COURT FILE NOS.: FC-11-936-2; FC-11-936-4
DATE: 2023-12-07
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Lanie Hormillosa, Applicant
AND
Octave Tshiani-Levine, Respondent
BEFORE: The Honourable Mr. Justice Marc Smith
COUNSEL: Steve Duplain, Counsel for the Applicant
Self-represented Respondent
HEARD: In writing
COSTS DECISION
M. Smith J
[1] There were two matters before the Court. The first was a trial regarding whether Mr. Tshiani-Levine was entitled to legal costs and disbursements between 2012 and 2018, as well as determining the proper division of the parties’ respective pensions (Hormillosa v. Tshiani-Levine, 2023 ONSC 4119). The second was a summary judgment brought by Ms. Hormillosa seeking a dismissal of Mr. Tshiani-Levine’s Motion to Change and the granting of judgment of her parenting claim for the youngest child (Hormillosa v. Tshiani-Levine, 2023 ONSC 4120).
[2] Ms. Hormillosa was successful in both matters. She now seeks costs for the trial and the summary judgment motion, in the all-inclusive amounts of $35,000.00 and $39,000.00, respectively.
[3] Mr. Tshiani-Levine argues that, in terms of the trial, he is entitled to costs in the amount of $12,000.00. Regarding the motion for summary judgment, he asks that no costs be awarded to Ms. Hormillosa.
Legal principles
[4] Pursuant to s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, costs are at the discretion of the court. The framework for awarding costs is set out at r. 24 of the Family Law Rules, O. Reg. 114/99 (“FLR”).
[5] Rule 24(1) of the FLR creates a presumption of costs in favour of the successful party. In setting the amount of costs, the court shall consider the factors outlined in r. 24(12) of the FLR, which includes, without limitation, the importance and complexity of the issues, the parties’ behaviour, the time spent, written offers, and legal fees.
[6] Modern costs 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 subrule 2 (2) of the FLR: see Mattina v. Mattina, 2018 ONCA 867.
[7] Proportionality and reasonableness are the touchstone considerations that need to be applied when fixing an amount of costs. A successful party is not entitled to full recovery unless r. 18(14) and 24(8) are triggered: see Beaver v. Hill, 2018 ONCA 840 at paras. 4, 13 and 17.
[8] A party’s ability to pay is a relevant consideration under r. 24(12) of the FLR, and it goes to quantum, not liability. However, this inability to pay does not shield that party from liability or that it be used to excuse unreasonable conduct: see Grujicic v. Trovao, 2023 ONSC 1518, at paras. 27 to 31.
Analysis
Trial costs
[9] Counsel for Ms. Hormillosa has provided a Bill of Costs, totalling $42,732.52, inclusive of fees, disbursements, and H.S.T. For most of the work, he charged an hourly rate of $250.00, and he spent approximately 100 hours since late 2018.
[10] Throughout the proceedings, Ms. Hormillosa made two offers to settle. She argues that the Court’s decision at trial was significantly more favourable to her than both of her offers to settle, and that her offers to settle comply with the requirements of r. 18(14) of the FLR. She therefore seeks costs on a substantial indemnity basis.
[11] Ms. Hormillosa also submits that she is entitled to elevated costs because of Mr. Tshiani-Levine’s unreasonable litigation conduct during the proceedings.
[12] Mr. Tshiani-Levine’s costs submissions were 17 pages, well in excess of the five-page limitation. Although he has failed to follow the Court’s direction, his arguments have nonetheless been considered. It is however reflective of Mr. Tshiani-Levine’s prior conduct regarding failure to abide by a court order.
[13] Mr. Tshiani-Levine states that he finds himself in a precarious financial situation. He says that, since April 2022, he has been on long-term disability, with a reduced income. In addition to paying $1,000.00 in child support to Ms. Hormillosa, he submits that he is also financially responsible for his new spouse (Kevine Aime Umuhere), a five-month-old child, and two nieces that he adopted in 2018. Ms. Umuhere filed an affidavit in support of Mr. Tshiani-Levine’s position.
[14] He further submits that during the last five years, there were many court appearances where costs were not awarded to Ms. Hormillosa. As such, it should be presumed that no costs were granted by the court for each of those steps.
[15] The balance of Mr. Tshiani-Levine’s submissions deals mostly with the re-argument of the merits of the trial. He is dissatisfied with many of the Court’s rulings and findings, claiming that they are unfair and unjust. Despite the Court’s decision to dismiss Mr. Tshiani-Levine’s claim for legal costs and disbursements incurred between 2012 and 2018, he nonetheless asks that the Court award him $12,000.00 because of Ms. Hormillosa’s conduct.
[16] The Court rejects Mr. Tshiani-Levine’s submissions.
[17] Ms. Hormillosa was clearly the successful party at trial. She is therefore presumptively entitled to costs.
[18] Mr. Tshiani-Levine’s request for costs is once again denied. His request is unfounded and constitutes a collateral attack on the Court’s Reasons for Judgment.
[19] The time and rate charged by counsel for Ms. Hormillosa are reasonable. Other than one short procedural motion appearance before Associate Justice Kaufman in April 2019, as he was then, the costs sought by Ms. Hormillosa pertain to the trial and no other court appearances, as alleged by Mr. Tshiani-Levine.
[20] Mr. Tshiani-Levine’s conduct during the proceedings, including the trial, has been unreasonable. As indicated in the Reasons for Judgment, he lacked credibility, he failed to abide by court orders, he failed to provide evidence in support of his position, and his behaviour was inappropriate throughout the proceedings.
[21] Mr. Tshiani-Levine’s position at trial was unsubstantiated and he should have accepted Ms. Hormillosa’s offers to settle. The outcome of the trial was more favourable to Ms. Hormillosa. She was prepared to accept a lesser amount than what was eventually awarded at trial.
[22] The Court is not persuaded by Mr. Tshiani-Levine’s arguments regarding his inability to pay.
[23] First, he currently earns a reasonable income of approximately $77,000 per year. In 2022, he was earning an annual salary of $107,000.00. He says that his income has been reduced because of his disability. Importantly, it is noted that on his income tax return, he has claimed a loss for rental income, which has reduced his total income by $28,391.39.
[24] It is also noteworthy that in April 2023, Mr. Tshiani-Levine’s long-term disability claim was denied by the insurance carrier. He appealed this decision, but it was denied in July 2023. Other than saying that this matter remains before an administrative tribunal, no other information has been provided regarding the status of his claim.
[25] Second, he is the owner of two residential properties, one of which he rents for $2,200 per month. He claims that he is unable to sell one of these properties because he would sustain a loss. No evidence was provided to support this position.
[26] Third, he operates a business called Getrokin Incorporated. Mr. Tshiani-Levine claims that it is not operational. In support of this contention, he mistakenly says that he provided the Court with the company’s financial statements. Only a Form 22 Annual Return was filed, with no financial information.
[27] Fourth, the Court has not ascribed much weight to Ms. Umuhire’s affidavit because it mostly parrots Mr. Tshiani-Levine’s arguments regarding his financial situation.
[28] Fifth, even if the Court was to accept that Mr. Tshiani-Levine was impecunious, it cannot be used as a shield for his unreasonable conduct in this case. He must be held accountable for the position that he has taken in this litigation, and it must be sanctioned through a cost award.
[29] For these reasons, the Court finds that an all-inclusive award of $35,000.00 is reasonable and proportionate in the circumstances. Despite the Court’s findings regarding Mr. Tshiani-Levine’s ability to pay, these costs may be paid at a rate of no less than $1,000.00 per month, commencing on January 1, 2024, until fully paid.
Summary Judgment costs
[30] Counsel for Ms. Hormillosa has provided a Bill of Costs, totalling $43,362.05, inclusive of fees, disbursements, and H.S.T. For most of the work, he also charged an hourly rate of $250.00, and he spent approximately 130 hours since late 2018 regarding parenting issues.
[31] Similar to the trial issues, Ms. Hormillosa attempted to resolve the parenting disputes, without any success.
[32] Ms. Hormillosa argues that Mr. Tshiani-Levine’s position on the parenting issues was unjustified and unreasonable. In addition, he accused Ms. Hormillosa of alienating the children against him.
[33] Mr. Tshiani-Levine argues that the motion for summary judgment was unnecessary because of the children’s ages. He had brought his motion to change in 2017 but with the passing of time and the ages of the children, any decision of the Court would no longer be practical. He claims that Ms. Hormillosa should have requested that this matter be resolved by way of a settlement conference, as opposed to proceeding with a motion for summary judgment.
[34] Mr. Tshiani-Levine raises the same arguments regarding his ability to pay. He also reiterates his submissions regarding Ms. Hormillosa seeking costs for previous court appearances.
[35] The Court rejects Mr. Tshiani-Levine’s position.
[36] It is surprising that Mr. Tshiani-Levine now argues that no costs should be awarded because the parenting issues have now become moot. It is true that when Mr. Tshiani-Levine started his motion to change in 2017, two of the children were younger than 14 years old. However, when faced with a motion for summary judgment in early 2023 to dismiss the claims for parenting, Mr. Tshiani-Levine did not alter his position, even though his youngest child was almost 17 years old at the time of the motion, and his views had clearly been articulated. Mr. Tshiani-Levine doubled down and vigorously argued at the motion that Ms. Hormillosa had alienated her children, and that the views expressed by his youngest child were not his own.
[37] Mr. Tshiani-Levine’s position at the motion for summary judgment was unreasonable and his claims of parental alienation were without foundation. The evidence overwhelmingly convinced the Court that, in the best interest of the youngest child, the status quo should be maintained, and Ms. Hormillosa should continue to exercise sole decision-making responsibility for the youngest child.
[38] Ms. Hormillosa was undoubtedly the successful party and as such, is presumptively entitled to her costs.
[39] The Court’s findings regarding Mr. Tshiani-Levine’s ability to pay remain the same.
[40] Regarding previous court appearances, the Bill of Costs does not seek to be reimbursed for those. However, it is noted that for the summary judgment motion, there are more timekeepers and there may have been some duplicative work. Furthermore, some time has been docketed for trial management appearances, which could be duplicative of work that was related to the trial. Out of an abundance of caution, a reduction of the time spent is necessary. The rate charged by counsel for Ms. Hormillosa is again reasonable.
[41] The offers to settle clearly reflected the outcome of the motion for summary judgment. Mr. Tshiani-Levine became so embroiled in the litigation that he could not see the forest for the trees. In the best interest of his youngest child, he should have accepted any of the offers to settle.
[42] Mr. Tshiani-Levine’s conduct regarding the parenting issues mirrors his conduct regarding the issues at trial. They were both unreasonable and inappropriate.
[43] For these reasons, the Court finds that an all-inclusive award of $30,000.00 is reasonable and proportionate in these circumstances. Similarly, Mr. Tshiani-Levine will be permitted to pay this amount at a rate of no less than $1,000.00 per month, commencing on January 1, 2024, until fully paid.
Previous costs awards
[44] Ms. Hormillosa asks that prior court-ordered cost awards totalling $2,882.50, which remain unpaid, be consolidated with this order. Mr. Tshiani-Levine disputes that the totality of this amount has been unpaid. Given this disagreement, the Court is not prepared to make such an order.
DISPOSITION
[45] Mr. Tshiani-Levine is ordered to pay costs in the amounts of $35,000.00 and $30,000.00 with respect to the trial and the motion for summary judgment, respectively. These amounts are to be paid monthly, in the total amount of $2,000.00, commencing on January 1, 2024, until fully paid.
M. Smith J
Released: December 7, 2023
COURT FILE NOS.: FC-11-936-2; FC-11-936-4
DATE: 2023-12-07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Lanie Hormillosa
Applicant
– and –
Octave Tshiani-Levine
Respondent
COSTS DECISION
M. Smith J
Released: December 7, 2023