



COURT OF APPEAL FOR ONTARIO

CITATION: Beaver v.
    Hill, 2019 ONCA 156

DATE: 20190227

DOCKET: C64766

Lauwers, van Rensburg
    and Nordheimer JJ.A.

BETWEEN

Brittany Beaver

Applicant (Respondent)

and

Kenneth Hill

Respondent (Appellant)

Chris G. Paliare, Bryan R.G. Smith, and Andrew K.
    Lokan, for the appellant

Harold Niman, Martha McCarthy, Sarah Strathopolous,
    Joanna Radbord, and Scott Byers, for the respondent

Manizeh Fancy and Estee L. Garfin, for the Attorney
    General of Ontario, intervenor

Heard: September 11, 2018

On appeal from the order of Justice
    D.L. Chappel of the Superior Court of Justice, dated December 8, 2017, with
    reasons reported at 2017 ONSC 7245, 4 R.F.L. (8th) 53, and costs reasons
    reported at 2018 ONSC 3352, 8 R.F.L. (8th) 288.

COSTS DECISION

[1]

In the courts judgment respecting the appeal by the father from a costs
    award, with reasons reported at 2018 ONCA 840, Nordheimer J.A. invited written
    submissions on the costs of the appeal.

[2]

The appellant asserts that he was substantially successful in the appeal
    and seeks partial indemnity costs in the amount of $40,000, inclusive of
    disbursements and HST. He says that this is a reduction from the partial indemnity
    amount of over $67,000 that would apply based strictly on time spent.

[3]

The respondent submits that she was relatively more successful and
    should be awarded partial indemnity costs in the amount of $30,805, including
    costs of the stay motion heard by Roberts J.A. on March 14, 2018, which were
    awarded to the successful party on the appeal. The parties agree that the costs
    of the motion before Roberts J.A. are $12,000, all inclusive.

[4]

In the costs decision, Nordheimer J.A. said, at para. 3:

Nevertheless, in my view, the respondent is still entitled to
    the costs of the original motion to strike the amended answer. She was
    successful on that motion and that success remains. This court's decision, on
    the merits appeal, simply provides the appellant with the opportunity to seek
    to amend his answer to properly plead his constitutional argument. His failure
    to do so in the first instance is what led to the motion to strike. The
    respondent should not bear the consequences of that failure.

[5]

The appeal of the merits was allowed only in part. We granted the
    appellant leave to amend the Amended Answer and Claim.

[6]

We make reference to paras. 13 and 14 of the merits decision:

The version of Mr. Hill's amended answer considered by the
    motion judge was poorly pleaded and lacking in detail. Neither Mr. Hill's
    pleading, nor the ramshackle way in which the constitutional claim was asserted
    and is being developed, does justice to the seriousness of the claim. The
    appellant provided this court with a draft "Amended Answer and Claim,"
    which would amend extensively the version considered by the motion judge.
    Nonetheless, as I will explain, it was premature to dispose of the
    constitutional claim at this early stage. It is difficult to evaluate Mr.
    Hill's claim under s. 35 of the
Constitution Act, 1982
at this early
    stage of the proceeding. It would be unwise to dismiss the claim summarily on
    such a scanty record.

In the end result, I would permit Mr. Hill to seek leave before
    another Superior Court judge to amend his answer to address the motion judge's
    criticisms of his pleading and the requirements of the jurisprudence. I would
    refuse to stay the interim support order and would permit Ms. Beaver to pursue
    any other remedy open to her short of a final order while the constitutional
    challenge is pending. This would properly balance the contending interests: Ms.
    Beaver's immediate interest in obtaining interim support for herself and B.,
    and Mr. Hill's interest in having the constitutional claim determined.

[7]

In addition, in the merits appeal we referred to the moving target that
    the appellant presented at para. 42:

The case has changed in two ways. First, as I have already
    observed, the thrust of Mr. Hill's argument to the motion judge was that the
    Superior Court had no jurisdiction over this family law dispute, based on s. 35
    of the
Constitution Act, 1982
. The Superior Court's undoubted
    jurisdiction is now conceded by Mr. Hill. Second, Mr. Hill insisted before the
    motion judge that he was asserting an essentially individual claim, although
    his pleading could arguably be characterized as a claim to
    "self-government". Mr. Hill's draft amended answer clarifies his
    claim somewhat.

[8]

As we see it, the appellant did not achieve his objective, which was to
    stay the family law claims while his constitutional claim proceeded. The
    appellant pursued an appeal on the motion judges findings of no justiciability
    and no standing in favour of an order by our court that would resolve those
    issues in his favour. However, the courts disposition leaves those issues for
    future determination.

[9]

On balance, we view the respondent as more successful than the appellant
    on the matters at issue in the appeal. While the constitutional question can
    proceed, the jurisdiction of the Superior Court of Justice was affirmed, a concession
    made by the appellant only at the hearing of the appeal. The respondent can
    continue with her family law claims. The appellant only escaped the abuse of
    process motion by paying up arrears of support before the appeal hearing.

[10]

In
    the merits decision, we noted that the appellant has taken a scorched earth
    approach to every step of this case but, as we noted, at para. 78: This case
    has developed into a procedural morass, to which both sides have contributed.
    We do not want to encourage this kind of conduct.

[11]

In
    the circumstances, we award costs to the respondent in the amount of $20,000,
    inclusive the costs of the stay motion heard by Roberts J.A., and of
    disbursements and HST.

P. Lauwers J.A.

K. van Rensburg J.A.

I.V.B. Nordheimer J.A.


