Court File and Parties

Court File No.: FC-19-18 Date: 2024/02/22 Superior Court of Justice - Ontario

Re: Sabrina Hughes, Applicant And: Genevieve Hughes, Respondent

Before: Somji J.

Counsel: Alison Campbell, for the Applicant Respondent, Self-Represented

Heard: In Writing

Costs Endorsement

Somji J

[1] The Applicant mother seeks full indemnity costs of $5,556.66 following her success on a summary judgment motion requesting the return of her children to her primary care on a final basis: Hughes v Hughes, 2024 ONSC 291. The Respondent grandmother did not file a response to the costs’ submission.

[2] The mother is presumptively entitled to costs as the successful party on the motion. Given entitlement is not disputed, the only issue to be decided is what is a fair and reasonable costs award.

[3] Entitlement 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.

[4] In 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) Family Law Rules (“FLR”), O. Reg. 114/99 as am, that cases are dealt with justly: Mattina at para 10.

[5] In determining quantum, judge are to consider: the conduct of the parties; the time spent by each party; written offers to settle, legal fees charged and counsels’ rates, expert and witness fees, disbursements and other expenses, and any other relevant matter: r. 24(12) FLR.

[6] Counsel for the mother seeks full indemnity costs on the grounds that the grandmother’s conduct constituted bad faith.

[7] The 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.

[8] If a party’s conduct amounts to bad faith, the court may order costs on a full recovery basis: r. 24(8). Bad faith, however, 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.

[9] In this case, the grandmother did not attend a settlement conference which could have facilitated a resolution of the matter. The mother was then compelled to file for summary judgment which the grandmother indicated she would not oppose. While I would agree that the grandmother’s failure to facilitate a resolution resulted in increasing the mother’s litigation costs and constitutes unreasonable conduct warranting an elevated costs award, I do not find the conduct reaches the high threshold of bad faith warranting full indemnity costs.

[10] Neither party made any offers to settle.

[11] The matter was not complex, but was of significant importance to the mother.

[12] I find the expenses claimed are reasonable and proportionate having regard for the time needed to schedule, prepare for, and attend the motion. The mother’s counsel is a 25 year call. While her regular rate is $375/hour, she charged $136.43 in keeping with the Legal Aid of Ontario tariff. Upon review of the Bill of Costs filed, I find the total hours spent is reasonable and commensurate with the work performed and the rates charged.

[13] The 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.

[14] Having considered that the mother was the successful party, the grandmother’s unreasonable conduct, complexity of the motion, the billings and rates, I find that an elevated costs award in the fixed amount of $4500 is fair and reasonable.

Order

[15] The Respondent grandmother will pay the Applicant mother costs in the fixed amount of $4500 forthwith.

Released: February 22, 2024 Somji J.