COURT FILE NO: FS-23-34791-00 (FO-19-30473-0002) DATE: 2024-07-11

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

CHANTEL RENEE GASKIN Respondent/Applicant – and – MARLON STERLING Appellant/Respondent

Counsel: Mara Clarke, for the Respondent/Applicant Self-Represented

HEARD: January 23, 2024

RHINELANDER J.

REASONS FOR DECISION

Introduction

[1] A Notice of Garnishment issued November 23, 2022, was served on Mr. Sterling. He filed notice disputing the garnishment. A hearing was held on February 16, 2023, before Szandtner, J. After hearing submissions from both parties, Szandtner, J. dismissed the dispute and ordered costs of $2,000 payable within 30 days to Ms. Gaskin.

[2] Mr. Sterling seeks to appeal this decision and the costs order. For reasons set out below, the appeal is dismissed.

Facts

[3] The parties are the biological parents of Caiden Deangelo Sterling born November 8, 2018.

[4] In 2019, proceedings commenced in the Ontario Court of Justice. Ms. Gaskin brought an application seeking child support, decision making responsibility, and parenting time. The parties came to an agreement on all issues except child support. Minutes of Settlement were signed on February 24, 2020. On that same date, a trial proceeded before Spence, J. on the sole issue of child support. Mr. Sterling was ordered to pay Table Child Support and his claim for hardship was dismissed. All matters were subject to a Final Order.

[5] In the months following, Mr. Sterling was alleged to have disobeyed several terms of the Final Order, which included overholding the child until Sunday from Saturday; requiring Ms. Gaskin to pick up their son; failing to maintain health and dental benefits for Caiden; failing to maintain a life insurance plan to secure child support obligations; and breaching the non-denigration provision.

[6] Mr. Sterling was cautioned about his behaviour by counsel. Mr. Sterling’s breaches of the court order continued and a motion for contempt was scheduled for January 18, 2021. Mr. Sterling requested and was granted an adjournment to properly prepare and respond. Costs of $500 were ordered payable to Ms. Gaskin within thirty (30) days. These costs were paid September of 2022.

[7] The contempt motion proceeded March 22, 2021, before Spence, J. who found Mr. Sterling had intentionally disobeyed the earlier order of February 24, 2020. Spence, J. invited cost submissions and set filing deadlines of April 30, 2021, for Ms. Gaskin and May 17, 2021, for Mr. Sterling.

[8] Immediately following the motion, counsel for Ms. Gaskin, sent an email at 11:15 a.m. to Mr. Sterling of her intent to seek costs of $8750.

[9] Ms. Gaskin served and filed her cost submissions and bill of costs on April 13, 2021, at 6:52 p.m. and a copy of the email was attached as proof. The submissions and bill of costs were sent to Mr. Sterling’s email address on the court file. An affidavit of service was filed with the materials. Ms. Gaskin’s materials were filed seventeen (17) days in advance of the deadline.

[10] Mr. Sterling did not file a response.

[11] Spence, J. reviewed the submissions received by Ms. Gaskin in chambers, and issued his endorsement on May 26, 2021. Mr. Sterling was ordered to pay costs of $8,000 forthwith. The endorsement was emailed to the parties on May 26, 2021.

[12] Ms. Gaskin was directed if she was seeking any further remedies beyond costs, the court scheduled August 17, 2021, for submissions. This date was vacated by Ms. Gaskin as she did not seek any further punishment beyond the costs order. Mr. Sterling was unaware the date had been vacated and contacted the court and was advised there was no appearance scheduled.

[13] Further to the endorsement of May 26, 2021, emailed to the parties on that same date, the Order was issued and sent to all parties via email on November 22, 2021.

[14] An unrelated incident occurred on December 29, 2021, and counsel for Ms. Gaskin sent an email to Mr. Sterling on December 30, 2021. In addition to reminding him to use the parenting application for communication with Ms. Gaskin, she reminded him of the outstanding cost order and included a copy of the endorsement of Spence, J. dated May 26, 2021.

[15] On May 18, 2022, Mr. Sterling served Ms. Gaskin’s lawyer with a notice of appeal of the contempt motion. The grounds of appeal alleged 1) Mr. Sterling signed the minutes of settlement under duress and threat that he would not be permitted to see his son; 2) the agreement he signed was different than the agreement he had previously been provided, unbeknownst to him; 3) he had proof the two documents were different; and 4) the costs order was inflated and too high for the four phone calls (court appearances) of the contempt motion. The notice was dated May 17, 2022, however, was never filed with the Superior Court of Justice.

[16] Mr. Sterling did not pursue an appeal Spence, J.’s contempt and costs order.

[17] A hearing disputing the Notice of Garnishment issued November 23, 2022, to recover the outstanding costs order of $8,000, was heard February 16, 2023, by Szandtner, J. Mr. Sterling’s hearing was dismissed and costs of $2000 were ordered payable by Mr. Sterling to Ms. Gaskin within thirty (30) days.

[18] On March 3, 2023, Mr. Sterling filed a notice of appeal of the garnishment order and costs. Mr. Sterling’s position is that Szandtner, J. erred in dismissing the order of garnishment because Ms. Gaskin failed to serve and file submissions and a bill of cost in writing by April 30, 2021, as required by Spence, J.

Issues

[19] The issues to be determined on this appeal are:

a. Did Ms. Gaskin fail to file a bill of costs and submissions regarding costs in writing by April 30, 2021, as required by Spence, J.? b. If Ms. Gaskin failed to file a bill of costs and submissions as required, did Szandtner, J. err in dismissing Mr. Sterling’s dispute of the order to garnish? c. If Szandtner, J. erred in dismissing the dispute of garnishment, should costs have been awarded against Mr. Sterling?

Position of the Parties

[20] Mr. Sterling’s position was he had never received or been served the bill of costs in writing for the contempt motion. He argued the first time he became aware a cost order had been made against him for $8,000 was in May of 2022. Upon learning of the order, he took steps to commence an appeal. He argued if Ms. Gaskin failed to serve and file the bill of costs as required, there should be no cost order. If no costs order should have issued, there should be no garnishment.

[21] During argument of this appeal, Mr. Sterling was shown the email sent to him on April 13, 2023, which included the bill of costs and submissions on behalf of Ms. Gaskin. A copy of the email and its attachment were printed out and provided to him in court. After reviewing a paper copy of the document, Mr. Sterling acknowledged Ms. Gaskin had served her materials on him via email, seeking costs in advance of the April 30, 2021, deadline. Mr. Sterling argued that service via email was not “in writing” as directed by Spence, J. Therefore, she was not in compliance with Spence, J.’s direction and he had not received effective service. He argued email service should require a response from the party being served to confirm receipt. Mr. Sterling argued if he had known or received the email, he would have responded and challenged the bill of costs.

[22] Ms. Gaskin argued Mr. Sterling failed to obtain leave of the court to appeal the costs order.

[23] If this Court grants leave to appeal the costs order, Ms. Gaskin’s position was Mr. Sterling was served a copy of her submissions and bill of costs via email on April 13, 2021, well in advance of the deadline of April 30, 2021, and it constituted valid service. Mr. Sterling failed to file a response, and Spence, J. issued an endorsement regarding costs on May 26, 2021. The endorsement was sent to both parties via email on this same date. Mr. Sterling did not take any steps to pay costs, and Ms. Gaskin sought an order to garnish his wages to ensure payment of the costs.

Analysis

[24] Due to the COVID-19 pandemic, all courts in Ontario were closed beginning Monday, March 16, 2020, including courts hearing family law cases. Courts began hearing matters virtually by phone and by electronic platforms including Zoom. Changes were required to address the backlog in the courts, and the move to modernization was expedited. Effective July 15, 2020, Rule 6(2)(e) of the Family Law Rules was amended to permit regular service by email to a person’s lawyer or, if none, to the person, by email without their prior consent or an order of the court.

[25] The term “in writing” is not limited to a paper version but means the content of a document is communicated in a form that can be seen and there is proof of a receipt. An electronic document constitutes “in writing”. It is in a form of typed letter that can be read and seen. Emailing the document is proper service and retaining a copy of the original email shows the email address of the sender, the email address of the recipient, the date and time the email was sent, the message in the email, the subject line, and any documents included as attachments. The attachments can be retrieved and printed, the same as the email itself, as was done here in court for the benefit of Mr. Sterling.

[26] Mr. Sterling pointed to areas of the transcript from the dispute to garnishment hearing where Szandtner, J. misapprehended the evidence. Specifically, where she stated Mr. Sterling was present for costs submissions. It is clear this was an error. The endorsement of Spence, J. does not reflect the parties were present. The matter was heard in chambers.

Conclusion

[27] Having heard submissions and reviewed all materials filed with the court, I am satisfied Mr. Sterling was properly served the submissions and bill of costs regarding the contempt motion. Further, Mr. Sterling was included and copied on the email of May 26, 2021, sent from the court with the endorsement of Spence, J. ordering costs payable in the amount of $8,000.

[28] I have concluded there were several misunderstandings and miscommunications by Mr. Sterling that led to his appeal, however, none of which constituted grounds to appeal:

a. Mr. Sterling had received orders and endorsements from the court via regular mail which he understood to be “in writing”. In writing to Mr. Sterling meant having a paper copy that he could read that was “in writing”. Mr. Sterling did not understand that documents sent electronically constituted documents sent “in writing”. b. Prior to matters being settled on February 24, 2020, Ms. Gaskin’s counsel sent an offer to settle that included alternate weekends from Fridays to Sundays that would start six months after the agreement. c. This offer was withdrawn prior to the trial date of February 24, 2020. d. On that date, Mr. Sterling agreed to the terms and signed the minutes of settlement without reading the document; Mr. Sterling erroneously believed the terms were identical to the offer he had reviewed; however, it was different regarding the parenting time on alternate weekends – the agreement the parties signed was for parenting time from Fridays to Saturdays only. e. Mr. Sterling did not realize the agreement he signed was different from the offer to settle and blamed counsel for Ms. Gaskin as tricking him. f. Due to Mr. Sterling’s mistaken belief regarding the terms of the agreement, and his belief he had been tricked, led to the “overholding” and one of several reasons Ms. Gaskin sought to have him held in contempt. g. Mr. Sterling believed costs were payable to counsel for Ms. Gaskin and did not realize the monies were payable to reimburse Ms. Gaskin for legal fees she paid.

[29] During argument, Mr. Sterling acknowledged he now understood and appeared to accept he had not been “tricked” by counsel.

[30] I am satisfied that:

a. Mr. Sterling was properly served with the bill of costs and submissions on April 13, 2021, in compliance with the order of Spence, J. b. Spence, J. ordered costs of $8,000 payable forthwith on May 26, 2021. c. Szandtner, J. did not err in dismissing Mr. Sterling’s dispute of the above costs order. d. Szandtner, J. did not err in ordering costs.

[31] At the time the appeal was heard, I misunderstood and believed Mr. Sterling was seeking to appeal costs only. I expressed concern that Mr. Sterling had failed to seek leave of the court pursuant to s.133(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43. I would have dismissed the appeal as to costs as leave had not been granted 1) to appeal the costs orders, and 2) to extend the time for filing the appeal of the costs order of Spence, J.

[32] Separate from this appeal, the parties were encouraged to continue to have discussions in hopes that the parties can agree to vary the Final Order to permit Mr. Sterling to have parenting time on alternate weekends from Friday to Sunday so that the parenting time aligns with the same times that he has with his two other children and what he believed, erroneously or not, he agreed to.

Costs

[33] Ms. Gaskin seeks costs for this appeal. An offer to settle was provided in advance of the appeal, if accepted without the need to attend on the appeal, Ms. Gaskin was seeking $1000 in costs. Ms. Gaskin submitted a bill of costs of $4,226.20 plus $1,200.63 for today’s appearance for a total of $5,426.83 if payable on a full indemnity basis.

[34] 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 Family Law Rules). See: Mattina v. Mattina, 2018 ONCA 867.

[35] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. Beaver v. Hill, 2018 ONCA 840.

[36] The reasonableness of the parties’ positions, arguments and conduct are relevant to the issue of costs. An important function of costs is to uphold the integrity of our justice system. Costs are one way of ensuring the resources of the justice system are not unduly drained by clearly unreasonable claims and ill-advised litigation strategy. See: Weber v. Weber, 2020 ONSC 6855.

[37] One of the considerations in an assessment of costs is to fix costs in an amount that is “fair and reasonable” for the unsuccessful party to pay in a particular proceeding: Farjad-Tehrani v. Karimpour, 2009 CarswellOnt 2186 (S.C.J.) at para. 32, aff’d 2010 ONCA 326 at para. 4.

[38] Costs need to be proportional to the issues and amounts in question and the outcome of the case. Amounts actually incurred by the successful litigant may therefore not be determinative. See: Hackett v. Leung, [2005] O.J. No. 4888 (Ont. S.C.J.).

[39] I have considered Mr. Sterling’s ability to pay the costs order. MacDonald v. Magel, 67 O.R. (3d) 181 (Ont. C.A.).

[40] Although they are not specified in Rule 24(11) 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 of the family are also relevant considerations in reaching a determination on the issue of costs. Fyfe v. Jouppien, 2012 ONSC 97.

[41] Mr. Sterling is the father of three children with three separate mothers and is required to pay Table Child Support for each child. The transcript of the proceedings before Szandtner, J. indicate Mr. Sterling’s work contract was to expire July 2023. At this appeal, Mr. Sterling advised the court he is currently unemployed, and his contract ended December 2023.

[42] Mr. Sterling has two outstanding costs orders totally $10,000, in addition to child support.

[43] In addition to his ability to pay, it became apparent there were clear misunderstandings on Mr. Sterling’s part. It is hoped with the clarity he now has of what happened in the past, the parties can focus on their child and put his best interests at the forefront. At the conclusion of the appeal, Mr. Sterling expressed his appreciation to the court in taking the time to address his concerns today regarding the appeal and other issues. He stated he “needed today”.

[44] Taking all the factors into consideration, costs are payable to Ms. Gaskin of $2,000 inclusive. This amount includes the additional expense of obtaining the transcript of the February 16, 2023, hearing, an expense that was solely the responsibility of the appellant, Mr. Sterling as required by the rules, and without which this appeal should not have been set down for a hearing.

Order:

[45] Mr. Sterling’s appeal is dismissed.

[46] Costs are ordered payable to Ms. Gaskin of $2,000 payable within 12 months.

___________________________ Rhinelander J.

Date: July 11, 2024

COURT FILE NO: FS-23-34791-00 (FO-19-30473-0002) DATE: 2024-07-11 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: CHANTEL RENEE GASKIN Respondent/Applicant – and – MARLON STERLING Appellant/Respondent REASONS FOR DECISION Rhinelander J. Released: 2024-07-11