Court File and Parties
Court File No.: 14/09 Released: 20090519
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Re: Douglas Gerard Appeldoorn, Applicant (Moving Party) - and - Katherine Anne Mills, Respondent (Responding Party)
Before: Swinton J.
Counsel: Paul S. Pellman, for the Applicant (Moving Party) Alex Finlayson and Nicole Tellier, for the Respondent (Responding Party)
Heard at Toronto: May 14, 2009
Endorsement
Introduction
1The applicant has brought a motion for leave to appeal the costs order of Backhouse J. dated August 25, 2008, in which she ordered that he pay costs of $45,000.00 to the respondent.
Extension of Time
2The applicant seeks leave to extend the time for bringing this motion, which he brought on September 30, 2008. As the order was interlocutory, he should have brought the motion within seven days of receiving the decision, which was mailed to him by the court. He states that he received it September 10, 2008.
3The motions judge had marked the order final, which would have given 30 days to appeal. While the respondent submits that the applicant did not have an intention to appeal until she commenced a fraudulent conveyance action, I am satisfied that leave should be granted to bring this motion. The delay is explained, and there is no prejudice to the respondent.
Test for Leave to Appeal
4The case law is clear that leave to appeal an order of costs is given sparingly. There must be “strong grounds” to believe that the judge erred in exercising his or her discretion (Brad-Jay Investments Ltd. v. Szijjarto (2006), 218 O.A.C. 315 (C.A.) at para. 21). The appeal must also raise issues of general importance, beyond the interests of the immediate parties.
5In applying that test, the court should keep in mind that an appellate court will not interfere with an award of costs unless it is based on an error in principle or is plainly wrong (Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303 at para. 27).
Analysis
6The motions judge applied rule 24 of the Family Law Rules, which deals with the award of costs. Rule 24(1) provides that there is a presumption that a successful party is entitled to costs of a motion, enforcement, case or appeal. Rule 24(4) provides that a successful party who has behaved unreasonably may be denied costs or ordered to pay costs to the unsuccessful party. In deciding the reasonableness of a party’s behaviour, the court is to examine the party’s behaviour in relation to the issues from the time they arose (rule 24(5)(a)).
7Rule 24(8) provides that if a party has acted in bad faith, the court shall decide costs on a full recovery basis. Finally, rule 28(11) sets out the factors to be considered in setting out the amount of costs, including the importance, complexity or difficulty of the issues and the reasonableness or unreasonableness of each party’s behaviour in the case.
8On the basis of written submissions, the motions judge determined that her costs award would cover motions on February 26, 2008; May 13, 2008; May 20, 2008: and June 13, 2008. She noted that the respondent was the successful party, and that the case was complex and difficult factually and legally.
9She went on to find that the father acted in bad faith, based on a number of considerations: the father’s unilateral acts to change the parenting schedule in December 2007; his claim for interim sole custody for both children, while having K live with the respondent, which was described as “nonsensical” and motivated by a desire to control K’s treatment; his efforts to control the respondent’s access to E, which was “unsupportable and contrary to the children’s best interests”; his malicious and unfounded allegations against the respondent; and his unfounded complaints about K’s therapist. The motions judge concluded that the conduct “goes well beyond merely bad judgment”. She found that he had acted in bad faith, and, therefore, costs should be on a full indemnity basis.
10She also found that the respondent’s behaviour was reasonable and the applicant’s was not. She did not find it appropriate to take into account the applicant’s ability to pay. Having considered the costs sought, she made a reduction and ordered the amount she believed was reasonable and in keeping with the circumstances.
11The respondent’s written costs submissions did not request a finding of bad faith, but instead sought costs on a full recovery basis because of the unreasonable behaviour of the applicant.
12The leading case on costs under rule 24 of the Family Law Rules is Biant v. Sagoo, 2001 CarswellOnt 3315 (S.C.J.). At para. 20, Perkins J. stated,
I agree with Aston J. in Sims-Howarth v. Bilcliffe, [2000] O.J. No. 330 (Ont. S.C.J.), citing Mallory v. Mallory (1998), 35 R.F.L. (4th) 222 (Ont. Gen. Div.), that the preferable approach in family law cases is to have costs recovery generally approach full recovery, so long as the successful party has behaved reasonably and the costs claimed are proportional to the issues and the result. There remains, I believe, a discretion under r. 24(1) to award the amount of costs that appears just in all the circumstances, while giving effect to the rules’ pre-eminent presumption, and subject always to the rules that require full recovery or that require or suggest a reduction or an apportionment.
Applicant's Submissions
13The applicant submits that the motions judge erred in finding bad faith and in awarding costs of such magnitude for what he says was a two hour motion.
14In fact, as the motions judge indicated, the motion determined on June 13, 2008 was the culmination of a series of appearances and motions begun in February, 2008, starting with the applicant’s motion to vary the custody and access arrangements. The motions judge was seized of these matters and was, therefore, very familiar with the activity on the file and the conduct of the parties. While there were matters determined by consent in March and June, she was in the best position to determine whether costs should be awarded against the applicant for the entire proceeding, given his behaviour. At the beginning of her reasons, she made it clear that she was awarding costs for four motions.
15The applicant states that he seeks leave to appeal the finding of bad faith and the costs award. There is no appeal from a judge’s findings of fact (Reisman v. Reisman, [2008] O.J. No. 1843 (Div. Ct.) at para. 2).
16The applicant submits that the motions judge’s reasons are inadequate to support her finding of bad faith. In my view, she set out clearly and in some detail her reasons for making that finding. Her reasons are sufficient. Those reasons also show why she found the applicant’s conduct to be unreasonable.
17I have some concern about the motions judge’s finding of bad faith, made in the absence of a request from the respondent that she make such a finding. However, it is clear that the conduct which she characterized as in bad faith was also unreasonable. The respondent had submitted that full recovery was warranted because of the applicant’s unreasonable behaviour.
18I have no reason to doubt the correctness of the costs award. Given the findings of fact made by the motions judge, the conduct of the applicant was highly unreasonable and put the respondent to significant costs. It was within the motions judge’s discretion, given the rules and the principles in Biant, supra to determine that costs should be on a full recovery basis. Moreover, she properly considered the reasonableness of the amount sought and determined that the applicant’s ability to pay should not be taken in account, given the respondent’s circumstances.
19The applicant suggests that if leave were granted, he would bring a motion for fresh evidence that would affect the outcome of the appeal. In my view, the proposed evidence is unlikely to be accepted and, in any event, would not change the outcome.
20Finally, this case does not raise issues of general importance that require determination by an appellate court. The decision of the motions judge turns very much on the facts of the case before her.
Disposition and Costs
21Therefore, the motion for leave to appeal is dismissed. The respondent sought costs of the motion of $13,000.00. While the review of the file in this matter would require significant time, in my view, the materials filed were more than necessary in a leave motion. In my view, a reasonable amount for fees for this motion is $6,000.00. Therefore, I order the applicant to pay costs to the respondent of $6,000.00 plus GST plus disbursements of $183.75 within 30 days of the release of this decision.
Swinton J.
Released: May , 2009