M.-A.M. v. J.C.M., 2018 ONCJ 317

CITATION: M.-A.M. v. J.C.M. , 2018 ONCJ 317 COURT FILE NO.: DFO-15-12595-00A212660 DATE: 2018-01-22 ONTARIO COURT OF JUSTICE RE: M.-A. M – Applicant and J.C.M. - Respondent BEFORE: S. O’Connell COUNSEL: Mr. Ryan Gillissie, for the Applicant Respondent, Acting in Person C O S T S E N D O R S E M E N T for Applicant’s Motion for

Summary Judgment INTRODUCTION : [ 1 ] On March 8, 2017, for written reasons delivered on that day, I made the following final orders regarding the Applicant’s motion for

summary judgment: ON CONSENT: 1. The respondent father, J.C.M. ("the father") shall have no access to the child, P.C.M., born on […] 2014; 2. The mother shall be permitted to apply for and renew all government issued identification documents for the child, including his Canadian passport, without the required consent of the father. The father's consent is dispensed with. 3. The mother may be permitted to travel with the child outside of Canada for vacation purposes without the consent of the father. The father's consent is dispensed with. NOT ON CONSENT:

4. Commencing on 1 April 2015, the father shall pay child support for the child named above in the amount of $310.00 per month based on an imputed income of $35,600.00, which is the table amount for one child based on that income, pursuant to the Child Support Guidelines . The arrears of basic child support are therefore fixed at $7,130.00 (1 April 2015 to 1 March 2017, a period of 23 months). 5. The father shall pay one-half of the child's

section child care expenses for the years 2015 and 2016. In 2015, the total amount of

section 7 child care expenses was $4,490.25. In 2016, the total amount of child care expenses was $3,147.50 for a total of $7,637.75. The arrears of

section 7 expenses for 2015 and 2015 owed by the father are therefore fixed at $3,818.87. 6. The total amount of arrears of basic child support and

section 7 expense arrears is therefore fixed at $10,948.87. The father shall pay these arrears at a rate of $200.00 per month, commencing on 1 April 2017. 7. Commencing on 1 April 2017, the father shall pay 50% of any ongoing

section 7 expenses, including child-care expenses, uninsured medical and dental expenses that exceed $100.00. The mother shall present the father with proof of the cost of any such expenses by e-mail communication only through the father's agent, the paternal grandfather, and the father shall pay his share within fourteen days. 8. The parties shall exchange their complete income tax returns and notices of assessment by 30 June each year. 9. The father's application for a restraining order is dismissed. [ 2 ] As noted from the above, custody of the child was not an issue for the

summary judgment hearing. On 29 January 2016, on consent of the parties, the Honourable Justice Ellen B. Murray granted the mother final custody of the child. [ 3 ] At the commencement of the

summary judgment hearing, the father, through his agent, consented to final orders regarding access, identification documents and travel. The father did not wish to have access to the child and he consented to the waiver of his consent to permit the mother to obtain identification documents for the child and for travel purposes. [ 4 ] The remaining issues for the

summary judgment hearing were child support and a restraining order. [ 5 ] The father sought the dismissal of the mother's claims for child support,

section 7 expenses and costs. He took the position that he should not be legally obligated to pay child support. He further sought a restraining order against the mother. [ 6 ] The court further granted the parties until April 10, 2017 to file any materials regarding the mathematical calculations condcuted by the court, if either party found a matthematical error in any of the court’s calculations. [ 7 ] Finally, the court granted both parties an opportunity to make written submissions regarding costs. The court received all cost submissions by July 6, 2017.

The court was advised that the Respondent father had appealed my decision and there was some delay in releasing this endorsement to ascertain the outcome of the appeal. At this stage, the status of the appeal is uncertain. It appears that the appeal has either been abandoned or it is still pending. BRIEF BACKGROUND : [ 8 ] The father was an apprentice ironworker. The parties met while working at a music festival. It was not disputed that they were involved in an intimate relationship for several months in 2013. During the relationship, the mother became pregnant with their child, who was born in […], 2014.

The parties ended their relationship before the child's birth. The mother was granted final custody of the child in January 2016, on consent ot the father. The father was employed during their relationship, but became unemployed and was unemployed at the time of the hearing. [ 9 ] The mother brought an application seeking an order requiring the father to pay child support and to pay his proportionate share of the child's special and extraordinary expenses.

The father did not dispute that he was the child's biological father but argued that he was not legally obligated to pay child support because the mother engaged in a “premeditated theft of his DNA”. He submitted that the mother told him that she was medically infertile. He acknowledged and it is not disputed that they engaged in sexual relations without using condoms. It is further not disputed that the father did not pursue criminal charges against the mother. [ 10 ] Following the mother’s motion for

summary judgment, I found that there was no genuine issue requiring a trial. There was no legal basis for the father's attempt to create a new defence to child support. He assumed the risk of consensual sexual activity without using a condom and he was legally obligated to pay child support. There was no reasonable excuse for the father's underemployment and

income was imputed to him at the level of $35,609, which was the amount he was earning at the time of the child's birth. The father was therefore required to pay $310 per month in child support and to contribute 50 per cent of the child's special and extraordinary expenses. [ 11 ] The father also did not wish to have access to the child and he and his family regrettably refused any further involvement with the child. [ 12 ] I also dismissed the father’s claim for a restraining order as there was no evidence of harassment or stalking behaviour.

After the child was born, the mother did reach out to the father and his family as she was hoping that he would establish a relationship with the child. This is not evidence of stalking or harassment. The father did not dispute that the mother has had no contact with he or any member of his family for well over one year after it was made clear that the father and his family had no desire to have any contact with the child. THE PARTIES’ POSITIONS : [ 13 ] The Applicant mother submits that she was entirely successful on her

summary judgment motion and that she therefore be awarded costs on a full recovery basis in the amount of $8,440.51.

She submits that the Respondent father acted unreasonably and in bad faith throughout the proceedings, causing further considerable costs to be incurred of almost 13 hours (12.6 hours). [ 14 ] The Respondent father submits that no costs should be awarded to the mother because she has been supported by Legal Aid Ontario throughout her legal action against the father and that the claim that the father pay the mother’s legal costs is “frivolous, vexatious, and an abuse of process.” He continues to assert in his written costs submissions that the mother committed the act of “premeditated DNA theft” and he therefore should not be legally obligated to pay child support. [ 15 ] The father further claims significant financial and undue hardship because of the stress and unforeseen hardship associated with being “the victim of DNA theft, rape, and extortion” by the Applicant mother as well as the time consuming nature of being a self- represented litigant and “confirmed human rights victim”.

THE LAW : [ 16 ] Rule 24 of the Family Law Rules, O. Reg. 114/99, governs the determination of costs in family law proceedings and the sections relevant to the circumstances of this case are as follows: “ 24.

(1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.

(4) Despite subrule (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.

(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine, a) (

a) the party's behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle; b) (

b) the reasonableness of any offer the party made; and c) (

c) any offer the party withdrew or failed to accept.

(6) If success in a step in a case is divided, the court may apportion costs as appropriate.

(7) If a party does not appear at a step in the case, or appears but is not properly prepared to deal with the issues at that step, the court shall award costs against the party unless the court orders otherwise in the interests of justice.

(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 them immediately.

(10) Promptly after each step in the case, the judge or other person who dealt with that step shall decide in a

summary manner who, if anyone, is entitled to costs, and set the amount of costs.” [ 17 ] Rule 24 (11) provides a further list of factors that a court should consider in dealing 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 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, draftingdocuments 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. O. Reg. 114/99, r. 24 (11). [18] Rule 18(14) and 18(16) of the Family Law Rules, which address the cost consequences of offers to settle, provide the following: 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. O. Reg. 114/99, r. 18 (14). 18

(16) When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made andits terms, even if subrule (14) does not apply. O. Reg. 114/99, r. 18 (16). [19] Subrule 18(16) permits the court to go beyond the strict conditions set out in subrule (14) and award partial or full recovery costseven though subrule (14) does not apply. [20] In Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, [2009] O.J.

No. 1905, 2009 CarswellOnt 2475, at paragraph 8, theOntario Court of Appeal confirmed that costs rules 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 behaviour by litigants. [21] Rule 24 created a new framework for determining costs in family law proceedings.

The presumptive nature of Rule 24 hassignificantly curtailed the court’s discretion regarding costs in family law proceedings and absent compelling circumstances or theexceptions set out in the rule itself, costs are generally awarded to the successful party. The Ontario Court of Appeal in C.A.M. v. D.M.(2003), (ON CA), 67 O.R. (3d) 181 held that while the Rules have not completely removed a judge’s discretion, theRules nonetheless circumscribed the broad discretion previously granted to the courts in determining costs (paragraph 40).

Courts mustnot only decide liability for costs, but also the amount of those costs. [22] 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 et al. v. Public Accountants Council for the Province of Ontario, , 71 O.R. (3d) 291, 188 O.A.C. 201,48 C.P.C. (5th) 56, [2004] O.J. No. 2634, 2004 CarswellOnt 2521 (Ont.

C.A.), the award of costs must be fixed in an amount that is fairand reasonable for the unsuccessful party to pay in the particular proceedings rather than an exact measure of actual costs to thesuccessful litigant. [23] In Delellis v Delellis and Delellis, [2005] O.J. No. 4345, , 143 A.C.W.S. (3d) 235, 2005 CarswellOnt 4956 atparagraph 9, Justice David R.

Aston states the following at paragraph 9: “… recent cases under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended, have begun to de-emphasize the traditionalreliance upon "hours spent times hourly rates" when fixing costs...Costs must be proportional to the amount in issue and the outcome.

The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances ofthe case, rather than an amount fixed by the actual costs incurred by the successful litigant...” [24] Finally, in deciding the amount of costs to be paid, I must also consider clause 24 (11) (

f) which requires the court to consider anyother relevant matter, including the ability to pay costs. See Biant v. Sagoo, , 20 R.F.L. (5th) 284, [2001] O.J. No.3693. In C.A.M v. D.P. supra, Justice Rosenberg for the Ontario Court of Appeal states the following: “Notwithstanding this principle, it is important to also note that “I am also of the view that the financial situation of the parties can betaken into account in setting the amount of the costs award either under Rule 24 or Rule 18. Thus, while subrule 24(11) enumerates anumber of factors that must be taken into account, the person setting the amount of the costs is directed to take into account "any other

relevant matter". I agree with Aston J. in Sims-Howarth at para. 4, that the "Family Law Rules demand flexibility in examining the list offactors in subrule 24(11) without any assumptions about categories of costs". In my view, a consideration of particular relevance may bethe financial position of the parties, especially of an unsuccessful custodial parent. See Biant at para. 17 and Brennan v. Brennan, [2002]O.J.

No. 4743 (S.C.J.) at para. 11.” [25] However, nowithstanding the above principle, a party’s limited financial circumstances cannot be used as a shield against anyliability for costs but will be taken into account regarding the quantum of costs, particularly when they have acted unreasonably and arethe author of their own misfortune. Snih v. Snih, (Ont. SCJ pars. 7-13). In the case of Takis v. Takis, [2003] O.J. No.4059 (S.C.J.) the court found that the respondent’s lack of income and assets, though a relevant consideration, could not be used as ashield in unnecessary litigation.

ANALYSIS: [26] It is undisputed that the Applicant mother was almost entirely successful on her motion for

summary judgment. I say almostentirely successful because the mother sought an order that income be imputed to the father for child support purposes in the amount of$45,000.00, however, based on the undisputed evidence filed, the court imputed income to the father in the amount of $35,609.00 andordered child support retroactive to April 1, 2015, when the father stopped paying child support.

The Respondent father was notsuccessful in obtaining any of the relief that he sought, including the restraining order. [27] The father’s position that he should not have to pay child support because he was the victim of a “premeditated theft of his DNA”was not reasonable. This matter should not have been litigated. It was a relatively straightforward calculation of child support and thefather has a legal obligation to support his biological child. The law is clear on this issue, as explained in my earlier decision. [28] Mr. Gillissie is a family law practitioner who has been in practice approximately 14 years.

In the bill of costs submitted, hishourly rate is set at $350.00 per hour on a full recovery scale. This is a relatively reasonable hourly rate for someone of his skill andexperience. Mr. Gilllisie incurred 20 hours of preparation and attendance time for this

summary judgment motion, again, a relativelyreasonable period of time. [29] The father’s submission that no costs be awarded because the mother has been supported by Legal Ontario is rejected. It is wellsettled law that a court is not restricted to ordering costs at a legal aid rate and should not be precluded from awarding costs to asuccessful party just because the party is legally aided. See Ramcharitar v. Ramcharitar (2002) (ON SC), 62 O.R.(3d) 107 (Ont. SCJ), Holt v. Anderson (ON SCDC), [2005] O.J. No. 5111 (Div. Ct.); Loncar v. Pendlebury, 2015ONSC 4673 ; S.G. v. A.S., 2015 ONSC 1882 .

Children’s Aid Society of the Regional Municipality of Waterloo v. C.T.,2017 ONSC 3188. [30] It is clear that pursuant to subsection 46(1) of the Legal Aid Services Act, 1998, "the costs awarded in any order made in favour ofan 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. [31] The mother behaved reasonably throughout and she should be awarded costs as she was the successful party. However, I am notprepared to grant costs on a full recovery basis. The mother did not serve an offer to settle in these proceedings.

The failure to serve anoffer to settle is an important factor that I should take into consideration on assessing costs, particularly given the requirements of Rule18 of the Family Law Rules and the overall objectives and Rule 24(5) of the Family Law Rules, which provides that the failure to makean offer to settle is a factor that the court must consider in determining whether a party acted reasonably. [32] Justice Stanley Sherr states the following in J.V.M. v. F.D.P., 2011 ONCJ 616 , [2011] O.J.

No. 5441, and I adopt thisreasoning in assessing the costs in these proceedings: “I was not provided with an offer to settle by either party…The failure to make an offer to settle much earlier by either party isunreasonable behaviour. Subrule 2(4) imposes a duty on parties and their lawyers to promote the primary objective of the rules to dealwith cases justly (subrule 2(2)). This includes taking appropriate steps to save time and expense (subrule 2(3)). Offers to settle play animportant role in saving time and expense by promoting settlements, focusing parties and often narrowing issues in dispute.

See Laing v.Mahmoud, 2011 ONSC 6737, [2011] O.J. No. 5134, 2011 CarswellOnt 12972 (Ont. Fam. Ct.). The failure to serve an offer to settle willbe an adverse factor when assessing costs.” [33] Mr.

Gillissie submits that there were no offers to settle because it appeared to counsel that in light of the father’s conduct, “such agesture would be a waste of time and resources.” Respectfully, that is not a reason for not preparing an offer to settle and it does notobviate the important duty on a party to make an offer to settle, thereby triggering the costs consequences under Rule 18. [34] I do not find that the father acted in bad faith. There is a difference between bad faith and unreasonable behaviour.

The essence ofbad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose. It is doneknowingly and intentionally. The court can determine that there shall be full indemnity for only the piece of the litigation where bad faith was demonstrated. S.(C.) v. S. (M.) (2007), (ON SC), 38 R.F.L. (6th) 315 (Ont. SC). [35] However misguided and unreasonable the father’s conduct in this matter, I do not find that his conduct was designed todeliberately hurt or harm the mother.

He appeared to sincerely believe his position. [36] I also take into consideration the father’s financial circumstances.

THE ORDER: [ 37 ] Taking into account all of these factors, the respondent mother, Ms C., shall be required to pay the applicant, mother’s costs fixed at $4,000.00 inclusive of fees, disbursements and HST, to be payable forthwith, or no later than 30 days from the date of this order. Justice Sheilagh O’Connell DATE: January 22, 2018