Court File and Parties

Court File No.: 987-18 Date: 2022-04-11 Superior Court of Justice – Ontario

Re: J.N., Applicant And: C.G., Respondent

Before: The Honourable Mr. Justice A. Pazaratz

Counsel: Applicant, Self-Represented Jesse Herman, Counsel, for the Respondent

Costs Endorsement

[1] If you threaten to claim “significant costs” if you win, how can you suggest “nominal costs” when you lose?

[2] I have now considered written costs submissions flowing from my lengthy endorsement of February 22, 2022.

[3] This was a COVID vaccination case. a. The father brought a motion asking that two children ages 12 and 10 receive the COVID vaccine and all recommended booster vaccines – and that he be permitted to arrange the vaccinations because he didn’t trust that the mother would comply even if ordered to do so. b. The mother asked that the motion be dismissed, on the basis that there were still well-founded concerns about the benefit/risk analysis associated with current vaccines – and also on the basis that there was independent verification that both children were strongly opposed to receiving the vaccines. c. Notably – and this has been lost in the discussion – the mother did not take the position that the children should never be vaccinated. She simply asked that any decision be deferred pending better answers to legitimate questions. d. The mother’s position prevailed. The father’s motion was dismissed. The mother was given sole decision-making authority in relation to this health issue.

[4] The mother was self-represented at the hearing of the motion, although she incurred legal fees with respect to the preparation of lengthy affidavit materials. She seeks $2,281.51 on a “substantial Indemnity basis (100%)” or $1,770.81 on a “partial indemnity basis (75%).”

[5] The father was represented by counsel. He acknowledges the mother was successful, but submits she should only be entitled to unspecified “nominal costs”.

[6] The mother says the father’s suggestion of nominal costs is hypocritical, given the fact that on February 11, 2022 the father’s lawyer emailed the mother: “If we are forced to proceed on the motion next week (the father) will be seeking significant costs against you, as this has been a very time-consuming motion to prepare for.”

[7] The mother’s submissions include: a. The father initiated the proceeding by bringing a motion which the mother was forced to respond to. b. The mother was entirely successful. c. The father’s materials focused on personal attacks against the mother, rather than engaging in discussion of the relevant issues and the best interests of the children. d. The father did not behave in a reasonable or child-focused manner. e. In contrast, the mother behaved reasonably. Her materials were child-focused, and she attempted to address the medical and best interests concerns. f. The father asked the court to disregard the views and preferences of the children, whereas the mother asked the court to give due weight to their views – as is required in the legislation. g. The mother’s litigation response to the father’s motion was reasonable. She reduced her legal expense by representing herself. h. The mother had to take time off work in relation to the motion. She seeks compensation for lost wages.

[8] The father’s submissions include: a. Although he was unsuccessful, his behaviour was not inappropriate. b. After lengthy and high conflict litigation the parties had agreed that this one very sensitive and complex issue would have to be determined by the court. c. The thorough analysis set out in the court’s endorsement reflects the complexity and importance of the issue. d. The father denies making personal attacks on the mother. He was simply expressing concern that the children may have received information from the mother which was likely to colour their views. e. The father was child-focussed and acted in good faith. f. The father also incurred significant costs associated with the motion, including having to take two days off work.

[9] Costs rules are intended to foster four fundamental purposes: a. To partially indemnify successful litigants; b. To encourage settlement; c. To discourage and sanction inappropriate behaviour by litigants; and d. To ensure that cases are dealt with justly pursuant subrule 2(2) of the Family Law Rules ("the Rules") Mattina v. Mattina, 2018 ONCA 867; Serra v. Serra, 2009 ONCA 395.

[10] Costs awards are discretionary. In exercising that discretion, the court should be mindful of two touchstone considerations: reasonableness and proportionality. Beaver v. Hill, 2018 ONCA 840.

[11] Costs can be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71; Lewis v. Silva, 2019 ONCJ 795; Lawrence v. Lawrence, 2017 ONCJ 431; Peladeau v. Charlebois, 2020 ONSC 6596; Pugsley v. Adamantidou, 2021 ONCJ 590.

[12] Rules 18 and 24 govern the determination of costs in family law proceedings.

[13] Consideration of success is the starting point. Rule 24(1) creates a presumption of costs in favour of the successful party. Sims-Howarth v. Bilcliffe. As stated, the mother was entirely successful in opposing the motion brought by the father.

[14] Neither party appears to have filed a formal offer to settle pursuant to Rule 18. Offers to settle play an integral role in saving time and expense by promoting settlements, focusing parties, and often narrowing the issues. In most cases it is unreasonable behaviour for a party not to submit an offer to settle. Potter v. DaSilva, 2014 ONCJ 443; Laing v. Mahmoud, 2011 ONSC 6737; Menchella v. Menchella, 2013 ONSC 367; J.S. v. M.M., [2016] O.J. No. 1566.

[15] The mother seeks full recovery as her primary request. There is no presumption in the Rules that provides for a general approach of "close to full recovery" costs. Rules 18 and 24 expressly contemplate full recovery only in specific circumstances: a. Matching/exceeding an offer to settle (Rule 18(14)). b. Bad faith (Rule 24(8)). Beaver v. Hill.

[16] The mother does not allege that the father acted in bad faith, and there would be no basis for such a finding.

[17] Rule 24(5) provides criteria for determining the reasonableness of a party’s behaviour in a case. Being unsuccessful does not necessarily equate to being unreasonable. Wauthier v. McAuliff, 2019 ONSC 5302; W.H.C. v. W.C.M.C., 2021 ONCJ 363.

[18] In this case, the mother’s approach to the litigation was entirely reasonable.

[19] In comparison, while it was reasonable for the father to seek to address this important issue, his decision to present evidence and submissions relating to the mother’s political beliefs or affiliations was entirely unreasonable. He raised irrelevant issues which the mother was forced to respond to.

[20] Unreasonable behavior “in relation to the issues” includes behavior that: (1) is disrespectful of other participants or the court; (2) unduly complicates the litigation, (3) increases the cost of litigation. Harper v. Smith, 2021 ONSC 3420.

[21] I am satisfied that the mother is entitled to costs. Indeed, the father does not appear to strenuously dispute entitlement. I must then consider Rule 24(12) which outlines the factors to be considered in quantifying costs.

[22] The amounts actually incurred by the successful litigant are not determinative. The Court’s role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees: Aprile v. Aprile, 2016 ONCJ 678.

[23] The overall objective is to fix an amount that is fair and reasonable from the unsuccessful party’s perspective. This includes considering the amount the unsuccessful party could reasonably have expected to pay if they were unsuccessful in the litigation. Boucher v. Public Accountants Council of Ontario; Arthur v. Arthur, 2019 ONSC 938; Mussa v. Imam, 2021 ONCJ 92.

[24] A party’s expectation as to their likely exposure to costs if they are unsuccessful should be at least partially informed by the legal fees they chose to incur in dealing with the issue. In this case, the father states that he incurred significant – but unspecified -- costs bringing his motion. He threatened he would be seeking a significant costs order if he was successful. So he should reasonably have anticipated that the mother might also incur significant expense defending his motion.

[25] In my February 22, 2022 endorsement I noted that the mother was a particularly well-prepared self-represented litigant. Her materials were thorough and well-assembled. Her submissions were focused and effective. In this respect, I note that she is not seeking any compensation for the time and effort she expended as a self-represented litigant. She is simply requesting reimbursement for money she spent (for legal services and photocopies) and money she lost (one day’s wages to participate in the hearing of the motion).

[26] With respect to the latter, the mother seeks reimbursement for the $93.60 she lost in wages (as an hourly employee) as a result of having to attend court (by Zoom) to argue the motion on February 18, 2022.

[27] For self-represented litigants, lost wages as a result of time missed from work to prepare for or argue a case can be compensated by way of costs. G.B. v. S.A., 2013 ONSC 2147. But this excludes routine awards on a per diem basis to litigants who would ordinarily be in attendance at court in any event. Warsh v. Warsh, 2013 ONSC 1886.

[28] The mother’s primary claim relates to the $1,725.00 she paid to her lawyer to assist her in preparing very lengthy (and persuasive) materials, and the $238.66 she spent on photocopies.

[29] Under Rule 24(12)(a)(ii) and (iv), the court must review the lawyer's rates and the "time spent by each party" on the case. I find that the time spent and the hourly rate of the lawyer who assisted the mother are reasonable. The assistance of a law clerk was also reasonable, and undoubtedly significantly reduced the mother’s overall legal bill. And the disbursement for photocopies is understandable, given the volume of material.

[30] I have considered all of the above factors. In determining the appropriate quantum of costs, I have given specific attention to the following considerations: a. The mother did not initiate these proceedings. She was presented with what the father characterized as an “urgent” motion, requiring a quick and thorough response. She made reasonable efforts to resolve the issue, both before and after the father commenced his motion. b. The issues raised by the father were important and complex. c. The father presented evidence and arguments which were both relevant and irrelevant. The mother had no choice but to respond to everything. d. The mother’s responding materials and presentation were skilled, focused, and proportionate. e. This was a one-issue case, and the mother was entirely successful. f. The mother is presumptively entitled to costs, but there is no basis for full indemnification. g. While the scientific aspect of COVID vaccination cases might still be characterized as “novel” or evolving jurisprudence, an important determining factor in this case related to a much more well-settled area of the law: the court’s obligation to consider and give appropriate weight to the views and preferences of children. In this respect, the father basically asked the court to ignore or override the clearly stated views and preferences of children who strenuously objected to what the father wanted to force upon their bodies. h. The father’s emphasis on the mother’s political and social involvement was irrelevant and offensive, and resulted in needless complication, distraction and expense. Particularly where vitally important children’s issues are concerned, the court must encourage civil, thoughtful, and respectful dialogue – and discourage vilification and personal attacks. i. The legal fees incurred by the self-represented mother were quite reasonable. Had the mother formally retained counsel to fully represent her in relation to this motion, undoubtedly the costs claim would have been significantly higher.

[31] Considering all of these factors, the Respondent father shall pay to the Applicant mother costs fixed in the sum of $1,300.00 inclusive of HST and disbursements.

Pazaratz J. Date: April 11, 2022