Court File and Parties

COURT FILE NO.: 1288/18 DATE: 2023-04-13 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sarah Esther Rolfe, Applicant AND: David Carl Boneo, Respondent

BEFORE: The Honourable Mr. Justice A. Pazaratz

COUNSEL: Sam Garcea, Counsel, for the Applicant Adenike Aderibigbe, Counsel, for the Respondent

HEARD: April 12, 2023

Endorsement

[1] If the other parent brought an unsuccessful ex parte motion trying to take your child away, should you be told what they tried to do? Especially if they lied to the judge?

[2] Fortunately, this is only a costs decision. After a very long day struggling with this emergency motion, the parties ultimately signed minutes of settlement – on all issues except costs.

[3] But the unique and troubling chronology on this file is relevant to the Rule 24 costs analysis, particularly on the fundamental issues of reasonableness and perhaps bad faith.

[4] A brief summary:

a. The unmarried parents had a child born prior to their separation. The child is now four years old.

b. On January 15, 2019 – when the child was about four months old - the parties consented to Justice Madsen granting a final order which included sole custody to the mother and liberal and generous access to the father.

c. The mother says the child has remained in her care since birth, with the father having frequent parenting time.

d. Both parties agree that on December 31, 2022 the mother delivered the child to the father for an overnight visit. For reasons which are disputed, the father refused to return the child – and refused to allow the mother any contact for what turned out to be about three and a half months.

e. On March 29, 2023 the mother served the father with a motion which included a request that the child be returned to her care immediately, with a police enforcement clause if the father failed to comply.

f. The mother served the father with an affidavit in support, setting out her narrative, and explaining that there was no basis for the father’s unilateral withholding of the child. He had vaguely alleged mental health and substance abuse issues on her part, which she denied completely.

g. On March 31, 2023 the mother’s materials were reviewed by Justice Walters in chambers, for a threshold determination as to whether the mother should be permitted to proceed with an emergency motion. Justice Walters endorsed that there was no basis for the matter proceeding on an ex parte basis. But the mother was granted authorization to proceed with an emergency motion, with the ultimate issue of “pre-Case Conference urgency” to be determined by the presiding judge.

h. The mother served the father with Justice Walters endorsement and a fresh notice of motion, together with a letter from Hamilton Children’s Aid Society (“CAS”) which indicated that they had closed their file and that the Society takes no position with respect to parenting-time or decision-making as between the parties.

i. The mother’s urgent motion was placed on my motions list for April 12, 2023. In preparation for the motion I reviewed the mother’s materials. I then searched the electronic court file to determine whether the father had filed any responding materials. I discovered that while the father had not filed any materials in response to the mother’s March 29, 2023 motion, the then self-represented father had previously brought his own ex parte motion which was heard – and dismissed – by Justice Lafrenière.

j. I reviewed the father’s Notice of Motion and Affidavit, both dated January 5, 2023, as well as Justice Lafrenière’s lengthy January 11, 2023 endorsement following a hearing of the father’s motion by Zoom. None of those documents had ever been served on the mother.

k. On the April 12, 2023 return date of the mother’s motion, the father attended with counsel who had served a reply affidavit on the mother’s counsel. The father sought permission to late-file his April 6, 2023 affidavit, for me to review.

l. At the outset I addressed the threshold issue of my discovery of the earlier ex parte motion brought by the father. Not unexpectedly, the mother, her lawyer, and the father’s lawyer were each taken by surprise. They indicated they were completely unaware of the earlier materials, or the fact that the father had previously made an unsuccessful attempt to obtain an ex parte order.

m. We traded documents. I sent them copies of the father’s January 2023 ex parte materials. The father’s lawyer sent me a copy of his April 6, 2023 affidavit, together with a second letter from Hamilton CAS which again confirmed that the Society is aware of the dispute between the parents, and it takes no position on this issues.

[5] Ultimately – after lengthy submissions in court, and lengthy negotiations in Zoom breakout rooms – the parents signed Minutes of Settlement which provide that the child is to be returned to the mother immediately; the child shall reside primarily with the mother; and the father shall have parenting time on the first three weekends of each month from Friday at 7 p.m. until Sunday at 6 p.m.

[6] Basically the terms of the January 15, 2019 order were reinstated, except the father’s time is now specified.

[7] But the result might have been different – and the litigation might have become much more protracted – had the mother and the court remained unaware of the existence and details of the father’s January 2023 ex parte motion.

[8] In comparing what the father said in his January 5, 2023 affidavit to what he said in his April 6, 2023 affidavit – and in considering the father’s misrepresentations to Justice Lafrenière – it quickly became evident that there were significant credibility issues in relation to the father.

[9] Justice Lafrenière’s January 11, 2023 endorsement included the following information:

a. At the virtual hearing, the father advised Justice Lafrenière that there were no existing orders dealing with parenting issues and there were no written agreements between the parties. This was an outright deception on a very important point. The mother actually had sole custody (as it was then referred to) pursuant to a final order the father had consented to four years earlier.

b. Justice Lafrenière found that the father had provided no evidence which would justify proceeding without notice to the mother. The father confirmed that he had an address for the mother and could have served her.

c. Justice Lafrenière found that based on the father’s materials there was no evidence of any urgency.

d. Justice Lafrenière advised the father she was not prepared to make the requested orders without notice to the mother. She offered the father an opportunity to speak to duty counsel and stood the matter down for that purpose. However the father then left the virtual waiting room. He returned briefly, and then left again without returning to address the court again.

e. After the father left, Justice Lafrenière checked the court file – noting that it had a 2018 file number – and discovered the existence of the January 15, 2019 final order.

f. At the end of her endorsement Justice Lafrenière dismissed the father’s ex parte motion “without prejudice to the father bringing a new motion on notice to the mother with better evidence of the urgent circumstances that he relies upon to seek immediate court intervention.”

[10] There were other problems and inconsistencies with the father’s evidence.

a. In his April 6, 2023 affidavit – drafted before anyone knew of his earlier motion – the father stated that since the final order was made in 2019 he has had the child in his care “50-80% of the time”. But on January 11, 2023 he told Justice Lafrenière the parties had “shared time on an equal basis”.

b. In his April 6, 2023 affidavit, the father stated that “The CAS has a file opened on the Applicant’s matter...”, with the all-too common inference that family court shouldn’t change anything while CAS is “investigating”. The father neglected to mention that as of April 5, 2023 Hamilton CAS had confirmed in writing that they had closed their file, and that they took no position on parenting-time or decision-making issues.

c. Related to this, in his January 2023 affidavit the father stated “Hamilton CAS has been involved but Applicant (sic) chooses not to answer phone or door when they try to contact the Applicant.” This allegation of a refusal to cooperate with CAS is inconsistent with the CAS letters dated April 5, 2023 (filed by the mother) and April 12, 2023 (filed by the father).

d. In his January 2023 affidavit the father alleged that the mother hadn’t had a stable residence since the child’s birth in September 2018. If the father truly had this concern, it is difficult to understand why he would have consented to an order granting her sole custody in January 2019 – and why he waited until December 31, 2022 to suddenly withhold the child based on vague and undated allegations.

[11] As stated, the good news is that after much intense discussion, the parties settled matters on a final basis at the end of a long motions day. After an unjustified disruption, the child is back where everyone agrees he should be.

[12] But there’s both irony and a cautionary tale here.

a. We often say that if a parent unilaterally changes the status quo based on alleged safety concerns, they must seek the court’s approval at the earliest opportunity. You can’t exercise self-help and then sit back, while a new status quo evolves in your favour. Skitch v. Hiscock, 2018 ONSC 5581; Ivory v. Ivory 2021 ONSC 5475.

b. So in one way, the father started out doing the right thing. Within days of exercising self-help, the father rushed to court seeking approval.

c. But he tried to proceed – to dramatically change a young child’s placement – without notice to the mother. Without affording the court the opportunity to hear both sides of the story. There was no justification for that.

d. He tried to obtain a parenting order based on mis-statements and one very big lie. There could be no justification for that.

e. And having failed in his attempt to deceive the court, the father then ignored Justice Lafrenière’s suggestion that he bring a fresh motion based on proper and served materials. Instead, the father elected to do nothing other than hang on to the child, and leave it for the mother to go through the challenging and time-consuming process of navigating the legal system to reinstate a parenting arrangement which had already been determined as being in the best interests of the child.

f. Many parents who impose unilateral changes to the status quo later explain that they were acting in the best interests of the child, and they didn’t realize they had an obligation to bring matters to the attention of the court. But this father can’t use that excuse. He obviously knew what he was supposed to do, because he brought his own urgent motion. But he quickly gave up on the court process, when it looked like a judge might want to hear both sides of the story.

[13] This case highlights the complex considerations when judges are presented with ex parte motions.

a. It’s not just a question of whether the court should grant an ex parte order. Rule 14(12) of the Family Law Rules sets out the criteria for such rarely justifiable orders. And Rules 14(14) and (15) ensure that the opposing party must be notified in a timely way, if an ex parte order is granted.

b. But the court should also ensure that whatever the outcome – and perhaps especially if the motion is dismissed – that the intended target of the ex parte motion is fully notified about what was requested; what was attempted; what materials were filed; and what the judge endorsed.

c. Ex parte motions are often precursors to complex and bitterly contested parenting motions, where judges desperately need every scrap of information available to try to understand what’s really going on.

d. The contents of ex parte affidavits – and indeed the mere fact that an ex parte motion was attempted – may be highly relevant in assessing credibility, motivation, reasonableness, consistency, and parental judgment.

e. Transparency requires that whenever a party interacts with a judge – even unsuccessfully – that information should be fully disclosed to all other parties. Judges should require it at the conclusion of every ex parte endorsement (subject to delayed notification if there are safety concerns which formed the basis of the ex parte request).

f. Otherwise, if parties are allowed to keep their unsuccessful ex parte motions secret from the opposing party, they may perceive there is little disincentive from making dubious requests.

g. We can’t have a system in which the upside of deception is that you might get what you want – and the only downside is that you might not get what you want, but nobody will know what you tried.

[14] In this case, the lack of discoverability of the father’s earlier motion was likely related to our increasing reliance on electronic filing. As the mother’s counsel noted, “in the old days” he would have reviewed the continuing record, which would have afforded a more reliable method of discovering earlier motions and endorsements.

[15] But however it happened, disclosure of the father’s earlier materials – a revelation even to his own lawyer – changed the dynamics completely. Inconsistencies and misrepresentations became immediately evident. And the court was in a much better position to make what would ordinarily be a very difficult determination, in a bitterly contested motion with untested materials.

[16] The mother’s lawyer seeks costs. Surprisingly, the request is for the very modest sum of $500.00. (Even more surprisingly, the request is opposed.)

[17] Costs rules are intended 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 pursuant subrule 2(2) of the Family Law Rules ("the Rules") Mattina v. Mattina 2018 ONCA 867; Serra v. Serra 2009 ONCA 395.

[18] Costs awards are discretionary. In exercising that discretion, the court should be mindful of two touchstone considerations: reasonableness and proportionality. Beaver v. Hill 2018 ONCA 840.

[19] Costs are an important tool to promote the efficient use of judicial resources and the orderly administration of justice. Access to the justice system by individuals must be balanced with the need to ensure that the resource is available for all those who need it. Costs can be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. British Columbia (Minister of Forests) v. Okanagan Indian Band 2003 SCC 71; Lewis v. Silva 2019 ONCJ 795; Lawrence v. Lawrence 2017 ONCJ 431; Peladeau v Charlebois 2020 ONSC 6596; Pugsley v. Adamantidou, 2021 ONCJ 590; N.P. v. D.H., 2023 ONCJ 2.

[20] Rules 18 and 24 of the Family Law Rules govern the determination of costs in family law proceedings. There were no offers, so Rule 18 does not apply.

[21] Consideration of success is the starting point. Rule 24(1) of the Family Law Rules creates a presumption of costs in favour of the successful party. Sims-Howarth v. Bilcliffe. The mother was entirely successful.

[22] Rule 24(4) of the Family Law Rules provides that in some circumstances a successful party can be deprived of their costs – or even ordered to pay costs -- if they have behaved unreasonably. Ajiboye v. Ajiboye 2019 ONCJ 894. However in this case there can be no suggestion that the mother acted unreasonably. In contrast, I find that the father acted unreasonably both in relation to the substantive issues (withholding the child) and also the procedural issues (seeking an ex parte order based on false information).

[23] Knowingly misleading the court to obtain an ex parte order constitutes bad faith pursuant to Rule 24(8) of the Family Law Rules. A finding of bad faith requires that costs be decided on a full recovery basis. Covens v. Ram 2021 ONSC 3211. This is a necessary and appropriate sanction, to discourage abuse of the court process.

[24] I am mindful that I am being asked to determine costs based on the mother’s successful April 2023 motion, and not the father’s unsuccessful January 2023 ex parte motion. The hearing of the mother’s motion became much more protracted as a result of the last-minute discovery of the father’s earlier motion. But – especially given the very nominal costs being sought – it is not necessary for me to determine whether a finding of bad faith needs to be made in this case.

[25] Rule 24(5) of the Family Law Rules provides criteria for determining the reasonableness of a party’s behaviour in a case. Of relevance here is Rule 24(5)(a) which requires that the court shall examine the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle.

[26] Unreasonable behavior “in relation to the issues” includes behavior that: (1) is disrespectful of other participants or the court; (2) unduly complicates the litigation, (3) increases the cost of litigation. Harper v Smith 2021 ONSC 3420.

[27] Conduct which unduly complicates or unduly lengthens and increases the cost of a proceeding constitutes unreasonable conduct under Rule 24(4) of the Family Law Rules. Goldstein v. Walsh 2019 ONSC 3174; Hutchinson v. Peever 2021 ONSC 4587; Jackson v. Mayerle 2016 ONSC 1556.

[28] The reasonableness of litigation conduct must be gauged over the totality of the proceeding. A court can order increased costs to express disapproval of unreasonable conduct. The amount may be higher where a party has had to incur unnecessary added expense as a result of the other party’s unreasonable conduct. John v. John, 2020 ONSC 6437; O’Brien v. Chuluunbaatar, 2019 ONCJ 882; Habibi v. Aarabi, 2022 ONSC 240.

[29] As must be evident, the court strongly disapproves of the father’s conduct herein, both substantively and procedurally.

[30] The rules in relation to costs are equally applicable in relation to parenting issues.

a. Unsuccessful parents cannot expect to be shielded from costs liability simply by claiming that they believed their proposal was in the best interests of the child. Almost all parents believe their proposal is in their child’s best interests. L.L.M. v. T.Z, 2022 ONSC 624.

b. There are strong arguments to suggest costs consequences should be more strictly enforced in parenting cases. It is in the best interests of children that their issues be resolved efficiently and amicably. Parents have an obligation to do everything possible to avoid the financial and emotional damage of protracted and needlessly destructive litigation.

[31] In wrongful removal cases courts must send a strong message to parents that resorting to self-help remedies and wrongfully removing children from their habitual residence is unacceptable and will not be condoned. Brown v. Pulley, 2015 ONCJ 238; Volgemut v. Decristoforo 2022 ONSC 2520.

[32] There is no presumption in the Rules that provides for a general approach of “close to full recovery” costs. Rules 18 and 24 of the Family Law Rules expressly contemplate full recovery in only two specific circumstances:

a. Matching/exceeding an offer to settle (Rule 18(14)).

b. Bad faith (Rule 24(8)). Beaver v. Hill.

[33] However in this case, given the magnitude of the mother’s success; the skill with which the mother’s materials were prepared; the obvious amount of time expended by the mother’s lawyer who is senior counsel; there is no possibility that a nominal request for $500.00 is anywhere near “full recovery.”

[34] I have considered ability to pay – everyone’s ability to pay, including the financial circumstances of the custodial mother, in circumstances where the father is about $8,000.00 in arrears on child support.

[35] I have also considered the importance of the issues. What could be more important than a custodial parent fighting for the return of a young child wrongfully withheld?

[36] In all the circumstances, the father shall pay to the mother costs fixed in the sum of $500.00 inclusive of HST and disbursements. Payable forthwith.

Pazaratz J Date: April 13, 2023