Ontario Superior Court of Justice

Citation: 2021 ONSC 6759 Orillia Court File No.: FC-19-91-00 Date: 2021-10-12

Between:

Simcoe Muskoka Child, Youth & Family Services Applicant

– and –

N.R. W.H. Respondents

Counsel:

Tara Nazarelli, Counsel for the Applicant

N.R., Self-Represented Scott Morrison, Counsel for W.H.

Heard: June 25, 2021

RULING ON COSTS

McDERMOT J.

[1] This was commenced as a child protection proceeding brought by the Applicant Society. N.R. is the mother of the three children who were in issue; W.H. is the father. Both were respondents in this proceeding.

[2] On June 25, 2021, these parties appeared before me to conduct a Trial Scheduling Conference. On that date, N.R. was represented by Ms. Joy Nneji who asked during vetting to be removed from the record. I refused to release counsel until she had assisted N.R. in completing the TSC endorsement.

[3] This was partly because of the endorsement of Wildman J. made on April 30, 2021 wherein she refused to proceed with the TSC scheduled before her that day because N.R. was unrepresented at that time. However, Justice Wildman also endorsed that N.R. “must” file a TSC endorsement and a Trial Management Conference Brief for the next event if the matter was not settled by June 15, 2021: Justice Wildman said that, “Even if she is without counsel, this needs to move forward to a conclusion, one way or another.” At that conference, W.H. sought costs of the TSC against both the Society and against N.R.; Justice Wildman awarded costs against the Society of $310 and fixed the Respondent Mother’s costs at $310, but refused to award them at that time, leaving that issue to the next event.

[4] It is common ground that N.R. did not file the required documents as ordered by Justice Wildman. Notwithstanding this, a TSC endorsement was produced including witness lists for all parties and timelines for the filing of material; accordingly, the matter was successfully set down for trial in the November, 2021 sittings. Notwithstanding this, W.H. requests costs of this event as well as the appearance before Wildman J. on April 30, 2021. Mr. Morrison asked to speak to that issue late in the day on June 25 but there was not enough time to address costs at that time.

[5] N.R. blames her two lawyers for her failure to file documents at both appearances. She says that there was a breakdown in communication between herself and Ms. Nagessar. She also says that she told her new lawyer, Ms. Nneji, about the requirement to file the documentation, but Ms. Nneji, in concentrating on settlement, failed to make the required filings.

[6] Mr. Morrison relies upon Rule 24(7) of the Family Law Rules. However, the rule applicable to costs at a conference is Rule 17(18) which is negative in nature and, to some extent, discourages the awarding of costs at a conference. The rule reads as follows:

(18) Costs shall not be awarded at a conference unless a party to the conference was not prepared, did not serve the required documents, did not make any required disclosure, otherwise contributed to the conference being unproductive or otherwise did not follow these rules, in which case the judge shall, despite subrule 24 (10),

(a) order the party to pay the costs of the conference immediately;

(b) decide the amount of the costs; and

(c) give any directions that are needed.

[7] I also note that costs are ordered against a party for more than one purpose. The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395, [2009] O.J. 1905 (Ont. C.A.) confirmed that modern costs rules are designed to foster three fundamental purposes, namely to partially indemnify successful litigants for the cost of litigation, to encourage settlement and to discourage and sanction inappropriate behaviour by litigants bearing in mind that the awards should reflect what the court views is a fair and reasonable amount that should be paid by the unsuccessful party.

[8] I do not agree with the suggestion that the Respondent Mother can avoid costs by blaming her lawyers. She is responsible for the actions of her counsel which are presumably taken with her approval. Neither she nor W.H. claim costs against counsel under Rule 24(9). The failure of counsel to file the required documents is no basis for the failure to prepare for the conference or for the failure to file required documents for a conference.

[9] The Respondent Mother also says that she was concentrating on settlement and this is another reason the documents were not filed. However, the direction of Wildman J. was clear and was not complied with. The filing of a TSC endorsement setting out the witnesses and a TMC brief would not have impaired settlement, and counsel did not file a settlement conference brief before me.

[10] However, the real issue for me is what is intended by Rule 17(18). That rule, as I said, discourages awarding costs at a conference as it states that “costs shall not be awarded at a conference…” unless the payor is unprepared, fails to file required documents, fails to make disclosure or “otherwise contributed to the conference being unproductive”. The rule supersedes Rule 24(10) which generally requires costs to be awarded at each event.

[11] I also note that one of the bases for costs under Rule 17(18) is where the “party did not serve the required documents” which clearly occurred in this case. However, the events of default as set out in the rule are based, at least in part, upon productivity at the conference as the rule effectively states that the failure to file documents must have “otherwise contributed to the conference being unproductive”. The word “otherwise” refers back to and includes the failure to file documents and from that I interpret the Rule to mean that the failure to file documents should have contributed to the conference being unproductive for costs to be ordered.

[12] In the present case, although it took much of the day, the parties did conduct a trial scheduling conference, set the matter down for trial and had a completed TSC endorsement at the end of the day. The conference was productive according to the purpose for which it was set down and because of this as well as the general discouragement of awarding costs at a conference, it would be inappropriate to award costs of the conference solely because of N.R.’s failure to comply with Justice Wildman’s direction.

[13] With regard to the appearance before Wildman J., the costs of which were quantified at being $310, that conference was not productive. I am not in any sort of position to address the reason for this as I did not conduct the conference. However, the adjournment of that conference resulted from N.R. being unrepresented, and I am not going to make any finding as to whose fault that was. All that I can determine is that N.R. was unrepresented and Justice Wildman refused to proceed with the conference as a result and refused to order costs against the Respondent Mother at that time. Again, I am not going to award costs where I am not in a position to assign responsibility.

[14] Finally, I note that one of the factors to be taken into account is the affordability of costs. Mr. Morrison has suggested an extremely reasonable repayment plan. However, this matter has now been settled and, according to that settlement, the children remain in the primary care of the mother. Where a party is caring for a child, the awarding of costs may affect the financial situation of the mother and the family including the children. There have been a number of cases which indicate that a party’s financial circumstances may be taken into account in determining costs. These cases include cases decided at the appellate level: see C.A.M. v. D.M., 2003 CanLII 18880 (ON CA), [2003] O.J. No. 3707 (C.A.) at paragraph 45 and Harrington v. Harrington, [2009] O.J. No. 827 (C.A.) at paragraph 8.

[15] It appears that this principle is primarily applicable where either a costs award or the costs of trial affect the ability of a party to bear the expenses of a child. In C.A.M. for example, Rosenberg J.A. stated at paragraph 45 that the costs claimed by the Respondent “was money he had to pay to defend this litigation that would otherwise have been available, at least in part, for the care of the child.”

[16] In this case, the final minutes provided that the children remain in the care of the Respondent Mother. She stated in her materials that her home daycare has been restricted by COVID and that she is subsisting on public assistance. She claims that the Respondent Father is not paying adequate child support and the final minutes which were filed with Justice Krause on August 6, 2021 did not address child support issues. An award of costs, no matter what the repayment terms are, would negatively affect the financial situation of the Respondent Mother and the three children and would therefore not be in the interests of justice. Although it is tempting to punish N.R. for her failure to file the required documents, it would also not be “fair and reasonable” within the meaning of Serra to award substantial costs against a parent on public assistance caring for three children, especially where child support was not addressed or updated in the proceedings.

[17] For all of these reasons, there shall be no order for costs as against the Respondent Mother for the Trial Scheduling Conferences held on April 30 and June 25, 2021.

Justice J.P.L. McDermot

Released: October 12, 2021