Kumar v. Nash, 2024 ONCJ 16

COURT FILE NO. D43948/23 DATE: January 12, 2024

ONTARIO COURT OF JUSTICE

B E T W E E N:

SURESH ZEN KUMAR ACTING IN PERSON APPLICANT

• and –

NICOLE SIMONE NASH RESPONDENT

COUNSEL: Janet Daby, for the Respondent

HEARD: In Chambers

JUSTICE S.B. SHERR

COSTS ENDORSEMENT

Introduction

1On December 1, 2023, the court heard parenting motions brought by both parties regarding their 2-year-old son (the child). The applicant (the father) had also sought a restraining order against the respondent’s (the mother’s) counsel and an order to remove that counsel from this case.

2The court delivered oral reasons the same day. It dismissed the father’s motion and granted the mother’s motion requesting that the father’s parenting time with the child be supervised at Access for Parents and Children in Ontario. It also granted communication and non-contact orders sought by the mother. The court found that the mother was the successful party and entitled to costs and gave her permission to make written costs submissions.

3Three days later, on December 4, 2023, the father brought a Form 14B motion asking the court to either set aside its December 1, 2023 order, or rehear his motion. He also asked for unsupervised parenting time. On December 13, 2023, the court dismissed this motion and endorsed that the mother was entitled to her costs and should include that claim in her costs submissions. The court endorsed that the father required leave of the court before he could bring another motion.

4The following day, on December 14, 2023, the father brought another Form 14B motion seeking leave to bring a motion for the same relief. That motion was dismissed on December 22, 2023. The court endorsed that the father’s conduct was bordering on an abuse of process and that he was wasting valuable court resources. The court ordered the father to pay costs to the mother of $565 for that motion. Restrictions were placed on what documents the father could file with the court prior to the next court date.

5The mother seeks her full recovery costs of $15,019 for the December 1, 2023 motions and the December 4, 2023 Form 14B motion brought by the father. She alleges bad faith by the father. She also seeks an order that the father not be permitted to file any documents until the costs are paid in full.

6The father asks that costs be fixed at $1,500, payable in instalments of $500 every two months. He opposes any order restricting him from filing court documents until his costs are paid in full.

Legal Considerations - General Principles

7The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 set out that modern costs rules are designed to foster four fundamental purposes:

a) to partially indemnify successful litigants; b) to encourage settlement; c) to discourage and sanction inappropriate behaviour by litigants and; d) to ensure that cases are dealt with justly under subrule 2 (2) of the Family Law Rules (all references to the rules in this decision are to the Family Law Rules).

8Costs can be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice. See: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, paragraph 25.

9Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.

10An award of costs is subject to the factors listed in subrule 24 (12), subrule 24 (4) pertaining to unreasonable conduct of a successful party, subrule 24 (8) pertaining to bad faith, subrule 18 (14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party. See: Berta v. Berta, 2015 ONCA 918, at paragraph 94.

Bad Faith

Legal Considerations

11The mother has alleged that the father acted in bad faith. She seeks her full recovery costs for the December 1, 2023 motions and for the December 4, 2023 Form 14B motion.

12Subrule 24 (8) of the rules states that 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.

13Subrule 24 (8) requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made. See: Cozzi v. Smith, 2015 ONSC 3626; Scipione v. Del Sordo, 2015 CarswellOnt 14971 (Ont. SCJ).

14There is a difference between bad faith and unreasonable behaviour. The essence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose. It is done knowingly and intentionally. See: S.(C.) v. S. (M.), 38 R.F.L. (6th) 315 (Ont. SCJ); Stewart v. McKeown, 2012 ONCJ 644.

15Bad faith is not synonymous with bad judgment or negligence; rather, it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. Bad faith involves intentional duplicity, obstruction or obfuscation. See: Scipione, supra.

16In Kenora-Rainy River Districts Child and Family Services v. P.N.R. & K.R., 2023 ONSC 7117, on an appeal, the court ordered the appellant parents to jointly and severally pay the full amount of costs sought by the Children’s Aid Society ($44,703). The court wrote the following at paragraphs 37 to 42 of its decision:

37The appellants repeatedly made allegations that Mr. Elliott made false statements to the court, implicitly accusing him of racism, unprofessional conduct, and colluding with the court. These are very serious allegations indeed because they had no basis in fact.

38Beyond that, there is no greater damage to a lawyer’s professional reputation than to accuse him or her, without proof, of unethical conduct. The courts have long recognized that a professional reputation is the work of a lifetime. It is the currency by which lawyers are known. To willfully attempt to destroy a lawyer’s reputation, without grounds, calls for elevated costs sanctions to show the court’s disapproval of such reprehensible conduct. For that reason, substantial indemnity costs are warranted here.

39In 1013952 Ont. Inc. et al v Sakinofsky et al, 2010 ONSC 411, substantial indemnity costs were ordered at para. 13, where I discussed the ramifications of maligning a lawyer’s reputation:

[S]currilous allegations against a lawyer affect far more than his ability to earn a living. Allegations of impropriety against one lawyer invariably reflect adversely on all lawyers. Such allegations lessen the dignity of the legal profession in the eyes of the public. By extension, the work of the court is also disrespected.

40The court took a similar view that a “robust response” was required in ordering elevated costs when counsel’s reputation was disparaged in a child welfare case, E.K.B. v. Jewish Family and Child Services, S.K.B. and R.G., 2020 ONSC 2924, at para. 14.

41Finally, the appellants alleged, without proof, that Justice Fregeau was not impartial and should recuse himself from hearing the appeal, even though no motion for recusal was brought. They also suggested to Society’s counsel that no judge who had previously been involved with the Society should hear the case, implying that the rest of the Superior Court bench was not impartial.

42This is perhaps one of the most egregious examples of bad faith because it calls the administration of justice into disrepute. In these circumstances, substantial indemnity costs are warranted to express the court’s disapproval of the appellants’ reprehensible conduct.

17Full recovery costs were ordered where a father maliciously alleged fraud and collusion against his own duty counsel and the mother’s counsel in Mohamed v. Mohamed, 2018 ONCJ 530.

18In E.K.B. v. Jewish Family and Child Services, S.K.B. and R.G., 2020 ONSC 2924 (EKB), on an appeal, the mother had alleged ineffective assistance of counsel at trial and raised serious allegations against the lawyer of impropriety, misconduct, deception, misrepresentation to a Court, concealment of evidence, and failing to prefer a client’s interests to the lawyer’s own. The court stated that a strong message must be sent against attacks on counsel which lack an evidentiary foundation. Justice Freya Kristjanson wrote at paragraph 12:

I am concerned with the effect that motions like this can have on lawyers for public bodies, legal aid staff lawyers and lawyers on legal aid certificates where a commitment to access to justice is necessary for the functioning of the court system. Allegations such as these may have a chilling effect on lawyers who seek to provide access to justice for the disadvantaged.

19A bad faith finding on some specific issue does not necessarily have a spill-over effect to other issues. See: Hunt v. Hunt [2001] O.J. No. 5111 (SCJ); Kardaras v. Kardaras, 2008 ONCJ 616. In R.A.K. v. M.Z., 2024 ONCJ 2, this court ordered the father to pay costs of $20,000 to the mother, who was the successful party at trial. However, the court found that the mother acted in bad faith by altering a text message she had presented at trial. It ordered her to pay the father costs of $5,000 immediately, arising from that act of bad faith.

Analysis

20The court finds that the father acted in bad faith regarding his motion seeking a restraining order against the mother’s counsel and an order removing her counsel from the record.

21The father made unwarranted allegations against the mother’s counsel. He alleged that she was fabricating evidence to the court and weaponizing the police against him to keep him away from his child.

22The court found in its oral decision that:

a) Of great concern, is the tone of the father’s motion material and communication with the mother’s counsel. They are escalated and sometimes, contradictory and irrational. b) The father’s sense of reality is that the mother’s counsel has a vendetta against him. He is reacting out of that distorted reality. c) Together with the relentless volume of his communications with her, some sent after midnight, they are indicative of someone with mental health or personality challenges. d) Frequent calls to the police, calling the Children’s Aid Society, trying to remove the mother’s counsel from the record, his threatening to lay charges against her, are all flashing red lights of a controlling and coercive person. e) The father appears to be out of control and the court is very concerned about the safety of the child in his care.

23The father doubled down on his attacks against the mother’s counsel in his subsequent Form 14B motions.

24Malicious attacks of this nature on justice participants without an evidentiary foundation cannot be condoned by the court. They undermine the integrity of and respect for the administration of justice. Serious costs consequences should follow when a litigant chooses this path.

25Practising family law is challenging work for lawyers. Counsel are expected to have thick skins. However, no lawyer should be subjected to the type of attacks the father has made against the mother’s counsel in this case. The father has crossed the line – by a wide margin. The court shares Justice Kristjanson’s concern, expressed in E.K.B., that allegations such as these may have a chilling effect on lawyers who seek to provide access to justice for vulnerable litigants.

26It is incumbent upon courts to protect counsel in these circumstances and subrule 24 (8) provides the court with a mechanism to do so.

27The court will restrict its finding of bad faith to the motion relief regarding the mother’s counsel and the court will order full recovery costs to the mother for this.

28Although the father exercised unreasonable conduct with respect to the balance of the December 1, 2023 motions and the December 4, 2023 Form 14B motion, the court finds that his conduct did not rise to the high threshold required to make a finding of bad faith.

29An award of full recovery costs does not necessarily mean that the mother will receive the full amount of costs claimed. The claim must still be reasonable and proportionate. It must also reflect, to some extent, the reasonable expectations of the paying party. See: Tintinalli v. Tutolo, 2022 ONSC 6276.

30The mother’s bill of costs was not broken down by issue. The father’s motion for the removal of the mother’s counsel and a restraining order against her was not difficult or complex. The court will fix the father’s full recovery costs arising from his bad faith at $3,000, inclusive of fees, disbursements and costs. It will be due and payable immediately.

Subrule 18 (14)

Legal Considerations

31Subrule 18 (14) sets out the consequences of a party’s failure to accept an offer to settle that is as good as or better than the trial result of the person making the offer. It reads as follows:

COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER

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 full recovery 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.

32The onus of proving that the offer is as or more favourable than the trial result is on the person making the offer. See: Neilipovitz v. Neilipovitz [2014] O.J. No. 3842 (SCJ).

33The court is not required to examine each term of the offer as compared to the terms of the order and weigh with microscopic precision the equivalence of the terms. What is required is a general assessment of the overall comparability of the offer as contrasted with the order. See: Wilson v Kovalev, 2016 ONSC 163.

34Close is not good enough to attract the costs consequences of 18 (14). The offer must be as good as or more favourable than the trial result. See: Gurley v. Gurley, 2013 ONCJ 482.

Analysis

35The mother made a severable offer to settle, dated November 28, 2023, to settle the motions that were heard on December 1, 2023. The father did not make an offer to settle.

36The mother’s offer to settle was as favourable or more favourable to the father than the motions result on all but one severable issue. The court did not order a mental health assessment of the father as requested by her.

37With respect to the motions heard on December 1, 2023, the costs consequences set out in subrule 18 (14) apply. The mother is entitled to her costs up until November 28, 2023 and her full recovery costs after that date. There is no basis to order otherwise.

Amount of Costs

Legal Considerations

38As with an order for full recovery costs arising from bad faith, an award of full recovery costs arising from the applicability of subrule 18 (14) does not necessarily mean that the mother will receive the full amount of costs claimed. The claim must still be reasonable and proportionate. It must also reflect, to some extent, the reasonable expectations of the father. See: Jackson v. Mayerle, 2016 ONSC 1556.

39Subrule 24 (12) reads as follows:

24 (12) In setting the amount of costs, the court shall consider,

a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues: b) each party’s behaviour, c) the time spent by each party, d) any written offers to settle including offers that do not meet the requirements of rule 18, e) any legal fees, including the number of lawyers and their rates, f) any expert witness fees, including the number of experts and their rates, g) any other expenses properly paid or payable; and h) any other relevant matter.

40The reasonableness of the parties’ positions, arguments and conduct are relevant to the issue of costs. An important function of costs is to uphold the integrity of our justice system. Costs are one way of ensuring the resources of the justice system are not unduly drained by clearly unreasonable claims and ill-advised litigation strategy. See: Weber v. Weber, 2020 ONSC 6855.

41Conduct which unduly complicates or unduly lengthens and increases the cost of a proceeding constitutes unreasonable conduct under subrule 24 (4). See: Goldstein v. Walsh, 2019 ONSC 3174 (SCJ); Hutchinson v. Peever, 2021 ONSC 4587 (SCJ); Jackson v. Mayerle, 2016 ONSC 1556 (SCJ).

42A high or full recovery costs award may be justified where a party persists in advancing unreasonable claims or arguments. See: Lawrence v. Lawrence, 2017 ONCJ 431; M.A.B. v. M.G.C., 2023 ONSC 3748.

43In considering the reasonableness of the parties’ conduct, the judge deciding costs should also address their mind to whether they have complied with court orders and the Rules during the proceeding. Rules 1(8)(a) and 1(8.1) provide that if a person fails to obey an order in a case or a related case or with the Rules, the court may deal with the failure by making an order for costs. See: M.A.B. v. M.G.C., supra.

44The court should also take into consideration the ability of a party to pay costs. See: MacDonald v. Magel, 67 O.R. (3d) 181 (Ont. C.A.). Difficult financial circumstances are a factor but not are always a reason to deprive a successful party of costs or to reduce the amount of costs. See: Beaulieu v. Diotte, 2020 ONSC 6787. Ability to pay will be less of a mitigating factor when the impecunious party has acted unreasonably, or where their claim was illogical or without merit. See: Gobin v. Gobin, 2009 ONCJ 278; D.D. and F.D. v. H.G., 2020 ONSC 1919.

45Litigants cannot “hide behind their impecuniosity” when making unfounded attacks on their lawyers. See: Mohamed, supra and E.K.B, supra. In I.O. v. I.G., 2024 ONCJ 3, this court wrote that this principle extends to unfounded attacks on counsel for other parties.

46In E.K.B. the court ordered costs of $25,000 against a litigant on social assistance for her unwarranted attacks on trial counsel.

47In determining the appropriate quantum, the court should consider the amount that the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation. See: Arthur v. Arthur, 2019 ONSC 938.

Analysis

48These motions were important to the parties. They were not complex. They were made more difficult due to the father taking unreasonable positions and his flurry of litigation.

49The mother acted reasonably.

50The father took unreasonable positions. He had just moved from supervised to unsupervised parenting time (on August 31, 2023, expanded slightly on November 9, 2023). He brought an unrealistic motion seeking to change the child’s primary residence and decision-making responsibility for the child. It had no chance of success. In its oral reasons on December 1, 2023, the court stated that the father’s motion was a gross overreaction to a missed visit, which was reasonably explained by the mother.

51The father then acted unreasonably bringing a Form 14B motion for a do-over.

52The father also acted unreasonably by bombarding the mother’s counsel with emails. In her Bill of Costs the mother indicates that she had to review over 200 emails from the father.

53The father has acknowledged his unreasonable behaviour in his costs submissions. He wrote:

a) That he has consulted counsel and intends to completely adjust his conduct. b) That he takes responsibility for needlessly tying up court resources. c) He will take the time between now and his next court appearance to engage in self-reflection. d) He will comply with all court orders.

54The father attributed his behaviour to being unrepresented, being unfamiliar with the family court process and his emotional attachment to the outcome of the proceeding.

55It remains to be seen if the father means what he wrote in his submissions and will change his conduct, or if the submissions are a product of advice from a sensible counsel assisting him.

56The court will give the father some benefit of the doubt and finds that he has partially mitigated his unreasonable behaviour with these submissions. The court has taken this into account in making this costs order.

57The mother’s counsel’s rates of $450 per hour are reasonable for a 1996 call to the bar.

58The father submits that since the mother is in receipt of legal aid costs should only be ordered at the legal aid rate. However, the case law is well settled that the receipt of legal aid is not a factor in determining costs. See: Ramcharitar v. Ramcharitar, 62 O.R. (3d) 107 (S.C.J.); Alvarez v. Smith, [2008] O.J. No. 941 (SCJ); Loncar v. Pendlebury, 2015 ONSC 4673; S.G. v. A.S., 2015 ONSC 1882; F.K.T. v. A.A.H., 2023 ONCJ 185.

59The court reviewed the mother’s bill of costs. The time claimed for the December 1, 2023 motions is somewhat high, although the court recognizes that the mother had to react quickly to the father’s motion and address his multiple allegations. She also had to deal with the father’s relentless correspondence. The time she claimed for the December 4, 2023 Form 14B motion was reasonable and proportionate.

60The father submitted that he has difficult financial circumstances. He said that he is an only child and cares for his elderly parents and his disabled uncle. He submitted that a high costs order will impair his ability to retain counsel on this case. The court took these considerations into account.

61The father earns approximately $69,000 annually. The court finds that he can afford to pay the costs that will be ordered if payments are ordered over a reasonable time frame. The father must pay the $3,000 costs arising from his bad faith immediately, as required by subrule 24 (8). The court will take his financial circumstances into account by deferring the start of his monthly payments for the balance of the costs order until April 1, 2024.

62The father should have expected, if he was unsuccessful, to pay the amount of costs that will be ordered.

63Taking into account all these considerations the court will order that the father pay costs to the mother as follows:

Costs arising out of bad faith: $3,000 Additional costs for the December 1, 2023 motions: $6,200 Additional costs for the December 4, 2023 Form 14B motion: $800 All costs are inclusive of fees, disbursements and HST

Total costs: $10,000

Restriction on Father's Participation

64The mother asks that the father not be permitted to file any documents until the costs are paid in full.

65The court is not prepared to make that order at this point. The father submitted to the court that he intends to comply with any costs order. The court, as part of its control over its own process, has already placed restrictions on the father’s ability to file documents prior to the trial management conference on February 23, 2024.

66If the father does not comply with this or any other court order, the mother may ask for leave to bring an enforcement motion pursuant to subrule 1 (8) of the Family Law Rules.

Conclusion

67A final costs order shall go as follows:

a) The father shall pay the mother her costs fixed at $10,000, inclusive of fees, disbursements and HST. b) The sum of $3,000, being the costs arising from the father’s bad faith, are due and payable immediately. c) The father may pay the balance of this costs order at the rate of $400 each month, starting on April 1, 2024. However, if he is more than 30 days late in making any costs or child support payment the entire amount of costs then owing, shall immediately become due and payable.