J.J.G. v. J.D.S., 2017 ONCJ 699

CITATION: J.J.G. v. J.D.S., 2017 ONCJ 699 DATE: October 18, 2017 COURT FILE NO. D53521/11 ONTARIO COURT OF JUSTICE B E T W E E N: ) ) J.J.G. DAVINE D. BURTON, for theAPPLICANT ) APPLICANT ) ) - and - ) J.D.S. ) Acting in Person RESPONDENT ) KAREN LINDSAY-SKYNNER, for theOFFICE OF THE CHILDREN’SLAWYER, for the child ) ) ) ) ) HEARD: IN CHAMBERS JUSTICE S.B. SHERR COSTS ENDORSEMENT [1] On August 28, 2017, the court released its reasons for decision arising out of a four-day trial about the parenting and childsupport arrangements for the parties’ thirteen-year-old child (the child). See: J.J.G. v.

J.D.S., 2017 ONCJ 586. [2] The court gave the parties the opportunity to make written costs submissions. The applicant (the mother) seeks her costs of$34,224. The respondent (the father) seeks an order that he pay the mother costs fixed at $11,500, payable at the rate of $250 eachmonth, starting on December 1, 2017. [3] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395 , [2009] O.J. 1905 (Ont. C.A.), stated that modern costsrules are designed to foster three fundamental purposes, namely: to partially indemnify successful litigants for the cost of litigation, to

encourage settlement and to discourage and sanction inappropriate behaviour by litigants bearing in mind that the awards should reflectwhat the court views is a fair and reasonable amount that should be paid by the unsuccessful party. [4] Sub-rule 2 (2) of the Family Law Rules (all references to rules in this endorsement are to the Family Law Rules) adds a fourthfundamental purpose for costs: to ensure that the primary objective of the rules is met – that cases are dealt with justly. This provisionneeds to be read in conjunction with rule 24. See: Sambasivam v. Pulendrarajah, 2012 ONCJ 711 , [2012] O.J.

No. 5404 (Ont.C.J.). [5] Modern costs rules accomplish various purposes in addition to the traditional objective of indemnification. Costs can be used tosanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. In short, it hasbecome a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderlyadministration of justice. See: British Columbia (Minister of Forests) v.

Okanagan Indian Band, 2002, S.C.C., supra, paragraph 25. [6] Subrule 24(1) of the Family Law Rules (all references to rules in this endorsement are the Family Law Rules) creates apresumption of costs in favour of the successful party. [7] Consideration of success is the starting point in determining costs. See: Sims-Howarth v. Bilcliffe, (ON SC),[2000] O.J. No. 330 (SCJ-Family Court). To determine whether a party has been successful, the court should take into account how theorder compares to any settlement offers that were made. See: Lawson v. Lawson, (ON SC), [2008] O.J.

No. 1978(SCJ). [8] Subrule 18 (14) reads as follows: COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER 18(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and fullrecovery of costs from that date, if the following conditions are met: 1. If the offer relates to a motion, it is made at least one day before the motion date. 2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date. 3. The offer does not expire and is not withdrawn before the hearing starts. 4.

The offer is not accepted. 5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer. [9] The onus of proving that the offer is as or more favourable than the trial result is on the person making the offer. See: Neilipovitzv. Neilipovitz, [2014] O.J. No. 3842 (SCJ). [10] Close is not good enough to attract the costs consequences of 18 (14). The offer must be as good as or more favourable than thetrial result. However, even if the offer does not attract the costs consequences set out in subrule 18 (14), it may be considered undersubrule 18 (16). See: Gurley v.

Gurley, 2013 ONCJ 482 CanLII. [11] The court is not required to examine each term of the offer as compared to the terms of the order and weigh with microscopicprecision the equivalence of the terms. What is required is a general assessment of the overall comparability of the offer as contrastedwith the order. See: Wilson v. Kovalev, 2016 ONSC 163. [12] The mother made three offers to settle, dated September 4, 2015, March 15, 2017 and May 22, 2017.

The last two offerscontained clauses withdrawing all previous offers.[1] Paragraph 3 of subrule 18 (14) requires that an offer not be withdrawn in order forthe cost consequences in the subrule to apply. Accordingly, only the mother’s last offer remains eligible for subrule 18 (14) costsconsideration. [13] The father made an offer to settle dated July 7, 2017 and an amended offer to settle dated July 10, 2017.

The only change in theamended offer to settle was a proposal by the father to increase the amount he would pay towards his support arrears. [14] The father also served a document dated July 17, 2017, where he accepted portions of the mother’s last offer. [15] This exchange of proposals led to a settlement of most of the support issues and some of the parenting issues at the outset of thetrial.

[16] The mother’s offer on May 22, 2017 was close to the final result, but was not more favourable to the father than the final order.The mother included a number of parenting clauses in her offer that were not ordered. The father was given longer mid-week visits thanthose proposed by the mother. The mother proposed that the father pay more support arrears than were ordered at trial. [17] The mother’s offer to settle dated March 15, 2017, was similar to her offer dated May 22, 2017.

Her offer to settle datedSeptember 4, 2015 proposed more restrictive parenting terms for the father. [18] The father’s offer to settle didn’t come anywhere close to the final result. He proposed that he be granted custody of the child,with specified access to the mother. The mother was granted custody of the child.

He asked for no ongoing child support to be paid andthat he pay his support arrears, accumulated as of the date of his offer, at $100 each month.[2] The final decision requires the father topay the table amount of child support, contribute towards special expenses and pay arrears in an amount in excess of what he proposed topay. [19] At trial, the parties essentially advanced the positions set out in their last offer to settle. [20] The mother was clearly the successful party at trial based on the offers to settle and the positions taken at trial. [21] The father did not rebut the presumption that the mother is entitled to costs.

He conceded the mother’s entitlement to costs in hissubmissions. His issue is the amount sought by her. [22] In making this decision, the court considered the factors set out in subrule 24 (11), which reads as follows: 24

(11) 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 behaviour in the case; (

c) the lawyer’s rates; (

d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses,drafting documents and 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. [23] The case was important for the parties. It became factually complex and difficult due to the volume of allegations the partiesmade against each other. [24] The court’s reasons for decision set out unreasonable behaviour by the mother. She unilaterally moved with the child to Alliston,Ontario during the case without seeking the court’s permission. She compounded this problem by often changing the father’s mid-weekaccess, usually with little notice and with disregard to his schedule.

By doing so she exposed the child to additional parental conflict. [25] The mother’s litigation behaviour was reasonable. [26] The mother asks the court to make a finding that the father acted in bad faith pursuant to subrule 24 (8), based on the findings offacts made by the court at trial. Subrule 24 (8) reads as follows: BAD FAITH 24

(8) If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay themimmediately. [27] Subrule 24 (8) requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made. See:Cozzi v. Smith, 2015 ONSC 3626; Scipione v. Del Sordo, 2015 CarswellOnt 14971 (Ont. SCJ). There is a difference between bad faithand unreasonable behaviour. The essence of bad faith is when a person suggests their actions are aimed for one purpose when they areaimed for another purpose. It is done knowingly and intentionally. See: S.(C.) v.

S. (M.) (2007), (ON SC), 38 R.F.L. (6th) 315 (Ont. SCJ). Bad faith is not synonymous with bad judgment or negligence; rather, it implies the conscious doing of a wrongbecause of dishonest purpose or moral obliquity. Bad faith is not synonymous with bad judgment or negligence; rather, it implies theconscious doing of a wrong because of dishonest purpose or moral obliquity. Bad faith involves intentional duplicity, obstruction orobfuscation.

See: Scipione, supra. [28] While the court finds that the father acted unreasonably on many occasions, it does not find that his behaviour rose to the highthreshold of egregious behaviour that is required for a finding of bad faith.

[29] The father’s litigation behaviour was often unreasonable. He took an unrealistic position that he have custody of the child inclosing argument, even though this relief was not pleaded or claimed until his closing argument. He did not provide timely financialdisclosure. He did not provide his draft order at the outset of the trial as required. He did not pay child support in accordance with hisincome and waited until the outset of the trial to settle most of the support issues. [30] The court made many findings of unreasonable and immature behaviour by the father in its reasons for decision.

His behaviourescalated the conflict between the parties. The court made findings that the father often prioritizes his own needs ahead of the child, isinsensitive to the child’s wishes, is angry and controlling, shows a profound lack of insight into his role in the parental conflict,unnecessarily involves the police in parental disputes and has failed to pay adequate child support. [31] The rates claimed by the mother’s lawyer ($400 per hour) are reasonable for a lawyer with 17 years of experience. [32] The father asked the court to fix the mother’s costs at legal aid rates.

The father cited the case of Onuselgou v. Okeke, 2011ONCJ 431, where costs were fixed at a legal aid rate, when the costs claimant was in receipt of legal aid. However, this case isdistinguishable as in Onuselgou, the payor’s modest means was a significant consideration. Here, the father earns annual income of$58,000 and can afford the costs award that will be ordered. [33] Further, in F.K. v. T.R., 2016 ONCJ 339, Justice Roselyn Zisman did not follow Onuselgou, observing that the case law whichsets out that the receipt of legal aid is not a factor in determining costs was not referenced in that decision.

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); Holt v. Anderson, (ON SCDC), 2005 O.J. No. 5111 (Divisional Court); Loncar v. Pendlebury, 2015ONSC 4673; S.G. v. A.S., 2015 ONSC 1882. [34] It is clear that pursuant to subsection 46(1) of the Legal Aid Services Act, 1998, "the costs awarded in any order made in favourof an individual who has received legal aid services are recoverable in the same manner and to the same extent as though awarded to anindividual who has not received legal aid services".

A legally aided client "stands before the court in exactly the same position as anyother litigant". See: Baksh v. Baksh, 2017 ONSC 3997, per Justice R.P. Kaufman. [35] There will be no adjustment to the costs award because the mother is in receipt of legal aid. [36] The mother sought substantial indemnity costs from the time she served her first offer to settle on September 4, 2015. [37] The mother claimed costs for several steps in the case where costs were not reserved. This included a scheduled

summaryjudgment motion, case conferences and settlement conferences. [38] Subrule 24(10) sets out that costs are to be determined in a

summary manner after each step in the case by the presiding judge. A“step” in the case is one of the discrete stages recognized by the rules such as a case conference, settlement conference and the like. See:Husein v. Chatoor, 2005 ONCJ 487 , [2005] O.J. No. 5715 (OCJ). The trial judge should not deal with requests for costs thatwere addressed or should have been addressed at these prior steps in the case. See: Islam v. Rahman, 2007 ONCA 622.

The mother is notentitled to her costs for these conferences. [39] However, a party is entitled to claim time spent for meetings with the client and reviewing and preparing pleadings and financialstatements as this is time not attributable to any one step in the case. See: Czirjak v. Iskandar, 2010 ONSC 3778 . Costs accruedfrom activity not specifically related to the step (not requiring judicial intervention) should be dealt with at the end and not by themotions judge. See: Houston v. Houston, 2012 ONSC 233; Walts v.

Walts, 2014 ONSC 98. [40] The mother is also entitled to claim time spent preparing for and attending at the Trial Management Conference and AssignmentCourt as they are related to the trial step. [41] The court considered both Boucher et al. v. Public Accountants Council for the Province of Ontario (ONCA), [2004] O.J. No. 2634 (Ont. C.A.) and Delellis v. Delellis and Delellis, (ON SC), [2005] O.J. No. 4345.

Boththese cases point out that when assessing costs it is “not simply a mechanical exercise.” In Delellis, Aston J. wrote at paragraph 9: However, recent cases under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended have begun to de-emphasize thetraditional reliance upon “hours spent times hourly rates” when fixing costs....Costs must be proportional to the amount in issue and theoutcome.

The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particularcircumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant. [42] The court considered the father’s ability to pay the costs order. See: MacDonald v. Magel (2003), (ON CA),67 O.R. (3d) 181 (Ont. C.A.).

A party’s limited financial circumstances will not be used as a shield against any liability for costs but willbe taken into account regarding the quantum of costs, particularly when they have acted unreasonably and are the author of their ownmisfortune. Snih v. Snih, (Ont. SCJ pars. 7-13). In the case of Takis v. Takis, [2003] O.J. No. 4059 (S.C.J.), the courtfound that the respondent’s lack of income and assets, though a relevant consideration, could not be used as a shield in unnecessarylitigation. [43] The court adopts the comments of Justice Heather McGee in Mohr v.

Sweeney, 2016 ONSC 3338 , where she writes,

“those who can least afford to litigate should be most motivated to seriously pursue settlement, and avoid unnecessary proceedings.” [44] The father earns annual income of $58,000. He is required to pay ongoing table support of $511 per month, arrears of $100 permonth and

section 7 expenses of $66 per month, for a total of $677 per month. His assets are in the $1,000 range and he has significantdebts.

Although the father will face some financial challenges, the court finds that he has the ability to pay the costs that will be awardedif he is given a reasonable period of time to pay them. [45] The costs payment will be spread out over 5 years – provided that the father maintains all his payments in good standing. [46] Taking into account these considerations, an order shall go that the father shall pay the mother’s costs fixed in the amount of$18,000, inclusive of fees, disbursements and HST. The father may pay the costs at the rate of $300 each month, starting on November1, 2017.

However, if he is more than 30 days late in making any payment, the entire amount of costs shall immediately become due andpayable. [47] The mother asked that the costs be paid directly to legal aid in trust. As I set out in F.D.M. v. K.O.W., 2015 ONCJ 94 ,[2015] O.J. No. 903 (OCJ), and John v. Vincente, 2016 ONCJ 78, the court prefers not to become involved in retainer arrangements andmake such orders. [48] The mother can execute an irrevocable direction or assignment of costs and deliver it to the father.

The court notes thatsubsection 46 (4) of the Legal Aid Services Act states that all costs ordered by a court to be paid to an individual who has received legalaid services are the property of the Corporation and shall be paid to the Corporation. Released: October 18, 2017 Justice S.B. Sherr