Court File and Parties
COURT FILE NO.: FC-18-2028-1 / CV-22-88303-00ES
DATE: 2023/01/23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ELIZABETH NYANTAKYI
Applicant
– and –
JAMES BENNETT ARYEE
Respondent
– and –
THE OFFICE OF THE PUBLIC GUARDIAN AND TRUSTEE
Respondent
Counsel:
Deanna Paolucci, for the Applicant
Self-represented
Madison Randall, for the Office of the Public Guardian and Trustee
HEARD: in writing.
Costs decision
Audet J.
[1] On October 31, 2022, I released my decision in this matter following a 10-day trial heard in May and September 2022. The sole issue I was required to decide was the determination of who, between the Applicant mother and the Respondent father, was to be appointed legal guardian of the person of their 18-year-old son, PJ, under the Substitute Decisions Act, 1992, S.O. 1992, c. 30. I ruled in favour of the mother. If the parties were unable to agree on costs, I invited them to provide me with written submissions and I would decide. Having received submissions from both parties, this is my decision on costs.
The Parties’ Position
[2] The mother seeks an order for costs in the amount of $52,132.65 payable on a full recovery basis and immediately, based on the fact that she was the successful party, that she made an offer to settle which attracts the cost consequences of r. 18(14) of the Family Law Rules, O.Reg. 114/99 as am. (“the Rules”), and that the father behaved unreasonably and in bad faith. If the Court is not prepared to order that those costs be paid immediately, the mother seeks an order that $30,000 be payable immediately, $15,000 be paid within 30 days of this decision, and the balance be paid within 4 months.
[3] The father spent quite some time in his cost submissions re-hashing the evidence presented at trial with a view of demonstrating that he had “done nothing wrong” (his words). Ultimately, the father takes the position that despite the mother’s success, she acted and behaved unreasonably, recklessly and in bad faith, including by launching a civil action which was a waste of time and money. In the father’s view, the mother’s motion to change a U.S. court order in Ontario was legally defective and lacked jurisdictional basis from the beginning. According to him, the mother failed to remedy those defects. Her subsequent civil action further complicated matters and greatly contributed to the costs and complexity of this case. As a result, she should not be entitled to any cost, and he seeks an order that each party bears their own costs.
Legal Framework
[4] This Court has held that modern family cost rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement, and; (3) to discourage and sanction inappropriate behaviour by litigants (Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, at para. 8; Fong v. Chan (1999), 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330 (C.A.), at para. 22). Rule 2(2) adds a fourth fundamental purpose: to ensure that cases are dealt with justly. Rule 24(12), which sets out factors relevant to setting the amount of costs, specifically emphasizes “reasonableness and proportionality” in any costs award.
Analysis
[5] It is not disputed that the mother was the successful party in this trial. As such, she is presumptively entitled to her costs on a partial indemnity basis.
[6] I acknowledge that the mother made an offer to settle on May 2, 2022, which essentially reflected the order she was seeking at trial, and which she obtained. This said, the issue in dispute in this case was not one that allowed for much compromise. Just like relocation disputes, this case could only be decided by one party being entirely successful – by being awarded legal guardianship of PJ – and the other being entirely unsuccessful – by not being awarded same. Therefore, while I take note of the mother’s May 2022 Offer to Settle, in my view it has less weight in a dispute such as this one, where true compromises were difficult to achieve. Also, it cannot be said that the outcome achieved by the mother at trial was “more favourable than” what she had offered to settle for: she obtained exactly what she had offered to settle for, subject to costs. It is also important to note that the father also made an offer to settle on May 6, 2022, which mirrored the mother’s offer, except that in his offer he was to be granted legal guardianship of PJ.
[7] In any event, the mother’s offer to settle was made days before the trial was set to begin and even if I was prepared to conclude that it attracted the cost consequences of r. 18(14), it would only apply to the costs of the trial itself, not to the costs related to any steps taken prior to trial (including trial preparation).
[8] Both parties accuse the other of having behaved unreasonably and in bad faith, for a myriad of reasons. I do not intend to go through each of these allegations at length here. In my view, both parties, at times, behaved in a way that resulted in wasted court time and increased legal fees. But overall, the father’s conduct in this litigation was far more obstructive. I find that he behaved unreasonably, although in my view his conduct did not meet the high threshold required to establish bad faith.
[9] Contrary to what the father alleges, the civil action brought by the mother, belatedly, seeking relief pursuant to the Substitute Decisions Act was absolutely necessary given that the parties’ family law litigation (pursued by them under family law legislation) became obsolete due to the passage of time. The parties ought to have known that once PJ turned 18, no relief could be granted by the Court in relation to his care based on the Children’s Law Reform Act, R.S.O. 1990, c.C.12, as am. or the Divorce Act, R.S.C. 1985, c.3 (2nd Supp), as am. The parties’ late realization on the eve of the January 2022 trial – after this was pointed out by MacEachern J. in the context of a trial management conference – that no relief could be granted by the Court given that PJ had reached adulthood, led to significant delays and increased legal fees. Nonetheless, both parties were pursuing the same relief and both parties are at fault for having failed to amend their pleadings well in advance of the January 2022 trial to seek relief under the Substitute Decisions Act.
[10] As far as the father is concerned, my trial decision is replete with factual conclusions which support a finding that he behaved unreasonably during the course of this lengthy litigation and trial. I found that the main focus of his testimony was to show the mother in the worst possible light, making very serious allegations against her and her family members which he was not only unable to support with any reliable corroborating evidence, but made in spite of the fact that objective documentary evidence clearly showed that what he was saying was inaccurate or simply untrue. I note in passing that many of those serious allegations had nothing to do with the issues I had to decide at trial (alleged mortgage fraud, diplomatic fraud, and allegations about the mother’s family members).
[11] I also found that the father completely refused to communicate or cooperate in any way with the mother with respect to PJ’s care and services despite a court order requiring him to do so, and that he was obstructionist in the mother’s attempts to coordinate same. The father’s refusal to provide the mother with a copy of PJ’s passport, despite a court order requiring him to do so, and which effectively precluded the mother from returning to Canada to care for PJ, was especially egregious.
[12] Throughout the course of this litigation, during most of which the father was self-represented, he frequently failed to comply with his obligations pursuant to the Rules. He did not comply with court orders in relation to disclosure and other matters, he refused to approve draft orders for the purpose of turning endorsements into issued orders and he attended conferences unprepared.
[13] The mother seeks her costs for four specific events: the case/trial management conferences that took place in November 2021, December 2021 and January 2022 in preparation for the May 2022 trial; the trial which took place in May and September 2022; disbursements related to expert fees and fees paid to the Office of the Public Guardian and Trustee (“PGT”) post-trial; and legal fees paid in relation to all the work completed by a law student in her lawyer’s office.
[14] I am not prepared to grant the mother her costs in relation to the case/trial management conferences. In my view, those became necessary as a result of both parties’ failure to realize that the relief they were seeking in relation to PJ’s care could no longer be granted by the Court. They are both to blame for this and it is clear that these additional conferences became necessary to deal with this failure, both parties’ lack of preparation for trial, and the need to initiate an entire new legal proceeding (pursuant to the Substitute Decisions Act) prior to the trial being heard.
[15] I see no reason to deny the mother’s costs in relation to expert fees paid to Dr. Gaisie for her report and expert testimony ($930.44). Her fees were extremely reasonable in comparison to what is normally charged by experts in Canada, and her testimony was both helpful to the Court and necessary in assessing the services that PJ would have access to if he relocated to Ghana. The same applies to the expert fees paid to Ms. Zanon ($240), and for the fees charged by the PGT post-trial.
[16] I find that the fees charged by the mother’s counsel were reasonable in the circumstances. She spent a total of 103 hours (at $300/hour) for both her preparation for and her attendance at this trial, which spread over the course of ten days. It was also reasonable for her to delegate to her law student much of the work related to trial preparation, at a much lower rate ($100/hour). I accept that increased work was required in relation to the review and organization of evidence due to the sheer volume of documents the father intended to rely upon at trial (more than 300 proposed exhibits, although ultimately, he only relied on a small portion), and the numerous (and unfocussed) allegations and accusations he made, which forced the mother to collect and provide evidence to the contrary.
[17] Although I am prepared to allow the mother to recover most of the student fees she has had to paid, I am not prepared to include her personal attendance at trial (at the rate of $500 per day). In my view, her presence at trial was not necessary in relation to the level of complexity raised by the issues in this case and the hourly rate already charged by her counsel.
[18] The mother’s total cost for this trial, including expert and PGT fees (exclusive of HST), totaled $49,072. If I remove the fees related to the law student’s attendance at trial ($3,500), the total cost is $45,572 ($51,496.36 with HST).
[19] In light of all the above, I find that it is appropriate to impose on the father an obligation to pay costs in the amount of $35,000 (all inclusive), which is payable forthwith. The father earns roughly $100,000 per year, has no other dependant and, lives in a one-bedroom apartment. He also allegedly has property in Ghana. The mother was in no better position than him to fund this protracted legal proceeding, which required that she takes several leaves of absence from work to care for PJ. I find that the father is in a position to pay these costs or, in the alternative, to borrow the necessary funds to pay them forthwith.
Madam Justice Julie Audet
Released: January 23, 2023
COURT FILE NO.: FC-18-2028-1 / CV-22-88303-00ES
DATE: 2023/01/23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ELIZABETH NYANTAKYI
Applicant
– and –
JAMES BENNETT ARYEE
Respondent in the Family Court action
PHILIP JESSE ARYEE and THE OFFICE OF THE PUBLIC GUARDIAN AND TRUSTEE
Respondents in the Civil Court action
Costs decision
Audet J.
Released: January 23, 2023