Superior Court of Justice - Ontario
COURT FILE NO.: FC-19-630
DATE: 2022/01/14
RE: Amanda Leigh Holden, Applicant
AND:
Wesley Jordan Ploj, Respondent
BEFORE: Madam Justice J. Breithaupt Smith
COUNSEL: J. LeDrew Metcalfe, Counsel for the Applicant
Respondent is Self-Represented
COSTS ENDORSEMENT
[1] This is the Costs Endorsement from the Motions brought by the Applicant, Amanda Leigh Holden, argued on November 10, 2021. Costs submissions were received from both parties in accordance with my Reasons issued November 17, 2021.
Motions Background
[2] The Applicant’s Records Motion was granted with effectively no objection from the Respondent, Wesley Jordan Ploj. The Applicant’s second Motion sought sole decision-making responsibility for the parties’ two children, aged 6 and 4. In part, the Applicant sought this relief as the Respondent had been unco-operative in signing forms authorizing treatment for one of the parties’ children. I granted the Applicant’s request on the following terms:
a. the Applicant, Amanda Leigh Holden, shall consult with such professional person working with the child(ren) as may be applicable to obtain information regarding the decision to be made;
b. the Applicant, Amanda Leigh Holden (or her counsel or designate in her discretion), shall send an email to the Respondent, Wesley Jordan Ploj, at wesleyploj@gmail.com, setting out the name of the professional consulted, the decision to be made and a brief summary of any information provided by the professional;
c. the Respondent, Wesley Jordan Ploj, shall reply to the email within three (3) business days providing a brief summary of his response to the decision to be made and the information provided by the professional;
d. after the expiry of three (3) business days from the date upon which she sent the email, the Applicant, Amanda Leigh Holden, shall make the final decision and shall communicate same to the Respondent, Wesley Jordan Ploj, via email to wesleyploj@gmail.com;
e. should the Respondent, Wesley Jordan Ploj, seek to contest or review the decision made by the Applicant, he shall do so within fourteen (14) days of receipt of the email informing him of the decision, failing which the decision shall stand.
[3] I further confirmed the Respondent’s statutory right to request information directly from professional persons working with either child, noting that any delay arising from such request would not extend the term setting out a three business-day timeline for the Respondent’s input into any pending decision.
[4] Note that the Respondent did not have a motion before the Court and, despite having been provided with the opportunity to do so, was unable to articulate his own alternative terms for a Temporary Order regarding decision-making. It was unclear whether he was seeking to have the Applicant’s motion dismissed or whether he sought some form of joint decision-making. During argument, the Respondent did express concern that communication with the Applicant might breach the terms of his current Adult Probation Order which prohibits contact (except pursuant to a valid Family Court Order).
Applicant’s Position
[5] The Applicant’s costs, calculated at counsel’s actual hourly rate, would total $4,050.20. The Applicant seeks costs on the substantial indemnity basis in the amount of $3,037.64 and has calculated a partial indemnity amount of $2,007.17. All figures are inclusive of disbursements and HST. Although the Applicant is legally-aided, she points to the case of Ramcharitar v. Ramcharitar[^1], in which Justice Wein reviewed the jurisprudence on the question of the applicable hourly rates for legally-aided litigants in considering costs and concluded that section 46(1) of the Legal Aid Services Act, which prohibits unequal treatment on the basis of a legal aid retainer, prevails.
[6] Section 46(1) of the Legal Aid Services Act reads[^2]:
The costs awarded in any order made in favour of an individual who has received legal aid services are recoverable in the same manner and to the same extent as though awarded to an individual who has not received legal aid.
[7] The Applicant points to the Respondent’s admission that he refused to sign a consent to treatment for the parties’ eldest child until the motion materials were served, and to the history of family violence for which the Respondent expressed no remorse, as “unreasonable behaviour” under Rule 24(5). Further, the Applicant served an Offer to Settle dated October 21, 2021 which provided that she would have “sole interim decision-making responsibility” for the children and that no costs would be payable if the offer were to have been accepted by November 1, 2021. Having regard to all of the applicable factors, she seeks costs in the amount of $3,037.64.
[8] In his responding costs submissions, the Respondent reiterates many of the allegations he raised at the hearing of the motion respecting his views on the Applicant’s ability to make personal decisions for herself and his views on the cleanliness and nutritional health of the children. He broadly discusses his financial circumstances in the context of ensuring that funds are available to meet his child support obligations and writes: “It would be valuable for all parties if the applicant were to acknowledge the full costs of her decisions.” and “How the applicant expects me to pay her legal fees while the litigation she calls for limits my availability at work is unclear.” He takes the primary position that the Applicant should be responsible for both parties’ costs (although he does not specify what amount he would be seeking in that regard) but, alternatively, asks that each party bear his or her own costs “so each party is aware of the costs of their own decisions.”
Law & Discussion
[9] Modern cost rules are designed to foster four fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants and; (4) to ensure that cases are dealt with justly under Rule 2 (2) of the Family Law Rules.[^3]
[10] Costs awards are discretionary and engage two important principles in the exercise of judicial discretion: reasonableness and proportionality. There is no distinction between family cases having a financial component and family cases that focus exclusively on parenting issues; costs consequences and considerations apply equally to all family litigation. Consideration of success is the starting point. Whilst there is a presumption that the successful party is entitled to costs, judicial discretion prevails; a costs award is not automatic.[^4] An assessment of reasonableness and proportionality of costs includes the following factors:[^5]
Ultimately, costs decisions should reflect what the court considers to be a fair and reasonable amount that the unsuccessful party should pay.
Costs need to be proportional to the issues and amounts in question and the outcome of the case.
Amounts actually incurred by the successful litigant are not determinative.
In assessing what is fair and reasonable, the expectation of the parties concerning the amount of a costs award is a relevant consideration.
[11] The Respondent suggests that he was a successful party due to the inclusion of terms setting out consultation parameters in his favour. Those terms were not requested by the Respondent. They were included at the Court’s initiative as a result of my analysis of the best interests of the children. The Respondent cannot rely upon those terms because he had no motion before the Court and was unable to articulate a clear position when asked to do so. Thus, there is no benchmark against which his alleged “success” can be measured. He cannot be said to be the “successful party” under Rule 24(1).
[12] In considering the applicable hourly rate upon which to base a costs award in favour of a legally-aided client, Justice Wein wrote[^6]:
...I find that s. 46 of the Act was and is specifically intended to obviate the indemnity principle in Legal Aid. There is nothing unfair about this interpretation. There is no punitive aspect in such an award of costs; the party paying the costs simply pays the same amount as they would if the client were not legally aided. In fact, to hold otherwise would grant an inadvertent windfall to the party fortunate enough to only have to pay costs to an opposing party on Legal Aid, since the rates would be accordingly reduced.
[13] I agree.
[14] I am not persuaded by the Respondent’s arguments that he wanted to avoid the motion; that he is facing his employer’s frustration as a result of the litigation appearances; and that he is losing money that could otherwise be available for the children. These are factors that he ought to have considered at three stages prior to the motion argument date:
in initially refusing to sign the consent to treatment form(s);
when he received the Applicant’s Notice of Motion; and finally
when he received the Applicant’s Offer to Settle (or by November 1, 2021, being the deadline for acceptance on a “without costs” basis).
[15] While the Court is not obligated to conduct a line-by-line review of costs submissions[^7], time expended by counsel has been clearly delineated and inapplicable costs (such as those of the Settlement Conference which have been reserved to the Trial Judge) have been removed.
Conclusion & Order
[16] Having regard to all of the foregoing, and taking into account both the applicable sections of Rules 18 and 24 and the guidance of the jurisprudence, the following Temporary Order shall issue:
[1] The Respondent, Wesley Jordan Ploj, shall pay costs to the Applicant, Amanda Leigh Holden, fixed in the amount of $3,000.00 for all time expended in connection with the Motions argued on November 10, 2021.
[2] Such costs amount shall be paid within ninety (90) days and, unless otherwise directed by the Applicant in writing, shall be payable to “Jean Ledrew Metcalfe in trust.”
[3] Notwithstanding Rule 25 of the Family Law Rules, this endorsement is effective from the date it was made and enforceable as an order of the court without the need for an order to be prepared or approved by the parties and then issued by the court. No formal order is necessary unless an appeal or a motion for leave is brought, or alternatively unless one is necessary for enforcement by a third party.
[4] In the event that a formal order is prepared, approval of the draft by the self-represented party is waived.
J. Breithaupt Smith, J.
DATE: January 14, 2022
[^1]: 2002 53246 (ON SC).
[^2]: S.O. 1998, c. 26, s. 46.
[^3]: Family Law Rules, rule 2(2); Mattina v. Mattina, 2018 ONCA 867 at paragraph 10.
[^4]: Mattina, supra, at paragraphs 12 & 13.
[^5]: Snelgrove v. Kelly, 2017 ONSC 4625 at paragraph 31 citing Serra, Boucher v. Public Accountants Council (Ontario), 2004 14579 (ON CA), [2004] O.J. No. 2634 (C.A.) and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC, 2005 1042 (ON CA), 2005 CarswellOnt 189 (C.A.).
[^6]: Ramcharitar, supra note 1 at paragraph 25.
[^7]: Sommerard v. I.B.M. Canada Ltd., 2005 39896 (ON SC) at paragraph 57.