Court File and Parties

COURT FILE NO.: FC-873/20 DATE: 2024/03/07 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Vincent Ricketts, Applicant AND: Diana Ricketts, Respondent

BEFORE: The Honourable Mr. Justice A. Pazaratz

COUNSEL: Vincent Ricketts, Self-Represented Applicant Kathleen Broschuk, for the Respondent

Costs Endorsement

[1] There’s a difference between nonsense and intentional nonsense. a. The former can be chalked up to inexperience. b. The latter is an ill-conceived litigation strategy that never works and simply increases costs penalties because it constitutes “bad faith”.

[2] I have received and considered written costs submissions from both parties in relation to my January 5, 2024 motion decision.

[3] At that motion: a. The Respondent mother had brought an urgent motion involving two headings: immediate sale of the jointly owned matrimonial home, and a request that the Applicant father’s pleadings be struck as a result of a failure to comply with a disclosure order. b. Ultimately, the mother’s counsel agreed the motion to strike was not urgent and would be dealt with on a later date. c. I reviewed extensive affidavit materials, and I also allowed the father make additional oral comments and submissions. Notably, during those submissions the father stated that if the court ordered the house to be sold, he would not cooperate. d. I concluded that there was merit and urgency with respect to the mother’s position; the father had not established any reasonable justification for resisting the sale; and that based on his own materials the father had allowed the financial situation in relation to the home to deteriorate to the point where it was unaffordable, and it was inevitable that the property would have to be sold. e. I also concluded that the mother had valid concerns about the father being unreasonable and uncooperative. His aggressive (and bizarre) written communications raised concerns about his insight and whether he was acting in good faith. f. I granted the relief requested by the mother, including an order for sale; dispensing with the father’s participation in the sale process; and exclusive possession to the mother to allow her to market the premises.

[4] The mother’s position with respect to costs. a. She seeks full indemnity costs of $10,434.42 as she was successful, and she was more successful than her offer to settle. b. She also alleges the father acted in bad faith.

[5] The father’s position with respect to costs: a. Throughout his submissions he says he was disadvantaged because he didn’t have a lawyer – either for the motion itself or during the period leading up to the motion. b. He denies acting in bad faith. c. He re-stated the merit of his (unsuccessful) position on the motion, and in some ways attempted to re-argue the motion in his costs submissions. d. He said he doesn’t have the ability to pay costs. e. He noted that he has the parties’ two children (ages 14 and 12) in his care, and the mother is not paying child support. f. He submits that no costs or very limited costs should be ordered.

[6] Costs rules are intended to foster four fundamental purposes: a. To partially indemnify successful litigants; b. To encourage settlement; c. To discourage and sanction inappropriate behaviour by litigants; and d. To ensure that cases are dealt with justly pursuant subrule 2(2) of the Family Law Rules ("the Rules") Mattina v. Mattina, 2018 ONCA 867; Serra v. Serra, 2009 ONCA 395.

[7] Costs awards are discretionary. In exercising that discretion, the court should be mindful of two touchstone considerations: reasonableness and proportionality. Beaver v. Hill, 2018 ONCA 840.

[8] Costs are an important tool to promote the efficient use of judicial resources and the orderly administration of justice. Access to the justice system by individuals must be balanced with the need to ensure that the resource is available for all those who need it. Costs can be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71; Lawrence v. Lawrence, 2017 ONCJ 431; Peladeau v. Charlebois, 2020 ONSC 6596; Pugsley v. Adamantidou, 2021 ONCJ 590; N.P. v. D.H., 2023 ONCJ 2; F.K.T. v. A.A.H., 2023 ONCJ 185; Ali Hassan v. Abdullah, 2023 ONCJ 186.

[9] Parties need to be held responsible for their behaviour to maintain respect for the system. Mulik v. McFarlane, 2023 ONCJ 7.

[10] However, the court must also ensure that the threat of costs does not interfere with access to justice. Potential litigants should not be deterred from pursuing legitimate claims out of fear of overly burdensome costs consequences. Weber v. Weber, 2020 ONSC 6855; Spadacini-Kelava v. Kelava, 2021 ONSC 2490; Thompson v. Drummond, 2018 ONSC 4762.

[11] Rules 18 and 24 of the Family Law Rules (“the Rules”) govern the determination of costs in family law proceedings.

[12] Consideration of success is the starting point. Rule 24(1) creates a presumption of costs in favour of the successful party. Sims-Howarth v. Bilcliffe. Without question, the mother was successful on this motion.

[13] The mother seeks elevated costs based on an offer she filed. This triggers consideration of Rule 18: a. Rule 18 sets out cost consequences where a party fails to accept an offer which the other party then meets or exceeds at trial. In that case, the successful party is entitled to costs until the offer was served, and "full recovery" of costs from that date. b. The party seeking elevated costs pursuant to Rule 18(14) has the onus of proving that the order obtained at the motion or trial is as favourable as or more favourable than the terms set out in the offer to settle (or the relevant section(s) in a severable offer). Neilipovitz v. Neilipovitz, 2014 ONSC 4600; F.B. v. C.H., 2021 ONCJ 333; Saroli v. Grette, 2022 ONSC 3560; Fenton v. Charles, 2023 ONCJ 74. c. Offers need not be exactly the same as the order obtained. What is required is a general assessment of the overall comparability of the offer as contrasted with the order. Wilson v. Kovalev, 2016 ONSC 163; Leclerc v. Grace, 2020 ONSC 6722; Peladeau v. Charlebois, 2020 ONSC 6596. The court is not required to examine each term of the offer as compared to the terms of the order and weigh with microscopic precision the equivalence of the terms. Jackson v. Mayerle, 2016 ONSC 1556; Chomos v. Hamilton, 2016 ONSC 6232. d. But “close” is not good enough to attract the costs consequences of Rule 18(14). The offer must be as good or more favourable than the order obtained. Thomas v. Saunchez, 2022 ONCJ 532; Gurley v. Gurley, 2013 ONCJ 482; Grujicic and Grujicic v. Trovao, 2023 ONSC 1518. e. The Rule 18 costs consequences are not automatic. Rather, Rule 18 creates a rebuttable presumption that does not displace judicial discretion to determine whether the cost consequences are appropriate. Arthur v. Arthur, 2019 ONSC 938; Grujicic and Grujicic v. Trovao, 2023 ONSC 1518. f. Even where a Rule 18(14) offer triggers “full recovery” costs, the court still has the discretion not to order full recovery costs. C.A.M. v. D.M.. N.M.L. v. A.T.C., 2022 ONCJ 250. The successful party is still not entitled to a “blank cheque”. The principles of reasonableness and proportionality still prevail in determining an amount, even where there is complete success. Goryn v. Neisner, 2015 ONCJ 318; Jackson v. Mayerle, 2016 ONSC 1556; Belair v. Bourgon, 2019 ONSC 2170; Slongo v. Slongo, 2015 ONSC 3327; Tintinalli v. Tutolo, 2022 ONSC 6276.

[14] There is no doubt the result obtained by the mother matched or exceeded the terms of her offer. For example: a. Her offer would have allowed the father to continue to participate in the sale. But the order granted the mother exclusive authority over the sale. b. Her offer would have allowed both parties to maintain possession of the home pending sale. The order granted the mother exclusive possession.

[15] As well, the mother’s offer was severable. This is to be encouraged, and reaffirms my finding that the mother has acted reasonably in these proceedings. Offers are much more likely to promote settlement, narrow the issues, and result in elevated costs awards if they are severable by topic. M.J.L. v. C.L.F., 2023 ONCJ 354; P.I. v. R.O., 2022 ONCJ 184; M.A. v. M.E., 2021 ONCJ 619; Mulik v. McFarlane, 2023 ONCJ 191.

[16] As well, the mother’s offer clearly explained the costs consequences if the father declined to accept her proposed terms.

[17] However, the enhanced costs consequences of a successful offer are presumptively triggered from the date the offer was served. In this case, the offer was dated January 3, 2024. It is unclear when it was served, but the motion was heard on January 5, 2024, so there wasn’t a lengthy period of time during which the elevated cost consequences would kick in.

[18] Bad faith is always a complex issue in family law proceedings.

[19] A finding of bad faith on the part of a litigant is rarely made, because it requires a high threshold. F.K. v. A.K. and CAS of Hamilton, 2020 ONSC 4927. A litigant's conduct must fall far below the standard expected of parties to a proceeding. Daciuk v. Daciuk, 2023 ONSC 209; S.(C). v. S(M).: Piskor v. Piskor; Cozzi v. Smith, 2015 ONSC 3626; Hum v. Skoll, 2020 ONSC 275. a. The behavior must be shown to be carried out with intent to inflict financial or emotional harm on the other party or other persons affected by the behavior; to conceal information relevant to the issues at stake in the case; or to deceive the other party or the court. S.(C). v. S(M).; Scalia v. Scalia, 2015 ONCA 492. b. A misguided but genuine intent to achieve the ostensible goal of the activity, without proof of intent to inflict harm, to conceal relevant information or to deceive, saves the activity from being found to be in bad faith. Calver v. Calver, 2019 ONSC 7317. c. The requisite intent to harm does not have to be the person's sole or primary intent, but rather only a significant part of the person's intent. S.(C). v. S(M). d. At some point a party can be found to be acting in bad faith when their litigation conduct has run the costs up so high that they must be taken to know their behavior is causing the other party major financial harm without justification. S.(C). v. S(M). e. Deliberate disobedience of a court order can amount to bad faith if the disobedience is intended to achieve an ulterior motive or inflict financial harm. Fatahi-Ghandehari v. Wilson [2018] O.J. No. 460; Spadacini-Kelava v. Kelava, 2021 ONSC 2490; Caira v. Caira, 2023 ONSC 3624. f. Bad faith is not synonymous with bad judgment or negligence. Rather, it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. Bad faith involves intentional duplicity, obstruction or obfuscation. Scipione v. Del Sordo, 2015 ONSC 5982; Children's Aid Society of the Region of Peel v. F. (I.J.), 2009 ONCJ 252; Biddle v. Biddle; Leonardo v. Meloche; Hendry v. Martins, [2001] O.J. No. 1098 (SCJ); Carter v. Carter, 2020 ONSC 1095; Jackson v. Mayerle, 2016 ONSC 1556; Green v. Whyte, 2019 ONSC 7133. g. To establish bad faith the court must find some element of malice or intent to harm. Harrison v. Harrison, 2015 ONSC 2002. h. There is a difference between bad faith and unreasonable behaviour. The essence of bad faith is when a person suggests their actions are motivated by one purpose when they are actually motivated by another purpose. It is done knowingly and intentionally. A bad faith finding on a specific issue does not necessarily have a spill-over effect to other issues. The court can order full recovery costs in relation to the portion of the proceeding where bad faith is applicable. Hunt v. Hunt, [2001] O.J. No. 5111 (SCJ). Scipione v. Del Sordo, 2015 ONSC 5982; Stewart v. McKeown, 2012 ONCJ 644; F.D.M. v. K.O.W., 2015 ONCJ 94. i. A last minute acceptance of an offer is not necessarily bad faith behaviour. Many matters are settled at the last minute on the courthouse steps based on an offer. Hockis v. Smirnova, 2023 ONSC 4025.

[20] On a threshold level, I find that the father’s approach to this litigation included bad faith behaviour in that he intentionally withheld information; in his oral submissions he included information which directedly contradicted his sworn evidence; and when the court tried to give him a further opportunity to explain his position, he was deliberately evasive and inconsistent in trying to keep his story straight.

[21] More to the point, the father left the mother with no alternative but to proceed with her motion, in large part because of his embarrassingly unsophisticated efforts to dissuade and intimidate not only the mother but also her lawyer.

[22] My January 5, 2024 endorsement included the following:

10. To demonstrate how unreasonable and uncooperative the father has been, the mother also included with her materials an email the father sent to the mother’s lawyer on December 19, 2023 at 6:11 a.m.(reproduced as sent): Ms Broschuk,

Kathleen Broschuk you are very disrespectful and I don't owe you any obligation please refrain from sending me emails. I am not your co-workers neither am I your client. Most and foremost i cannot communicate with dead entities. I already declared I am vincent the living man executor and beneficiary for the estate: RICKETTS.

If there's any further correspondence it should be done by registered mail. Any Further email from you or the establishment doing as Jamal Family Law Professional Corporation. will considered undelivered

in respect to CANADIAN LAW, The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. Section 35 of the convention constitution act of 198 honour and affirmed my treaty rights as a heirs to land, Indian not tax,

North American indigenous Indian.

Kathleen Broschuk You are an employee of Westminster by holding an Ontario bar association number known as a licence permit (permission), you are binded by the constitution for the united state of 1789.

Westminster and all its franchised, public officials and public servants sworn on oath under penalty of perjury to operate in good faith and honour the common law. please refer to article 6 of the constitution for the United States of 1789

Kathleen Broschuk You have no jurisdiction in this matter, Kathleen Broschuk You are manipulating my wife for your own personal benefits you are not looking out for her best interests. why don't you tell her that if the house is sold there's no money in it for her to get all the money would be gone to the bank and the private lender and other loan sharks that I've borrowed money from where I pledged the house as collateral. Kathleen Broschuk you see my wife as a meal ticket and you preying on her incompetence in efforts to line your packets.

Kathleen Broschuk this your final warning to back down!. Canada is a corporate state operating as a colony by you saying you are following Canadian laws which doesn't exist. Canada constitution run from 1867 to 1982 it is now expired Canada is under colonial operation which means you're committing terrorism, fraud, High treason, human trafficking and crime against humanity. I already declared I am a living man, not a thing, parson, corporation or a fictitious entity, 14th Amendment corp etc. the administration court have jurisdiction over things, entities and corporations. I hereby do not attorn the jurisdiction of the court. and I will not participate in any commercial activities in REM'S admiralty maritime, human trafficking jurisdiction.

Failure to cease and desist your colonial activities against my estate : RICKETS you will be served a civil law suit from a court of competence common law venue. By my agent and you Kathleen Broschuk will have to stand liabilities in your corporate and private capacity.

Sue juris

Personam

All rights reserved

Without prejudice, without recourse : vincent

[23] What?

[24] Before that, in his August 29, 2023 email he claimed it was the lawyer’s idea to sell the house – and not the mother’s. He threatened: “I will hold you responsible for any loss and damages arisen from the wrongful suggestion, proposition you made.

[25] And on December 18, 2023 he sent the lawyer an email which might have had the intended effect of intimidation, if it wasn’t so bizarre (reproduced as sent): Ms, Kathleen Broschuk

For the record, let the record show, this is not Pseudolaw, or Organized Pseudolegal Commercial Argument but the supreme law of the land.

I (vincent) the living man In propria and sovereign capacity the executor and beneficiary for the public trust / estate : VINCENT: RICKETTS. I stand outside of the corporate body competently in LAW I stand no surety for statutory power nor statutory instruments such as legislations acts, corporate by- laws, statute or codes, most importantly I am not lost at sea in REM's admiralty, maritime jurisdiction I returned from sea pursuant to the Cestui Que Vie Act 1666 to claim to my ancestral estate: VINCENT: RICKETTS and my cestui que vie trust.

I hereby operating in my private and sovereign capacity non-commercially,non-personnel, with dominion over all things I hereby invoking my inherent and treaty rights pursuant to Great Law of Peace of 1451 two row wampun treaty known as Teiohate Kaswenta in the Mohawk language. One row symbolizes the Haudenosaunee (Indian) people with their law and customs, while the other row symbolizes European laws and customs. As nations move together side-by- side on the River of Life, they are to avoid overlapping or interfering with one another. It still symbolizes an agreement of mutual respect and peace between the Haudenosaunee (Indian) and European newcomers to North America.

The Great Law of Peace is presented The laws, of constitution (https://en.m.wikipedia.org/wiki/Constitution), are divided into 117 articles. The united Iroquois nations are symbolized by an eastern white pine (https://en.m.wikipedia.org/wiki/Eastern_white_pine) tree, called the Tree of Peace (https://en.m.wikipedia.org/wiki/Tree of Peace). Each nation or tribe plays a delineated role in the conduct of government. The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution, is to the extent of the inconsistency, of no force or effect. Section 35 of Canada Constitution Act, of 1982. The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Metis peoples of Canada.

I (vincent) the living man hereby do not consent to your email, I do not consent to an emergency motion in efforts sell my matrimonial home, neither do I consent to selling my home as a whole. The children are living in there and I am the only individual pulling all the stops in efforts to save the home. my wife is welcome to provide the necessary financial assistance if possible in efforts to help saving the home so that our children can have a home instead, of her always looking for the possible opportunity to money grad.

I hereby do not consent to any proceedings. I (vincen) Hereby making a lawful demand to Kathleen Broschuk, Jamal Family Law Professional Corporation and to all successors to Cease and desist all action against the estate of VINCENT RICKETTS. I (vincent) the living man do not attorn to your jurisdiction. And we have no contract agreements pursuant to contract law failure comply with this order will result in a supreme court law suit against Jamal Family Law Professional Corporation and a private prosecution against Kathleen Broschuk in corporate and private capacity for crimes against humanity, commercial crime and human trafficking etc. SUE JURIS. All rights reserved without prejudice, without recourse. UCC1 -308.

[26] Family law lawyers take a lot of flak. Rightly or wrongly (mostly wrongly) it comes with the territory. But “crimes against humanity”? a. The father’s writings are not just innocent legal babble. b. This is more than just a layman stumbling with legal jargon he didn’t really understand. c. The father went out of his way to sound as tough and menacing as possible, randomly choosing as many “legal words” as he could think of, in a transparent attempt to create complication, confusion, and intimidation. d. His conspicuous denial “..this is not Pseudolaw, or Organized Pseudolegal Commercial Argument...” simply draws attention to the obvious. e. The fact that the father’s words are comically inept does not vitiate their malicious intent. f. He was threatening the mother’s lawyer personally, simply for doing her job. g. A personal attack on a lawyer as an officer of the court is an attack on the administration of justice. It cannot be tolerated or glossed over.

[27] In his written submissions the father emphasized that he didn’t have a lawyer, so he wasn’t sure what he was doing. He said he shouldn’t be penalized for struggling with a complicated court process, in relation to very emotional issues.

[28] Some of that explanation would apply to many self-represented litigants. But very little of that explanation actually applies to this self-represented litigant. a. Firstly, he wasn’t entirely self-represented. After preparing his own affidavit materials, he retained a lawyer. But inexplicably, he selected a lawyer knowing that, for personal family reasons, the lawyer didn’t have the time to go on record or give this matter timely attention. His lawyer attended on January 5, 2024, didn’t go on record, made some submissions, and then bowed out. That’s why I allowed the father to make his own additional submissions. But bringing a lawyer to court to explain why he can’t be your lawyer really wasn’t very helpful to the process. He could have picked a lawyer who was available. He was using the lawyer’s unavailability as an excuse to further delay a time-sensitive matter. b. The father didn’t need a lawyer to know that he was ignoring a June 20, 2023 disclosure order, and he was being secretive and evasive about his financial dealings. And he didn’t need a lawyer to know his affidavit was misleading the court. c. Beyond that, he deliberately adopted the gadfly approach of a small group of obstructionist litigants who think they can outsmart and paralyze the court system by talking nonsense and playing dumb. d. Making mistakes as a layman is forgivable. But intentionally wasting everyone’s time with gibberish constitutes bad faith behaviour. e. And issuing bizarre and unwarranted threats against a lawyer personally only makes it worse. A lot worse. f. Family law is tough enough, without lawyers having to put up with malicious and nonsensical personal attacks and threats.

[29] Rule 24(5) provides criteria for determining the reasonableness of a party’s behaviour in a case. Of relevance here is Rule 24(5)(a) which requires that the court shall examine the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle. In this case the father did not file his own offer.

[30] Lack of success will not, in itself, attract enhanced costs. Being unsuccessful is not necessarily the same as being unreasonable. But an unsuccessful party pursuing an unreasonable legal position may be liable for enhanced costs. Climans v. Latner, 2020 ONCA 554; Nour v. Youssef, 2021 ONSC 5539; W.H.C. v. W.C.M.C., 2021 ONCJ 363; S.W.-S. v. R.S., 2022 ONCJ 11; Wauthier v. McAuliff, 2019 ONSC 5302; Rebujio v. Rosario, 2022 ONCJ 452; Kerr v. Moussa, 2023 ONCJ 82; F.K.T. v. A.A.H., 2023 ONCJ 185.

[31] Unreasonable behavior “in relation to the issues” includes behavior that: (1) is disrespectful of other participants or the court; (2) unduly complicates the litigation, (3) increases the cost of litigation. Harper v. Smith, 2021 ONSC 3420; T.I. v. F.I., 2023 ONSC 3435.

[32] Conduct which unduly complicates or unduly lengthens and increases the cost of a proceeding constitutes unreasonable conduct under Rule 24(4). Goldstein v. Walsh, 2019 ONSC 3174; Hutchinson v. Peever, 2021 ONSC 4587; Jackson v. Mayerle, 2016 ONSC 1556.

[33] The father’s position in relation to the substantive issues was unreasonable. But his approach to the litigation itself was also unreasonable.

[34] Clearly, the mother is entitled to costs. The court must consider Rule 24(12) which outlines the factors to be considered in quantifying costs.

[35] The Court’s role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees. Aprile v. Aprile, 2016 ONCJ 678.

[36] There is no presumption in the Rules that provides for a general approach of "close to full recovery" costs. Rules 18 and 24 expressly contemplate full recovery in only two specific circumstances: a. Matching/exceeding an offer to settle (Rule 18(14)). b. Bad faith (Rule 24(8)). Beaver v. Hill, 2018 ONCA 840.

[37] And even in circumstances in which Rules 18(14) or 24(8) trigger "full recovery costs", the court still has an overriding discretion and responsibility to determine a costs award that is proportional, fair and reasonable in all the circumstances. Chomos v. Hamilton, 2016 ONSC 6232. “Full recovery” does not mean that the unsuccessful party automatically reimburses the exact amount charged by the successful party’s lawyer. Fearon v. Ellsworth, 2020 ONCJ 583; Natale v. Crupi, 2020 ONSC 8007; Volgemut v. Decristoforo, 2022 ONSC 2520; Tintinalli v. Tutolo, 2022 ONSC 6276.

[38] Conversely, the court may order enhanced costs, even if not on a full recovery basis, based upon a party’s unreasonable conduct of the litigation. Climans v. Latner, 2020 ONCA 554: Daciuk v. Daciuk, 2023 ONSC 209.

[39] Determining costs requires more than a simple mathematical totalling of how much the successful party paid their lawyer. a. The amounts actually incurred by the successful litigant are not determinative. The Court’s role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees: Aprile v. Aprile, 2016 ONCJ 678; Kommineni v. Guggilam, 2022 ONCJ 191; Bell v. Placidi, 2023 ONSC 6701. b. The overall objective is to fix an amount that is fair and reasonable from the unsuccessful party’s perspective. This includes considering the amount the unsuccessful party could reasonably have expected to pay if they were unsuccessful in the litigation. Boucher v. Public Accountants Council of Ontario; Arthur v. Arthur, 2019 ONSC 938; Mussa v. Imam, 2021 ONCJ 92; Kerr v. Moussa, 2023 ONCJ 82. c. The emphasis on proportionality has led to a de-emphasis on hourly rates and time spent by counsel as the key factor in fixing costs. Delellis v. Delellis; Spadacini-Kelava v. Kelava, 2021 ONSC 2490; DeSantis v. Hood, 2021 ONSC 5496.

[40] Rule 12.1 requires that any claim for costs must be supported by documentation satisfactory to the court. This generally requires a bill of costs setting out services and corresponding legal fees with sufficient particularity to allow the court to make a determination of reasonableness and proportionality. The mother’s lawyer has complied with this requirement by submitting a detailed bill of costs.

[41] Under Rule 24(12)(a)(ii) and (iv), the court must review the lawyer's rates and the "time spent by each party" on the case. I am satisfied that the time, rates and services set out on the bill of costs are appropriate. The issues were important and complex. The presentation of the mother’s case was skillful and efficient.

[42] The father’s claim that he has no “ability to pay” costs raises complex considerations. a. A costs order should take into consideration the ability of a party to pay costs. MacDonald v. Magel, 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; Volgemut v. Decristoforo, 2022 ONSC 2520. c. A party's financial circumstances cannot be used as a shield against any liability for costs. Derziyan v. Shebarin, 2021 ONCJ 17. This admonition is particularly applicable where a party has acted unreasonably and is the author of their own misfortune. Volgemut v. Decristoforo, 2022 ONSC 2520. d. Ability to pay will be taken into account regarding the quantum of costs. Snih v. Snih; Dhillon v. Gill, 2020 ONCJ 68. While difficult financial circumstances are a factor to be considered, they do not always justify depriving a successful party of costs, or reducing the amount of costs. Beaulieu v. Diotte, 2020 ONSC 6787; Pugsley v. Adamantidou, 2021 ONCJ 590; N.P. v. D.H., 2023 ONCJ 2. e. 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 ONCJ 278. f. Costs consequents typically have a negative impact on the unsuccessful party. Those consequences should be anticipated at the very outset of the litigation – and revisited on an ongoing basis – to encourage efficient and economical resolution. Freitas v. Christopher, 2021 ONSC 5233. g. Parties cannot expect to be immune from an order of costs based on their lack of income or assets. 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; Mark v. Bhangari, 2010 ONSC 4638. h. Ability to pay alone cannot, nor should it, over-ride the other factors in Rule 24(12). Peers v. Poupore, 2008 ONCJ 615; Lawrence v. Lawrence, 2017 ONCJ 431; Hales v. Lightfoot, 2022 ONSC 5892. i. 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; T.L. v. D.S., 2020 ONCJ 9; Balsmeier v. Balsmeier, 2016 ONSC 3485; Kommineni v. Guggilam, 2022 ONCJ 191; Fenton v. Charles, 2023 ONCJ 74; F.K.T. v. A.A.H., 2023 ONCJ 185; Kapila v. Chhina, 2023 ONSC 3261. j. It is counter-intuitive to suggest that the objectives of a cost award are less applicable to a person of modest means. J.Y. v. L.F., 2017 ONSC 6039; Oliver v. Coderre, 2021 ONSC 5423; Kapila v. Chhina, 2023 ONSC 3261. k. Although financial ability to pay is a factor in fixing costs, it cannot be a complete ‘defence’ to an award of costs. If it was, a party could litigate financial immunity. This result would be inconsistent with the policy of the Family Law Rules that litigants should be responsible for the positions they take in litigations. Hackett v. Leung. l. All family law litigants are responsible for and accountable for the positions they take in the litigation: Heuss v. Surkos, 2004 ONCJ 141; Bernard v. Fuhgeh, 2020 ONSC 4850; Hodgson v. Hodgson, 2021 ONSC 1357; Capar v. Vujnovic, 2022 ONSC 5920; Mulik v. McFarlane, 2023 ONCJ 7. m. Litigation is expensive, time-consuming and stressful for all concerned. The court process is intended to resolve disputes fairly and efficiently. Family court is not a forum for individual litigants to carry on in whatever manner they choose, oblivious to unnecessary expense and other complications they create for the opposing party. Carmichael v. Carmichael, 2019 ONSC 7224; M.B. v. A.F., 2021 ONSC 6488; Sabo v. Sabo, 2013 ONCJ 570; Dabideen v. Ghanny, 2022 ONSC 5212. n. Courts have repeatedly cautioned litigants that they cannot rely on their impecuniosity to shield themselves from cost sanctions, particularly when they have taken an unreasonable position or acted unreasonably in the conduct of the trial. McLellan v. Birbilis, 2022 ONSC 3467. o. An unsuccessful party's ability to pay must be assessed in conjunction with the successful party's ability to absorb legal fees which should not have arisen in the first place. Scipione v. Del Sordo, 2015 ONSC 5982; Mcdermid v. Mcdermid, 2021 ONSC 8542. p. Where a reasonable offer was not accepted, the unsuccessful party will not be relieved of their obligation to pay costs on the basis of affordability unless they can meet the threshold of undue hardship. LeVan v. LeVan; Witt v. Witt, 2019 ONSC 3732; Oliver v. Coderre, 2021 ONSC 5423.

[43] The father’s aggressive litigation approach combined with his obstructionist and unreasonable behaviour limits the extent to which he can rely on financial impecuniosity to reduce his costs exposure. In any event, I agree with the mother that while the father’s cashflow may be uncertain (in large measure because of his lack of disclosure), his equity in property must be taken into account in assessing his ability to pay.

[44] Nonetheless, I must be mindful that the father is currently the primary caregiver for two children, without any financial assistance from the mother (who, herself, is in very difficult financial circumstances).

[45] On balance, taking all of these considerations into account, I find that the Applicant father should pay to the Respondent mother costs of this motion fixed in the sum of $8,000.00, inclusive of HST and disbursements.

Justice Alex Pazaratz Date: March 7, 2024