Court File and Parties

COURT FILE NO.: FS-21-26059 DATE: 20240227 ONTARIO SUPERIOR COURT OF JUSTICE SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Frano Sain, Applicant (Moving Party) AND: Sara Shahbazi, Respondent (Responding Party)

BEFORE: Kristjanson J.

COUNSEL: Ken Nathens, Denniel Duong, Counsel for the Applicant Enio Zeppieri, Counsel for the Respondent

HEARD: In writing

Endorsement

Kristjanson, J

[1] This is the costs decision on the motion argued September 12, 2023, and reported at Sain v. Shahbazi, 2023 ONSC 5187. The father seeks full indemnity costs of $21,319.45, including HST, primarily based on bad faith. The Applicant father was the successful party and is presumptively entitled to costs.

[2] The Respondent mother argues that no costs should be payable, or costs should be payable on a partial recovery basis only. I do not agree, and award the father full recovery costs based on bad faith.

Legal Framework

[3] Costs orders are in the discretion of the court pursuant to Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43. The Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 at para. 10 held that modern family cost rules are designed for the fundamental purposes of: (1) partially indemnifying successful litigants; (2) encouraging settlement, (3) discouraging and sanctioning inappropriate behaviour by litigants, and (4) ensuring, in accordance with Rule 2(2), that cases are dealt with justly. Reasonableness and proportionality are the touchstone considerations to be applied in fixing costs.

[4] A "fair and reasonable amount" is that amount which the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation: Lupien v. Carmichael, 2017 ONSC 2929, at para. 9. One measure of what is “fair and reasonable” to pay in costs may be arrived at by looking at what the unsuccessful party paid for their own legal fees: Mohr v. Sweeney, 2016 ONSC 3238. Since the mother did not attach her Bill of Costs, I cannot refer to the amount of legal fees the mother incurred in evaluating expectations of costs.

[5] Pursuant to Rule 24(8) of the Family Law Rules, if the court determines that a party has acted in bad faith, then costs shall be ordered on a full recovery basis, payable immediately.

[6] As Pazaratz, J. summarized in Jackson v Mayerle, 2016 ONSC 1556 at paras. 57-61:

[57] In S. (C.) v. S. (M.), supra, Perkins J. defined bad faith as follows [at para. 17]:

In order to come within the meaning of bad faith in subrule 24(8), behaviour 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. A misguided but genuine intent to achieve the ostensible goal of the activity, without proof of intent to inflict harm, to conceal relevant information or to deceive, saves the activity from being found to be in bad faith. The requisite intent to harm, conceal or deceive does not have to be the person's sole or primary intent, but rather only a significant part of the person's intent. At some point, a party could be found to be acting in bad faith when their litigation conduct has run the costs up so high that they must be taken to know their behaviour is causing the other party major financial harm without justification.

[58] Bad faith 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: Children's Aid Society of Peel Region v. F. (K.J.), 2009 ONCJ 252; Biddle v. Biddle; Leonardo v. Meloche; Hendry v. Martins, [2001] O.J. No. 1098, 2001 CarswellOnt 952 (S.C.J.).

[59] There is a difference between bad faith and unreasonable behaviour. The essence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose. It is done knowingly and intentionally. The court can determine that there shall be full indemnity for only the piece of the litigation where bad faith was demonstrated (Stewart v. McKeown, 2012 ONCJ 644; M. (F.D.) v. W. (K.O.), 2015 ONCJ 94).

[60] To establish bad faith, the court must find some element of malice or intent to harm (Harrison v. Harrison, 2015 ONSC 2002 (S.C.J.)).

[61] Bad faith can be established by the intentional failure to fulfill an agreement in order to achieve an ulterior motive, or an intentional breach of court order with a view to achieving another purpose: Piskor v. Piskor, supra; Erickson v. Erickson, [2000] O.J. No. 5789; Hunt v. Hunt, [2001] O.J. No. 5111.

[7] As Justice Pazaratz holds at para. 9 of Jackson v. Mayerle, even where the full recovery provisions of the Rules are triggered by a finding of bad faith, the quantification still requires an overall sense of reasonableness and fairness.

Application to the Facts

[8] In my endorsement I set out several instances of the mother’s attempts “to conceal information relevant to the issues or to deceive the other party or the court”, her “intentional duplicity, obstruction or obfuscation”, and her intentional failure to comply with the Separation Agreement in order to create a new status quo for schooling. I characterized many of the mother’s actions as self-help remedies.

[9] I found that the mother “impermissibly resorted to self-help when she unilaterally and covertly decided to enrol the children in the Christian School.” I found that the mother “failed to respect both the letter and spirit of the joint decision-making responsibility set out in the Separation Agreement.” I stated that I was “shocked” that in August she told the children they would move, and would go to a new school, given her legal obligations. I found that this would confuse the children and create a real risk of demonizing the father. These support a finding that the mother’s actions were taken in bad faith, and support a full recovery costs award.

[10] The father submits, and I agree, that the mother’s bad faith actions include:

(a) The mother did not bring a motion to compel payment of support, nor did she register the parties’ Separation Agreement with FRO for enforcement;

(b) Instead, the mother engaged in a discrete and covert course of action to implement what she was otherwise not permitted to do. First, on July 4, the mother sold Oaklands Park and purchased Smith Road, but did not tell the father until August 10;

(c) Then, in the face of the Separation Agreement which provides for shared decision-making responsibility for education, and without a court order, the mother unilaterally enrolled the children in Providence near her new home on August 1, but again did not tell the father until August 10;

(d) Neither issue was submitted to mediation, as contemplated in the parties’ Separation Agreement, though had the mother told the father of her plans promptly, this could have been an option;

(e) The mother misled the children and told them that they would be moving to Smith Road, and that they would be going to Providence, placing them squarely in the middle of the conflict; and

(f) Providence’s principal advised the father that the mother’s lawyer had advised him that she had full custody and decision-making rights for education. There was no evidence filed on the motion by the Principal to support the position that the Principal of Providence misunderstood his conversation with the mother’s counsel. The Principal’s email states that it was the telephone conversation with the respondent mother’s counsel which led to the children’s enrolment, since the mother had full decision-making responsibility for education. Even if it is assumed that the Principal misunderstood, it is clear that the Principal sought certainty as to decision-making responsibility, and it was the mother’s duty to fairly represent the Separation Agreement and the decision-making clause to the Principal. She failed to do so.

[11] The mother deliberately and covertly misled both the children and the Principal of Providence to force her desired outcome into existence. She concealed her actions from the father.

[12] The mother seeks to disallow the TBST fees. She argues that the applicant father could have scheduled the motion for any Tuesday or Thursday, and the TBST was thus a wasted attendance. This is incorrect. Unless a motion been case conferenced it cannot be brought. If urgent, it must either be approved as such by the Court or sent to TBST. The father was told of the move and change of school on August 10, shortly before his holiday with the children. On August 22, the applicant submitted the urgent motion materials to the court, together with the draft order.

[13] It was the court, by email dated August 23, that directed the matter to the TBST on September 5, 2023.

[14] The mother continues to argue that changing the children’s residence did not amount to relocation and that if the father had an issue with the additional drive time, he was free to accept the respondent’s mother’s offer, which would have made her solely responsible for transportation of the children. This misses the point. The court’s concern was that she could not change the school unilaterally, given the Separation Agreement. The Court held that it was in the best interests of the children to continue at the Catholic school. Once that was determined, it was not in the children’s best interests to travel to the mother’s new residence, given the distance from the Catholic school.

[15] The respondent mother act argues that she was acting in good faith by changing the children’s schools from a Catholic school to an evangelical Christian school, given the importance of religion to the each of the parties. She further submits that “at all times she acted in good faith, as an overly sensitive and caring mother to the children, who she has been the primary caregiver to since birth.” The mother, then, seems to take the position in the cost submissions that notwithstanding the Separation Agreement, her unilateral self-help actions were justified. She seems to believe that her actions were reasonable, even if contrary to the Separation Agreement, because she loves her children. The mother is justifying her covert self-help actions, even after receiving the endorsement.

[16] I find the mother’s actions to be taken in bad faith. She took deliberate steps to to conceal information relevant to the issues, to deceive the other party, to breach the Separation Agreement, and to set up a fait accompli (through her move) regarding the new school. The mother’s unrepentant positioning, even on the cost submissions, indicates why a full recovery costs order is required. A full recovery costs order underscores to the Respondent the Court’s condemnation of her self-help actions: see Corlett v. Corlett, 2021 ONSC 6406 at para. 21. A full recovery costs order is required to discourage and sanction the mother’s behaviour.

[17] The children have two parents. They both love their children. They both think they are acting in the best interests of the children. Self-help is never the answer where two parents are in conflict, and where a parent proposes to act contrary to an existing domestic contract or court order. The only possible answer is to come to court, or resort to the dispute resolution mechanism which applies.

[18] As the parent breaching the Separation Agreement by unilaterally (and covertly) changing schools where the parties shared educational decision-making, it was the mother’s responsibility to obtain a court order before doing so.

[19] An award of costs is subject to the factors listed in Rule 24(12) including the importance and complexity of the issues, the reasonableness of each party’s behaviour in the case, the lawyer’s rates, the time properly spent on the case, the expenses, and any other relevant matter. The mother has made no submissions with respect to these factors, except for arguing that the TBST costs should not be awarded.

[20] I find that the fees are reasonable, the hourly rates are reasonable, and the time was reasonable given that the urgency was created by the mother’s actions (and urgency always drives up court costs). I find the father’s Bill of Costs to be reasonable and proportional.

[21] Both parties made Offers to Settle. The father beat his Offer to Settle. As it was only made five days before the motion, it would have had a limited effect on costs.

[22] I award the father full recovery costs in the amount of $21,319.45, including HST, payable immediately.

“ Justice Kristjanson ”

Released: February 27, 2024