Court File and Parties

Ontario Court of Justice

Date: May 14, 2019

Court File No.: D21402/18

Between:

Christina Leveridge Applicant

— AND —

Dwane Stephenson Respondent

Before: Justice Roselyn Zisman

Heard by: Written submissions

Reasons for Judgment released on: May 14, 2019

Counsel:

• Paula McGirr, counsel for the applicant
• Theodore Nemetz and Lauren Speers, counsel for the respondent

Reasons for Judgment

Zisman, J.:

1. Introduction and Background

[1] The Applicant seeks costs against the Respondent that arise out of an urgent motion that was initially before the court on October 4, 2018. The Applicant (mother) sought an order of custody of the five children and an order for the return of Isaiah who is 14 years old had been removed from Toronto by the Respondent (father) on September 6, 2018. The father had taken Isaiah to Sudbury where he had been enrolled in school without the consent or knowledge of the mother and without a court order.

[2] On the first return date of the motion, the parties reached a temporary without prejudice consent that granted the father custody of Isaiah who was 14 years old and custody of the other younger children to the mother. There were also provisions as to access and non-removal. The parties also consented to the release of Children's Aid Society records.

[3] Not on consent, the court made a finding that the habitual residence of all of the children was in Toronto.

[4] The motion was adjourned on four separate occasions, November 7th, 15th and December 19th and December 27th. All of the adjournments necessitated an attendance except November 15th when counsel were able to come to an agreement in advance of the court hearing.

[5] Although temporary consents were reached, the orders constantly needed to be changed to accommodate the father. There were also disclosure orders made. The mother complied whereas the father did not. There were timelines for service and filing materials. The mother complied whereas the father did not.

[6] On December 19th the parties agreed that the mother have temporary custody of all of the children except Isaiah. However, there continued to be ongoing issues regarding access and the issue of custody of Isaiah was not resolved. The motion was again adjourned as the Voice of the Child's Report regarding Isaiah was not yet completed.

[7] On January 21, 2019 the motion was argued on its merits. An order was made that the mother have custody of all of the children including Isaiah and that Isaiah be returned to Toronto on Saturday February 2, 2019, the day after his school semester in Sudbury ended. All access exchanges were to be through APCO.

2. Position of the Parties

[8] It is the mother's position that she was successful on the motion and is therefore entitled to costs for all of the court attendances. Counsel seeks costs of $44,370.00 on a full recovery basis based on the father's bad faith or in the alternative on a substantial indemnity basis (2/3 of tariff) $29,580 and on a partial indemnity basis (1/3 of tariff) $14,790. In the further alternative, counsel seeks $12,920.91 based on the legal aid tariff.

[9] Counsel for the mother also sought full recovery of costs as she served an offer to settle dated December 13, 2018. It is substantially as good as the order made except that she asked for the return of Isaiah on or before December 21, 2018. If accepted prior to the motion's return date of December 18, 2018 there would be no order of costs and if accepted thereafter, then costs of $3,000 would be payable.

[10] It is the father's position that he tried to be reasonable and the parties were able to reach consents at each court attendance. The father denies that he acted in bad faith and submits that he simply acted in accordance with Isaiah's wishes.

[11] The father submits that costs should not be payable for all of the attendances that resulted in some agreements as the father almost accepted all of the terms of the mother's offer to settle. Further, it is submitted that the court should consider the father's limited income and his health condition.

[12] Although counsel for the father agrees that mother was successful on the motion, she does not make any submissions as to how much, if any, costs should be paid by the father.

[13] It is submitted that if the court is inclined to make a cost order that such an order should be deferred until after the father has an assessment with respect to his depression and the court should wait for the outcome of his appeal of the denial of his claim for disability through the Ontario Disability Support Program.

[14] Further, in the father's cost submission there is new evidence and documents attached that were not before the court when the motion was argued. There is also an attempt to challenge the findings and conclusions reached by the court on the motion.

[15] It is inappropriate and improper to include further evidence in a cost submission. If the father was dissatisfied with the order made he should have appealed the order. If he sought to introduce new evidence then he should have brought a motion for leave to do so.

3. Legal Principles Regarding Costs

3.1 General Principles

[16] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that cost orders are in the discretion of the court.

[17] Family Law Rules (FLR) 24 sets out a framework for awarding costs for family law cases.

[18] In the case of Mattina v. Mattina the Ontario Court of Appeal has confirmed that modern family cost 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 that cases are dealt with justly pursuant to subrule 2(2) of the FLR.

[19] FLR 24(1) creates a presumption of costs in favour of the successful party.

[20] Consideration of success is the starting point in determining costs.

[21] To determine whether a party has been successful, the court should take into account how the order compares to any settlement offers that were made. The position each party took at trial should also be examined.

[22] The Ontario Court of Appeal in the case of Beaver v. Hill clarified several aspects of the cost rules namely, that there is no provision in the FLR that provides for a general approach of fixing costs at "close to full recovery" and that "proportionality and reasonableness are the touchstone consideration" to be applied in fixing the amount of costs.

[23] In considering if a party acted reasonably, FLR 24(5) the court provides guidance on how to evaluate reasonableness as follows:

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] A cost award is subject to the factors listed in FLR 24(12), the directions set out under FLR 24(4) (unreasonable conduct), FLR 24(8) (bad faith) and FLR 18(14) (offers to settle), and the reasonableness of the costs sought by the successful party.

[25] FLR 24(12) which sets out factors relevant to setting the amount of costs, specifically emphasizes "reasonableness and proportionality" in any costs award.

[26] FLR 24(12) provides as follows:

(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 rule 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.

[27] A cost determination must reflect proportionality to the issues raised. Even if "full recovery" is triggered by the provisions of the FLR by either an offer that complies with FLR 18 or a finding bad faith, the court retains a residual discretion to make costs awards that are proportional, fair and reasonable in all circumstances. There should be a correlation between legal fees incurred that reimbursement is being sought and the importance or monetary value of the issues at stake.

[28] I am also mindful that the court's role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees. As was pointed out in Boucher v. Public Council the award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings rather than an exact measure of actual costs to the successful litigant.

3.2 Bad Faith

[29] As counsel for the mother submits that the father acted in bad faith, the legal principles regarding bad faith are briefly summarized.

[30] Pursuant to FLR 24(8) if a party has acted in bad faith, the court shall decide costs on a full recovery basis and order the party to pay them immediately.

[31] But FLR 24(8) requires a fairly high threshold of egregious behaviour and as such a finding of bad faith is rarely made. 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. To find bad faith the court must find some element of malice or intent to harm.

[32] There is a difference between bad faith and unreasonable behaviour. The essence of bad faith is when a person suggest 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.

3.3 Offers to Settle

[33] Offers to settle are an essential part of family litigation. The parties and counsel have a positive obligation to conduct their cases to ensure that the primary objective of FLR 2(2) is met that is, to deal with cases justly. This includes taking appropriate steps to save time and expenses, per FLR 2(3).

[34] Offers to settle play an integral role in saving time and expenses by promoting settlements, focusing parties and often narrowing the issues in dispute. Severable offers to settle or separate offers to settle specific issues are particularly helpful in attempt to settle cases.

[35] The recent case of Beaver and Hill, wherein the Ontario Court of Appeal indicated that offers to settle were not relevant on the issue of costs dealt with a case where there was no compromise and any offer to settle would have been a capitalization. However, in most family law cases there are compromises that can be made. Offers to settle therefore remain important in any consideration of the issue of costs.

[36] The consequences of an offer to settle are set out in Family Law Rules 18(14) as follows:

(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:

1. If the offer relates to a motion, it is made at least one day before the motion date.

2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.

3. The offer does not expire and is not withdrawn before the hearing starts.

4. The offer is not accepted.

3.4 Ability to Pay

[37] A party's ability to pay costs is a relevant consideration. However, a party's limited financial circumstances should not be used as a shield against any liability for costs but will be taken into consideration regarding the amount of the costs, particularly when that party has acted unreasonably and is the author of her/his own misfortune.

4. Application of Legal Principles to the Facts

4.1 Party's Behaviour: Bad Faith or Bad Judgment

[38] In this case, after the parties had a serious argument on September 6th, during which the mother alleged she was assaulted and that the father threatened to take the children, the mother told the father she was calling the police and he left. Fearing that the father would attend at the children's school, the mother asked the school to send the children home in a taxi. When Isaiah returned home, he became angry at the mother when he learnt what happened. He then left the house and said he was going for a walk and did not return.

[39] The police subsequently arrested the father for assault. On September 11th, the mother was advised that Isaiah was in Sudbury and the father was trying to register him for school.

[40] Later Isaiah reported to the clinician who prepared the Voice of the Child Report that he was angry at his mother and ran out of the house to find his father. He located his father and told him that he wanted to live with him.

[41] The father justified his actions by deposing that he was told by "professionals" in Sudbury that Isaiah was old enough to make up his mind where he wanted to live.

[42] There is no question that the father should not have removed Isaiah from his habitual residence of Toronto as was clear from the findings of this court. Such conduct should not be condoned.

[43] Although Isaiah is 14 years old, he does not have the right to decide where he wishes to live and the father should have taken him back to his home, told him that he would discuss this with his mother and if there was no agreement then he would proceed to obtain a court order. Instead he was on the run from the police and involved his son.

[44] Although the father's behaviour is very close to approaching a finding of bad faith, I find that this conduct falls into the category of unreasonable behaviour but does not rise to bad faith.

[45] I find that the father's behaviour throughout this proceedings has continued to be unreasonable. He evaded service of the court documents and then on the first court attendance his counsel complained that the father had only been served by email.

[46] He has involved Isaiah in this conflict and has also attempted to do the same with the other children. He has also attempted to alienate Isaiah from the mother.

[47] Counsel for the father in her cost submissions attempts to justify the father's behavior by presenting submissions that were already rejected by the court in the decision on the motion.

[48] In the Voice of the Child Report, the clinician notes that:

In comments made by Isaiah during the interviews, it appeared that his father might be sharing too much adult information with him. For example, Isaiah says that his father advised him that if he "showed evidence" that his mother was not "caring" for him than he could move back to Sudbury. This type of information can influence his feelings about his mother. It is important that Mr. Stephenson be mindful of this.

[49] The father has made several reports to the Children's Aid Society in Toronto and Sudbury about his concerns about the mother's care of the children. None of the concerns were verified.

4.2 Time Spent

[50] Counsel for the father submits that both counsel spent about the same time working on the file. However, she then also submits that counsel had time limitations because of the nature of Legal Aid Certificates whereas the mother was represented through the Legal Aid Family Service Centre. It is not clear what relevance this fact has to do with the time spent.

[51] Counsel for the mother spent a total of 81.90 hours on the file. This would include the four attendances with respect to adjournments of the motion but during which time there were hours spent negotiating terms.

[52] The law clerk spent 57 hours.

[53] I would reduce the hours spent with respect to the attendances where the parties negotiated some consents. Even though strictly speaking these attendances were a continuation of the motion, the attendances were more akin to case conferences than for argument with respect to the substantive issues on the motion.

[54] However, overall and with some reduction for number of attendances, the time spent was reasonable in view of the number of affidavits that were prepared and the need to review the extensive disclosure from the children's aid societies.

4.3 Offer to Settle

[55] As indicated counsel for the mother served an Offer to Settle that was not accepted by the father. Although it is correct, as submitted by counsel for the father, that he consented to the terms of access, the contentious issue was custody of Isaiah and where he would reside. This was the contested issue on the motion and the mother was successful.

[56] Although the mother sought an earlier date for Isaiah to be returned to Toronto, this was based on the motion proceeding on an earlier date. Further, it was not until the motion was argued the court and the mother were advised when Isaiah's school semester in Sudbury ended.

[57] The case law establishes that to trigger full recovery costs a party must do as well or better than all the terms of any offer (or a severable section of an offer).

[58] However, the court is not required to examine each term of the offer as compared to the terms of the order and weigh with microscopic precision the equivalence of the terms. What is required is a general assessment of the overall comparability of the offer as contrasted with the order.

[59] In the circumstances of this case, I find that the mother is entitled to costs on a full recovery basis of the motion as her offer to settle was as good as the court order.

4.4 Legal Fees

[60] Ms McGirr was called to the bar in 1990 and her hourly rate is $136.43 based on legal aid rates but based on her years of experience as a family counsel, her private rate would be $500 per hour.

[61] The law clerk who assisted has been a law clerk since 2014. Her hourly rate based on legal aid rates is $32.37. Based on private rates, her hourly rate would be $60 per hour.

[62] It is submitted by father's counsel that "no legal fees payable by either party." This appears to be a serious misunderstanding of the law. If this were the state of the law, then any party in receipt of a legal aid certificate could litigate without any concern about being liable for their own legal fees or the other party's legal fees.

[63] It is also submitted that only the costs that a litigant has actually paid for legal services may be recovered from the payor. Counsel for the father relies on the case of Riss v. Greenough for this general proposition. But as pointed out in the case, in footnote 7:

There are exceptions to the indemnification principle: for example, legally-aided cases. Subsection 46(1) of the Legal Aid Services Act, S.O. 1998, c. 26, provides: "The costs awarded in any order made in favour of an individual who has received legal aid services are recoverable in the same manner and to the same extent as though awarded to an individual who has not received legal aid services."

[64] The law is well settled law that the receipt of legal aid is not a factor in determining costs and counsel should be submitting their Bill of Costs based on their usual hourly rate.

4.5 Expenses

[65] Counsel for the mother claims disbursement of $462.84 for process servers and photocopies. The cost of serving the father who had moved to Sudbury were high due to the father evading service. The expenses claimed are reasonable in these circumstances.

4.6 Any Other Relevant Matter

[66] It is submitted that the court should consider the father's financial circumstances. The father is currently in receipt of social assistance and is appealing the rejection of his claim for payments from the Ontario Disability Support Program.

[67] It is also submitted that he has a new child to support. However, there is no information as to the financial circumstances of the mother of that child with whom the father is now living.

[68] The father's limited resources are a consideration for the court but that should not overshadow the father's unreasonable conduct. The court must sanction litigants who take the law into their own hands, remove a child without any lawful authority and then attempt to inappropriately involve the child in the conflict between himself and the mother.

4.7 Order

[69] I find that a cost order of $27,868 is proportionate and reasonable in this case.

[70] There will be an order as follows:

1. The Respondent shall pay to the Applicant her costs fixed at $27,868.00 inclusive of disbursements and applicable taxes.

2. Counsel for the Applicant shall prepare this order and the approval of the Respondent as to form and content is hereby dispensed with.

Released: May 14, 2019

Signed: Justice Roselyn Zisman