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by Daniel Gloade on October 28, 2013

In the case of Ayow v. James, 2013 ONCJ 563 the Honourable Justice Stanley Sherr extensively reviewed the law of costs.  The facts are interesting and relatively simple.

Originally the child was living with the Father and the Mother paid child support.  The child then lived with the Mother approximately 50% of the time.  The Father earned far more than the Mother.  The Mother brought a motion to change the original order to reflect this new reality.  Specifically, she wanted child support, both ongoing and arrears.

The Mother was unrepresented.  The Father had a lawyer.

Justice Sherr heard and decided upon the Motion to Change.  Ultimately the Mother received more child support than she requested but not as much child support arrears as she would have liked.

Justice Sherr wanted to hear the parties’ submissions on costs.  The Father argued that the results were mixed.  The Father further argued that the Mother should pay costs to him because he incurred more legal costs (he retained a lawyer) while she represented herself.

Justice Sherr held that the Father acted unreasonably to the extent of acting in bad faith, specifically he:

  • Failed to pay interim child support even though he was clearly obligated to do so,
  • Refused the Mother’s request that she cease paying child support to him,
  • Failed to obey a court order that he provides adequate financial disclosure and supporting documents,
  • Represented his income as $80 000.00 when, if one added the income from his corporations, his income was actually $180 000.00,
  • Tried to pressure the Mother to settle before trial and accept the $80 000.00.
  • He only provided the necessary documents the day before trial.

The Mother was granted costs for the motion to change to compensate her for the time working on the case when she could have been working at her business.  The Mother’s claim for costs was reduced, however, because her position that her income was $40 000.00 was unreasonable even though it was not done in bad faith.  She received $4 000.00 in total.  The court can and should penalize a party to makes unreasonable submissions even if that person had no intention of deceiving the court.  Carelessness amounts to wasting the court’s time and should be punished.

The Father’s claim for costs was without merit.  His unreasonable position forced the Mother to go to trial.  His claim for costs was dismissed.

Justice Sherr commented that the Mother was a very effective litigation for someone not legally trained.  The Father’s delaying tactics almost succeeded, however.  I suggest that the Mother would have been in a much less vulnerable position if she was represented by counsel. 

 It is true that many people cannot afford lawyers.  The Mother earned $50 000.00, however.  Although a strain, I believe that the Mother could have afforded one.  Given Justice Sherr’s obvious displeasure with the Father, I believe that a substantial amount of the Mother’s legal costs would have been paid by the Father.   I believe that this case shows that being represented by counsel can be a sound investment.

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