Court File and Parties

Court File No.: FC-22-337-1 Date: 2023/07/24 Superior Court of Justice - Ontario

Re: H.C., Applicant And: J.S., Respondent

Before: Somji J.

Counsel: Peter Hearty, for the Applicant Ralph Lee, for the Respondent

Heard: In Writing

Costs Endorsement

[1] The Applicant mother seeks full recovery costs in the amount of $7,417 (incl. of HST and disbursements), or in the alternative, substantial recovery costs in the amount of $5,934 following a motion to enforce both virtual and in-person parenting time in accordance with an existing Parenting Order: H.C. v. J.S., 2023 ONSC 2551.

[2] The Respondent father declined to file costs submissions.

[3] It is not disputed that the mother was the successful party on the motion, and therefore, is presumptively entitled to costs. The only issue to be decided is what amount would be fair and reasonable in this case.

[4] Entitlement to and quantum of costs are in the discretion of the judge: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131(1).

[5] Rule 24 of the Family Law Rules, O. Reg. 114/99 (“FLR”), sets out the legal framework for cost orders in family cases: Mattina v Mattina, 2018 ONCA 867, at para 9, leave to appeal refused, [2018] S.C.C.A. No. 392.

[6] Rule 24(12) requires a judge to consider the following in determining quantum: (a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues: i. each party’s behaviour, ii. the time spent by each party, iii. any written offers to settle, including offers that do not meet the requirements of r. 18, iv. any legal fees, including the number of lawyers and their rates, v. any expert witness fees, including the number of experts and their rates, vi. any other expenses properly paid or payable; and (b) any other relevant matter.

[7] Proportionality and reasonableness are the “touchstone considerations” in fixing the amount of costs: Beaver v Hill, 2018 ONCA 840, at para 12, leave to appeal refused, [2019] S.C.C.A. No. 82.

Conduct of the parties

[8] The mother argues that this is an exceptional case that warrants full recovery costs because the father acted in bad faith by failing to comply with court orders governing parenting to the detriment of the parties’ child.

[9] Rule 24(8) states that where 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.

[10] Unreasonable conduct is different from bad faith: Ali Hassan v Abdullah, 2023 ONCJ 186, at para 39. Various conduct might be considered unreasonable. It could include conduct that is: 1) disrespectful of other participants or the court; 2) unduly complicates the litigation; or 3) increases the costs of litigation: Harper v Smith, 2021 ONSC 3420, at para 3, citing Beaver v Hill, 2018 ONSC 3352 (“Beaver v Hill (ONSC)”), at para 51, rev’d on other grounds, 2018 ONCA 840. Poor litigation decisions and advancing unreasonable claims or filing meritless and incomplete pleadings may also justify an elevated costs award: Ali Hassan, at para 61; Beaver v Hill (ONSC), at para 51.

[11] The threshold for finding bad faith per r. 24(8) is high: Scalia v Scalia, 2015 ONCA 492, 126 O.R. (3d) 241, at para 69; Scipione v Scipione, 2015 ONSC 5982, 68 R.F.L. (7th) 66, at para 99. To prove bad faith, the impugned behavior must be shown to be carried out with “intent to inflict financial or emotional harm on the other party or other persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court”: S.(C.) v S.(M.) (2007), 38 R.F.L. (6th) 315, (Ont. S.C.), at para -17; Ali Hassan, at para 40.

[12] In this case, I find the father’s conduct constituted bad faith for the following reasons.

[13] First, as noted at paragraph 23 of my decision, the 2021 Parenting Order governing the parties could not be more explicit as to the date and time of the mother’s weekly virtual parenting time. The mother lives in Nova Scotia while the father and child live in Ontario. These virtual calls were critical for the mother to have any meaningful contact with the child. The father repeatedly failed to facilitate those calls requiring the mother to initiate litigation in July 2022. Moreover, even after the court became involved and the matter was adjourned to allow the father to file a late Answer, the father continued to obstruct the mother’s virtual parenting time requiring her to initiate an urgent motion in September 2022.

[14] Second, as noted at paragraph 14 of my decision, the father expressed displeasure at the mother’s attempts to communicate with the child and told her to take him to court. This behaviour demonstrates a willful disregard for court orders. It also demonstrates the father’s intention to emotionally and financially harm the mother who is of limited financial means by requiring her to resort to judicial proceedings for enforcement of a clear Parenting Order.

[15] Third, the father made bald assertions regarding the mother’s character and personal situation in his affidavit without any supporting evidence. I find these remarks were not written out of concern for ensuring the child’s best interests while in the mother’s care, but to cause harm and embarrassment to the mother.

[16] Finally, as noted at paragraph 34 of my decision, the father’s conduct in the legal proceedings showed a tendency to engage in continuous delays and contributed to the mother’s inability to obtain virtual and in-person access. Even after being granted an adjournment to file a late Answer, the father engaged in further delays by refusing to respond to counsel’s attempts to schedule the urgent motion.

[17] I find the father’s conduct resulted in unnecessary and protracted litigation that caused financial harm to the mother and obstructed the mother-child relationship. The father’s conduct constituted bad faith warranting full recovery costs pursuant to r. 24(8).

Offers to settle

[18] Rule 18(14) of the FLR states that a party who makes an offer to settle is entitled to costs to the date the offer was served and full recovery costs from that date if the offer was made at least one day before a motion date, the offer was not accepted, and the party who made the offer obtains an order that is as favorable as or more favorable than the offer. The burden of proving the order is as or more favorable than the offer to settle is on the party making the claim: FLR, r. 18(15).

[19] The father did not make any offers to settle. In contrast, the mother made two offers to settle. On December 16, 2022, the mother offered a reasonable resolution to the interim motion. The only difference between the outcome of the motion and the mother’s offer was that the mother offered two consecutive weeks of parenting time in July 2023 and two consecutive weeks of parenting time in August 2023 whereas I granted the mother three consecutive weeks of parenting time. The mother’s offer would have had the parties bear their own legal costs.

[20] On January 20, 2023, the mother made another offer to settle which would permit her two consecutive weeks of supervised parenting time in Nova Scotia with the child. The mother’s offer was more favourable than my order except that the mother offered to share the travel expenses equally whereas I ordered the mother to be responsible for travel costs. The mother’s offer was also more favourable in that each party was to bear their own legal costs whereas now the father will have to pay legal costs. The mother incurred nearly 70% of her total legal fees after the first offer was made.

Complexity of motion and reasonableness of fees

[21] The fees in this matter are reasonable. Resolution of the matter required three separate court appearances. At the determination of urgency heard by Justice MacEachern on October 7, 2022, Her Honour issued an endorsement reserving costs for the motion judge. Justice Shelston ordered the same for the urgent case conference held on December 16, 2022. Costs for both these proceedings will be included as part of this costs order.

[22] As per the bill of costs filed, the mother incurred legal fees of $840 for the procedural motion, $1,920 for the urgent case conference, and $3,720 for the motion, and $95 for disbursements for a total of $7417 inclusive of HST. Counsel charged an hourly rate of $300. Counsel’s bill of costs clearly details the amount of time spent: preparing court materials for each of the appearances; communicating with the client, opposing party, and potential witnesses; scheduling proceedings; attending for court appearances; and following up with court requests.

[23] Furthermore, the issues to be decided on this motion were important as they related to the enforcement of an existing Parenting Order that was essential to maintaining the mother’s relationship with her child who was out of province. While the legal issues were not necessarily complex, counsel had to spend considerable time reviewing and analyzing voluminous call logs and electronic messages to determine the most relevant documents for submission to the court. Legal fees were also incurred in an effort to seek a resolution without the need to waste scarce court time. In total, counsel spent approximately 23 hours on all the legal proceedings. I find the fees charged are commensurate with counsel’s 20 years of experience and the work performed.

Ability to pay

[24] The financial means of the parties, their ability to pay, and the effect of any costs ruling on the parties and their children are relevant consideration in awarding costs: Fyfe v Jouppien, 2012 ONSC 97, 10 R.F.L. (7th) 371, at para 11; M.(A.C.) v M (D.) (2003), 67 O.R. (3d) 181 (C.A.), at paras 43-45. However, the court must also keep in mind the financial circumstances in each parent’s household including the impact of unrecovered legal fees on the other parent’s ability to similarly provide for the children: Beckett v Beckett, 2010 ONSC 2706, at paras 38-39.

[25] The mother is of limited means and relies in part on the maternal grandmother for financial assistance.

[26] The father did not file costs submissions indicating he is unable to pay. However, I have considered that during the motion, the father indicated he was of limited means and therefore unwilling to share in travel costs for the mother’s parenting time. Having said this, “parties cannot expect to be immune from an order of costs based on their limited financial resources”: Ali Hassan, at para 60; Mark v Bhangari, 2010 ONSC 4638, at para 10. As stated by Mesbur J. in Amaral v Canadian Musical Reproduction Rights Agency Limited, at para. 6, aff’d 2009 ONCA 399, 249 OAC 87: “Not only do plaintiffs have a choice as to whether to start litigation, they also have choices as to when to begin it, how to conduct it and whether to settle it. All of these factors bear on the issue of costs.” Those comments apply equally to defendants in family law cases.

[27] The court can order full recovery under r. 24(8), based on a finding of bad faith, even if the father is of limited financial means. In Kisten v Kosewski, 2020 ONSC 3380, Bale J. awarded full recovery of costs against the mother who was found to have acted in bad faith despite her submission that she was of limited financial means. The court made a finding of bad faith where the applicant failed to remove a Certificate of Pending Litigation despite having two months to do so; breached a court-ordered term for more than one month; deliberately misled the father, his counsel, and a real estate lawyer; and deliberately attempted to force a delay of the closing date of the sale of a property: at paras 62 to 67. The court found that this behaviour was deceptive and was intended to cause harm to the father. Bale J. gave the mother’s submission that she is of limited financial means little weight and ordered full recovery costs for the urgent motion upon consideration of the mother’s bad faith conduct: at paras 72 and 74(b).

[28] In contrast, the court declined to order full recovery of costs in Saliba v Saliba, 2011 ONCJ 737, because of the respondent’s limited financial means despite his “completely unreasonable behaviour” at trial. The respondent sometimes absented himself from court proceedings and failed to attend the trial management conference. The respondent raised the issue of paternity late in the proceedings and, despite a ruling against his application, he raised the issue at trial. The respondent failed to pay an earlier costs order and he continued to trial despite his and the applicant’s limited financial means. The court called this behaviour “completely unreasonable considering the circumstances of the applicant and the children” and commented that “[i]t is hard to imagine a parent who has behaved so badly toward his or her family.” The court granted limited recovery in the amount of $4,000 rather than full recovery of $10,687.50 sought by the applicant due to the respondent’s financial circumstances including his child support obligations and repayment of arrears as well as an outstanding costs order: Saliba at paras 21 to 24. I note, however, that in Saliba, the court did not make a finding of bad faith.

[29] As stated in Mattina, at para 10, modern costs rules are designed to foster four fundamental purposes: 1) to partially indemnify successful litigants; 2) to encourage settlement; 3) to discourage and sanction inappropriate behaviour by litigants; and 4) to ensure, as per r. 2(2) of the FLR, that cases are dealt with justly. Here, I find the father acted in bad faith and made several choices and decisions that contributed to delays and exacerbated litigation costs warranting full recovery. I find that to allow the father to conduct litigation in bad faith and without fear of reprisal of the cost consequences would undermine the principle and purpose of modern costs rules. On the other hand, given he is of limited means, supports two children, and is not receiving child support because of the mother’s own limited means, I find that full recovery of $7,417 would not be appropriate in this case.

Conclusion

[30] The overall objective of awarding costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant: Boucher v Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), at para 26.

[31] Having considered that the mother is the successful party, the father’s bad faith conduct, the complexity of the motion, the mother’s offer to settle, the reasonableness of the costs request, and the father’s ability to pay, I find that a costs award in the fixed amount of $6,500 is fair and reasonable in this case.

Order

[32] The father will pay costs in the fixed amount of $6,500 in 30 days.

Somji J. Date: July 24, 2023