2021 ONCJ 488, 2021 ONCJ 488

CITATION : Wiafe v. Afoakwa-Yeboah , 2021 ONCJ 488 DATE : September 17, 2021 COURT FILE NO. D31342/19 ONTARIO COURT OF JUSTICE B E T W E E N: ) ) ) ) CLETUS OPPONG WIAFE ) GLENDA PERRY, for the APPLICANT ) APPLICANT ) ) - and - ) ) ) ) GIFTY AFOAKWA-YEBOAH ) ) GABRIELLA V. DEOKARAN, for the RESPONDENT RESPONDENT ) ) ) HEARD: IN CHAMBERS JUSTICE S.B. SHERR ENDORSEMENT Part One – Introduction [ 1 ] On August 11, 2021, the court released its costs endorsement (the costs decision) arising from a two-week trial about the parenting and child support arrangements for the parties’ three-year-old daughter (the child) See : Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 424 .

[2] The court ordered the mother to pay the father’s costs of $72,000 for the trial step and $3,000 for a production motion (theproduction motion) where costs had been reserved to the trial judge (the costs order). [3] Timelines had been set for making the costs submissions. The mother had failed to make submissions by the deadline. [4] In the costs decision, the court set out extensive unreasonable behaviour by the mother.

Due to this behaviour, the courtdetermined that the costs order should not be reduced based on the mother’s ability to pay. [5] On August 13, 2021, the mother delivered a Form 14B motion to the trial coordinator’s office seeking to set aside the costsorder and asking for an extension of time to file her costs submissions. The father asked for this motion to be dismissed and sought costsagainst the mother and the mother’s counsel jointly. [6] On August 26, 2021, the court released its endorsement (the extension decision) and made the following order: (

a) The court will consider changing or setting aside the costs order if the mother delivers a money order or certified cheque madepayable to the father in the amount of $3,500, together with her costs submissions, by Thursday, September 9, 2021 at 4:30 p.m. Thefunds and costs submissions must be delivered in person to the trial coordinator’s office. The costs submissions are not to be mailed,emailed or filed through the court’s portal. Court staff are not to accept the mother’s costs submissions unless accompanied by the fundsordered. (

b) The previous directions for costs submissions continue. The mother’s submissions shall not exceed 4 pages, not including anyoffer to settle or bill of costs. The father has already made his submissions and shall not make any further submissions. (

c) The costs order is suspended until further order of the court. It shall not be issued and entered until there is a further order ofthe court. This suspension will be lifted if the mother does not comply with the terms set out in subparagraph (a). (

d) The father’s claim for costs of this Form 14B motion is reserved. If the mother meets the conditions set out in this order, hisclaim will be considered in the costs consideration.

If she does not, a separate endorsement will be issued. [7] The mother made the required payment of $3,500 and delivered her costs submissions. [8] The mother submits that no costs should be ordered and that if they are ordered against her they should not exceed$5,049.02. [9] The court must now decide whether to set aside or change the costs order, and if so, what amount of costs should be ordered. [10] This endorsement is to be read in conjunction with the costs decision and the extension decision. Those decisions set out thelegal considerations that apply to this decision.

The court will not repeat those considerations here. Those decisions also set out thecourt’s findings. Except as expressly indicated otherwise in this decision, the court relies on those findings. Part Three – The mother’s submissions that will have no impact on the costs order [11] The mother submitted that the father’s claim for costs is too high because he is on legal aid. The case law is well settled that thereceipt of legal aid is not a factor in determining costs. See: Ramcharitar v. Ramcharitar (2002), (ON SC), 62 O.R.(3d) 107 (S.C.J.); Alvarez v. Smith, (ON SC), [2008] O.J. No. 941 (SCJ); Loncar v.

Pendlebury, 2015 ONSC 4673;S.G. v. A.S., 2015 ONSC 1882. [12] The mother claimed that this was not a difficult or complex trial. In support of this submission, she pointed out that a maximumof 27 hours of trial time had been set by Justice Roselyn Zisman, the case management judge. She submits that the maximum time thatshould be allowed for the father’s costs is 37 hours – the 27 hours allocated for trial and 10 hours to prepare for the trial.[1] [13] The court does not accept this argument.

This case was given priority scheduling (it was not placed on the regular AssignmentCourt list) due to its importance, difficulty and high conflict. Time limits were imposed by Justice Zisman to place some controls on theextensive litigation that had already taken place in the case. [14] The litigation became even more difficult and complex due to the mother’s litigation conduct. This unreasonable behaviour wasdescribed in detail in

Part 3.2 of the costs decision. [15] When a court focuses a trial, it usually reduces the days that the parties spend in court. However, this does not necessarily reducethe preparation time that is required for trial. In many cases, the preparation time for counsel increases. Affidavits for direct evidenceneed to be drafted, reviewed, served and filed. Document briefs need to be prepared in advance.

Counsel may need to spend extra timehoning their examinations to ensure they are concise, effective and can be conducted within the time limits ordered. [16] The court commented in the costs decision that the mother did not submit her own bill of costs for the court to compare it to thefather’s (see paragraph 60). The case law sets out that a useful benchmark for determining whether costs claimed are fair, reasonable andproportionate is to consider the amount that the unsuccessful party paid for their own legal fees and disbursements in the same matter.See: Laidman v.

Pasalic and Laidman, 2020 ONSC 7068. [17] Subrule 24 (12.2) of the Family Law Rules (all references to rules in this decision are to the Family Law Rules) applies to thiscase. It reads as follows:

(12.2) A party who opposes a claim for costs respecting fees or expenses shall provide documentation showing the party’s own fees andexpenses to the court and to the other party. [18] The mother did not submit any documentation showing her own fees and expenses with her costs submissions.

[19] The mother submitted that only 10 hours of preparation of time was required. This is an extremely low amount of preparationtime for a trial that took place over nine days. [20] The court reviewed the father’s bill of costs again and finds that the rates and time that were claimed are reasonable andproportionate. The father acted proportionally by only claiming time for the production motions (where costs were reserved to the trialjudge) and the trial step. He could have claimed costs for work not related to any specific step in the case (such as drafting pleadings).See: Houston v.

Houston, 2012 ONSC 233 ; Walts v. Walts, 2014 ONSC 98. [21] The court further comments that the father’s counsel’s presentation of the case was excellent. She acted in a highly professionalmanner in the face of challenging litigation conduct by the mother and her counsel. The court recognizes the extensive amount of workthat was required of her to meet these standards. [22] The mother made a submission that the father was not prejudiced by the late delivery of her trial affidavit because the father hadall the mother’s exhibits from prior temporary motions.[2] This submission has no merit.

While the father would be aware of much ofthe mother’s evidence from the temporary motions, he had no way of knowing what new evidence might be led, or how the mother’sevidence would be presented. Further, the mother’s trial affidavit was significantly in excess of the page limits ordered by JusticeZisman. The father had no way of knowing what excess pages from the affidavit, if any, would be admitted by the court. And, if pageswere excluded by the court, what evidence the mother would choose to exclude.

This made it even more difficult for the father to preparehis cross-examination of the mother. [23] The court ordered the mother to comply with the page limits imposed by Justice Zisman. It also adjourned the trial for one day toaddress the prejudice caused by the mother’s litigation conduct. [24] The mother attached in her costs submissions a portion of an offer to settle, made by the father in his settlement conference brief,in support of her submission that the father had made an unreasonable offer to settle.[3] This should not have been submitted.

Subrule17(23) is clear that no brief, evidence or statement made at a settlement conference is to be disclosed unless in an agreement reached at asettlement conference or an order. There is no exception for the offers to settle in a settlement conference brief to be disclosed insubmissions for costs. See Entwistle v. MacArthur, , 157 (SCJ - Ont. Fam. Ct.); Farooq v. Majeed, 2011 ONCJ 827. [25] The father, appropriately, did not attach this offer to settle to his costs submissions.

He did not attach any offer to settle to hiscosts submissions and this was a factor in reducing his costs claim. [26] The mother did not provide the court with any offer to settle made by her. [27] The mother used her opportunity to make costs submissions to again attack Justice Zisman’s temporary decisions. This wasconsistent with her trial conduct. At trial, she blamed everyone but herself for her circumstances – the father, many judges, the police,her previous lawyer and the Peel Children’s Aid Society. It is unfortunate that she continues to do this.

The court would have been muchmore receptive to reducing the costs order if she had taken any accountability for her unreasonable behaviour during this case. [28] The mother did not make any specific submissions regarding the $3,000 costs ordered for the production motion that had beenreserved to the trial judge. The court will consider her general ability to pay submission below.

Part Four – Factors that will influence the costs decision [29] There are factors that persuade the court, in exercising its discretion, to change (not set aside) its costs order. [30] The first factor is that the mother complied with the extension decision and made costs submissions. She had failed to make costssubmissions to both Justice Sager and Justice Zisman earlier in the case.

Her failure to make costs submissions for the trial stageappeared to be further evidence of defiant behaviour. [31] The second factor is that the mother paid $3,500 towards the costs award (albeit as a condition to make these submissions). Themother’s prior failure to pay anything towards multiple costs orders had been an exacerbating costs factor. [32] The third factor has become an increasing concern of the court as this case has developed. How much of the unreasonablebehaviour in this case is attributable to the mother’s counsel as opposed to the mother?

And does this even matter in making a costsorder? [33] Ordinarily, a litigant will be held responsible for the litigation conduct of his or her lawyer. Courts are not privy to privilegedsolicitor-client discussions and are not well-suited to determine why certain actions and approaches were or were not taken. [34] However, as the father in his affidavit filed in opposition to the mother’s extension pointed out, The Law Society of Ontario isseeking the interim suspension of the mother’s counsel’s licence, arising out of very serious allegations against her.

An interim orderrestricting counsel’s practice was recently made, as outlined in paragraph 17 of the extension decision.[4] These developments give thecourt some pause in attributing all of the unreasonable behaviour in this case to the mother. It was the extent of this unreasonablebehaviour that led to the court’s determination that there should be no reduction to the costs order based on the mother’s ability to pay. [35] The mother should still be held accountable for most of the unreasonable behaviour in this case. She swore the affidavits thatwere presented to the court.

She is the person who made unsupported allegations against the father, the police, the Peel Children’s AidSociety and the judiciary. She maintained her unsupported allegations and positions at trial. She put the father to extensive cost to gatherthe evidence to disprove these allegations.

As particularized in paragraph 50 of its costs decision, the mother breached multiple courtorders. [36] However, it is unlikely that the mother is responsible for the frequently missed timelines throughout the case or for the multiplebreaches of the trial direction orders made by Justice Zisman (as set out in paragraph 49 of the costs decision).

[ 37 ] The court finds it is just, applying rule 2, to take a liberal

interpretation of clause 25 (19) (

e) of the rules. [5] It finds that the mother has a satisfactory reason for her failure to make costs submissions within the time ordered– the reason being the disorganization and neglect of her counsel. The court always prefers to make decisions with the input of both parties – they are usually better decisions.

The mother should not be prejudiced due to her counsel’s failure to make the costs submissions when ordered. [ 38 ] The court recognized in the costs decision that the mother does not have the financial means to pay the existing multiple costs orders that have been made against her – let alone anything that will be ordered by this court. The mother is on public assistance and has another young child living with her.

However, it also found that due to the mother’s reckless and unreasonable litigation conduct that it would be inappropriate, unjust and contrary to the public’s respect for the administration of justice, to discount the costs order or to make a payment order based on her ability to pay. Making such an order would send the wrong message to the mother and to like-minded litigants. [ 39 ] The court finds that it can still send this strong message to the mother and to like-minded litigants while taking into consideration the unique circumstances described in this decision.

The court is prepared to give the mother a partial discount (as compared to the discount it would ordinarily allow impecunious litigants) in the costs amount based on her ability to pay the costs order. Part Five – The Form 14B motion [ 40 ] The father also sought costs of $1,000 against the mother and the mother’s counsel personally, arising out of the mother’s Form 14B motion to extend the time for her to make costs submissions. The court reserved that request in the extension decision. [ 41 ] The court will not order any costs for this step. The mother was partially successful on the Form 14B motion.

She obtained an extension of time to make costs submissions over the father’s objections. The father was paid $3,500 towards past costs orders. Part Four – Conclusion [ 42 ] The court orders that the costs order is changed as follows:

a) The mother shall pay the father’s costs of $2,500 for the production motion, inclusive of fees, disbursements and HST.

b) The mother shall pay the father’s trial costs of $60,000, inclusive of fees, disbursements and HST.

c) The father may now take out and enforce this order. Released: September 17, 2021 _____________________ Justice S.B. Sherr