Court File and Parties
Court File No.: FS-22-00028031-0000 Date: 2022-02-17 Superior Court of Justice - Ontario
Re: E.C. And: P.A.
Before: Madam Justice Papageorgiou
Counsel: Efua Cobbina, for the Applicant P.A., Self-Represented
Heard: February 17, 2022
Endorsement
[1] The Mother P.A. (the “Mother”) brings a motion for leave to appeal the costs order of Justice Zisman dated January 24, 2022 (the “Costs Order”) as well as stay of the Costs Order.
[2] The Applicant E.C. (the “Father”) opposes this motion.
[3] The Costs Order related to a motion which the Father brought to enforce his court ordered parenting time.
Applicable Principles
[4] The principles applicable to a motion for leave to appeal a costs order are set out in Van v. Palombi, 2015 ONSC 170 and Eustace v. Eustace, 2017 ONSC 4814 and are as follows.
[5] Pursuant to section 133(b) of the Courts of Justice Act leave is required where an appeal relates only to costs that are in the discretion of the court.
[6] Rule 62.02(4) of the Rules of Civil Procedure provides as follows:
Leave to appeal shall not be granted unless, (a) there is a conflicting decision by another judge or court in Ontario or elsewhere on a matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or (b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.
[7] There is considerable defence owed by an appellate court to costs orders made. Leave to appeal should only be granted sparingly and “there must be some indication of a complete failure to exercise discretion or an exercise of discretion based on an erroneous principle”.
[8] The test is not whether the appellate court would have made a different decision but whether the motions judge based the exercise of discretion on an error of principle or was clearly wrong: Van v. Palombi at para 5.
[9] With respect to public importance, “these words refer to matters of general importance, not. Matters of particular importance relevant only to the litigants. General importance relates to matters of public importance and matters relevant to the development of the law and the administration of justice”: Greslik v. Ontario Legal Aid Plan (1988) cited in Van v. Palombi at para 5.
The Mother’s Position
[10] The Mother’s arguments essentially repeat arguments which she made before Justice Zisman as follows:
[11] She never withheld the child from the Father; rather he failed to exercise his parenting time.
[12] She is the custodial parent and the costs award of $8,500 within 60 days will interfere with her ability to support the child of the marriage.
[13] Thus, Justice Zisman failed to take into account the best interests of the child or her financial circumstances.
[14] Justice Zisman failed to award an amount that is fair and reasonable.
[15] Justice Zisman’s Order will place her in a precarious situation. The Father has brought a motion to change and if she does not pay the Costs Order within 60 days, the Father will be in a position to strike out her Answer.
Analysis
[16] First, the Mother has not set out the basis for her appeal. Given that she did not provide any case law with which the Costs Order conflicts, she must be relying upon 62.04(b) which requires that there is a good reason to doubt the correctness of the decision and that the matter involves matters of such public importance that it is desirable that leave to appeal be granted.
[17] In my view, there is no reason to doubt the correctness of the decision for the following reasons.
[18] Justice Zisman carefully and thoroughly set out all applicable legal principles in her endorsement correctly. There was no error or principle set out. She appropriately considered and applied these principles.
[19] She noted that although the issues were not complex legally, they involved the Father’s parenting time which were of great importance to him.
[20] She considered the reasonableness of the parties’ conduct and took into account the fact that two attendances were required because the Mother sought an adjournment of the first hearing date.
[21] She heard the motion and it was her view that the Mother had breached two court orders and that the Mother also failed to comply with court ordered parenting time three times between the adjournment and return date which the Mother obtained. The Mother did not appeal the underlying motion and I am in no position to accept the Mother’s unsworn evidence during the argument that she did not withhold the child in breach of court orders. It is trite that one of the purposes of costs orders is to discourage improper behaviour which Justice Zisman had found the Mother had exhibited.
[22] She appropriately took into account the fact that the Father had to commence a motion to change and prepare a Form 35.1 affidavit to bring the temporary motion to enforce the Father’s parenting time, and that the Mother’s counsel had failed to provide his own fees and expenses.
[23] Despite the Mother’s argument, Justice Zisman also took into account the fact that the Mother is the custodial parent, and the Mother’s assertion that she did not have the finances to pay the Costs Order. While the Mother asserts that Justice Zisman failed to take into account her Form 13.1 which she says was in the court record and which demonstrated her precarious finances, it was the Mother’s obligation (who was represented by counsel at the time) to bring this document to Justice Zisman’s attention by filing this as part of her record or at least directing Justice Zisman to it. The mere fact that a document is contained in the court file does not mean that a party has provided evidence of that fact to the Judge hearing a motion. Were that the case, Judges would have to be digging through court files for every motion to ensure that there was nothing relevant contained therein.
[24] Regarding the prejudice which the Mother says she faces in the within proceeding if she does not comply with the Costs Order, the only thing being sought in the Motion to Change are changes to the summer schedule by the Father as well as the Mother’s request for more child support. There is a case conference scheduled for next week and the Father’s counsel is hopeful they can resolve the issues in dispute. She advised that there is no intention to strike out the Mother’s Answer for failure to pay the costs order.
[25] There is no basis to doubt the correctness of the decision.
[26] Moreover, the Mother has not raised any issue of public importance.
[27] While I have great sympathy for the Mother who is currently self-represented and who does indeed appear to bear the lion’s share of childcare responsibilities, in my view, the Mother has not identified any basis for an appeal but is seeking to re-argue both the underlying motion before Justice Zisman as well as the costs argument which Justice Zisman decided.
[28] Therefore, leave must be denied.
[29] If the parties cannot agree on costs, they may make submissions no longer than 3 pages as follows: The Father by February 22, 2022 and the Mother by February 26, 2022.