2012 ONCJ 634, 2012 ONCJ 634

COURT FILE NO.: 510/04 DATE : September 24, 2012 Citation Jepson v. Rogerson , 2012 ONCJ 634 ONTARIO COURT OF JUSTICE RE: JASON ALISTAIR BLAIR JEPSON and GWEN PAMELA ROGERSON BEFORE: Justice R. Zisman COUNSEL: Jason Alistair Blair Jepson, self-represented applicant William C .Kort, for respondent HEARD: by written submissions C O S T S E N D O R S E M E N T [ 1 ] The applicant initiated a Motion to Change his support obligations pursuant to a separation agreement dated June 3, 2004 as a result of his loss of employment in March 2011.

The respondent, in her Response to Motion to Change agreed to the variation on a temporary basis as long as the applicant advised her when he obtained employment and also sought a payment plan regarding the outstanding support arrears. [ 2 ] On July 13, 2012 the parties settled the Motion to Change on a final basis. Counsel for the respondent requested permission to file written submissions for costs. Counsel for the respondent served the applicant with his cost submissions on August 3, 2012.

The applicant has not filed any responding submissions. [ 3 ] The respondent seeks costs on a full recovery basis in the amount of $5,321.71 inclusive of applicable taxes and disbursements. It is the respondent’s position that several court attendances were wasted and unnecessary due to the applicant not being truthful with the court regarding the date he obtained new employment. [ 4 ] In order to appreciate this submission it is necessary briefly review the history of this litigation: • October 24, 2011 – case conference held; parties agreed to a temporary reduction of child support from $500.00 to $ 192.00 per

month based on an anticipated 2011 income of $22,646.00, payment of $246.00 per month for the applicant’s share of

section 7 expensesand $100.00 per month per month to reduce arrears regarding the

section 7 expenses. The applicant was required to advise therespondent forthwith if he obtained employment and the details. The applicant for the first time raised the issue as to whether or not therespondent had notified him of

section 7 expenses as required by the terms of the separation agreement and accordingly the respondentwas required to provide disclosure. Case was adjourned for a settlement conference but only on the outstanding issues. • January 6, 2012 - counsel for the respondent provided the applicant with a disclosure brief and requested the applicant advice himof any remaining outstanding issues.

The applicant replied indicating receipt of the disclosure but that he would request an adjournmentto obtain legal advice. • January 27, 2012 – Applicant’s request for an adjournment was granted on the basis that he wished to seek legal advice beforeproceeding with his Motion to Change. • March 7, 2012 – Applicant advised that he wished “a hearing”. Applicant was ordered to provide within 14 days proof of his2011 and to date 2012 income. The applicant was ordered to prepare a settlement conference brief that clearly set out what issues werein dispute and his position with respect to those issues.

Applicant was ordered to pay costs of $500.00 as attendance was unnecessaryand a waste of time. • May 10, 2012 – agent attended to adjourn settlement conference as counsel for respondent was not available • July 13, 2012 – Applicant advised for the first time that he obtained employment at the end of December 2011. The applicant,although not serving and filing a settlement conference brief as previously ordered, provided proof of his 2011 income of $34,231.00 andpay stub for his “new” employment which was projected to be $31,515.00.

The parties entered into a final settlement that the applicantpay child support of $287.00 per month on this projected income as of January 1, 2012, arrears were fixed at $8,718.09 to be repaid at therate of no less than $150.00 per month as of August 1, 2012. [5] As the case management judge all of the above noted attendances were before me. [6] Although the applicant was initially successful in obtaining a temporary reduction of his support obligation, this was concededby the respondent. Ultimately, the applicant agreed to increase his support obligation.

Based on the final result and the fact that theapplicant misled the court and caused the respondent to incur legal expenses for unnecessary attendances, I have determined that therespondent is entitled to her costs. [7] Rule 24 of the Family Law Rules, O. Reg. 114/99 provides guidance on costs in a family law context. Rule 24 (1) sets out thebasic assumption that a successful party is entitled to costs. Rule 24 (11) provides a further list of factors a court should consider indealing with costs: A person setting the amount of costs shall consider,

a) the importance, complexity or difficulty of the issues;

b) the reasonableness or unreasonableness of each party’s behavior in the case;

c) the lawyer’s rates;

d) the time properly spent on the case, including conversations between the lawyer and the party, drafting documentsand correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;

e) expenses properly paid or payable; and

f) any other relevant matter [8] In Serra v. Serra 2009 ONCA 395 , [2009] O.J. No. 1905 at para. 8, the Ontario Court of Appeal confirmed that costsrules are designed to foster three important principles: 1. to partially indemnify successful litigants for the cost of litigation; 2. to encourage settlement; and 3. to discourage and sanction inappropriate behavior by litigants. [9] The court’s role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees. As was pointedout in Boucher v. Public Council (Ontario) (2004), (ON CA), 2004 CarswellOnt 2521, [2004] O.J.

No. 2634 (Ont.C.A.), the award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particularproceedings rather than an exact measure of actual costs to the successful litigant.

[10] Rule 24 (10) is also relevant is this case as it requires costs to be dealt with at each step in the proceeding. [11] In view of the submission that the applicant’s actions caused unnecessary and wasted court attendances Rule 24 (7) and (8) arerelevant. Rule 24 (7) provides that costs shall be ordered if a party is not prepared to deal with the issues at that step unless the courtorders otherwise in the interests of justice.

Rule 24 (8) provides that if a party acted in bad faith the court shall decide costs on a fullrecovery basis. [12] The most often cited and accepted definition of bad faith is set out in the decision of Justice Perkins in S. (C.) vs. S. (M.) (ON SC), 2007 CarswellOnt 3485 (Ont.S.C.0 at para. 16 and 17: 16 "Bad faith" has been explained as "not simply bad judgment or negligence but rather it implies the conscious doing of awrong because of dishonest purpose or moral obliquity ... it contemplates a state of mind affirmatively operating with furtive design or illwill." See Biddle v.

Biddle (2005), 137 A.C.W.S. (3d) 1164, [2005] W.D.F.L. 2089, , [2005] O.J. No. 1056, 2005CarswellOnt 1053 (Ont. Fam. Ct.), at para. [14]. The definition of "bad faith" in The Concise Oxford Dictionary of Current English (5thed., 1964, ed. by H.W. Fowler and F.G. Fowler) is simply "intent to deceive". The essence of bad faith is the representation that one'sactions are directed toward a particular goal while one's secret, actual goal is something else, something that is harmful to other personsaffected or at least something they would not willingly have supported or tolerated if they had known.

However, not all bad faithinvolves an intent to deceive. It is rare, but not unknown in family law cases, for bad faith to be overt -- an action carried out with anintent to inflict harm on another party or a person affected by the case without an attempt to conceal the intent. 17 In order to come within the meaning of bad faith in subrule 24(8), behaviour must be shown to be carried out withintent to inflict financial or emotional harm on the other party or other persons affected by the behaviour, to conceal information relevantto the issues or to deceive the other party or the court.

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 badfaith. The requisite intent to harm, conceal or deceive does not have to be the person's sole or primary intent, but rather only a significantpart of the person's intent.

At some point, a party could be found to be acting in bad faith when their litigation conduct has run the costsup so high that they must be taken to know their behaviour is causing the other party major financial harm without justification. [13] In fixing costs I have considered the following factors: 1. Although the matter was settled, the applicant’s Motion to Change resulted not in a reduction of child support but an increase andon that basis the respondent can be considered to be the successful party. 2. The Motion to Change was important to the parties but was not complex or difficult. 3.

The applicant acted unreasonably in this matter. The Motion to Change should have been settled on the January 27th attendance. The applicant requested an adjournment to consult counsel. Although every litigant is entitled to obtain counsel, if he chooses to do so,he must bear the consequences of wasting the court’s time. No evidence was ever produced that the applicant consulted counsel or evenwhat the issues were that he was consulting counsel about. Although the applicant raised the issue of insufficient disclosure by therespondent of prior

section 7 expenses, once he received such disclosure he did not advice counsel that the disclosure provided wasdeficient. The applicant again requested an adjournment on March 7th and again did not advice the court or counsel as to what issueswere still outstanding. 4. I find that that the applicant acted in bad faith in not revealing in a timely manner that he obtained employment at the end ofDecember 2011. The issue of the applicant’s income was the pivotal issue in the case. The applicant consented to a court order made onOctober 24th, 2011 to forthwith advice the respondent when he obtained employment.

The applicant never advised the respondent of hisemployment. At the court attendance on January 27th, the applicant did not advice the court he had obtained employment nor did he filean updated financial statement. Again at the March 7th court attendance the applicant did not advise the court of his employment. Atthat court attendance he was ordered to provide proof of his 2011 and 2012 income. The applicant‘s silence on this issue amounted tomisleading the court as the applicant had an obligation to advice both the respondent and the court that he had now obtainedemployment.

The applicant did not reveal this fact until the attendance on July 13th, some seven months after he obtained his new job.One of the purposes of the cost rule is to discourage and sanction inappropriate behaviour; litigants cannot be permitted to simply ignorecourt orders with impunity. The applicant’s behaviour in this case, lengthened this proceeding and caused the respondent to incurunnecessary legal fees. 5. The respondent’s counsel has 34 years of experience and an hourly rate of $325.00 is reasonable. The total amount of costs anddisbursements is fair and reasonable.

I have considered that the respondent did not seek costs for the January 27th attendance at the timeof the attendance, but it was only after the applicant advised the court that he had obtained employment at the July 13th attendance that itbecame clear that the applicant’s request for an adjournment was prolonging the case. If the applicant had revealed his employment atthat hearing, all of the subsequent attendances would not have been necessary. The applicant should be permitted to avoid costs as a

result of him misleading the court. [ 14 ] In conclusion, I find that the respondent is entitled to full recovery of her legal expenses based on the fact that the applicant acted unreasonably and in bad faith in prolonging the proceeding, in not abiding by a court order to advice forthwith upon obtaining employment and in misleading the court by failing to be candid with the court on two court attendances that he had obtained employment. [ 15 ] Having deducted from the bill of costs, $500.00 previously ordered on March 7 th , I order as follows: 1.

The Applicant, Jason Alistair Blair Jespson shall pay to the Respondent, Gwen Pamela Rogerson costs fixed at $ 4,800.00 inclusive of applicable taxes and disbursements. 2. The Family Responsibility Office shall enforce this order and the order of March 7 th , 2012 for costs of $500.00 payable by the Applicant as a support order. 3. The Applicant’s approval as to form and content of this order is dispensed with. 4. Support Deduction Order to issue. ___________________________ Zisman J. DATE: 24 September 2012