Court File and Parties

Date: August 8, 2019

Court File No.: D91760/16

Ontario Court of Justice

Between:

S.J.K.

Applicant

- and -

J.P.G.

Respondent

Counsel:

• Glenda Perry, for the Applicant (Responding Party on Motion to Change)
• Ayesha Hussain, for the Respondent (Moving Party on Motion to Change)

Heard: In Chambers

Justice: S.B. Sherr

Costs Endorsement

Part One – Introduction

[1] On July 8, 2019, the court dismissed the respondent's (the father's) claim for access to the parties' six-year-old child. The court also dismissed the father's motion to set aside or change a restraining order made against him on June 6, 2017.

[2] The court provided the applicant (the mother) with the opportunity to make written costs submissions. She seeks costs of $16,196.29. The father asks that the court only award costs of $1,000 to the mother.

Part Two – Legal Considerations

[3] The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867, set out 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 that cases are dealt with justly under subrule 2(2) of the Family Law Rules (all references to the rules in this decision are to the Family Law Rules).

[4] Costs can be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice. See: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, paragraph 25.

[5] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.

[6] An award of costs is subject to the factors listed in subrule 24(12), subrule 24(4) pertaining to unreasonable conduct of a successful party, subrule 24(8) pertaining to bad faith, subrule 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party. See: Berta v. Berta, 2015 ONCA 918, at paragraph 94.

[7] Subrule 24(1) creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. See: Sims-Howarth v. Bilcliffe, [2000] O.J. No. 330 (SCJ- Family Court). 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. See: Lawson v. Lawson, [2008] O.J. No. 1978 (SCJ).

[8] Subrule 24(8) states that 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. The mother claims that the father acted in bad faith.

[9] Subrule 24(8) requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made. See: Cozzi v. Smith, 2015 ONSC 3626; Scipione v. Del Sordo, 2015 CarswellOnt 14971 (Ont. SCJ). 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. See: S.(C.) v. S. (M.), 38 R.F.L. (6th) 315 (Ont. SCJ). 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. See: Scipione, supra.

[10] A bad faith finding on some specific issue does not necessarily have a spill-over effect to other issues. See: Hunt v. Hunt, [2001] O.J. No. 5111 (SCJ).

[11] Subrule 24(12) reads as follows:

24(12) In setting the amount of costs, the court shall consider,

(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.

[12] The court should also take into consideration the ability of a party to pay costs. See: MacDonald v. Magel, 67 O.R. (3d) 181 (Ont. C.A.). However, a party's limited financial circumstances will not be used as a shield against any liability for costs but will be taken into account regarding the quantum of costs. See: Snih v. Snih, para. 7-13.

[13] The court adopts the comments of Justice Heather McGee in Mohr v. Sweeney, 2016 ONSC 3338, where she writes, "those who can least afford to litigate should be most motivated to seriously pursue settlement, and avoid unnecessary proceedings."

Part Three – Success

[15] Neither party made an offer to settle. However, since there was not much room for compromise, the absence of offers to settle was not a factor in making this costs decision.

[16] The mother was entirely successful at trial.

[17] The father did not rebut the presumption that the mother is entitled to costs.

Part Four – Behaviour

[18] The mother acted reasonably in this case.

[19] The father's desire to have access with his child was understandable and he took the right step by bringing a court application.

[20] The father wasted time by asking to set aside the restraining order on the basis that he had no knowledge of it. The court found that he was not a credible witness and that he did have knowledge of the restraining order.

[21] The father's behaviour did not rise to the high level required to make a bad faith finding.

Part Five – Costs Considerations

[22] This case was important for the parties. It was not complex or difficult.

[23] Additional time was spent by the mother because the father had difficulty structuring his claims. He initially made a claim for access but failed to seek a change to the restraining order to permit contact with the child. He was given permission to amend his application to seek this change. Instead, he sought to set aside the restraining order and neglected to make a claim to change it. He was permitted, on oral request, to ask that the restraining order be changed at trial.

[24] The trial took place over four days. The time and fees claimed by the mother are reasonable and proportionate.

[25] The expenses claimed by the mother are reasonable.

[26] The court took into consideration that the father is of modest means and has a limited ability to pay a costs order. He will be given a lengthy period of time to pay this order, provided that he keeps his costs payments in good standing.

Part Six – The Order

[27] Taking into account all of these factors the father shall pay the mother's costs fixed in the amount of $8,400, inclusive of fees, disbursements and HST.

[28] The father may pay the costs at the rate of $200 each month, starting on September 1, 2019. This will give him three and one-half years to pay this order. However, if he is more than 30 days late in making any payment, the entire amount then owing shall immediately become due and payable.

Released: August 8, 2019

Justice S.B. Sherr