Court File and Parties

COURT FILE NO.: FC-21-73 (Cayuga) DATE: 2024/07/03 SUPERIOR COURT OF JUSTICE-ONTARIO

RE: MARCY LIGHTFOOT, Applicant -and- DAVID LIGHTFOOT and EVELYN LIGHTFOOT, Respondents

BEFORE: Gibson J.

COUNSEL: Sean D. Heeley, Counsel for the Applicant David Lightfoot, Self-represented Respondent

HEARD: May 30, 2024

Costs Endorsement

Overview

[1] On May 30, 2024, I granted part of the Applicant’s motion for an Order for partition and sale of the matrimonial home and for interim spousal support.

[2] In my Endorsement, I encouraged the parties to agree upon appropriate costs, but directed that if they could not, they might make written submissions to me as to costs. They have now done so.

Position of the Parties

[3] The Applicant seeks costs of $29,542.05 on a full recovery basis in accordance with Rules 24(5) and 24(12) of the Family Law Rules. Her counsel submits that these costs are warranted because of the Respondent David Lightfoot’s unreasonable conduct, and that the Applicant made two Offers to Settle that demonstrated her reasonableness.

[4] The Respondents provided written submissions as to costs in which they did not actually comment upon the quantum of costs suggested by the Applicant, or suggest a particular amount. Rather, they made a variety of comments critical of the Applicant and her counsel, and of Justice MacLeod (who had previously dealt with the matter) describing his decisions as “egregious” and “illegal.” They also asserted without any substantiation that in hearing this family motion subsequent to an associated civil motion that I as the motions judge was somehow in a “conflict of interest.”

Law of Costs

[5] Rule 24(1) of the Family Law Rules provides that there is a presumption that a successful party is entitled to costs of the proceeding.

[6] Modern costs rules are designed to foster three fundamental purposes: to partially indemnify successful litigants for the costs of litigation; to encourage settlement; and to discourage and sanction inappropriate behaviour by litigants: Serra v. Serra, 2009 ONCA 395. A fourth factor is to ensure that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867. The factors that a court may consider in setting costs are set out at Rule 24(12) of the Family Law Rules. The reasonable expectation of the unsuccessful party can assist in determining an amount that is fair and reasonable. Costs awards, at the end of the day, should reflect what the Court views as a fair and reasonable amount that should be paid by the unsuccessful party. Proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs: Beaver v. Hill, 2018 ONCA 840.

[7] A court should consider a party’s ability to pay costs: C.A.M. v. D.M. (2003), 67 O.R. (3d) 181 (Ont. C.A.). However, while a party’s limited financial circumstances are 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: Snih v. Snih.

Assessment

[8] The Applicant was the successful party. The issues were moderately complex. The outcome was similar to the Applicant’s Offers to Settle.

[9] Cost awards, at the end of the day, should reflect what the Court views as a fair and reasonable amount that should be paid by the unsuccessful party. Proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs.

[10] The Respondent David Lightfoot has engaged in obstructionist conduct both before and at the hearing of this motion. He browbeat the Applicant into transferring the property abutting the matrimonial home into his name alone during the marriage, and subsequently added his mother as a joint owner of that property after the date of separation, both of which were done in violation of the provisions of the Planning Act. He completely refused to entertain any option to resolve the issues, instead simply insisting that he remain in the jointly owned home, not purchase the Applicant’s interest, and that the property not be sold. During the hearing, he repeatedly interrupted and attempted to shout down opposing counsel and the Court.

[11] No one, whatever their status, is entitled to conduct scorched-earth litigation tactics and slander opposing counsel with impunity. Self-represented litigants should not be insulated from costs consequences merely because of that status.

[12] As was stated in Steele v. Big Canoe, 2019 ONSC 1778, at paras. 23 - 34:

[23] What is the proper response of the Court in the context of family litigation when, in addition to being obstreperous with the other Party, Parties are so openly contemptuous of the Court and of the process?

[24] The conduct of a party in the litigation may appropriately be reflected in the order for costs.

[25] In both an individual and systemic context, one of the functions of costs can be behaviour modification. As Chappel J. noted at para. 23 in Thompson v. Drummond, 2018 ONSC 4762, at para. 12:

The decision respecting liability is ultimately a discretionary one that must be informed by the overall conduct of the parties and all of the circumstances and dynamics of the case. One of the most important functions of costs is to ensure that litigants conduct themselves in a manner that upholds the integrity of our justice system as a whole. A careful consideration of the conduct of the parties is therefore a key component to the costs analysis.

[26] As Spence J. aptly stated in Heuss v. Surkos, 2004 ONCJ 141 at para. 20:

Parties to litigation must understand that court proceedings are expensive, time-consuming and stressful for all concerned. They are not designed to give individual litigants a forum for carrying on in whatever manner they may choose, oblivious to the impact of that conduct on the other side and, perhaps most importantly for the purposes of this case, oblivious to the mounting costs of the litigation. Matrimonial litigation is an occasion for sober consideration and thoughtfulness rather than intemperate behaviour.

[27] As Campbell J. noted in Parsons v. Parsons, 2002 CarswellOnt 2536 (S.C.J.), there is an element of behaviour modification to a costs order in that it encourages a change in attitude from a “litigate with impunity” mindset. Evidence that a party engaged in litigation conduct that was disrespectful of the other participants or the Court, which unduly complicated the proceedings, which needlessly increased the costs of the litigation or which was otherwise unreasonable may lead to increased costs consequences.

[28] Self-represented litigants may be afforded some additional consideration consistent with the Court’s obligation to treat both parties fairly, but they are not afforded some special licence to behave badly without consequence. The reputation of the administration of justice requires an appropriate response. Moreover, other parties to the litigation who have behaved appropriately should not have to indefinitely absorb the misconduct of those who do not.

[29] As Pazaratz J. indicated at paragraphs 54 and 55 in Izyuk v. Bilousov, 2011 ONSC 7476, [2011] O.J. No. 5814 (S.C.J.), in arriving at an overall award of costs which is fair and reasonable, the Court must take into account a party’s limited resources, as one of the relevant factors. But the three primary objectives of costs orders in family law proceedings are to partially indemnify successful litigants for the cost of litigation; to encourage settlement; and, to discourage and sanction inappropriate behaviour by litigants.

[30] It is important to consider how these general principles should be applied in the particular context of cases involving self-represented litigants. As was stated at paragraphs 5-13 in Kirby v. Kirby, 2017 ONSC 6695:

[5] Self-represented litigants appear frequently in our courts on family law matters. It is generally recognized that they may be at some disadvantage to parties who are represented by counsel, and that there is a duty on judges and court staff to recognize this.

[6] The Canadian Judicial Council has produced a Statement of Principles on Self-represented Litigants and Accused Persons, which it adopted in September 2006. In Pinteas v. John, 2017 SCC 23, Karakatsanis J. declared at para. 4 of the judgment that the Supreme Court of Canada endorses this Statement of Principles.

[7] The Statement sets out a number of statements and principles, with accompanying commentary, to the general effect that judges, the courts and other participants in the justice system have a responsibility to promote opportunities for all persons to understand and meaningfully present their case, regardless of representation. It suggests a number of accommodations that may be made to assist self-represented litigants.

[8] However, this is not a one-way street. The Statement of Principles recognizes that there are also corollary duties incumbent upon self-represented litigants. In particular, Para 4 of the Commentary to statement B provides:

Self-represented litigants, like all other litigants, are subject to the provisions whereby courts maintain control of their proceedings and procedures. In the same manner as with other litigants, self-represented persons may be treated as vexatious or abusive litigants where the administration of justice requires it. The ability of judges to promote access may be affected by the actions of self-represented litigants themselves.

[9] Paragraph 4 of the Commentary to statement C provides:

Judges and court administrators have no obligation to assist a self-represented person who is disrespectful, frivolous, unreasonable, vexatious, abusive, or making no reasonable efforts to prepare their own case.

[10] Rule 24 of the Family Law Rules deals with the question of costs in family law matters. Paragraph 24(11) details the factors that the Court shall consider in setting the amount of costs, including,

(b) the reasonableness or unreasonableness of each party’s behaviour in the case, and (f) any other relevant matter.

[11] On the hearing of the motion, Ms. Kirby behaved very badly. She had to be frequently admonished by the Court. She consistently tried to take more time than she was allocated by the Court. She was rude to opposing counsel, and to the Court. She asserted that opposing counsel was lying. She frequently and repeatedly interrupted opposing counsel even after being instructed by the Court not to do so. She made both loud and sotto voce critical comments while the Court was speaking. She was observed by court staff to be trying to harass and physically bully opposing counsel in the hallway outside court during a break, and tried to intimidate her in court by crowding her and interjecting. Ms. Kirby’s conduct required the attendance of police officers in court during the hearing to maintain security, and to safely escort the opposing counsel out of the building after the hearing.

[12] Ms. Kirby undoubtedly has many difficulties in her life, and contends with some physical and mental health challenges. But there is no evidence to demonstrate that these are so severe as to render her incapable of behaving properly in Court.

[13] The Courtroom is not a school playground. The outcome is not governed by who shouts loudest. There are minimum rules of decorum, orderliness and courtesy which must be observed in order to ensure that all parties are afforded the opportunity to present their case fully and fairly, and to maintain the reputation of the administration of justice. It is not a spectacle. It is not a free-for-all in which litigants may indulge their tempers at whim if they don’t immediately get what they want. No party is entitled to be petulant, abusive or to attempt to bully another party.

[31] In Kirby, given Ms. Kirby’s conduct during the hearing, Mr. Kirby was found to be entitled to an order for substantial indemnity costs.

[32] Certain realities are evident in the context of family law proceedings. Emotions can run high. Litigation is not a tea party. Judges are not shrinking violets. In addition to integrity, impartiality and compassion, on occasion they need to have thick skins. As Henderson J. stated at para. 37 in Weaver v. Weaver, 2017 ONSC 827:

…if the courts refused a litigant their day in court because they have been disrespectful, insulting, unreasonable, uncooperative or short-sighted, on those grounds alone, they would be empty. In the end, his conduct may be redressed by an appropriate order for costs.

[33] The integrity of the justice system and respect for the reputation of the administration of justice must be preserved and, where necessary, enforced, if the Court is to effectively fulfil its function. No matter how limited their sophistication or how high their emotions run, the Court ought not to turn a blind eye to abusive or contemptuous behaviour by litigants, including those who appear self-represented. For reasons including necessary behaviour modification both of Mr. Steele individually and self-represented litigants generally, there must be some recognition of this in this case, and some sanction.

[34] In the present case, even absent Mr. Steele’s tirade, the Respondent has made a compelling case for an award of full costs. Consideration of Mr. Steele’s abusive conduct in the light of the provisions of Rule 24(12)(a)(i) (each party’s behaviour), and 24(12)(b) (any other relevant matter) further buttresses this assessment. There must be some sanction for inappropriate behaviour of this magnitude. I conclude that there ought to be an award of full costs in this case.

[13] I consider these observations to also be apt in the present case.

[14] Having regard to these factors, I assess in the present case that a reasonable and proportional amount for this matter would be $29,000.

Order

[15] The Court Orders that:

1. The Respondents shall pay costs to the Applicant fixed at $29,000 all inclusive.

M. Gibson J. Date: July 3, 2024