2013 ONSC 7201, 2013 ONSC 7201

CITATION : C.G. v. NEOFACS, 2013 ONSC 7201 COURT FILE NO.: 18152/12 DATE: 20131121 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) C.G. ) ) ) Unrepresented ) Appellant ) ) - and - ) ) ) NORTH EASTERN ONTARIO FAMILY AND CHILDREN’S SERVICES ) ) ) Justin Ellery, for the Respondent ) Respondent ) ) ) ) CORRECTED DECISION: June 19, 2014: Initials substituted for identifying names in Citation, title of proceedings, and paragraph 12.

D E C I S I O N WILCOX, J. [ 1 ] The Appellant appealed an interim interim order without prejudice made by Carr J. of the Ontario Court of Justice on July 16, 2012 on the first return date of a motion brought by the Respondent. The appeal was eventually heard on September 12, 2013 and was dismissed. The situation was more fully detailed in the written decision on the appeal, which was released September 26, 2013.

In it, the parties were invited to make written submissions as to costs. [ 2 ] On the subject of costs, s. 131(1) of the Courts of Justice Act provides as follows: - subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court,

- the court may determine by whom and to what extent the costs shall be paid. [3] Modern costs rules are intended to serve three purposes: 1) to indemnify successful litigants for the cost of litigation 2) to encourage settlements, and 3) to discourage and sanction inappropriate behaviour by litigants. (Fong v. Chan (1999) (ON CA), 46 O.R. (3d) 330 (Ont.

C.A.) [4] The Ontario Court of Appeal has held that cost awards should reflect what the court views as a fair and reasonable amount thatshould be paid by the unsuccessful parties rather than any exact measure of the actual cost to the successful litigant. (Boucher v. PublicAccountants Council for the Province of Ontario (2004) (ON CA), 71 O.R. (3d) 291 and Serra v. Serra 2009 ONCA395 , [2009] O.J. No. 1905.) It has been held that the ability of a party to pay a substantial cost award was not a relevantconsideration. (Robb v. Saint Joseph’s Health Care Centre [1999] O.J. No. 1461 (S.C.J.).

However, the court retains the discretion notto award a successful party its costs in appropriate circumstances, such as where it would have a devastating effect on the party thatwould otherwise pay (Murray v. Murray (2005) (ON CA), 79 O.R. (3d) 147 (Ont. C.A.). [5] Family Law Rule 24 commences with the presumption that a successful party is entitled to its costs. The factors that shall beconsidered in setting the amount of costs are:

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

b) the reasonableness or unreasonableness of eachparty’s behaviour in the case;

c) the lawyers’ rates;

d) the timeproperly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents andcorrespondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;

e) expenses properly paid or payable; and

f) any otherrelevant matter. [6] The Respondent was the successful party in this matter and is presumptively entitled to costs. [7] I now turn to the Rule 24 factors. The matter was important, involving as it did the court’s decision about the placement of achild. It was not, however, inherently complex or difficult. The statutory scheme within which the order appealed from was made wasclear and the factual situation was not complicated. [8] The court finds that the Appellant’s behaviour in the case was unreasonable. The OCJ had no other realistic option in thecircumstances than to make the order that it did.

It was no more than an adjournment on terms with no precedential value. TheAppellant could and should have dealt with that order within the further child protection proceedings that would have followed in theusual course of events in the OCJ. Instead, she embarked on the appeal process which consumed about 14 months. That was time inwhich the merits of the child protection case could not be dealt with.

Furthermore, the Appellant filed large amounts of materials on theappeal that appeared, at least in part, to be downloaded from the internet and which dealt with a variety of legal concepts such as Charterrights and fundamental justice. While these are not irrelevant to child protection cases, there were no coherent submissions as to howthey were relevant to this appeal.

However, reviewing them was unnecessarily time-consuming for the court and, no doubt, forresponding counsel. [9] NEOFACS’ counsel pointed out in his costs submissions that the Appellant had taken the position that the OCL was not aproper party to the proceedings (despite a court order appointing them). Consequently, it had fallen to NEOFACS to provide documentsto the OCL which should have been provided by the Appellant, to keep the OCL apprised of them.

I note that OCL counsel attended atthe appeal hearing. [10] NEOFACS’ counsel filed a Bill of Costs indicating an hourly rate of $350, which rate I take no issue with, given his 27 years ofexperience. The 23.7 hours he docketed is not excessive, particularly in light of the quantity of material filed by the Appellant. [11] In view of the above, this is an appropriate case for substantial indemnity costs.

Behaviour such as the Appellant’s must bediscouraged as it unreasonably interferes with dealing with the merits of the case, to the possible detriment of the child involved. [12] Therefore, there shall be an order for the Appellant C.G. to pay forthwith to NEOFACS costs of $7,500 inclusive of fees,disbursements and HST. ___________________________ Justice James A. S. Wilcox Released: November 21, 2013