Chalifoux v. Atkinson, 2023 ONSC 5430

Court File and Parties

COURT FILE NO.: FS-16-004-02 DATE: 2023-09-26

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Alexandra Kylie Chalifoux v. Thomas Jonathan Atkinson

HEARD: September 13, 2023, via Zoom

BEFORE: Pierce J.

COUNSEL: Ms. Chalifoux, for the Applicant, self-represented Ms. S. Filipovic, for the Respondent, Mr. Atkinson

ENDORSEMENT ON COSTS

1The respondent, Mr. Atkinson, seeks full recovery costs of the applicant’s motion to change (“the first motion”), in the amount of $19,974.07. The first motion was launched on December 4, 2019. The first motion sought to vary a detailed final order made by Justice Fregeau on consent on March 28, 2019.

2On or about December 16, 2019, Mr. Atkinson countered with a motion to find Ms. Chalifoux in contempt of Justice Fregeau’s order. Ms. Chalifoux responded to the contempt motion in January 2020. Mr. Atkinson filed a response to the first motion to change and an affidavit in early January 2020. All the issues on the motion to change and motion for contempt were intertwined.

3The first motion to change was never argued. It was dismissed at a case conference on May 26, 2023, after the Registrar issued a notice of approaching dismissal in October 2022.

4At issue are the costs of the first motion to change.

5The contempt motion was heard by Justice Nieckarz on March 2, 2020, with lengthy reasons released on June 2, 2020. In those reasons, Nieckarz J. found enough blame to go around for each parent, calling for a truce in their conflictual relationship and urging them to focus on the needs of their children. Justice Nieckarz admonished the mother but declined to make a contempt finding. No costs were ordered.

6Ms. Chalifoux submits that because her motion, arising out of a change in her financial circumstances, was dismissed, no costs should be ordered. She submits that the respondent filed a strategic contempt motion against her that duplicated the issues in her motion and that many of the costs claimed arise from attendances concerning Mr. Atkinson’s contempt motion and his motion to change (“the second motion”), which is still pending.

7As a result of legal advice she obtained, she decided to respond to the contempt motion and hold the first motion to change in abeyance. Accordingly, she did not book a case conference.

8She submits that following the contempt motion, the parties engaged in mediation that resolved their disputes over the children’s hockey. She submits that there was no need for a case conference regarding her first motion to change. Then Mr. Atkinson started his second motion to change that she says overlaps with the issues raised in her first motion.

9Ms. Chalifoux argues that the costs of the first motion should be deferred and the costs of the second motion determined. She submits that many of the costs claimed actually relate to the contempt motion and the second motion to change. She says the costs of the first motion are minimal, and in any event, she is of limited means, being on medical leave.

10Ms. Filipovic argues that Ms. Chalifoux consistently co-mingled issues from Justice Fregeau’s order, and that the first motion to change was an effort to mitigate her client’s contempt motion. I do not accept this submission. The father’s contempt motion followed the mother’s first motion to change.

11Ms. Filipovic argues that Ms. Chalifoux’s actions are frivolous and vexatious, characterized by bad faith.

12Ms. Filipovic cites Peladeau v. Charlebois, 2020 ONSC 6596, para 33, which states that the inability of an unsuccessful party to pay costs is not a shield, particularly if he or she has behaved unreasonably. I agree. Otherwise, there would be no costs consequences for an unsuccessful party who represents herself.

13Costs are in the discretion of the court. The principles are set out at Family Law Rule 24. Rule 24(12) provides that the court must determine, in a summary fashion,

(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

i. each party’s behaviour,

ii. the time spent by each party,

iii. any written offers to settle, including offers that do not meet the requirements of rule 18,

iv. any legal fees, including the number of lawyers and their rates,

v. any expert witness fees, including the number of experts and their rates,

vi. any other expenses properly paid or payable; and

(b) any other relevant matter.

14As Ms. Chalifoux’s motion has been dismissed, Mr. Atkinson is presumptively entitled to his costs. What is a reasonable and proportionate amount in the circumstances?

15Ms. Filipovic’s bill of costs claims time for her legal assistant at $125/hour. There is no indication that this person is qualified by training or experience as a law clerk as provided in the Rules of Civil Procedure or that she is performing the functions of a law clerk. Even if it were so, the hourly amount claimed is excessive.

16Costs for secretarial assistance fall under the lawyer’s hourly rate, as overhead for running a law office. The claims for the legal assistant, amounting to 7.8 hours, are disallowed.

17In my view, full indemnity costs are not warranted in these circumstances. Substantial or full indemnity costs are reserved for reprehensible conduct calling for the court’s sanction. It is clear from Justice Nieckarz’s reasons on the contempt hearing that the parties share blame for the dysfunctional nature of their relationship that brings them repeatedly before the court.

18The bill of costs does not differentiate between time spent dealing with the first motion to change, the second motion or the contempt proceedings. Indeed, the timing of these proceedings and the issues involved significantly overlap. As well, there are numerous entries for revision of documents. Documents filed, including on the costs motion, are often prolix.

19Furthermore, having regard for the reasonable expectations of a losing party, the amount of costs claimed is not proportionate to what was in issue. There was an initial motion with supporting materials, responding materials, and then no further proceedings on the first motion until it was dismissed. As I have said, the first motion was never argued.

20The applicant, Ms. Chalifoux, shall pay to the respondent, Mr. Atkinson, his costs fixed at $1,000.00 inclusive of disbursements and HST., which costs may be enforced as a set-off to any child support that Mr. Atkinson is obliged to pay.