Court File and Parties

Ontario Court of Justice

Date: March 2, 2017

Court File No.: Halton 349/16

Between:

Darlene McAlpine Applicant

— And —

Tim Schaefer Respondent

Before: Justice Victoria Starr

Heard on: January 10, 2017

Reasons for Costs Judgment released on: March 2, 2017

Counsel:

• Susan Berry, counsel for the applicant
• Jeffrey Hart, counsel for the respondent

Decision

VICTORIA STARR J.:

Background

[1] The parties have one child, now 12-year-old, Dylan Thomas Timothy Schaefer, born February 18, 2005. By way of notice of motion dated August 16, 2016, the mother moved for an order that Dylan be returned to her care immediately and that the police, if necessary, be required to assist in securing his return. Her motion was brought prior to a case conference on the basis that it was urgent. In her notice of motion the mother asked for the various forms of leave required in order for her motion to be heard. She claimed that the father, with whom Dylan was with at the time for summer vacation, told her that Dylan would not be coming home to her as he would now be residing with the father in Mississauga. She claimed that he told her that she would likely never see Dylan again and that this was payback for the 10 years he claimed she had kept Dylan away from his father. She was concerned for Dylan because of the father's manipulation of Dylan in an effort to alienate him from her, and, she believed that the father suffers from serious mental health issues.

[2] By way of notice of motion dated August 25, 2016, the father moved for orders mirroring those that the mother sought, but in his favour. He also sought custody and primary residence and an access order to govern the mother's contact with the child. In his 21 page single-spaced affidavit he denied having mental health issues. He also alleged that the mother was actually the one working to alienate the child from him. He also claimed that the mother knew from the many discussions that she had had with Dylan and the father that Dylan would be moving in with his father in Mississauga at the end of the summer. He recited a long, long list of vitriolic accusations of misconduct on the mother's part. He alleged that the mother posed a risk to the child because she was neglecting his needs. He claimed the child's health had declined and would be put in further jeopardy if the child remained with the mother.

[3] The mother's motion first came before the court on August 18, 2016. Justice D. Harris found that the mother's motion was urgent and granted leave for it to be heard prior to a case conference. He adjourned it to August 25, 2016, and gave the father leave to file an affidavit and to bring a cross-motion, if desired, on short notice to the mother. He also ordered that "in the meantime, in order to restore and maintain what has been the status quo" the child reside with the mother primarily, with access by the father, and that the police assist in enforcing the order. Costs of that attendance were reserved.

[4] On August 25, 2016, I heard both motions. I ordered, among other things, that the mother have sole custody. I ordered that she be the one in charge of medical and health issues and that she consult with the father. I ordered that she may make major decisions about Dylan after consulting with any professional service providers involved in Dylan's care. I ordered that the mother inform the father before making any major decisions and that she consult with him. I also directed that the child have no access with the father until October 4, 2016, and thereafter, in accordance with the schedule I set. I also ordered that Dylan's school not be changed, and specified the father's right of access to information.

[5] The court heard submission with respect to costs on January 10, 2017 and held its decision in reserve. The court's decision and reasons with respect to costs of the two motions is set out below.

[6] A continuing case conference was also held on January 10, 2017.

Case Conference

[7] The case conference proceeded and there were extensive discussions regarding the issue of the father's access. The matter was held down so that the parties could continue discussing the issues. The parties filed temporary minutes that reflect agreed upon changes to the current court ordered access. We will review the terms of access again on the next occasion with a view to expanding access if progress continues.

Decision Regarding Costs

Introduction

[8] The mother seeks costs of the motion fixed in the amount of $8,137.68. The mother's position is that she is entitled to an award of costs that approximates full recovery on the basis that she was successful in securing all of the relief she sought, acted reasonably, and, because the motion was necessitated by the father's unreasonable behaviour.

[9] The father's position is that the mother should be deprived recovery of any of her costs and that, he rather than she, should be awarded such costs. His bill of costs reflects actual costs of $22,525.99. His position is that he is entitled to costs because the mother acted in bad faith and unreasonably.

What is not in Issue

[10] It is conceded by the father that the mother was the successful party on her motions and that as such, she is presumptively entitled to costs. The father was not successful at all on his motion. He bears the onus of rebutting the presumption.

[11] The mother submitted a detailed bill of costs which substantiates the amount claimed and includes both fees and disbursements. It is inclusive of HST. No submissions or challenge was raised by counsel for the father in relation to the mother's bill of costs. I conclude from the lack of submissions and challenge, that the hourly rates, time spent, disbursements, and HST charged are reasonable and proportionate to the importance and complexities of the issues on the motion.

[12] During his submissions, counsel for the father admitted that the father, who was not represented by counsel at the time when the motions were heard, incurred no legal fees in relation to the motion up to and including the conclusion of the hearing. The costs claimed by the father thus, all relate to work done by his current lawyer and disbursements incurred, after the motions were heard and decided. From my review of the bill of costs, only some of the fees and disbursements claimed could possibly relate to the issue of costs. If they all do, then the time spent is excessive and not proportionate to the issue of costs.

The Issues

[13] The issues that this court has to decide are:

(a) Whether the mother should be deprived of all or part of her costs?

(b) The amount of costs to be awarded, and to whom.

[14] This court's decision turns on whether the mother acted in bad faith and/or unreasonably.

The Law and Governing Principles

[15] Rules 18 and 24 of the Family Law Rules, O. Reg. 114/99, governs the determination of costs in family law proceedings. Rule 18 does not apply in this case. The sections of rule 24 that do, are as follows:

24.(1) there is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.

24.(4) Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party's own costs or ordered to pay all or part of the unsuccessful party's costs.

24.(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

(a) the party's behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

(b) the reasonableness of any offer the party made; and

(c) any offer the party withdrew or failed to accept.

24.(8) 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.

24.(10) Promptly after each step in the case, the judge or other person who dealt with that step shall decide in a summary manner who, if anyone, is entitled to costs, and set the amount of costs.

[16] Rule 24(11) provides a further list of factors that a court must consider when setting the amount of costs:

(a) the importance, complexity or difficulty of the issues;

(b) the reasonableness or unreasonableness of each party's behaviour in the case;

(c) the lawyer's rates;

(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;

(e) expenses properly paid or payable; and

(f) any other relevant matter.

[17] In Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, [2009] O.J. No. 1905, 2009 CarswellOnt 2475 (Ont. C.A.), at paragraph 8, the Ontario Court of Appeal confirmed that costs rules are designed to foster three important principles:

(1) to partially indemnify successful litigants for the cost of litigation;

(2) to encourage settlement; and

(3) to discourage and sanction inappropriate behaviour by litigants.

[18] In S. (C.) v. S. (M.), 38 R.F.L. (6th) 315 (Ont. S.C.J.) Justice Craig Perkins, discusses the considerations relevant to a finding that a party has acted in bad faith. At paragraph 16, 17 and 18, of that decision he states:

16 The mother in her costs submissions claimed 14 separate heads of "bad faith" on the part of the father in this case. "Bad faith" has been explained as "not simply bad judgment or negligence but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity ... it contemplates a state of mind affirmatively operating with furtive design or ill will." See Biddle v. Biddle, [2005] W.D.F.L. 2089, [2005] O.J. No. 1056, 2005 CarswellOnt 1053 (Ont. Fam. Ct.), at para. [14]. The definition of "bad faith" in The Concise Oxford Dictionary of Current English (5th ed., 1964, ed. by H.W. Fowler and F.G. Fowler) is simply "intent to deceive". The essence of bad faith is the representation that one's actions are directed toward a particular goal while one's secret, actual goal is something else, something that is harmful to other persons affected or at least something they would not willingly have supported or tolerated if they had known. However, not all bad faith involves an intent to deceive. It is rare, but not unknown in family law cases, for bad faith to be overt — an action carried out with an intent to inflict harm on another party or a person affected by the case without an attempt to conceal the intent.

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.

18 In construing subrule 24(8), I think there is an implication from the context of the provision that the bad faith must relate to the issues at stake in the case or to the conduct of the case — not behaviour outside the issues in the case or in a separate (even if related) case — in order to justify a costs penalty in the case.

[19] At paragraph 21 of that same decision, Justice Perkins states:

21 There are, however, some aspects of the father's behaviour in this case, as found in my reasons of 27 February 2007, that do fall within "bad faith" as intended by the rule. He deliberately did not obey court orders in the case, including orders to which he consented. He made complaints against lawyers and other professionals, when he was unhappy with the way they performed their duties, not merely to report what he believed to be negligence or misconduct, but also as his form of punishment and vengeance. Most significantly, though, the father waged a campaign against the mother, both through and with the children, to alienate the children from her, a form of emotional harm to the children and to her, and to cause her emotional distress. This was done in the guise of forging closer ties with the children. It is true that the mother was not blameless in dealing with the children but, as between the two parents, I found his motives were to cause harm to the existing bond between the children and the mother, whereas the mother was trying to hang on to her relationship with her children rather than to harm the father's relationship with them.

[20] I have adopted and followed Justice Perkin's reasoning.

Analysis

Cases Relied on by the Father

[21] The father relied on a number of other cases in support of the proposition that the mother has acted in bad faith and unreasonably and thus, ought to be deprived of her costs and ordered to pay costs to the father. The first of these is the decision in Paranavitana v. Nansyakkera, 2016 ONSC 2257. This case is distinguishable from the case at bar. In that case the court was called upon to decide costs after the trial had concluded; after the evidence has been tested and after it has made its finding of fact. As a result, the court found itself in a position to also find that the mother had acted deceptively. Earlier in the case the court felt the need to sanction the mother's conduct. It did so through its costs decision. The court confirms that it may, in some case, be appropriate for the trial judge to adjust a later award of costs, after hearing all of the evidence at trial, because it is then that the court will know what transgressions occurred and who committed them. As the court points out in paragraph 47 of that decision:

47 I decided that I would address this misconduct when making my decision about costs. Even though this unreasonable conduct was not during the time for which costs are now being claimed, it is a factor properly considered in fixing the appropriate amount of costs for the trial. It may be only after hearing all the evidence at trial that a court will know that a party has misrepresented the facts in his or her earlier material. If such a transgression is discovered, it is appropriate to impose a significant cost sanction on that party.

[22] The costs sought in the case at bar relate to two urgent motions brought at the start of case. Interim, or temporary orders, are by their nature imperfect solutions to often complex problems. They are based on limited evidence, typically in affidavit form. They are meant to provide "a reasonably acceptable solution to a difficult problem until trial": see Chaitas v. Christopoulos, [2004] O.J. No. 907 (S.C.J.). The court's primary role is not to decide the main issues or to make findings of material fact. Its role is to review the evidence with a view to determining whether there is any compelling evidence to justify changing the status quo, and if not, to restore it until trial.

[23] In the case at bar I reviewed the evidence before me, and found no compelling reasons to change the status quo with respect to the child's primary residence. I did, however, agree with the mother that there were compelling reasons to take immediate steps to protect the child from the father, until the evidence could be properly tested, such as at trial. The court made no findings of material fact. Whether any of the father's allegations (or the mother's for that matter) are true remains to be seen. That is the function of the trial judge. It is he or she who will decide if there is merit to what each argues.

[24] The second case the father's counsel relied on was Rosen v. Rosen, 2005 CarswellOnt 68. In this case Wildman J. deals with costs in the context of a motion that was brought on an urgent basis. In the result Wildman J was not satisfied that this was a case in which a motion was urgently required before a case conference. This, coupled with the fact that the father had also filed objectionable material, led the court to award the mother costs. In the case at bar, Justice Harris was clearly satisfied that this was a case where an urgent motion was required prior to a case conference. He said so in his endorsement. Further, if anyone's materials were objectionable, it was the father's as they were filled with vitriol.

[25] Finally, the father relied on the case of Boucher v. Public Accountants Council (Ontario), 2004 CarswellOnt 2521. This is an appeal decision that deals primarily with the cost grid / tariff that applies in civil matters governed by the Rules of Civil Procedure. Counsel did not address this case in his submissions and he did not highlight it. He made no submissions about the bill of costs submitted by the mother. I have no idea why counsel relied on this case, except perhaps, for the principle that an objective in fixing the amount of costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount determined by the actual costs incurred by the successful party (see paragraph 26). If this is the reason the case was submitted for my consideration, I agree with the principle.

Entitlement

[26] I find that the presumption that the mother is entitled to recover her costs of the motions has not been rebutted. The mother neither acted in bad faith nor unreasonably. I have reached this conclusion for these five reasons:

[27] First, the mother's decision to bring the motion and to seek the orders she sought, as well as her decision to proceed on an urgent basis prior to a case conference, were reasonable decisions on her part. The reasonableness of her decision is evident from the result on both court attendances. The court not only granted the mother leave to proceed on an urgent basis prior to a case conference but ordered the immediate return of the child to her on the first date and ultimately all of the relief she sought on the second motion. Given the result and the applicable legal tests on the motion to obtain such relief (i.e. leave, custody, return of the child, restrictions on the father's contact with the child), it is clear that the court also agreed with the mother that the relief she sought was necessary and in the child's best interests.

[28] Second, the father asserts that the mother acted in bad faith because she was on a campaign to alienate the child from him. To date, the court has not made such a finding.

[29] The father also asserts that the mother acted in bad faith because she brought the motion in the face of an agreement reached by the parties that the child would begin residing primarily with the father. He claims that she deceived the court by not telling it of that prior agreement. Again, the court has not made a finding that any such agreement was reached. The father's submissions are an attempt to re-argue the motion and to secure findings that the father failed to secure at the hearing. This is improper.

[30] Third and similarly, the father submissions that the mother's evidence was insufficient, not credible and unreliable is also an attempt to re-argue the motion judge's decisions about admissibility and weight to be afforded to the evidence before it at the time. These issues have already been decided. The decision was not appealed and it has not been set aside. These issue are res judicata.

[31] Fourth, the father's argument that the mother acted unreasonably in failing to make any offers to settle prior to or during the period between the two hearing dates is not persuasive. He himself made no efforts to settle. His counsel argued that the father, in effect, is not accountable for this failing because he did not know he had such a duty as he did not have a lawyer to advise him. The mother, he argued, should be held to a higher standard because she had counsel. Counsel for the mother, he asserts, knew or ought to have known that failing to make any effort to settle can amount to unreasonable behaviour. From the court's perspective, it was the father's choice not review the rules of court, and not to be represented by counsel of his choosing. It was also his choice not to avail himself of the services of the free advice lawyer available in every courthouse in Ontario. These lawyers provide individuals with up to 20 minutes of summary advice, regardless of financial means. Choices have consequences. His is that he cannot now use the fact that he was unrepresented to shield himself from blame or as a sword to hold another more accountable. Both parties carry some blame for failing to make any offers to settle after the motion was brought. The mother's failure to make an offer between the two hearing dates is tempered by the fact that she tried repeatedly to communicate with him before bringing her motion. The father effectively ignored her. I consider those attempts of the mother to be attempts to settle the issue without the necessity of litigation or a motion.

[32] Fifth, the mother is entitled to costs of the motion not just because she was successful and acted reasonably, but because the father acted unreasonably. It was the father's unilateral and unjustified withholding of the child and his refusal to engage with the mother or allow her to have contact with the child that necessitated the mother's urgent motion. That his actions were unreasonable is evident from the results on both hearing dates and the swiftness with which the court acted to restore the status quo and suspend the father's access.

[33] I find that there is no basis for depriving or diminishing the mother's entitlement. I can see no reason why the father, the unsuccessful and unreasonable party, should be awarded costs. The presumptive in favour of the mother is not rebutted.

Quantum

[34] It is my conclusion that the mother is entitled to significant costs, for these reasons:

(a) The father's unreasonable conduct is what necessitated the mother's motion;

(b) The issues arose as a result of the father's conduct.

(c) They involved the safety and wellbeing of the parties' son. As such, the issues were important, and needed to be dealt with right away;

(d) The consequence of the father's choices is that the mother incurred significant and unnecessary legal expense. Here I am referring to such decisions as: to represent himself; to oppose the relief sought by the mother; to bring his own cross-motion; and, his decision to force the motions to a full hearing. Most importantly, I am referring to his decision to act unilaterally in the face of the mother's clear opposition to the change in the status quo. What he should have done is return the child and start legal proceedings to have the child's primary residence changed. He should have followed the steps outlined by Justice Wildman in Rosen.

(e) If significant costs are not awarded to the mother the effect will be that the mother, rather than the father, will bear the financial consequences of the father's choices. Such a result would be grossly unfair to the mother;

(f) The father's argument is that the costs awarded to the mother ought to be reduced because he has no (or limited) ability to pay those costs due to the fact that he is unemployed. His unemployment could be a mitigating factor but in this instance I place little weight on it. This is why: At the cost hearing the father told the court that he has been offered a job. He also said he has chosen to delay starting it. He said he had not planned to start it until this case is over. These comments suggest that the father has control over his poor financial circumstances. His impoverished circumstances are to some degree, now self-imposed.

[35] There are some mitigating factors that suggest a reduction in the costs awarded to the mother is appropriate. First, while the father acted unreasonably, I do not find that he acted in bad faith. Second, and perhaps most importantly, I suspect that this decision will elevate the level of parental conflict somewhat. I am keenly aware that over the intervening months the father has followed the recommendations of the court. He has been very child and settlement focused. He has done so despite his dissatisfaction with the pace of progress towards the restoration of normalized access. Indemnification is only one objective of a cost award, promoting this kind of reasonable behaviour and encouraging settlement are two others. By reducing the quantum of costs awarded, I hope to encourage the father to remain child focused and settlement oriented.

Conclusion

[36] For all of these reasons I find that it is fair and reasonable for the father to pay the mother costs fixed in the amount of $6,000. To provide the father with some time to arrange his financial affairs, I have decided to give the father slightly more than the usual 30 days within which to pay these costs.

Order

1. The respondent father shall pay to the applicant mother costs of the motion heard on August 18 and 25, 2016, fixed in the amount of $6,000 inclusive of fees, disbursements and HST. These costs are to be paid on or before April 18, 2017.

2. Temporary order to go as per minutes dated January 10, 2017, filed;

3. Matter adjourned for continuing case conference to be held on April 21, 2017 at 9:00 a.m.

4. Case conference briefs are not required for the next attendance. Parties may opt to file a brief or in the alternative, to attach a one page update by attaching same (after serving it on the other party), to his or her 14C Confirmation Form;

5. 14C Confirmation to be filed.

Released: March 2, 2017

Signed: Justice Victoria Starr