T.P. v. A.E. , 2021 ONSC 8412

COURT FILE NO.: FS-19-11065

DATE: 20211221

ONTARIO841

SUPERIOR COURT OF JUSTICE

BETWEEN:

T.P.

Applicant

– and –

A.E.

Respondent

Self-Represented

Self-Represented

HEARD: August 26, 2021

Papageorgiou, J.

COSTS ENDORSEMENT

Introduction

1The trial in this matter proceeded before me from June 21 to June 28, 2021. Reasons were released to the parties on July 9, 2021 and costs were argued on August 26, 2021.

Prior Court Proceedings

2On July 9, 2019, the Applicant, T.P. (the “Father”) had obtained a temporary order placing A.P. (“the Child”) in his care when he made allegations pursuant to an urgent and short served motion that the Respondent A.E. (the “Mother”) was abusing drugs and alcohol, was mentally unfit and was planning to abscond to New York with the Child.

3I made the following findings:

a. After the Child was born in 2012, the Mother stayed home with him and stopped attending University of Toronto to raise him.

b. After the Mother and Father’s separation in September 2015, the Child remained in the Mother’s primary care until the Father brought his motion. The Father had parenting time every other weekend with additional parenting time as agreed upon during the week. The Mother would leave the apartment during the Father’s weekend parenting time and stay with friends.

c. The parties negotiated an agreement where the Father would pay the Mother spousal support in the amount of $1,200 and child support in the amount of $800 per month.

d. The parties continued with their parenting arrangement amicably for many years.

e. During the period when the Mother provided primary care to the Child, the Father was able to significantly increase his income (to $130,000 at the time of trial) while the Mother’s income remained stagnant at approximately $32,000 per annum.

f. After the Father met and began a serious relationship with a new girlfriend, conflicts began. He sought additional parenting time which the Mother would not agree to.

g. I found that his urgent application was triggered, not by any alleged concerns about drugs and alcohol, but primarily by an incident where the Mother refused to allow the new girlfriend to attend the Child’s concert.

h. The Mother had been abused and ultimately raped by her then-partner in the months prior to the Father’s motion. In the text messaging regarding whether the Father’s girlfriend could attend the Child’s concert on June 19, 2021 the Mother advised the Father of the rape as well as the fact that she and the Child were seeking therapy because of this. He did not respond to this text or express any concern for either the Child or the Mother. He told the OCL that what really caused him concern was when the Mother asked him for $100 for medical treatment for the Child in July 2019.

i. His July 9, 2019 urgent motion followed shortly thereafter.

j. After the July 9, 2019 motion, the Father immediately stopped child support as well as spousal support in the amount of $1,200 per month. The Mother had arranged her life in reliance on this support and the Father did not give her any notice that he would be cutting it off. This was not fair, particularly at a time when the Mother needed money for a lawyer. Cutting off support at this time gave the Father a significant litigation advantage.

k. The Mother obtained a legal aid certificate which she quickly depleted.

l. I found that none of the Father’s allegations made at the July 9 motion, in support of removing the Child from the Mother’s care, were true.

m. The Mother was never planning to abscond to New York with the Child. At the time of the Father’s motion, the Child did not have a passport to the Father’s knowledge. Although he claimed he was afraid she might drive across the border with the Child, the Mother did not own a car or know how to drive.

n. As well, the Father admitted that shortly before the time of the Father’s motion, the Father and Mother had mutually arrived at an agreement that the Child would be in the Father’s care while the Mother went on vacation for two weeks.

o. The hair and follicle test returned negative on October 9, 2019 which meant that at the time of the Father’s urgent motion, the Mother had not been using any drugs or alcohol. The Office of the Children’s Lawyer completed a report on May 19, 2020. The OCL interviewed all people who had filed affidavits in support of the Father’s motion. The OCL did not conclude that that Mother has any ongoing problem with alcohol or drug abuse and did not make any recommendations as to ongoing monitoring of her. The OCL recommended week about parenting for both parents.

p. Despite the above, the Father continued to insist on the Mother’s parenting time being supervised until a case conference on August 9, 2020. As well, the Father continued to limit her parenting time to four hours once a week on a Sunday.

q. I found as a fact that the Father brought his motion alleging alcohol and substance abuse without ever having raised these issues with the Mother. The Mother testified, and I found, that she was blindsided by these allegations. I note that the Father specifically admitted during the trial that he had never raised any such issues with the Mother prior to his urgent motion.

r. I note that in the OCL report, the maternal grandmother (who had apparently sworn an affidavit in support of the Father’s motion) advised the OCL that she had not actually seen the Mother drink to excess; she had been relying upon the Mother’s then abusive boyfriend who had told her as much. The Mother’s boyfriend was charged with sexual assault and a restraining order had been entered shortly before the Father’s urgent motion. The Mother admitted that during a short period between December 2018 and February 2019 she had been drinking too much wine in order to cope with the domestic abuse, but that it was not every day and the maximum she drank was one bottle per day. This is corroborated by the Mother’s family physician who she reported this to before the Father ever gave her notice of his motion. The family physician provided heavy support of the Mother and never considered the Child to be in any jeopardy under her care.

s. I note as well that the OCL found that the Child had never witnessed the abuse of the Mother.

t. At all times, the Father was obliged by court order to coordinate “reasonable access between the Respondent Mother and the child.” I found as a fact that in the circumstances of this case, the Father’s conduct in insisting on supervision and only agreeing to limited parenting time after the hair and follicle test results and, in particular after the OCL report, was unreasonable, not in accordance with the best interests of the Child, and in breach of the court order.

u. Indeed, even when the pandemic hit and the Mother was ostensibly sitting at home doing nothing, the Father refused her assistance with childcare and instead relied upon his girlfriend and sought accommodations from his work.

v. I also found as a fact that the Mother was not mentally unfit and that overall the Father’s litigation had been strategically advanced at least in part to eliminate his child and spousal support obligations. He testified that he thought the Mother had been taking advantage of him financially, and even sought repayment of past spousal support in his Application—although he did not seek this before me.

w. In May, 2021 the Mother withdrew her spousal support claim at a case conference where she was unrepresented. At trial she indicated that she had done so because she wanted to end the conflict and thought that if she dropped this claim, the Father would agree to joint decision making and that the litigation would be over.

x. I note as well that the Father was represented by counsel until May 2021. After the Mother dropped her spousal support claim, he continued the proceeding as a self-represented litigant.

y. The Father did not ever agree to joint decision making and at trial argued that he should be the sole decision maker in respect of all matters pertaining to the Child, although he did agree that the Mother should have week about parenting with the Child.

z. I note that the Father’s argument regarding why he should be the sole decision maker rested primarily upon the basis that the parties could not communicate. He showed me one text message exchanged at the height of their dispute where the Mother was angry with him. The Mother provided significant evidence of cordial communications from her to the Father both before and after the Father’s urgent motion. I determined there was no basis to deny the Mother participation in decision making on the basis of such alleged inability to communicate or agree.

aa. Unfortunately, by the time of the trial, the Mother’s finances were so bad that she was not in a position to assume week about parenting. She testified that this proceeding had traumatized her and that she had been unable to pursue any additional employment because of her preoccupation with this case.

bb. I made credibility findings against the Father for a number of reasons.

cc. I also stayed all costs orders which had previously been made against the Mother pending return of the costs argument in respect of the trial.

The Law

4Modern costs rules are designed to foster four fundamental purposes: to indemnify successful litigants for the cost of litigation, to encourage settlement, to discourage and sanction inappropriate behaviour, and to ensure that cases are dealt with justly under Rule 2(2) of the Family Law Rules, O. Reg. 114/99 (the “Rules”): Mattina v. Mattina, 2018 ONCA 867, at para. 10; Probst v. Shah, 2020 ONSC 2290, at para. 2; and Climans v. Latner, 2020 ONCA 554, 152 O.R. (3d) 369, at para. 45.

5A costs award should always reflect what is a fair and reasonable amount to be paid to the successful party: Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, at para. 12.

6“[P]proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs”: Beaver v Hill, 2018 ONCA 840, 143 O.R. (3d) 519, at para. 12.However, the Rules do provide for an entitlement to full recovery costs in specific circumstances, including bad faith: r. 24(8).

7Pursuant to r. 24(12), the Court must also consider the reasonableness and the proportionality of a number of factors as they relate to the importance and complexity of the issues, including each party’s behaviour; the time spent by each party; any written offers to settle; any legal fees, including the number of lawyers and their rates; any expert witness fees; any expenses paid or payable; and any other relevant matter: r. 24(12); see also r. 24(1) and Belair v. Bourgan, 2019 ONSC 2170, at para. 37.

Analysis

Success

8The Mother achieved success at trial and she is presumptively entitled to costs.

Reasonableness

9I found the Father’s conduct as described above, throughout most of this proceeding, was unreasonable: In addition to the above findings:

a. The Mother gave evidence, and I accept, that throughout the proceeding, she begged the Father to mediate but he refused.

b. After all the evidence at trial had been concluded (on a Friday), I advised the parties that there was still time to settle and I encouraged them to have discussions on the weekend. I told them that there was only one significant issue between them, which was decision-making responsibility, and they could still try to resolve that. My thinking was that having heard each other’s evidence, (in particular the Father hearing the Mother’s) they may have some better understanding of what had occurred and reach an agreement which would be better for their ongoing relationship and the Child than a decree from this court.

The Mother was eager to settle and indicated that she would like to have such discussions. The Father did not say anything, and I presume that no discussions were held as the parties attended the following Monday to provide their closing submissions.

When costs were argued, I raised this issue with the Father. I advised him that reasonableness was one consideration for costs and I asked him why he was not prepared to have discussions with the Mother after he had heard her trial evidence and she was still eager to resolve things.

His answer may explain some of what has been going on in this case. He explained that he did not want to have further settlement discussions at the end of the evidence because the Mother was still taking the position that she wanted sole decision-making authority. The Mother had never taken this position before me. She repeatedly said that they should share decision-making. The Father seems to hear what he wants to hear, and not what the Mother actually says.

10I add that while I had considerable concerns about the Father’s reasonableness during this proceeding, after the decision was released, he exhibited reasonable conduct. He wrote to me twice through the Registrar and advised that in view of my decision, he was withdrawing any costs orders which he had obtained against the Mother. He attended the costs hearing, advised that he did not seek any costs of this proceeding, that he accepts the decision, and that he wants to move on. I am taking into account his post-trial reasonable conduct.

Time Spent and Legal Fees

11The Father testified that he expended $80,000 in legal costs. I pause to note that this is money that could have been spent on the Child’s education or his care. Had he simply asked the Mother about the allegations regarding her alleged alcohol and substance abuse, or agreed to mediate, his expenditure of this amount could have been avoided or reduced.

12The Mother testified that her mother gave her $8,000 for one lawyer, who assisted with the Minutes of Settlement at the August 20, 2020 case conference. This money had been designated for the Mother’s University of Toronto tuition. The Mother also had a legal aid lawyer at the commencement of the case, but did not provide any evidence as to whether legal aid will seek repayment of amounts it provided.

13Given the quantum of legal fees expended by the Father, it is fair and reasonable, and within his reasonable contemplation, that the Father pay the full costs incurred by the Mother in the amount of $8,000. As well, should legal aid ultimately send her a bill or require any reimbursement, the Mother is given leave to bring that to my attention and request an Order that the Father pay those costs.

Costs in Favour of an Unrepresented Litigant

14The Mother also made a request for costs as a self-represented litigant. As noted in the trial decision, she had been unrepresented since November 2020—a period of approximately 9-months. The Mother had difficulty quantifying, but ultimately requested costs in the amount of $64,000 for the two years of litigation, on the basis that $32,000 was the poverty line and she should at least be compensated for two years at that level.

15She testified that because of her preoccupation with the case she was unable to seek better employment and improve her financial circumstances and that representing herself was “basically a full-time job.” She said:

“I don’t want to cause harm to [the Father]. And then which is really sad, that I don’t want to cause harm to him after all of it. I don’t want to make his life more difficult. But the fact of the matter is he has made my life almost unbearable, almost unliveable….I don’t think he’s seeing the—what his actions have done. And I’m not sure if there is a cost to be associated with it. Again, I’m not asking for this out of any sense of greed, it’s more so that [the Child] and I can rebuild in a way that’s human and rectifies—so [the Child] doesn’t look to his mother like a poor pathetic thing who can’t afford food.”

16I note that the Mother’s conduct during the trial was very interruptive and I noted this in my reasons. I took into account the trauma she had suffered when I assessed credibility. It was my view that her interruptive and disruptive conduct was driven by her need to be heard. I note that after I released my decision and costs were argued, her conduct was very different. At the costs hearing, she was composed, did not interrupt and conducted herself appropriately.

17The Mother is a vulnerable and marginalized woman living at the poverty level compared to the Father who at the time of trial had an income of $130,000. The Father actually complained about his financial circumstances at the costs hearing as a result of what he had to pay for this proceeding and what it would do to him to have to also pay costs.

18The Mother has ADHD and Asperger’s, as would be well known by the Father. She testified and I saw with my own eyes that she has trouble communicating effectively because of her disability and because of the trauma which she had endured prior to the Father’s urgent motion, which was made much worse because of the Father’s actions. She had much difficulty representing herself and perhaps even making herself and her situation understood to her own counsel--when she had one. But her disability did not make her an unfit mother. The Child was well cared for and thriving under her care before the Father brought his urgent motion.

19As such, it is with a heavy heart that I conclude that the existing authorities do not permit me to make a costs award which will remedy the trauma impacts and economic consequences which this action has had on the Mother.

20Nevertheless, there is a basis in the authorities to make an award which is based upon the work which she did to represent herself.

21In 1999, the Court of Appeal ruled that “both self-represented lawyers and self-represented lay litigants may be awarded costs”: Fong et al. v. Chan (1999), 1999 2052 (ON CA), 46 O.R. (3d) 330 (C.A.), at para. 21. The decision extended the already well-accepted premise that “time is money” for lawyers to individuals navigating the legal system without legal expertise. As Justice Sharpe put it, “[i]f the law is prepared to compensate lawyers for this loss of time when devoting their efforts to their own cause, I fail to see any basis for denying the same entitlement to self-represented lay litigants”: Fong, at para. 23.

22To ensure that the cost awards provided to self-represented lawyers and lay litigants remain consistent with the underlying purpose of cost awards, Justice Sharpe placed limitations on the extent to which costs may be recoverable:

“I would also note that, self-represented litigants, be they legally trained or not, are entitled to costs calculated on the same basis as those of the litigant who retains counsel. As the Chorley case, supra, recognized, all litigants suffer a loss of time through their involvement in the legal process. The self-represented litigant should not recover costs for the time and effort that any litigant would have to devote to the case”: Fong, at para 26.

23As a result, Justice Sharpe determined that costs should only be awarded to those lay-litigants who can demonstrate that they: (1) devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation; and (2) incurred an opportunity cost by forgoing remunerative activity: Fong, at para. 26.

24In applying the Fong test, courts have awarded costs to self-represented litigants at a rate ranging from $20-200 per hour. In Rashid v. Shaher, 2011 ONSC 852, 97 R.F.L. (6th) 213, at para. 70, the judge awarded a self-represented litigant (a waitress making $12 an hour) $20 per hour in costs. Her cost award totaled $8,300, or $10,000 with disbursements: Rashid, at paras. 80-81.

25In contrast, in the decision of Jhan-Cartwright v. Cartwright, 2010 ONSC 2263, 91 R.F.L. (6th) 301, at paras. 117, 121, a husband was ordered to pay his wife, who was a self-represented litigant, $200 per hour for an ultimate total of $9,038 in fees and $616.56 in disbursements. Having regard to the husband’s unreasonable conduct, and the wife’s offers to settle, Justice Price felt that the costs claimed by the wife were reasonable: Cartwright, at paras. 73-74.

26In this case, the Mother became unrepresented as of November 2020. Therefore, including the costs argument there were approximately 9 months during which she was unrepresented.

27She did not provide any specific evidence as to how much time she spent preparing for the trial or any particular employment opportunities that she may have foregone although as noted above she said it was basically a full-time job. I am estimating that at a minimum, for every day of trial appearance she would have to prepare for two days. The trial and cost submissions took seven days. Therefore, she spent a minimum of 21 days doing tasks that ordinarily a lawyer would do such as reviewing the Father’s materials, uploading materials, preparing her examination in chief, preparing for cross examination, closing submission and cost submissions. There was also one case conference in May 2021 where she represented herself and I estimate that as a layperson, she would have spent time preparing for that appearance as well.

28Her income before me was approximately $32,000 per annum or approximately $15 per hour. She had previously subsisted upon approximately $50,000 per year when the Father was paying spousal and child support. Had she had a job which provided her this income, that would be an hourly rate of $24 per hour. She testified that she felt that once the litigation was over, she would be in a position to seek more income. In the circumstances of this case, in my view it is appropriate to provide her with remuneration for the time she expended conducting the trial at a level of $24 per hour which is her pre-action income including spousal support she was receiving.

29Therefore, estimating eight hours per day multiplied by 21, I estimate that she spent 168 hours in trial preparation and trial time conducting tasks that ordinarily a lawyer would do. At a wage of $24 per hour that equates to $4,032. I am also exercising my discretion to award her an additional $2,000 for the period before the trial during which she was unrepresented and would have had to deal with this matter on an ongoing basis.

30Therefore, I find that the Father is liable for costs in the total amount of $8000 + $6,032, for a total of $14,032 plus any amounts that legal aid may seek from the Mother as repayment of any amounts which they paid.

31The Father shall pay $1169.33 per month on the first of each month, beginning January 1, 2022 until this is paid.

Papageorgiou J.