work that would ordinarily be done by a lawyer. Neither party in the case at bar claims costs on this basis.

[15] In my view there is a more significant basis for exercising my discretion to decline to make an award of costs in the circumstances of this case. As indicated in my Reasons for Decision it is apparent that the parties have been engaged in almost constant litigation since they separated when the child was one year of age. She is now going into third-year university. In my view it would not be a useful exercise to attempt to parse which party was more successful on each of the multitude of issues raised by the parties in respect of the applicant’s most recent Motion to Change.

[16] From the affidavit evidence it is evident that the relationship between the parties in dealing with the financial issues relating to the child has been marked by rancour and mistrust. It is not possible to determine which party was more responsible for this. It is expected that they each bear at least some responsibility for it. An award of costs in favour of one party would only unnecessarily risk adding to the rancour and mistrust between the parties and serve to promote further litigation. It would be helpful to the parties and to the child in particular that the parties now move on from their ongoing disputes.

Disposition

[17] In the exercise of my discretion under s. 131 of the Courts of Justice Act it is ordered that each party bear their own costs.

D.A. Broad, J.

Date: August 8, 2021