



COURT OF APPEAL FOR ONTARIO

CITATION: Mattina v. Mattina, 2018 ONCA 867

DATE: 20181029

DOCKET: C65148

Epstein, Lauwers and van Rensburg JJ.A.

BETWEEN

Vincenzo Mattina

Applicant (Appellant)

and

Raffaella Mattina

Respondent (Respondent)

Martha McCarthy, Maureen Edwards and Lauren Hanna, for
    the appellant

Salvatore Garcea and Gloria Nardi-Bell, for the
    respondent

Heard: June 25, 2018

On appeal from the order of Justice Randolph Mazza of the
    Superior Court of Justice dated September 26, 2017, with reasons reported at
    2017 ONSC 5704 and the costs order dated April 3, 2018.

COSTS ENDORSEMENT

OVERVIEW

[1]

This is a costs
    decision arising from a custody and access appeal. The subjects of the appeal are
    three children: S, N, and A. The children were 17, 15 and 10 at the time the
    appeal decision was released.

[2]

The fathers appeal to
    this court was dismissed. The parties made written submissions on costs of the
    appeal to this court and the costs of a previous attempt to appeal to the
    Divisional Court.

[3]

We have considered these
    submissions and would award the mother her costs fixed at $25,000.

LITIGATION HISTORY

[4]

A brief history of this
    proceeding puts the costs issues in perspective.

[5]

The father commenced
    this action in June 2013. In the course of the application, on consent of the
    parties, the court ordered a custody and access assessment under s. 30 of the
Childrens Law Reform Act
,

R.S.O.
    1990, c. C.12. After the production of the initial assessment followed by an
    updated assessment, the application was placed on the trial list.

[6]

For various reasons,
    the hearing of the application was delayed. When the father learned that it was
    unlikely the matter would be heard by June 2017, he brought a motion seeking
    sole interim custody of the children for 90 days (with no access to the mother
    during this period) and an order directing that during this period of interim
    custody, the parents and children participate in a program known as Family Bridges.
    In the alternative, the father sought an order for a directed trial on custody
    and access. In response, the mother brought a summary judgment motion seeking
    sole custody of the three children, with access to the father at the discretion
    of the children.

[7]

In September 2017, the
    motion judge granted summary judgment in the mothers favour. First, he
    dismissed the fathers motion in relation to S, because within a few weeks of
    the release of the decision, S would turn 18 and would no longer be within the
    courts jurisdiction. The motion judge went on to give sole custody of N and A
    to the mother. He ordered that access and communication between the father and
    N would be at Ns discretion; access and communication between the father and A
    would be at As discretion in consultation with the mother. The motion judge
    awarded costs to the mother fixed in the amount of $80,636 plus HST.

[8]

The father appealed the
    decision to the Divisional Court. The Divisional Court held that it did not
    have jurisdiction over the matter and transferred the appeal to this court, on
    an expedited basis. The costs of the attendance before the Divisional Court
    were adjourned to the court hearing the appeal: see
Mattina v.
    Mattina
,
2018 ONSC 1569, 11 R.F.L. (8th) 69, at
    para. 63.

ANALYSIS

General Legal Principles

[9]

Section 131(1) of the
Courts
    of Justice Act
,
R.S.O. 1990, c. C.43, provides that cost orders are in
    the discretion of the court. Rule 24 of the
Family Law Rules
sets out a framework for awarding costs for family
    law cases in the Family Court of the Superior Court of Justice, in the Superior
    Court of Justice and in the Ontario Court of Justice. Although the
Family
    Law Rules
do not expressly govern costs
    awards in the Court of Appeal, they have been used to guide this courts
    analysis on costs in family law disputes:
Family Law Rules
, r. 1(2);
Selznick v. Selznick
, 2013 ONCA 35.

[10]

This court has held that modern
    family cost rules are designed to foster three fundamental purposes: (1) to
    partially indemnify successful litigants; (2) to encourage settlement, and; (3)
    to discourage and sanction inappropriate behaviour by litigants:
Serra
    v. Serra
,
2009 ONCA 395, 66 R.F.L. (6th) 40, at para. 8;
Fong
    v. Chan
(1999), 46 O.R. (3d) 330 (C.A.), at
    para. 22. Rule 2(2) adds a fourth fundamental purpose: to ensure that cases are
    dealt with justly:
Family Law Rules
, r. 2(2);
E.H. v. O.K.,
2018 ONCJ 578, at para.
    8;
Sambasivam v. Pulendrarajah
,
    2012 ONCJ 711, at para. 37. And Rule 24(12)
[1]
,
    which sets out factors relevant to setting the amount of costs, specifically
    emphasizes reasonableness and proportionality in any costs award.

[11]

The
Family Law Rules
are a marked departure from some aspects of the
Rules
    of Civil Procedure
,
R.R.O. 1990, Reg. 194. As such, case law pertaining to
    costs decided under the

Rules of Civil Procedure
should be approached with some caution:
Frick
    v. Frick
,
2016 ONCA
    799, 132 O.R. (3d) 321, at para. 11;
E.H. v. O.K.
,
at para. 34.

[12]

Rule 24(1) creates a presumption of costs in favour of
    the successful party of a motion, case, or appeal:
Berta v. Berta
, 2015 ONCA 918, 128 O.R. (3d) 730, at para. 94.
And
    the presumption that a successful party is entitled to costs applies equally to
    custody and access cases:
Britt v. Britt
, [2000] O.J. No. 5981 (S.C.),
    at para. 9.

[13]

Consideration of success is the
    starting point in determining costs:
Sims-Howarth v. Bilcliffe
(2000), 6 R.F.L. (5th) 430 (Ont. Sup. Ct.), at para.
    1. This presumption does not, however, require that the successful party always
    be entitled to costs:
M.(C.A.) v. M.(D.)
, at para. 40. An award of costs is subject to: the factors listed in r.
    24(12), r. 24(4) pertaining to unreasonable conduct of a successful party, r.
    24(8) pertaining to bad faith, r. 18(14) pertaining to offers to settle, and
    the reasonableness of the costs sought by the successful party:
Berta
    v. Berta
,
at para.
    94.

[14]

Rule 24(12) sets out a list of
    factors the court shall consider in determining an appropriate amount of costs:

(a) the reasonableness and proportionality of each of the
    following factors as it relates to the importance and complexity of the issues:

(i) each partys behaviour,

(ii) the time spent by each party,

(iii) any written offers to settle, including offers that do
    not meet the requirements of rule 18,

(iv) any legal fees, including the number of lawyers and
    their rates,

(v) any expert witness fees, including the number of experts
    and their rates,

(vi) any other expenses properly paid or payable; and

(b) any other relevant matter.

[15]

The
Family Law Rules
only expressly contemplate full
    recovery costs in specific circumstances, e.g. where a party has behaved
    unreasonably, in bad faith or has beat an offer to settle under r. 18(14).

[16]

Rule 24(4) addresses the situation
    in which a successful party has behaved unreasonably:

Despite subrule (1), a successful party who has behaved
    unreasonably during a case may be deprived of all or part of the partys own
    costs or ordered to pay all or part of the unsuccessful partys costs.

[17]

Rule 24(5) provides guidance on
    how to evaluate reasonableness:

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

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

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

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

[18]

Rule 24(8) discusses the cost
    consequences for a party who has acted in bad faith:

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.

THE PARTIES POSITIONS

(1)

The costs of the appeal
    to the Court of Appeal

The
    Father

[19]

The fathers position is that each
    party should bear his and her own costs of the appeal. At most, argues the
    father, the mother should have her costs restricted to the actual attendance before
    this court, and on a reduced scale.

[20]

In support, the father argues that
    the appeal concerned matters of the utmost importance. The father contends that
    he acted reasonably whereas the mother was uncooperative and took irresponsible
    positions and thereby delayed the proceedings. He submits that the mother
    contributed significantly to the high-conflict dynamic of this dispute. He
    submits that calling her successful would sanction such conduct and would be
    contrary to public policy.

[21]

Finally, while acknowledging the
    current trend away from awarding no costs in custody and access cases, the
    father submits that the policy rationale underlying the historical approach
    best applies here.

The Mother

[22]

The mother, relying on r. 57.01 of
    the
Rules of Civil Procedure
and
    r. 24 of the
Family Law Rules
,
    submits that she should be awarded her full indemnity costs of this appeal. The
    mother relies on the parties motivations. Hers was the best interests of the
    children whereas the fathers was to win custody and/or access.

[23]

The mother submits that her
    lawyers charged reasonable rates and worked in a cost-effective manner. Based
    on the parties earlier Bills of Costs, the father had to have been aware that
    his lawyers services cost almost twice as much as the mothers. It is
    reasonable to conclude that the mothers Bill of Costs is within the range of
    costs the father would be ordered to pay if he were unsuccessful. The mother
    also points out that the father did not submit a Bill of Costs for services at
    the Court of Appeal.

[24]

The mother further contends that the
    fathers unreasonable behaviour increased costs dramatically. Among other
    things:

·

the father misled the court on a
    number of occasions;

·

despite consenting to an order to
    not file any further materials in the appeal without consent, the father
    brought a motion on less than 36 hours notice, to serve and file an Amended
    Notice of Appeal, and;

·

the father put unreasonable
    deadlines on the mother and did not respond to reasonable questions.

(2)

The costs of the appeal to the
    Divisional Court

The Father

[25]

The father submits that there
    should be no costs related to the parties preparation and attendance before
    the Divisional Court. The appeal routes in custody and access cases are not
    straightforward. He calls the costs incurred as they related to the Divisional
    Court appeal an institutional loss that should not attract cost consequences.

[26]

Further, the mother should have
    raised jurisdictional concerns sooner. It would be unfair for the father to be
    penalized by a costs award because the motion judge at the Divisional Court
    made an error in assuming jurisdiction and the mother failed to take steps to
    remedy that error.

The Mother

[27]

The mother submits she is entitled
    to full indemnity costs of the proceedings before the Divisional Court. The
    mother contends that it was unreasonable for the father to appeal, as the
    appeal had no merit. Second, the mother says that even if the appeal had merit,
    the father appealed to the wrong court. Instead of conceding the point, once
    the error was pointed out to him, the father held fast to his position, wasting
    time and money.

[28]

Finally, two motions the father
    brought before the Divisional Court demonstrate his pattern of unreasonable
    behaviour throughout the appeal process. The father lost both motions but the
    parties bore their own costs resulting in $10,000 additional costs to the
    mother.

APPLICATION OF THE
    PRINCIPLES

(1)

The Costs before the Court of Appeal

a.

The mother was successful on appeal and is entitled to costs

[29]

The
    father raised four distinct issues on appeal: the motion judge erred in
    proceeding by way of summary judgment, the motion judge erred in failing to
    attach sufficient weight to the s. 30 assessment, the motion judge erred by
    failing to consider the best interests of the children and the maximum contact
    principle, and finally, his s. 7 and s. 11(b)
Charter

rights
    were infringed:
Mattina v. Mattina
,
at paras. 9-10. This court dismissed all four grounds of appeal. The mother is accordingly
    presumptively entitled to her costs.

b.

Applying the r. 24 framework suggests the mother should have 60-70% of
    her appeal costs indemnified

[30]

There
    is evidence of unreasonable conduct by the father in this appeal. It was
    unreasonable for him to continue on appeal to take the position that the only
    explanation for the rift with his children was parental alienation. Furthermore,
    the father continued to take an obstructionist approach to the litigation. For
    example, he insisted on relying on affidavits from motion materials used in the
    Divisional Court in violation of the parties consent order about the manner
    for filing further materials. The father had to have known that this conduct would
    increase the mothers costs.

[31]

That
    said, the mothers conduct also impeded resolution. By way of example, we point
    to her refusing to schedule an expedited hearing before the Divisional Court
    and her refusing to allow the father to file additional appeal materials.

[32]

As
    to the time invested by each party, we note that a combined total of nearly 77
    hours by mothers counsel was spent preparing for this appeal. A large portion
    of this preparation time appears to have been spent on the mothers need to
    respond to the fathers motion to file an amended notice of appeal, fresh
    factum and further book of authorities. Although the mother was unsuccessful on
    that motion, we are of the view that it is reasonable for preparation time to
    be included in the mothers cost award, given the father brought the motion
    with fewer than 36 hours notice, in violation of a consent court order, and
    that the mothers counsel made a reasonable proposal that would have avoided
    the necessity for such a motion.

[33]

We
    are persuaded by the mothers submission that the father would have been aware
    of the fact that his lawyers services cost almost twice as much hers. The
    father would have also been aware of the high cost of litigation based on the
    motion judges costs order. It is reasonable to conclude that the father would
    have foreseen having to pay the mothers costs and that these costs could be
    significant.

[34]

In
    our view, the mothers presumptive entitlement to costs has not been rebutted.

[35]

Having
    considered the reasonableness and proportionality of the relevant factors, in
    our view the mother should receive 60-70% of her costs.

(2)

The costs before the Divisional Court

a.

Confusion surrounding family appeal routes

[36]

This
    court has repeatedly commented on the fact that this provinces family law
    appeal routes are confusing for the public, counsel, and institutional
    litigants:
Christodoulou v. Christodoulou
, 2010 ONCA 93, 75 R.F.L. (6th)
    266;
Marchildon v. Beitz
, 2012 ONCA 668, 23 R.F.L. (7th) 316;
Priest
    v. Reilly
, 2018 ONCA 389. In particular, this court in
Christodoulou
noted the cost implications of this confusion at para. 35:

The inconsistency in current appeal routes can be confusing for
    the public, for counsel and for institutional litigants. It can also create an
    inequality in access to justice between litigants whose disputes at first
    instance are heard in provincial courts versus superior courts  the former
    must incur the costs and delays of two appeals in order to reach the Court of
    Appeal while the latter must incur the cost and delay of only one.

[37]

This
    case illustrates once again the unnecessary costs parties bear as a result of this
    confusion. We therefore echo this courts plea in
Priest v. Reilly

(at
    para. 6): It has been over eight years since MacPherson J.A. in
Christodoulou
specifically invited legislative reform in this area. This is a serious access
    to justice problem that must be remedied.

[38]

Given
    this legislative deficiency, it would be unjust in our view for the father to
    pay the mothers costs associated with the appeal before the Divisional Court. The
    fathers behaviour throughout this case is in our view sufficiently addressed by
    the costs awards for the remainder of the proceedings.

DISPOSITION

[39]

The
    mother seeks full recovery of her costs in the sum of $67,224.95. Of this sum,
    $25,887.50 is attributed to fees and disbursements associated with the
    Divisional Court appeal. This amount should be subtracted from the total amount
    claimed, leaving $41,377.45 for the mothers fees and disbursements for the
    appeal before this court. In her Bill of Costs, the mother has included
    $1,914.95 for disbursements associated with the Divisional Court appeal, which
    were omitted in the Divisional Court Bill of Costs. This amount should be
    excluded leaving the mother with a Bill of Costs totalling $39,462.50.

[40]

Based
    on the above analysis, it is reasonable in our view to award the mother 60-70%
    of her costs. We therefore order the father to pay the mother her costs fixed
    in the amount of $25,000.

Gloria Epstein
    J.A.

P. Lauwers
    J.A.

K. van Rensburg
    J.A.





[1]

Rule 24(12) was updated in July 2018 and the new
    rule applies:
Cobb v. Long Estate
, 2017 ONCA 717, at para. 84.


