Court File and Parties
Court File No.: FC-15-1850-1 Date: 2024/02/22 Superior Court of Justice - Ontario
Re: Alexis Barrett, Applicant And: Hareesh David Watson, Respondent
Before: Somji J.
Counsel: Gonen Snir, for the Applicant Katrina Anders, for the Respondent
Heard: In Writing
Costs Endorsement
1The Respondent father seeks full indemnity costs in the amount of $5,313.60 following his success on a motion for the return of the parties’ child to Ottawa after the mother relocated the child to another city without his consent: Barrett v. Watson, 2023 ONSC 7046. The mother argues a costs award is not warranted, and if ordered, should be minimal.
2The issues to be decided are one, whether the father is entitled to costs, and two, if so, what quantum is fair and reasonable in the circumstances of this case?
Issue 1: Is the father entitled to costs?
3Entitlement and quantum of costs is in the discretion of the judge: Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43.
4Rule 24 sets out the legal framework for cost orders in family cases: Mattina v Mattina, 2018 ONCA 867 at para 9.
5The starting point is that the successful party is presumptively entitled to costs: r. 24(1) of the Family Law Rules, O. Reg. 114/99 as am (“FLR”). However, in assessing entitlement, judges must consider one, written offers to settle: rr. 18(14) and 24(12)(a)(iii); two, any unreasonable conduct of the successful party: r. 24(4); and three, if a party has acted in bad faith: r. 24(8).
6The father was the successful party on the motion and is presumptively entitled to costs. I find there was nothing in the father’s conduct that would disentitle him to a costs award.
Issue 2: What is the appropriate amount of costs that should be paid?
7In determining costs, the parties and court must consider that 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), that cases are dealt with justly: Mattina at para 10.
8The assessment of costs is a not a mechanical exercise and involves more than a review of the lawyer’s docket: Boucher v Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), at para 26.
9Rule 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.
10Proportionality and reasonableness are the “touchstone considerations” in fixing the amount of costs: Beaver v Hill, 2018 ONCA 840.
Conduct of the parties
11The court may issue an elevated costs award over and above partial indemnity where one party’s conduct has been unreasonable. Unreasonable conduct includes 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 v Abdullah, 2023 ONCJ 186, at para 61; Beaver v Hill (ONSC), at para 51.
12However, if a party’s conduct amounts to bad faith, the court may order costs on a full recovery basis as per r. 24(8) which reads as follows:
24.(8) BAD FAITH—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.
13There is a difference between bad faith and unreasonable behaviour. Bad faith is a high threshold. It 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 v Scipione, 2015 ONSC 5982, at para. 96.
14For the reasons set out in my motion decision, an argument could be made that the mother engaged in bad faith conduct. First, the mother knew the father had been requesting increased parenting time since 2019 and that he had brought a Motion to Change in this regard. While the litigation was initially delayed because of the pandemic, the mother was well aware from the father’s counsel’s correspondence in the spring and summer of 2023 that the father continued to seek equal parenting time with the child. More particularly, the mother knew as early as June 2023 that counsel was trying to schedule a settlement conference for August 2023.
15Second, the mother was aware that the father was attempting to resolve the parenting issues through mediation which would minimize litigation expenses for both parties, but cancelled the mediation scheduled for September 11, 2023.
16Third, the mother was aware that following her discussions with the father in the spring of 2023, the father was not supportive of her relocation outside Ottawa. Nonetheless, the mother filed an application in early June 2023 to obtain a court order permitting relocation without notice to the father or his counsel which the court subsequently required she serve on the father.
17Finally, the mother was aware that the 2017 Final Order governing parenting required the parties to provide each other written notice with specifications of the proposed date and address of relocation if they wished to relocate outside the National Capital Region. Notwithstanding this clause in the Final Order, the father’s lack of consent for relocation, the on-going litigation regarding the father’s request for shared parenting, and the father’s attempts to mediate the parenting issues, the mother unilaterally moved the child to Tillsonburg, Ontario, a distance of 540 kms, in August 2023, and furthermore, did not return the child to Ottawa to allow the father to see or exercise any parenting time with their child in the fall of 2023.
18On the other hand, and as also noted in my decision, the mother was struggling to support herself in the spring of 2023, had serious mental health challenges for which she sought professional help, and was self-represented at the time she filed the ex parte motion. On weighing all these factors and considerations, I am not prepared to find the mother’s conduct meets the threshold of bad faith conduct. However, I do find the mother’s conduct was unreasonable, if not egregious, and warrants an elevated costs award.
Offers to settle
19The mother sent an email by way of counsel suggesting the father should permit relocation and could have more parenting time during the school holidays which was refused. However, neither party made any formal Offer to Settle.
Work performed and rates
20I find that while the case was important to the parties, the matter was not complex.
21Counsel for the mother argues the father’s costs request is unreasonable because the billings exceed the work that was done on this motion. I disagree. The father’s counsel explained both in their costs submission and reply that while the Bill of Costs reflects $7,696.98 of work, they are only seeking full indemnity costs of $5,313.60 for legal fees incurred after the mother’s ex parte application for a relocation order on June 7, 2023.
22I find the expenses claimed are reasonable and proportionate having regard for the time needed to schedule, prepare for, and attend the motion. The father’s counsel is a 16-year call and charged $350/hour. Upon review of the Bill of Costs filed, I find the I find the total hours spent is reasonable and commensurate with the work performed and the rates charged.
Inability to pay
23Finally, I must consider the financial means of the parties, their ability to pay, and the effect of any costs ruling on the parties and children: 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 para. 45.
24The ability or inability to pay may affect the quantum of costs awarded and even time to pay, but it does not necessarily foreclose a costs award. Costs are not to be denied to the successful party where there is no evidence that the unsuccessful party is impecunious. : Levan v Levan at paras 36 to 39. In this case, the mother has not provided evidence that she is impecunious. Having said this, I have considered the mother has had to undergo costs of relocation and that she also supports a second child. While the mother has previously earned a good income, it may take her time to regain full time work in Ottawa. The father is agreeable to the mother having an extension of time to pay.
Conclusion
25The overall objective 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.
26Having considered that the father was the successful party, the mother’s conduct, complexity of the motion, the billings and rates, and the mother’s ability to pay, I find that an elevated costs award in the fixed amount of $4500 is fair and reasonable in this case.
27While the father is agreeable to a payment plan of $100/month over five years with post-judgment interest to provide the mother time to pay, I find that such a lengthy period with interest could be costly to the mother. Instead, I find that it is fair and reasonable that the mother pay the costs award in three instalments over the course of one year.
Order
28The mother will pay the father's costs in the fixed amount of $4500 within one year of this Order. The mother shall pay costs in the following instalments: $1500 by June 1, 2024; $1500 by October 1, 2024; and $1500 by February 20, 2025.
Somji J.
Date: February 22, 2024
