COURT FILE NO.: FC-21-163
DATE: 20231016
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JLD
Applicant/Responding Party
– and –
JHS
Respondent/Moving Party
Self-Represented
Courtney Thompson, for the Respondent/Moving Party
HEARD: September 29, 2023, by video conference
COSTS DECISION
jUSTICE l. sheard
Overview
[1] The Respondent father (“JHS”)[^1] brought a motion for summary judgment under Rule 16 of the Family Law Rules (the “SJM”), seeking final orders respecting decision-making, residence, and parenting time of the parties’ child (the “Child”).
[2] JHS was successful on the SJM as per Reasons for Judgment released July 14, 2023: JLD v. JHS, 2023 ONSC 4181 (the “Reasons”).
[3] The parties were encouraged to agree on costs, failing which, they were invited to schedule a brief hearing before me for costs submissions. The parties did not reach an agreement and this decision follows the parties’ oral submissions of September 29, 2023.
Positions of the Parties
[4] JHS was represented throughout the proceedings and seeks his costs of the Application on a substantial indemnity basis in the amount of $21, 441.52.
[5] The Applicant mother (“JLD”) was assisted by counsel for much of this litigation but was self-represented on the SJM.
[6] JLD was assisted by counsel with respect to the costs associated with the Application as evidenced by a letter of July 27, 2023 sent to counsel for JHS and uploaded to CaseLines by JLD. In the letter JLD’s counsel asserted, among other things, that the time spent by counsel and associated legal fees claimed by JHS were excessive, JLD is not working, and that JLD is in no position to pay any amount of costs.
Legal Framework on Costs
[7] The starting point in addressing the issue of costs is s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 as amended, which provides that, subject to the provisions of an Act or rules of court, costs are in the discretion of the court, which may determine by whom and to what extent the costs shall be paid.
[8] In exercising its discretion, the court must consider the factors set out in rules 18 and 24 of the Family Law Rules, O. Reg. 114/99 (the “FLR”). Rule 24(1) of the FLR creates a presumption that a successful party is entitled to his or her costs.
[9] As seen later in this decision, JHS was successful on the SJM. As such, he is presumptively entitled to his costs of the application.
[10] In setting the amount of costs, the court must also consider the factors set out in s. 24(12) of the FLR, which provides as follows:
(12) In setting the amount of costs, the court shall consider,
(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. O. Reg. 298/18, s. 14.
[11] In Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, the Court of Appeal for Ontario stated that cost rules are designed to foster three important principles: (a) To partially indemnify successful litigants for the cost of litigation; (b) To encourage settlement; and (c) To discourage and sanction inappropriate behavior by litigants. In its more recent decision in Mattina v. Mattina, 2018 ONCA 867, at para. 10, the Court noted that r. 2(2) of the FLR adds a fourth fundamental purpose: to ensure that cases are deal with justly.
[12] The overriding objective in a costs award is that it be fair and reasonable. In part, what is reasonable is determined by the expectations of the parties, and, in particular, the reasonable expectations of the losing party.
[13] As noted by Madsen J., in Tone v. Tone, 2020 ONSC 4622, at para. 14:
More recent jurisprudence has placed less emphasis on counsel’s hourly rates and time spent, and instead focused on an award of costs that is proportional to the amount in issue and the outcome: Delellis v. Delellis, 2005 36447 (ON SC), [2005] O.J. No. 4345 (S.C.), at para. 9. In Beaver v. Hill, 2018 ONCA 840, at para. 12, our Court of Appeal clarified that proportionality and reasonableness, the two key factors set out in r. 24(12)(a), are the touchstone considerations to be applied in fixing the amount of costs in family law matters
Behaviour of the Parties
[14] As set out in the Reasons, JLD blamed JHS, and his family, for the Child’s behaviour challenges. There was no evidentiary basis for JLD’s allegations. Rather, the evidence supported a finding that it was JLD’s failure to ensure that the Child attended school, which interfered with the Child’s ability to regulate their own behaviour and to gain necessary social skills.
[15] As set out at para. 90 of the Reasons, in the report of December 23, 2021, the Office of the Children’s Lawyer (“OCL”) listed negative behaviours of JLD and positive behaviours of JHS, concluding that JLD did not want the Child to have a relationship with both parents.
[16] At para. 93 of the Reasons, I concluded that JLD refused to change her behaviour, in the face of the OCL’s report showing the harm caused to the Child:
Despite the involvement and recommendations of the Society and the involvement and recommendations of the OCL, the evidence shows that JLD has neither changed her views, nor her behaviour. The concerns expressed by the Society and by the Clinician that the Child would suffer harm attributable to JLD’s conduct and her lack of insight into the impact of her conduct upon the Child’s physical, emotional, and psychological safety, security and well-being have actualized.
[17] JHS was successful on the SJM. As set out in the Reasons, parenting time and the Child’s residence was effectively reversed from JLD to JHS. That change was necessitated by JLD’s behaviour, which I determined harmed the Child.
Time Spent by Each Party
[18] While JHS delivered a Bill of Costs, I do not have the benefit of a Bill of Costs from JLD. As a result, I am unable to compare the time spent by the two sets of lawyers. However, on my review of JHS’s Bill of Costs, both the time spent, and the hourly rates charged, appear reasonable and appropriate.
[19] The largest single time entry relates to the SJM. The hearing took most of one day, which included time spent to allow JLD to give oral evidence. Counsel for JHS helpfully provided copies for the Court of all relevant materials, which assisted JLD who was able to refer the Court to those materials and to materials that she had not uploaded to CaseLines.
[20] Similarly, as JLD was unrepresented, counsel for JHS carried the heavier load in informing the Court of the applicable statutes, rules, and caselaw.
Any written offers to settle, including offers that do not meet the requirements of rule 18
[21] JHS referred the Court to his Offers to Settle: 1) made at the Case Conference of 22 December 2021; and, 2) made on April 19, 2023.
In his Offer to Settle of December 22, 2021, JHS proposed a temporary Order whereby the parties had joint decision-making over the Child and shared parenting whereby the Child would be with JLD Monday to Friday and with JHS on weekends, with holidays to be shared. A second Offer addressed Child support, which is not relevant to these costs, given the final order made on the SJM whereby the Child lives primarily with JHS;
In his Offer to Settle of April 19, 2023, JHS offered to divide decision-making between the parties: he would have decision-making respecting the Child’s education and health care and other decisions would be jointly made, with JHS having final say in the event an agreement could not be reached.
[22] JHS acknowledges that neither Offer was open for acceptance at the time of the SJM and do not qualify as r. 18 Offers to Settle.
[23] In the Order granted on the SJM, JHS was given more parenting time and more decision-making responsibility for the Child than JHS had been prepared to accept and much less than JLD had sought. As such, it is fair to say that if JLD had accepted either of JHS’s Offers, she would have been given more parenting time and decision-making responsibility – something she wanted – than was granted to her on the SJM.
[24] JLD referred the court to her Offer to Settle dated April 19, 2023, which Offer was not accepted. JLD’s Offer provides that the Child would have his primary residence with JLD and that JHS’s regular parenting time would be limited to weekends, together with additional time as the parties might agree; JLD was to have sole decision-making responsibility concerning the Child’s health, education, culture, language, religion and spirituality and significant extracurricular activities, and final say over all decisions.
[25] As noted above, for the most part, the outcome of the SJM was the reverse of what JLD was offering.
Any other relevant matter
[26] JHS asks the court to consider that JLD’s Offer to Settle does not take into account the recommendations set out in the OCL Report.
[27] As noted in the Reasons, the recommendations in the OCL Report were given considerable weight and were supported by the evidence before the court on the SJM. JLD’s inability or refusal to modify her behaviour and her settlement position left JHS no choice but to pursue the litigation to a judicial determination, at a significant financial cost to him.
[28] JLD asks the court to consider that the costs should be reduced because JHS was on Legal Aid. That assertion was disputed by his counsel, whose submissions I accept. And, in any event, as noted by Pazaratz J., in F.K. v. A.K. and CAS of Hamilton, 2020 ONSC 4927, at para. 23 d.,
…The case law is well settled that the receipt of Legal Aid is not a factor in determining costs. Ramcharitar v. Ramcharitar (2002) 2002 53246 (ON SC), 62 O.R. (3d) 107 (SCJ); Alvarez v. Smith 2008 10047 (ON SC), [2008] O.J. No. 941 (SCJ); Loncar v. Pendlebury 2015 ONSC 4673 (SCJ); S.G. v. A.S. 2015 ONSC 1882 (SCJ); Dhillon v. Gill 2020 ONCJ 68 (OCJ); Holt v. Anderson 2005 44179 (ON SCDC), [2005] O.J. 5111(Div'n'l Ct.);Trudel v. Trudel 2010 ONSC 5177, [2010] O.J. No. 3961 (SCJ); Fazuludeen v. Abdulrazack 2020 ONSC 3394 (SCJ); W. v. K. 2019 ONSC 3341 (SCJ); Leveridge v. Stephenson 2019 ONCJ 309 (OCJ); Goffi v. Goffi 2019 ONSC 2160 (SCJ); Sabeeh v. Syed 2018 ONCJ 580 (OCJ); C.A.B. v. A.E.H. 2018 ONCJ 178 (OCJ); Seman v. Handl 2018 ONSC 1218 (SCJ).
[29] In submissions, JLD asserted that she is a community support worker; she also denied any suggestion that she has mental health problems. However, JLD submitted that she should not have to pay costs because she has no ability to do so and is supported by public assistance (Ontario Works). In response, JHS asserts that JLD has failed to disclose or explain why she is not working.
[30] Pazaratz J. addressed the issue of impecuniosity at para. 24 of F.K. v. A.K. and CAS of Hamilton:
[24] The financial implications of legal fees - and costs orders - must be taken into account. But this can be a complicated issue.
a. A costs order should take into consideration the ability of a party to pay costs. MacDonald v. Magel (2003) 2003 18880 (ON CA), 67 O.R. (3d) 181(Ont CA).
b. Although they are not specified in Rule 24 as factors in determining costs, the financial means of the parties, their ability to pay a costs order, and the effect of any costs ruling on the parties and the children are relevant considerations in reaching a determination on the issue of costs. Fyfe v. Jouppien 2012 ONSC 97 (SCJ).
c. A party's limited financial circumstances cannot be used as a shield against any liability for costs. Ability to pay will be taken into account regarding the quantum of costs. Snih v. Snih, 2007 20774 (SCJ); Dhillon v. Gill, 2020 ONCJ 68 (OCJ). But ability to pay will be less of a mitigating factor when the impecunious party has acted unreasonably, or where their claim was illogical or without merit. Gobin v. Gobin (2009) 2009 ONCJ 278, 71 R.F.L. (6th) 209 (OCJ).
d. Parties cannot expect to be immune from an order of costs based on their limited financial resources. If this were the case, parties would be free to conduct litigation as they wished without fear of reprisal in the form of adverse costs orders and this would be contrary to the philosophy and requirements of the Rules. Culp v. Culp, 2019 ONSC 7051 (SCJ); Mark v. Bhangari, 2010 ONSC 4638 (SCJ).
e. Ability to pay alone cannot, nor should it, over-ride the other factors in Rule 24(12). Peers v. Poupore, 2008 ONCJ 615 (OCJ); Lawrence v. Lawrence.
f. Those who can least afford litigation should be the most motivated to seriously pursue settlement and avoid unnecessary proceedings. Mohr v. Sweeney, 2016 ONSC 3238 (SCJ); T.L. v. D.S., 2020 ONCJ 9 (OCJ); Balsmeier v. Balsmeier, 2016 ONSC 3485 (SCJ).
g. The impact of a costs determination on household budgets applies to both unsuccessful and successful parties. An onerous costs order against an unsuccessful custodial parent may impact on that parent's ability to provide for a child in their care. But equally, an inadequate costs order in favour of a successful custodial parent may result in similar deprivation for a child in their care. In both instances, we want to ensure that litigation expenses do not impoverish the household where the child resides. D.D. & F.D. v. H.G. 2020 ONSC 1919 (SCJ).
[31] The findings of fact in this case that are relevant to the principles set out by Pazaratz J. are that:
(i) JLD has acted unreasonably and, in the face of the OCL Report, her position was without merit;
(ii) JLD cannot expect to be immune from an order of costs, nor should her alleged inability to pay override the other r. 24(12) factors;
(iii) Given her alleged inability to pay, JLD should have been motivated to seriously pursue settlement – something that is not reflected in her Offer to Settle; and
(iv) As JHS has been awarded most of the parenting time, an inadequate costs order in his favour, may have an impact upon his ability to provide for the Child and the court should ensure that litigation expenses do not impoverish JHS’s household, in which the Child is residing.
Disposition
[32] In consideration of the facts in this case and the application of the principles respecting costs found in the FLR and in the case law, I find that the fair and reasonable amount for JLD to pay JHS on account of costs of this application, including the SJM, to be $18,000.00 inclusive of fees, disbursements and HST. That amount is somewhat higher than partial indemnity but somewhat lower than substantial indemnity costs.
[33] This costs award is to be enforceable pursuant to the provisions of the of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31, and, if applicable, may be set off as against any amount that JHS owes to JLD in respect of child support (arrears).
Justice Liza Sheard
Released: October 16, 2023
COURT FILE NO.: FC-21-163
DATE: 202310164
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JLD
Applicant/Responding Party
- and -
JHS
Respondent/Moving Party
COSTS DECISION
L. Sheard J.
Released: October 16, 2023
[^1]: I have chosen to initialize the names of the parties to protect the important public interest of protecting the Child from the risk of emotional or psychological harm that could be caused if their identity were to be made public.