Superior Court of Justice - Ontario
Court File No.: FS-19-00009906 Date: July 16, 2021
Re: Jennifer Dixon, Applicant And: Peter Robert Lindsay, Respondent
Before: Kiteley J.
Counsel: Applicant, self-represented Stephen J. Codas and Sarah Strathopolous, counsel for the Respondent
Heard: In writing
Endorsement As To Costs
1In an endorsement dated February 23, 2021 [2021 ONSC 1360] I made an order granting virtually all of the orders sought by the Respondent. In paragraph 66 of that endorsement, I held as follows:
The Respondent also asks that the order provide that the Applicant pay his costs of the motion, subject to submissions as to the amount. I agree that the Applicant is required to pay costs and that she ought not to be given the opportunity to ask for a different outcome as to costs. The Respondent was successful. The Applicant’s conduct demonstrated bad faith. Pursuant to Family Law Rule 24(8), she should be required to pay full indemnity costs.
2In paragraph 77 of that endorsement, I made an order that the Applicant shall pay costs on a full indemnity scale with respect to the motion before Hood J. and his endorsement dated September 15, 2020 and the motions I heard on October 6 and November 24, 2020. I established a schedule for the parties to make written submissions. In his written submissions dated March 17, 2021, the Respondent asked for full indemnity costs in the amount of $39,434.18 (inclusive of fees, disbursements and HST) based on a detailed bill of costs.
3The Applicant was given an opportunity to file written submissions on the amount of costs only. The Applicant did not file her responding submissions by March 30, 2021. The Applicant sent an email dated May 4, 2021 to Intake in which she enclosed her submissions dated March 4, 2021. In paragraph 2 of her submissions, she apologized for not complying with the March 30 date because she did not understand that there was any requirement for her to do so.
4Counsel for the Respondent would be justified in asking that the Court not consider the Applicant’s written submissions because they were five weeks late. I have read the submissions. In his submissions, the Respondent anticipated that the Applicant would take the position that she is unable to pay costs. She did take that position. There is no prejudice to the Court considering her submissions when I have the Respondent’s position.
5The Applicant continues to assert what she considers to be the righteousness of her position on the motion, all of which is irrelevant to the issue of costs. In paragraph 3, she indicated that she was “not in a position to provide a detailed calculation and summary of her costs, and it is her understanding that such information would be moot, based on the Order of Justice Kiteley”. She is correct that a detailed calculation and summary of her costs was not required. I did expect the Applicant to comment on the detailed calculation provided by the Respondent. In paragraph 9 of her submissions, the Applicant was critical of the activity by the Respondent’s lawyers and she referred to prior decisions on proportionality and over-lawyering. In paragraph 10, the Applicant asserted that her “impecunity is a documented matter of fact”. She noted that she continues to be in the “very vulnerable and perilous position of self-representing – and this within a dynamic where there is an immense disparity of power and privilege – is glaring evidence of this fact”.
6For the reasons indicated in the endorsement dated February 23, 2021, the Respondent succeeded on the motion. In addition to the finding in paragraph 66 quoted above, I made findings in paragraphs 28, 59, 61, 67 with respect to the behaviour of the Applicant.
7Pursuant to Family Law Rule 24(1), the Respondent is entitled to costs because he was successful in the motion. Pursuant to rule 24(8), the Respondent is entitled to full indemnity costs because of the bad faith behaviour of the Applicant.
8I have read the detailed summary of the services rendered by Mr. Codas and Ms. Strathopolous in relation to the triage urgency issue, on the contested adjournment and on the contested motion. This was a difficult matter and the motion materials were prepared, served and filed in circumstances of a crisis. The solicitor client privilege of the Respondent and of the Respondent’s clients was a crucial issue. As the lengthy schedule attached to the material indicated, the Respondent’s lawyers had to attend to very detailed entries over an extended period of time. The time spent in pursuing the motion was proportional to the complexity and uniqueness of the issues and does not constitute overlawyering.
9The only issue is the Applicant’s assertion of her impecunity. She insists that her impecunity and vulnerability are “documented matters of fact”. There is no such evidence. Her insistence that those are “documented matters of fact” does not establish evidence on which the court can rely. Furthermore, the behaviour of the Applicant has been so persistent and egregious that it would not be reasonable to consider her allegations as a basis upon which to deny the Respondent any part of his costs. The Court must sanction this kind of behaviour by an order of significant full indemnity costs.
10There is no reason to discount the amount of costs requested by the Respondent.
ORDER TO GO AS FOLLOWS:
11Forthwith, and no later than August 17, 2021, the Applicant shall pay to the Respondent full indemnity costs in the amount of $39,434.18 (inclusive of disbursements and HST).
12This order takes effect immediately without the formal order being signed and entered.
13This order bears interest at the rate provided in the Courts of Justice Act.
14No later than July 26, 2021, counsel for the Respondent may forward an unapproved draft order incorporating paragraphs 11 to 13 to my attention for signing.
Kiteley J.
Date: July 16, 2021