COURT FILE NO.: FC-22-576 DATE.: 2024-09-11
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Melissa Corrine Mucci Peneda, as interim litigation guardian for Helene Esther Mucci, Applicant – and – Frank William Mucci, Respondent
Counsel: Rose A. Faddoul, Counsel for the Applicant Self represented, for the Respondent
HEARD on May 24, 2024
The Honourable Justice S. ANTONIANI
SUPPLEMENTARY REASONS AND ORDER RE COSTS
OVERVIEW
[1] The parties Helene Mucci (“Helene”) and Frank Mucci (“Frank”) are involved in contested family litigation, wherein Helene seeks equalization of net family property and a divorce, after a 51 year marriage. The family proceedings were commenced in January 2022.
[2] Leading up to and in the course of those proceedings, both Helene and Frank have made admissions of infidelity, and each of them has shared negative allegations against the other with their daughters Melissa and Vanessa. The relationship between Melissa and her father and sister is seriously compromised since the inception of the family proceedings. Melissa is estranged from both of them.
[3] Helene was diagnosed with early stage Alzheimer’s prior to her commencement of divorce proceedings against Frank. Her Alzheimer’s has progressed such that the evidence on the motion is that she is no longer capable of instructing counsel or advancing the family litigation on her own. All parties agree that this is the case.
[4] This motion was brought asking the Court to find that Helene is a “special party” as defined by Rule 2(1) of the Family Law Rules, and to appoint Helene’s daughter, Melissa Corrine Mucci Pineda (“Melissa”), as her litigation guardian in the family proceedings. On prior consent of the parties, Melissa is the interim litigation guardian for Helene, and as such she is the moving party on this motion.
[5] The motion materials include copies of Helene’s Powers of Attorney for health and for property. Each document specifically authorizes Melissa to act as litigation guardian for Helene.
[6] In oral reasons and on an endorsement written on the same date, I granted the Order appointing Melissa as the litigation guardian. At the conclusion of the hearing, counsel for Melissa asked me to order costs against Frank for the motion, in the total amount of over $65,000.
[7] On a brief review of the Bill of Costs, I noted that it included time for steps which would have been necessary in order to bring a motion seeking the appointment of a litigation guardian even if there were no opposition.
[8] I advised that the court would not order costs against Frank in relation to any steps taken that would have been necessary in any event. The moving party was invited to amend her bill of costs and provide the court with brief written submissions on the issue. Frank was given an opportunity to reply and to provide his own bill of costs.
[9] The Applicant provided me with written submissions and a revised bill of costs. The revised bill of costs is $52,089.61 full indemnity (and $31,802.95 on a partial indemnity scale). Frank provided me with written submissions as well. His position is that the Applicant took aggressive and irrelevant steps and that he should have his costs from the Applicant, of approximately $11,000.
[10] These are my reasons on the issue of costs.
Litigation Guardians and Special Parties
[11] In considering costs, I have reviewed the motion materials and the submissions from each party.
[12] The motion was brought pursuant to s.4(2) of the Family Law Rules and under Rule 7 of the Rules of Civil Procedure.
[13] Rule 4(2) of the Family Law Rules provides that the court may authorize a person to represent a special party…. if the person is “appropriate for the task” and “willing to act as representative”. A special party is…. The definition of a special party under R. 2(1) of the FLR requires that if the party is an adult, he or she must be or appear to be… mentally incapable for the purposes of the Substitute Decisions Act, 1992 in respect of an issue in the case and who, as a result, requires legal representation…
[27] Two sections of the Substitute Decisions Act, 1992, sections 6 and 45, deal with mental incapacity. Both define it as an inability to understand information relevant to making a decision, whether for the management of property or personal care. They read as follows:
Incapacity to manage property
- A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
Incapacity for personal care
45 A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene, or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
[emphasis added to both provisions]
[14] Rule 7.02 of the Rules of Civil Procedure in Ontario provides as follows:
Litigation Guardian for Plaintiff or Applicant
Court Appointment Unnecessary
7.02 (1) Any person who is not under disability may act, without being appointed by the court, as litigation guardian for a plaintiff or applicant who is under disability, subject to subrule (1.1). O. Reg. 69/95, s. 3 (1).
(b) is mentally incapable and does not have a guardian with authority to act as litigation guardian in the proceeding, but has an attorney under a power of attorney with that authority, the attorney shall act as litigation guardian;
[emphasis added]
[15] In this case, Rule 7.02 applies in that Melissa is the holder of a power of attorney with the express authority to act as litigation guardian for Helene. As such, no court appointment was necessary. Melissa needed only to file an affidavit compliant with Rule 7.02(2).
[16] R. 7.05(2) of the Rules of Civil Proceeding (“RCP”). Referring to the role of a litigation guardian, the rule states:
A litigation guardian shall diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests, including the commencement and conduct of a counterclaim, crossclaim or third party claim.
Bill of Costs of the Moving Party
[17] Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended, provides that subject to the provisions of an Act or Rules of Court, costs are in the discretion of the court, which may determine by whom and to what extent the costs shall be paid. This section must be read in conjunction with Rules 24 and 18 of the Family Law Rules, which set out numerous principles to guide the court in the exercise of its discretion in the Family Law context.
[18] The modern rules respecting costs aim to foster the following four fundamental purposes:
- To partially indemnify successful litigants for the cost of litigation;
- To encourage settlement;
- To discourage and sanction inappropriate behaviour by litigants; and
- To ensure that cases are dealt with justly, in accordance with the primary objective of the Family Law Rules set out in Rule 2(2).
(Ryan v. McGregor (1926), 58 O.L.R. 213 (Ont. C.A.), at p. 216; British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371 (S.C.C.); Fong v. Chan, 1999 CarswellOnt 3955, 181 D.L.R. (4th) 614, 46 O.R. (3d) 330 (C.A.); Serra v. Serra, 2009 ONCA 395 (C.A.) and Mattina v. Mattina, 2018 ONCA 867 (C.A.)).
[19] Rule 24 of the Family Law Rules sets out several factors relevant to the preliminary issue of liability for costs. Rule 24(1) establishes a presumption that a successful party to a motion, enforcement, case or appeal is entitled to costs. Consideration of each party’s level of success is therefore the starting point in determining costs (Sims-Howarth v. Bilcliffe, 2000 ONSC 22584 (S.C.J.); White v. White, 2022 ONCJ 45 (O.C.J.), at para. 6). The presumption set out in Rule 24(1) may be rebutted having regard for all relevant considerations and the operation of other Rules, as discussed below.
[20] The reasonableness of the parties’ legal positions, arguments and conduct in the litigation are also relevant to the issue of liability for costs. 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. Costs awards are a means of ensuring that litigation is not utilized as a tool to harass parties, that it is conducted in an organized and responsible manner and that the resources of the justice system are not unduly drained by clearly unreasonable claims. As Spence J. stated in Heuss v. Surkos 2004 ONCJ 141 (O.C.J.), 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.
[21] The importance of reasonableness in determining liability for costs is underscored in Rule 24(4), which stipulates that notwithstanding the presumption in Rule 24(1), 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.”
[22] In determining the appropriate quantum of costs, the court has an obligation to review the specifics of the costs claim to assess the reasonableness of the amounts requested and whether items claimed are properly the subject of a costs award. Donnelly v. Donnelly, 2004 CarswellOnt 2076 (S.C.J.).
[23] The court must also consider whether the hours spent can be reasonably justified. See: Pagnotta v. Brown, [2002] O.J. No. 3033 (S.C.J.); Murphy v. Murphy, 2010 ONSC 7204 (S.C.J.); However, this analysis should be undertaken in a global fashion. The court is not required to embark upon a painstaking, line-by-line analysis of Bills of Costs and second guess every hour and item claimed, unless there are clear concerns about excessive claims and overreaching. See: Docherty v. Catherwood, 2016 ONSC 2140 (S.C.J.), at para. 50.
Analysis
[24] In asking me to award the full $52,089.61 of costs against the respondent, the moving party characterized this as complex litigation. I disagree. The appointment of Melissa as litigation guardian could have occurred by the filing of an affidavit, as no court appointment was necessary. Helene had already specifically appointed Melissa as her litigation party in the Power of Attorney document she signed. Melissa needed only to file the requisite affidavit. Instead, the parties engaged in conduct that was expensive, drawn out, and focused on facts where were irrelevant to the issue. A decision to bring a motion might have been unworthy of comment or the court’s concern, if the materials had focused on providing the court with the information necessitated by Rule 7.02(2), and the matter had been concluded economically.
[25] The initial affidavit sworn by Melissa in support of the motion includes a section titled “Deception by Respondent leads to mistrust”. The paragraphs in this section focus on allegations of Frank’s deception of Helene during the marriage and are irrelevant to the appointment of Melissa as litigation guardian.
[26] In his initial affidavit in response, dated October 10, 2023, Frank alleged that Melissa was not an appropriate litigation guardian and urged the court consider appointing the Public Guardian and Trustee as litigation guardian. This initial affidavit was appropriate in circumstances where Frank was served with a motion that he wished to oppose.
[27] The moving party thereafter filed further affidavit evidence on February 8, 2024 from Melissa’s husband, Jorge Pineda. This affidavit is dedicated largely to reciting the affiant’s belief as to Helene’s unhappiness in her marriage to Frank, allegations of abuse and infidelity, and personal allegations against Vanessa. The affidavit does not further advance any issue relevant to the appointment of Melissa as litigation guardian.
[28] In response to the February 8, 2024 materials, Frank, now apparently taking the Applicant’s lead, filed further affidavit evidence from Vanessa, as well as affidavits from family friends Dagnar Bilyk, and Christine Lawson. Frank himself also swore a further affidavit, dated February 26, 2024. These responding affidavits are almost entirely in response to the personal allegations made in the affidavit of Jorge Pineda. They do not advance Frank’s opposition to the appointment of Melissa as litigation guardian, and they do not assist the court.
[29] On March 8, 2024, the moving party filed a third round of affidavit evidence. Sworn by Melissa, this affidavit contains line by line responses to largely irrelevant personal allegations of Frank’s February 8 affidavits. The moving party also filed additional affidavits from Helene’s sister Marie Ehlert, Helene’s friend Colleen Allison. Again, these affidavits did little to advance the motion.
[30] On April 11, 29, and 30, 2024, cross examinations were held on the various affidavits. Both parties conducted cross examinations. It appears that this amount of questioning was done on the mutual agreement of the parties, as I see no endorsement of the court authorizing this questioning. I have reviewed the transcripts. The questioning focused on the same subjects as much of the affidavit evidence: infidelities, personal struggles of Vanessa, and familial conflict.
[31] After the cross examinations, the Moving party submitted a second, Supplementary Factum, also devoted almost exclusively to argument on issues of personal family conflicts.
[32] I find that all steps taken after October 10, 2023, including preparation of further affidavits, preparation for and conduct of cross examinations, and preparation of a supplementary factum, were unnecessary and did not serve to advance the motion to appoint a litigation guardian. The amount of time spent on these unnecessary steps was not trifling: the Bill of Costs includes at least 9 hours of preparation for cross examinations, and the transcript of the cross examination of Vanessa is 65 pages, which is almost entirely questioning about her drug use, about whether or not she had a baby that was murdered, and about the alleged infidelities of her parents during their 50 year marriage.
[33] At the hearing of the motion, the parties’ submissions mirrored their materials, and were focused largely on matters not relevant to the issue of the appointment of a litigation guardian.
CONCLUSIONS
[34] Given Melissa Mucci’s specific authority to act as litigation guardian pursuant to the Powers of Attorney granted to her by Helene, no motion was necessary. In any event, having decided to bring the motion, the conduct of the motion was not reasonable, as many of the steps taken were irrelevant and unnecessary and did not advance the motion. In particular, all steps taken after receipt of Frank Mucci’s initial opposing affidavit were unnecessary.
[35] As of December 11, 2024, the moving party’s bill of costs was at $12,536.22. By May 15, 2024, the moving party’s bill of costs had risen to over $65,700.
[36] I find the total time spent, steps taken and costs incurred to be excessive and unreasonable. I find the parties failed to focus on the steps necessary to the appointment of a litigation party, or to the opposing of such an appointment. I find that the Moving party bears the majority of the responsibility for having allowed the motion to spin out of control. I find that the litigation guardian took steps that were excessive and that did not advance the interests of the incapable person.
ORDER
[37] As a substantial portion of the costs incurred did nothing to advance the interests of the incapable person, the bill of costs of the moving party is not reasonable or proportionate.
[38] The Respondent bears some responsibility for its response to the motion, and for mounting an opposition that was unsuccessful. I fix reasonable costs attributable to the Respondent’s opposition, in the circumstances of this motion, at $5,000.00 plus hst, payable by Frank Mucci to the moving party within 30 days of the distribution of this order.
[39] Given my findings here, I direct that the litigation guardian apply for the passing of legal accounts incurred prior to recovering them from the incapable person’s estate.
Justice Antoniani Released: September 11th, 2024