Court File and Parties
Court File No.: FS-18-003302 Date: 2023-01-24 Superior Court of Justice - Ontario
Re: BF, Applicant And: AN, Respondent And BOF., Added Party IF, Added Party And Office of the Children’s Lawyer
Before: M. Kraft, J.
Counsel: The Applicant, absent The Respondent, in person Anthony Macri, for the added party, BOF Added party, IF, in person Jane Long, counsel for the Office of the Children’s Lawyer
Heard: In writing
Costs Endorsement
1This is the costs endorsement in respect of a high-conflict 19-day trial which began on September 27, 2022 and ended on October 28, 2022, following which, closing submissions were heard on November 24, 2022.
2The issues determined at trial were:
a. whether it was in E.’s best interests to have contact with her maternal grandparents, IF and BOF;
b. whether it was in E.’s best interests for IF and BOF to have access to medical information about her; and
c. whether there should be a permanent restraining order put in place to restrain IF and/or BOF from having direct or indirect contact with E.’s father, AN and his family.
3Neither the Office of the Children’s Lawyer (“OCL”) nor the Children’s Aid Society of Toronto (“CAST”) supported an order that granted IF or BOF any contact with E. or access to her medical reports. The OCL and CAST believed that any such contact or access to information about E. was not in E.’s best interests and would inevitably result in E., AN and his family unit experiencing more upset, commotion and grief, which would be harmful to E., who is severely disabled.
4BF, E.’s mother, was absent at trial because she was sentenced to life in prison for the attempted murder of E. and her mother, IF. AN, E.’s father, was self-represented at trial. IF, E.’s maternal grandmother, was self-represented at trial. BOF, E.’s maternal grandfather, was represented by Anthony Macri. BOF asked to be treated separately from his wife, IF, at trial. The Office of the Children’s Lawyer appointed Jane Long to be E.’s lawyer.
5On December 16, 2022, I released a judgment which determined that:
a. AN is to have sole decision-making responsibility over all decisions relating to E.;
b. E. is to reside primarily with AN;
c. IF is to have no direct or indirect contact with E., AN or any members of AN’s family;
d. BOF is to have supervised contact with E., of not more than once a month for up to 1 hour, subject to AN’s assessment whether E. can manage a 1-hour visit and subject to a number of specifically laid-out conditions;
e. Neither IF nor BOF are to have access to any medical reports, information or records about E. or to have contact with any of the medical or health professionals working with E.;
f. IF is to be permanently restrained from having any direct or indirect contact or communication with AN or E. and from coming within 100 meters of AN’s home, E.’s school, any of the centres where E. receives treatment, including the McMaster Children’s Hospital, The Smile Clinic and The Ron Joyce Centre; and
g. BF or a representative on her behalf, is to pay AN costs of $10,000 outstanding from the order of Gilmore, J., dated June 3, 2019.
The Party’s Positions
6AN seeks costs in the sum of $42,308 for these proceedings, plus $5,000 on account of lost wages, which he submits is a direct result of IF’s inability to focus her evidence and adhere to the timelines during the trial. AN seeks costs on a full indemnity basis for the following reasons:
a. He was reasonable throughout these proceedings;
b. He made Offers to Settle that neither IF nor BOF accepted;
c. IF and BOF acted in bad faith by engaging in spiteful, accusatory and abusive behaviour; acting in a hostile manner towards E.’s caretakers, doctors and health professionals; making accusations about AN’s ability to parent; and the extreme abuse they inflicted on AN and his family.
d. He was successful at trial;
e. His position was supported by the OCL and the CAST;
f. In terms of IF, he was successful in that IF was not granted contact with E; a permanent restraining order was granted against IF in relation to him and his family; and IF was granted no access to E.’s medical information or from having contact with the medical professionals working with E.; and
g. In terms of BOF, he was also successful in that BOF’s contact with E. was based on AN’s alternate position at trial, namely, that his contact be limited to once per month for 1 hour, subject to AN’s assessment as to whether E. can manage that time, to be supervised, at BOF’s expense, with conditions in place. Further, BOF was not granted access to medical information about E. and from having contact with the medical professionals working with E.
7BOF takes the position that in light of the divided success on the issues concerning him, the failure of either party to beat their offer to settle and his financial circumstances, there should be no costs ordered against him. BOF argues that this case was extremely important; he was fighting for his right to see his granddaughter; his behaviour during the trial was fair and reasonable; the court should only be considering the time spent during the trial in making a costs order and not any of the earlier proceedings; AN unfairly joined and treated IF and BOF as one unit, instead of as two distinct parties; AN was not successful in obtaining getting a restraining order against BOF; BOF did not demonstrate any bad faith against AN; and BOF has no ability to satisfy a costs order.
8IF takes the position that no costs ought to be ordered against her because at the outset of the trial she brought a motion seeking to shorten the length of the trial to two days and that only witnesses who were present during her contact with E. be permitted to give evidence during the trial arguing that any other witnesses were not relevant to whether she should be granted contact with E. IF submits that the length of the trial and her delivery of her evidence was not the result of her conduct, but my ruling at the beginning of the trial in which I dismissed her motion and declined to limit the witnesses as she sought which resulted in her having to present evidence about AN’s historic relationship with BF; his criminal record; the deterioration of E.’s medical condition in AN’s care; the role of the CAST and the OCL in their support of AN, as opposed to focusing only on the maternal grandparents. IF submits that she had a legitimate right to pursue her claim to have contact with E; she is impecunious, has no income and is, therefore, unable to satisfy a costs order; that costs related to the OCJ proceedings and the SCJ proceedings prior to this trial should not be considered in this costs order; and that AN’s claim for $5,000 on account of lost wages is not justified since the dates of the trial were known by him well in advance and he ought to have scheduled his holiday time during the trial so as not to have missed work.
Who was Successful at Trial?
9Consideration of the relative success of the parties on the issues in the case is the starting point in determining costs (see Butty v. Butty, 2009 ONSC 23111, [2009] O.J. No. 1887 (Ont. S.C.J.) at para. 4, citing Sims-Howarth v. Bilcliffe, 2000 ONSC 22584, [2000] O.J. No. 330 (Ont. S.C.J.)). In the case of Johanns v. Fulford, 2010 ONCJ 756 (Ont. C.J.) at para. 13, it was held that, for the purpose of rule 24(1)"success" is assessed by comparing the terms of an order against the relief originally requested in the pleadings and against the terms of any offers to settle.
10IF was not successful at trial. I did not grant IF contact with E. nor access to medical information about E., and I placed a permanent restraining order against her in relation to AN, AN’s family and E.
11BOF had divided success at trial. I granted BOF supervised contact with E., subject to a number of conditions but I did not grant BOF the amount of contact he sought. I did not grant a restraining order against BOF in relation to AN, AN’s family or E., as AN sought. While IF was not successful at trial, BOF did have some success at trial. When one considers the level and nature of AN’s success on the issues in relation to IF and the nature of IF’s lack of success, although success was divided as between AN and BOF, an order of costs can and should be made in AN’s favour: r.24(6) of the Family Law Rules, O. Reg. 114/99 (“FLRs”).
12When one considers the positions taken by AN, IF and BOF at the trial, I am satisfied that AN’s success at trial entitles him to an order for costs, despite the fact that I granted BOF limited contact with E. and that I did not grant a restraining order against BOF in relation to AN, his family or E.
Legislative Framework
13Subject to the provisions of an Act or the rules of court, costs are in the discretion of the court, pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43.
14Pursuant to r. 24(10)(a) of the FLRs, the court is directed to decide the costs of a step in the case promptly after dealing with the step, in a summary manner.
15Modern family costs rules are designed to foster four fundamental purposes: to indemnify successful litigants for the cost of litigation, to encourage settlements, to discourage and sanction inappropriate behaviour by litigants: and to ensure that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867, 299 A.C.W.S. (3d) 770, at para. 10. The touchstone considerations of costs awards are proportionality and reasonableness: Beaver v. Hill, 2018 ONCA 840, 17 R.F.L. (8th) 147, at para. 12.
16A party who is successful on a motion/at trial is presumptively entitled to an order for costs of the motion or trial: r.24(1) of the FLRs. Where success on a motion is divided, the court may nonetheless make an order for costs: r.24(6).
17If the court determines that it would be appropriate to make an order for costs, then the factors to consider in setting the amount of costs are listed in r. 24(12). The court must consider the reasonableness and proportionality of the factors enumerated in the subrules as they relate to the importance and complexity of the issues. These factors include each party’s behaviour; the time spent by each party; any written offers to settle, including those that do not meet the requirements of r. 18; any legal fees; any other expenses; and any other relevant matter.
18In Sims-Howarth v Bilcliffe, 2000 ONSC 22584, [2000] O.J. No. 330 (S.C.J.), Aston J. held that the two traditional scales of costs are no longer an appropriate way to quantify costs under the FLRs. He stated that, having determined that one party is liable to pay costs, the court must fix the amount at some figure between a nominal sum and full recovery, having regard to the factors set out in Rule 24, without any assumptions about categories of costs. This characterization of costs under the FLRs was approved of by the Ontario Court of Appeal in C.A.M. v D.M., 2003 ONCA 18880, [2003] O.J. No. 3707 (C.A.), at para. 42.
19The FLRs do not explicitly provide for costs on either a partial or substantial indemnity scale. Rule 24(8) refers to “costs on a full recovery basis,” where a party has acted in bad faith. Absent bad faith, the court need not find “special circumstances” before ordering costs on a full recovery basis: Sordi v. Sordi, 2011 ONCA 665, 283 O.A.C. 287. The Court has a range of costs awards open to it, from nominal to full recovery.
20There is no general approach in family law of “close to full recovery costs”: Beaver, at para. 11. Rather, full recovery is only warranted in certain circumstances, such as bad faith under r. 24(8), or beating an offer to settle under r. 18(14): Beaver, at para. 13.
21Costs must always be proportional to what is at stake in the case, and to the unsuccessful party’s reasonable expectation as to what costs he/she may face, if he/she is unsuccessful. In appropriate circumstances, unreasonable behavior will result in a higher award of costs.
Factors to be Considered
22AN seeks costs on a full indemnity basis, in the amount of $42,308.80, plus $5,000 on account of lost wages, totalling $47,308.80. AN’s Bill of Costs demonstrates that AN is seeking costs for his counsel Zahra Taseer, who was retained as his counsel, up until the trial of this matter, for total hours she spent, being 99.5 hours (which does not include the motion before Horkins, J. in July 2022), spent from July 6, 2020 up to November 14, 2022, being the total hours spent at the SCH after the OCJ proceeding. These are costs incurred for the SCJ proceeding for close to two years prior to the trial of this matter.
23Again, BOF argues that no costs ought to be ordered payable by him on account of divided success and his inability to pay costs. IF argues that no costs ought to be ordered payable by her or BOF. Both BOF and IF argue that only the costs associated with the trial ought to be considered by the court and none of the prior proceedings.
24I have considered the factors set out in Rule 24 (12) of the FLRs, which reads as follows:
24(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.
Importance and Complexity of the Issues
25In addressing the enumerated factors in the rule, I have kept the following considerations in mind. This trial was of significant importance to all parties involved. This was a tragic case involving a child who suffered a catastrophic injury at the hands of her mother, who was sentenced to life in prison as a result. IF and BOF were caregivers to E. from when she was three months old until the insulin overdose took place. In that 18-month period, AN had only seen E. on one occasion. When AN was granted supervised parenting time with E. by Gilmore, J. on June 3, 2019, BF was extremely upset and brought a motion to stay that order pending her appeal of Gilmore J.’s decision. The day before her motion to stay was returnable, the insulin overdose occurred. Throughout the litigation and at trial, IF and BOF were desperately trying to regain parenting time with E.. The maternal grandparents were distressed that AN, who had had no parenting time with E. prior to the insulin overdose, was given parenting rights in relation to E. that did not seem fair to them. These facts created a great deal of mistrust, conflict and chaos, that resulted in further litigation, and this emotionally charged trial. Everyone involved felt their rights were critical and in E.’s best interests.
26While the issues at trial were not overly complex, the facts in this case were relatively complex in that they dealt with interrelated facts and legal issues in both family law and E.’s medical history and needs. Determining whether it was in E.’s best interests to have contact with IF and/or BOF and/or whether medical information should flow to the maternal grandparents involved leading evidence as to circumstances surrounding E.’s insulin overdose, hearing from the police detective involved with the charges laid and conviction against E.’s mother; the extent of E.’s brain injuries; the trajectory of her deficits; hearing from the doctors involved in E.’s care; the CAST workers; the clinician from the OCL; and the two PSWs who work with E. While IF did not think it was relevant for the court to hear from witnesses who were not present during her supervised parenting time prior to the trial, the evidence from all these third parties was clearly relevant and critical to the Court’s assessment of the best interests’ factors set out in s.16 of the Divorce Act. Further, the manner in which IF conducted herself during the trial was extremely challenging. Despite being afforded significant latitude, IF was focussed on blaming AN and his family for the past adult conflicts and for what she believes to be E.’s declined medical state and, as a result, she did not focus on what why it was in E.’s best interests to have contact with her and/or why she ought to have access to E.’s medical information in light of her past conduct, as she should have.
Each Party’s Behaviour
27Rule 24(4) of the FLRs explicitly authorizes the use of costs orders to express the court’s disapproval of a litigant’s unreasonable conduct. It provides as follows:
24(4) Despite sub-rule (1) [which provides that a successful party is presumed to be entitled to the costs of a trial], a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs.
28Rule 24(5) provides criteria for determining the reasonableness of a party's behaviour. It provides as follows:
DECISION ON REASONABLENESS
(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,
(a) the party's behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
(b) the reasonableness of any offer the party made; and
(c) any offer the party withdrew or failed to accept.
29Rule 24(12)(a)(i) requires the court to consider each party’s behaviour in setting the amount of costs.
30AN seeks costs on a “full indemnity” basis on the ground that IF and BOF acted in bad faith throughout these proceedings In particular, AN relies on the following facts in support of his claim that both maternal grandparents acted in bad faith during these proceedings:
a. The proceedings were prolonged as a result of the maternal grandparents’ unwillingness to accept the Order of Sherr, J.
b. Had the maternal grandparents consented to the mirror order when the proceedings were transferred from the OCJ to the SCJ, the case would have concluded at that point, and the grandparents would have had more contact with E. and access to her medical information which is a better outcome than they received at trial;
c. Once the case transferred from the OCJ to the SCJ, it had to be case managed because of the lack of cooperation from the maternal grandparents, which cost AN significant legal fees having to prepare for each attendance;
d. The maternal grandparents maintained their position until the eve of trial that they were seeking decision-making responsibility of E. and primary residence of E. Even after they vacated those claims, IF took the position during the trial that AN should not have decision making responsibility and/or primary residence of E. by making submissions at trial that the Court must assess who should have primary care of E. IF took this position despite having abandoned her claims for decision making and primary care of E. prior to trial;
e. It was only after BOF retained counsel, on August 25, 2022, that BOF tempered his position and sought supervised contact with E. at trial;
f. In addition to serving several Offers to Settle on IF and BOF, AN made another proposal to settle the trial on the basis that IF would have no contact with E. and BOF would have limited contact. This proposal was in writing and was an email, dated September 19, 2022. Neither IF nor BOF accepted this proposal;
g. The maternal grandparents changed counsel at least four times adding to the costs incurred by AN.
h. IF and BOF engaged in spiteful, accusatory and abusive behaviour, by alleging that AN was involved in the insulin overdose without proof and their adamant refusal to accept BF’s involvement even after her conviction;
i. IF’s outward hostility towards E.’s caretakers, doctors and delusional accusations toward E.’s care team and AN, i.e. alleging E.’s caretakers and AN were purposefully poisoning E. and alleging AN and his family were involved in human trafficking, increased his costs significantly and contributed to a great deal of stress without regard for the fact that he was looking after E. which is a 24-hour-7-day-a-week job;
j. IF accused AN of being unfit to parent E., i.e. alleging he was not feeding E. sufficient food, despite the evidence being clear that AN was following the advice of all health professionals involved with E.;
k. IF took active steps to alienate the entire team of health care professionals working with E., including AN and the PSWs he had hired to work with E. in his home; and
l. IF and BOF were unnecessarily litigious without any consideration toward AN’s financial circumstances as he raises E. without any contribution from BF or her parents;
31I find that the maternal grandparents’ conduct, particularly IF as described above, did undoubtedly cause AN to incur additional costs at trial.
32The Court can order costs on a higher scale to express disapproval of unreasonable conduct: Mullin v. Sherlock, 2018 ONSC 6933. Put another way, the amount of costs ordered may be higher where a party has had to incur unnecessary added expense due to the other party’s unreasonable conduct.
33In considering each party’s behaviour, I find that IF and BOF’s conduct was unreasonable and caused AN to incur additional costs. The question is whether I find that BOF or IF engaged in bad faith behaviour, as defined in r.24(8), justifying an order for full indemnity costs to AN.
34In order to come within the meaning of bad faith in r.24(8) behaviour must be shown to be carried out with the intent to inflict financial or emotional harm on the other party or other persons affected by the behaviour: Salim v. Safdar, 2019 ONSC 2400, at para. 36.
35While on the evidence before me, I am not able to conclude that BOF acted in bad faith in addressing the issues that gave rise to the trial, I found he was not without fault for the conflict that was created between the maternal grandparents and AN and his family and until he retained counsel his conduct can be considered unreasonable.
36My findings at trial support a view that IF, by her conduct, aggression and accusations toward AN and his family, amounted to more than unreasonable conduct and rose to the level of bad faith as defined in the case law. To engage in bad faith behaviour, one needs more than bad judgment. The impugned behaviour must have shown to be carried out with the “intent to inflict emotional harm” on AN and his family. I make these findings based on the fact that IF engaged in ongoing criticism of AN’s care of E.; she made allegations that AN wanted to poison E. and torture her; she made accusations that AN neglects E.; she made baseless accusations that AN and his family are part of a human trafficking cartel; and she maintained that AN was not fit to parent E. I made the following findings at trial which support my current finding that IF engaged in bad faith in these proceedings:
a. “IF has demonstrated that her anger at AN overshadows her ability to be child-focused in a way that E. needs”;
b. “IF does not understand E.’s medical needs. She refuses to listen to the doctors that provide care to E. IF has indicated through her actions that she has no respect for their treatment suggestions. IF believes that she, alone, understands E.’s medical condition and needs. I find that IF has demonstrated that she has no ability to self-regulate if she is upset about an issue with respect to E.’s medical treatment…IF takes the position that every person who cares for E. is neglectful, incompetent, and worse, wants to cause E. pain.”
c. “IF has delusional beliefs and theories about the ways in which E. is being cared for and AN and/or the medical professionals that are not grounded in reality.”
d. “IF has no insight into how her criticisms of E.’s medical team impact the people who care for E.”
e. “IF has demonstrated that she does not accept the advice from E.’s daily caregivers as to E.’s needs and that she believes E. is in pain wearing her medical equipment. IF continues to insist that she knows what E.’s needs are, even though E. resided with IF when she was healthy and 18 months old and had no specialized medical needs as she does now.”
f. “IF dismisses most of the information given to her about E. because she believes that she knows better than anyone else what E. needs and how best to respond to E.’s needs.”
g. “IF has been critical, combative and aggressive with E.’s caregivers and doctors and has taken active steps to make serious allegations against AN and many of E.’s doctors by reporting them to officials of trying to poison E.; harm E.; consider AN’s needs ahead of E.’s needs; harvest E.’s organs for profit; and/or engaging in criminal activity.”
37Based on the above, IF’s bad faith conduct is to be considered in my cost’s determination.
Offers to Settle
38Pursuant to Rule 24(12)(a)(iii), I turn to each party’s written offer to settle.
AN’s Offers to Settle
39AN made the following Rule 18 Offers to Settle this matter:
a. On September 8, 2022, AN made a severable offer to resolve the case as between him and BF as follows:
i. BF withdraw her claims, except for the divorce;
ii. BF consent to the severance of the divorce and for the divorce to be granted immediately;
iii. AN have final decision-making responsibility for E.;
iv. BF take no position with respect to the maternal grandparents’ applications;
b. On September 8, 2022, AN made the following severable offer to resolve the case as between him and BOF:
i. BOF to dismiss his claim for custody of E.;
ii. BOF’s claim for access to E. be dismissed;
c. On September 8, 2022, AN made the following severable offer to resolve the case as between him and IF:
i. IF to dismiss her claim for custody of E.;
ii. IF to dismiss her claim for contact with E.
40AN’s Offers to Settle were not accepted by BF, IF or BOF.
41On September 8, 2022, BOF made an Offer to Settle his claims with AN on the following basis:
a. BOF would have parenting time with E. twice a week for three hours, unsupervised by AN or his family;
b. BOF would have access to all of E.’s medical records without interference by AN or his family.
42AN did not accept BOF’s Offers to Settle.
43On September 19, 2022, AN made a written proposal to resolve the case by email through his then counsel, Zahra Taseer, as follows:
a. AN was prepared to consider resolving the trial between him and the maternal grandparents by giving BOF limited contact with E., with such contact to be supervised and restrictions which would include no photographs or videos;
b. Neither BOF nor IF were to have access to medical information about E.;
c. If there are issues that arise with contact as between BOF and E., the contact would be suspended.
d. If interested, AN proposed that the case management judge, Nakonechny, J., arrange for a senior family judge to assist with the terms of the agreement.
44BOF submits that AN’s written offer to settle, dated September 19, 2022, only proposes that BOF have contact with E. if IF has no contact with E. BOF submits that he could not control whether IF would agree to AN’s proposal and, as a result, this offer was not capable of being accepted by him and was made in bad faith. Further, BOF submits that his counsel confirmed this point in a responding email to AN on September 20, 2022.
45I have considered AN’s offers in the context of his relative success at trial.
46Pursuant to r.18(14), a party who makes an offer is entitled to costs to the date the offer was served and full recovery of costs from that date, if the offer relates to a trial and it is made at least 7 days before the trial; the offer does not expire and is not withdrawn before the hearing starts; the offer is not accepted; and the party who made the offer obtains an order that is as favourable as or more favourable than the offer.
47AN’s offer to settle made to IF on September 8, 2022 proposed that IF’s claims for decision-making and contact to E. be dismissed. The offer was open for acceptance with no costs payable until September 16, 2022, except for previously ordered costs. The offer was severable and open for acceptance until 1 minute following the commencement of the trial. Although the order I made as between AN and IF at trial is as favourable or can be considered more favourable than the terms of AN’s offer to settle, I have determined that it would be unreasonable and unjust to order costs on the basis of the costs consequences referred to in rule 18(14) (that is, that IF pay costs on a full-recovery basis for the period following service of the Offer).
48Despite the presumptive provisions of rule 18(14), the court retains a residual discretion to make costs awards which are proportional, fair and reasonable in all the circumstances (M. (C.A.) v. M. (D.), 2003 ONCA 18880); Jackson v. Mayerele, 2016 ONSC 1556; and Scipione v. Scipione, 2015 ONSC 5982. The court still retains the discretion to award less than full recovery costs: M.(C.A.) v. M.(D.); and Beaver, at para. 10.
49Even where a party is entitled to the costs according to the costs consequences contained in rule 18(14), the amounts to be ordered for each period of time [that is, for the period before the offer was served and the period after it was served] must be based on costs that were reasonably incurred by the successful party: M.(C.A.) v. M.(D.). Quantification of the costs still requires an overall sense of fairness and reasonableness. In Jackson v. Mayerele, 2016 ONSC 1556, Pazaratz J. put it plainly, stating that the rules do not require the successful party to demand a blank cheque for their costs: at para. 92.
50In Beaver, Nordheimer, J.A. discussed the weight to be given to an offer to settle that had been made and to the failure of a party to make an offer to settle. What is relevant to this costs matter are his observations regarding the failure of a party to make an offer to settle. He stated that before the absence of an offer to settle can properly be used against a party, the situation has to be one where it is realistic to expect offers to settle to be made. On the costs appeal before the court in Beaver, the case was not a situation where the issues could have been settled in any practical way. Either the result of the appeal would be that the appellant would be able to proceed with his constitutional claim or he was not. There was no way of compromising on that central issue. Consequently, it was not a case where the presence or absence of offers to settle should have played any material role in determining the appropriate quantum of costs: at para. 15. Nordheimer, J.A. further commented that this salient point also impacted the offer to settle that the other party had made, noting that the offer did not reflect a compromise because it required that the respondent completely abandon his constitutional argument. He stated as follows: “It is recognized that the failure of an offer to settle to contain a true element of compromise is a factor to be considered in deciding whether the offer properly impacts on the appropriate award of costs.”: at para. 16.
51The costs issue in Beaver did not specifically entail the impact of a rule 18(14) Offer to Settle. In fact, Nordheimer, J.A. stated that the judge should be very cautious about relying too heavily on the element of compromise as a factor to increase or decrease the amount of costs, “when the specific Rules regarding such offers are not directly engaged”. Yet, he then stated that, even under rule 25(5)(a) [examining whether a party behaved reasonably in failing to make an offer to settle], this was “but one factor that is to be considered”: at para. 16.
52The rule 18(14) offer made by AN on September 8, 2022 did not offer an element of compromise to IF. The offer effectively required that IF abandon her claims to decision-making responsibility and for contact with E., making the Offer an all-or-nothing offer, which IF could not accept without conceding the trial.
53In terms of AN’s offer to settle to BOF, dated September 8, 2022, AN did not receive an order at trial that was as favourable as or more favourable than his offer, since I granted BOF limited contact with E. on a supervised basis and on specific terms.
54On September 19, 2022, AN made a further offer to settle in relation to BOF but it was nor in the format of a rule 18 offer. Pursuant to r.18(16) of the FLRs, however, when the court exercises its discretion over costs, it may take into account any written offer to settle, the date and was made and its terms, even if subrule (14) does not apply. AN argues that he is entitled to his full indemnity cost because his written offer to settle of September 19, 2022 proposed to resolve the matter with BOF having limited contact with E. on a supervised basis, which is what I ordered. However, as BOF submits, the offer for BOF to have limited contact with E. was premised on IF having no contact with E. and BOF could not bind IF or accept this proposal without IF agreeing. Accordingly, I do not find that AN’s September 19, 2022 written offer was capable of being accepted by BOF, even though the terms of that offer are aligned with the order I made.
Time properly spent on the case and any legal fees, including the number of lawyers and their rates, etc. - Costs related to the Trial Only or Prior Steps in the Case?
55AN retained Ms. Taseer and she assisted AN until the trial of this matter. While AN was self-represented at trial, it is clear from the Bill of Costs submitted that Ms. Taseer continued to assist AN during the trial. Ms. Taseer is a 2004 call in B.C. and a 2009 call in Ontario. Her hourly rate is $425. The total time spent on this matter, as set out in the Bill of Costs amounted to 99.5 hours.
56I accept that the costs incurred by AN were reasonable in the circumstances of this case. They were also proportional to what was at stake and to BOF’s and IF’s reasonable expectation as to what costs he or she might face, if he or she was unsuccessful. I accept the record of time set out in AN’s Bill of Costs.
57The question to be determined is whether all of the 99.5 hours spent by Ms. Taseer relate to the trial of this matter or to prior steps in the case, and whether all of that time is to be considered in this costs order.
58Both maternal grandparents argue that costs ought to be ordered only in relation to the trial of this matter and not for steps prior to the trial. Pursuant to r.24(10), the court is required to determined who, if anyone, is entitled to costs in relation to a step in a case, promptly after dealing with a step in a case, or expressly reserve the decision on costs for determination at a later stage in the case. However, r.24(11) states that the failure of the court to act under subrule (10) in relation to a step in a case does not prevent the court from awarding costs in relation to the step at a later stage in the case.
59BOF relies on the case of Islam v. Rahman, 2007 ONCA 622, in which the Court of Appeal held that a trial judge erred in failing to exclude from the award of costs amounts claimed for steps taken in the case where no order was made as to costs or where there was silence on the issue: at para. 2. Further, it was stated in this case: “In addition, in our view, the trial judge should have deducted some amount from the amount claimed for costs because of the duplication in work arising from the respondent changing lawyers.”
60AN is seeking his full indemnity costs for the total hours spent at the SCJ after the OCJ proceeding. The Bill of Costs attached to his costs submissions reflects dockets dating back to July 6, 2020. My review of the Bill of Costs, demonstrate that Ms. Taseer’s dockets relate to prior steps in this case where costs could have been ordered but were not set out as follows:
a. On July 13, 2020, AN brought a motion to obtain an order in the SCJ to mirror the Sherr, J. order in the OCJ. The total dockets for this step came to 7.9 hours of Ms. Taseer’s time and included attendances at the OCJ. The Endorsement of Hood, J., dated July 13, 2020 is silent as to costs and sets out a timeframe for the delivery of motion material relating to the mirror order motion. The mirror order motion was heard by Shore, J. on August 6, 2020. Her Endorsement relating to that motion, dated August 12, 2020, is silent as to costs with respect to this step in the case. I find that the time spent by Ms. Taseer in relation to this step in the proceeding should not be included in this costs order.
b. In August and September 2022, there are dockets relating to telephone calls to AN regarding a case conference; access issues between the maternal grandparents and E.; telephone calls to new counsel for both maternal grandparents; and telephone calls with the CAST and OCL. These dockets are for the period August 26, 2020 to and including October 14, 2022 and total 3.4 hours of Ms. Taseer’s time;
c. On October 30, 2020, the parties had a case conference before Nakonechny, J. The dockets related to this step in the case began on October 23, 2020 and end on October 30, 2020 and total 5.4 hours of Ms. Taseer’s time. The Endorsement of Nakonechny, J., the case management judge, dated October 30, 2020 is silent as to costs. The next conference was scheduled for January 20, 2021. I find that the time spent by Ms. Taseer in relation to this step in the proceeding should not be included in this costs order.
d. From November 2020 to May 26, 2021, the dockets appear to relate to emails, telephones calls, the preparation of a case conference brief and attendance at a case conference before Nakonechny, J., which took place on May 26, 2021. The total dockets for this six-month period amount to 8 hours of Ms. Taseer’s time. The Endorsement of Nakonechny, J., dated May 26, 2021, is silent as to costs and a TMC was scheduled for August 18, 2021. I find that the time spent by Ms. Taseer in relation to this step in the proceeding should not be included in this costs order.
e. For the period June 9, 2021 to December 15, 2021, the dockets relate to telephone calls with the CAST, OCL and AN; the drafting of the TSEF and the attendance at a Trial Management Conference on August 18, 2021. The Endorsement of Nakonechny, J., dated August 18, 2021, confirms that BF’s counsel was not able to attend due to illness and an agent attended in her place. The TMC was set to continue on October 7, 2021. The October 7, 2021 TMC did not occur. The TMC continued on December 15, 2021. The Endorsement of Nakonechny, J., dated December 15, 2021 scheduled the trial of this matter to commence on September 26, 2022 and scheduled a motion the CAST wanted to bring to supervise the maternal grandparent’s contact to be returnable on April 21, 2022. No costs were ordered by the case management judge for either the August 18, 2021 attendance or the December 15, 2021 conference The total dockets for this time period amounts to 9.57 hours or Ms. Taseer’s time. I find that the time spent by Ms. Taseer in relation to this step in the proceeding should not be included in this costs order.
f. For the period March 9, 2022 to May 30, 2022, a total of 4.2 hours of Ms. Taseer’s time was spent on emails to and from the client, the OCL, the CAST, from IF and telephone calls. I find that the time spent by Ms. Taseer in relation to this step in the proceeding should not be included in this costs order.
g. For the period starting June 1, 2022 to September 14, 2022, a total of 14.37 hours of Ms. Tasseer’s time was spent on preparing AN’s financial statement; preparing an Exhibit Brief; attending at court for the continuation of the TMC which took place on July 11, 2022 and travelling to Toronto for the exit pretrial that took place on September 14, 2022. The Endorsement of Nakonechny, J., dated July 11, 2022 addressed BF’s criminal conviction; amended some timelines for the parties to file Exhibit Briefs, and medical reports for the trial. There was no order made for costs in relation to this step in the case. The Endorsement of Nakonechny, J., dated September 14, 2022 with respect to the exist pre-trial among other things, indicates that BF withdrew all claims except for the divorce and asked for the divorce to be severed; IF and BOF withdrew their claims for decision making responsibility and primary residence of E. and were to proceed in relation to their claims for contact with E and the receipt of ongoing medical information about E. No costs were ordered with respect to this step in the case. I find that the time spent by Ms. Taseer in relation to these steps in the proceeding should not be included in this costs order.
h. I note that one of the dockets in AN’s Bill of Costs, dated July 7, 2022 refers to drafting costs submissions for 1.5 hours which relates to the motion before Horkins, J. at which the CAST sought to terminate the maternal grandparents’ contact with E. pending the trial of this matter, which does not form part of these costs’ submissions. I have removed this time.
61The dockets beginning on September 17, 2022 to and including December 22, 2022, all relate to the trial of this matter and amount to 49.1 hours of Ms. Taseer’s time. I find that applying Ms. Taseer’s hourly rate of $425 to the 49.1 hours spent, the total costs associated with the trial of this matter, amount to $20,867.50, not inclusive of HST or disbursements.
62I find that AN ought only to be entitled to costs relating to the trial of this matter. Costs incurred by AN prior to the preparation for the trial are for prior steps in this case ought not to be considered in this costs award.
Means of the Parties and Ability to Pay Costs
63IF and BOF ask the court to consider their means and inability to pay costs.
64In M. (C.A.) v. M (D.) (2003), 2003 ONCA 18880, 67 O.R. (3d) 181 (Ont. C.A.) the Court of Appeal confirmed, at paras. 40-42, that:
a. although the Family Law Rules have circumscribed the broad discretion granted by s. 131(1) of the Courts of Justice Act, they have not completely removed the trial judge's discretion;
b. although the general provision, rule 24(1), enacts a "presumption" that the successful party is entitled to costs of the case it does not require that the successful party is always entitled to costs;
c. a successful party may not obtain a costs award in his or her favour even in circumstances not falling within rule 24(4);
d. there may be circumstances aside from the unreasonableness of the successful party's conduct that rebut the presumption; and
e. the financial situation of the parties can be taken into account in setting the amount of the costs award either under rule 24 or rule 18 pursuant to the direction in sub rule 24(11) that the court take into account "any other relevant matter".
65While in M(C.A.) v. M(D.), (2003) 2003 ONCA 18880, 67 O.R. (3d) 181 (Ont. C.A.), Rosenberg J.A. determined that “any other relevant matter” in Rule 24(12)(b) included determining the ability or inability of a party to pay an award of costs, he noted at para. 42 that this is particularly important in the case of a custodial parent only; he stated that the court “cannot ignore the impact of a costs award against a custodial parent that would seriously affect the interests of the child.”
66In this case, neither BOF nor IF are the custodial parent of E.
67It is well accepted that while a party's limited financial circumstances is a factor for the court to consider, it should not be used as a shield against any liability for costs and should only be taken into account regarding the quantum of costs (see Jackson v. Mayerle, 2016 ONSC 1556 (S.C.J.) at para, 107).
68There is some authority for the proposition as well that if a party is impecunious, then he or she must be particularly cautious about litigation. If that party proceeds with litigation, then it is done at that party’s peril; see Balsmeier v Balsmeier, 2016 ONSC 3485 where Kaufman J. states:
I adopt the comments of McGee J. in Mohr v. Sweeney, 2016 ONSC 3338, 2016 CarswellOnt 7716, at para. 17, citing Balaban v. Balaban, 2007 ONSC 7990 (Ont. S.C.J.), 2007 CarswellOnt 1518, at para. 7: “[T]hose who can least afford to litigate should be most motivated to seriously pursue settlement and avoid unnecessary proceedings.”
69I do not find that to be relevant in the present case. At the exit pretrial on September 14, 2022, both BOF and IF withdrew their claims for decision-making responsibility for E. and for her primary residence. In that manner, they did try and avoid unnecessary proceedings and limited their claims to contact and access to medical information. Given the unusual facts in this case, neither BOF nor IF are to be blamed for asking the court to determine the issue of either of them having contact with E. and/or access to her medical records.
70BOF argues that he has no ability to meet any costs order. He testified that he receives pension income of $2,030 a month, from which he has to pay rent, food and other necessities for him and IF. He is 65 years of age and is not working. IF argues that she has no personal income. Her costs submissions stated that her tax returns for the past 10 years show that she has not received any income and that she is totally supported financial by her husband, BOF. Yet during the trial, IF testified at trial that while she does not have income in Canada, she has family who can finance therapy for E., that money has been set aside and is ready for E. and she also testified that she offered to contribute funds towards E.’s therapy in February 2020 and June 2020, though no such funds were contributed.
71Although I have found some elements of misconduct and unreasonable behaviour on BOF’s part and bad faith conduct on IF’s part, I take the inability of BOF and IF to pay the costs into account in setting the amount of costs payable although I note this is not a sufficient factor to eliminate the award of costs in its entirety: see Snih v. Snih, 2007 ONSC 20774 (Ont. S.C.J.) at pars. 7-13 and Di Raimo v. Di Raimo, 2020 ONSC 6317 (Ont. S.C.J.), at para. 31.
Reasonableness and Proportionality
72AN is entitled to his costs of the trial on a partial recovery basis. The issue then arises as to whether the $20,867.50 in full recovery costs are warranted for this 19-day trial.
73The hourly rates set out in AN’s Bill of Costs for Ms. Taseer of $425 an hour, for a 2004 call, are reasonable and there was no suggestion that they were not.
74The hours spent directly on trial-related preparation came to 49.1 hours whish is modest in the circumstances, because Ms. Taseer did not attend the trial daily.
75The additional sum of $5,000 on account of lost wages for AN was not supported by any documentation and it is unknown whether all or part of the trial formed part of AN’s vacation period.
76I have already noted BOF’s unreasonable behaviour and IF’s bad faith conduct, which increased AN’s costs in this matter.
Conclusion and Order
77In light of the extent of AN’s success at trial, albeit divided in terms of the limited contact BOF was granted to E.; the reasonableness and proportionality of the work performed by AN’s counsel; the fact that both BOF and IF should have expected to pay costs, if AN succeeded at trial;, an order that BOF and IF pay 65% of AN’s trial-related costs ($13,564) represents a reasonable and fair contribution to the costs he incurred at trial, with IF paying 80% of these fees in the sum of $10,851.10 and BOF paying 20% of these fees, in the sum of $2,712.90, inclusive of fees, disbursements and HST. I take into account, however, that BOF and IF are at a financial disadvantage and there are legitimate concerns that they are both unable to pay the costs.
78I therefore find that BOF and IF pay the costs of the trial, totalling $13,564, payable in total monthly installments of $1,130.33 per month, with IF paying $904.25 a month and BOF paying $226.08 for 12 months to commence on February 1, 2023.
M. Kraft, J.
Date Released: January 24, 2023