Court File and Parties
Ontario Court of Justice
Date: 2019-11-29
Court File No.: Toronto DFO 19 15863
Between:
Jodi Cormier Applicant
— And —
Matthew Borsk Respondent
Before: Justice E. B. Murray
November 29, 2019
Endorsement
Counsel:
- Julia Tremain, counsel for the applicant
- Matthew Geisinger, counsel for the respondent
MURRAY, E. B. J.:
Background
[1] This is my decision on the Respondent Father's claim for costs of the motion brought by the Applicant Mother requesting a court order allowing her to register the parties' son Liam in school in Toronto.
Background Facts
[2] The parties are the parents of two children, Liam, aged 10, and Alex, aged 14. The family lived in Grand Rapids, Michigan. The parties separated in 2014. They agreed to have joint legal and physical custody of the children; that agreement was incorporated into a Michigan court order on June 4, 2015. Shortly before the order was made, Mother moved to Toronto, and Father stayed in Grand Rapids. The order contemplated that the children would have primary residence in alternate years with each parent.
[3] In 2018 Mother moved in the Michigan court to change the order, asking that she have sole physical and legal custody of the children; Father responded, asking that he have sole physical custody. To settle the dispute, the parties agreed to be bound by the recommendations of a court-appointed expert. The expert recommended as follows:
- The parties continue to share legal custody;
- Father have sole physical custody;
- Mother have parenting time on every extended weekend during the school year, an additional weekend in Michigan monthly at her election, time during holidays, and most of the summer school vacation;
- The children continue to attend the Byron Charter school in Grand Rapids, which they had attended most of their lives.
[4] The recommendations were incorporated into a temporary court order on August 22, 2018. Subsequently that order was made final.
[5] Pursuant to that order, the children were with Mother in Toronto during summer school vacation in 2019 and were scheduled to return to Father in Michigan mid-August prior to the commencement of the school year. On or about August 14, 2019 Mother advised Father that she would not return them. She commenced an action in the Ontario court, alleging that Father was abusive to the children, and claiming sole custody.[1]
[6] Father began a Hague application requesting immediate return of the children to Michigan. In her response Mother alleges that the children would suffer serious harm if returned and that their wish is to stay in Ontario with her.
This Motion
[7] In September 2019 Mother asked Father to consent to the children's enrollment in school in Toronto pending determination of his Hague application. He refused, saying that they could and should attend school in Michigan pursuant to the Michigan court order.
[8] Alex enrolled in a Toronto secondary school in early September. Father alleges that Mother initiated the enrollment; Mother says that Alex acted on his own. Father contacted the school board to complain, but the Board continued to allow Alex to attend.
[9] In an effort to enroll Liam in school, Mother offered to stipulate that enrollment in a Toronto school would not be relied upon in argument about the children's habitual residence. Father did not change his mind.
[10] On October 9, 2019, Mother brought a motion asking that the court permit her to register Liam in a Toronto school. Father argued that the Ontario court has no jurisdiction in the Hague proceeding to make this order. Mother submitted that it was in Liam's best interests to be enrolled in school but could offer no legal basis on which the court could make the order.
[11] I was not persuaded that the court had jurisdiction to make the order sought and dismissed Mother's motion.
[12] At the October 9th appearance the court also set dates for the hearing of the Hague application before another judge. That hearing is underway, and submissions are scheduled for December 5, 2019.
[13] Father claims costs of $6,513.43 on a full recovery basis. Mother opposes any order for costs, arguing that she acted only to protect the child's best interests. If an order for costs is to be made, she says that it should be in the amount of $1,000.
[14] The parties made written submissions on costs.
Analysis
[15] The court has discretion as to costs pursuant to S. 131 of the Courts of Justice Act. That discretion is structured by Rules 18 and 24 of the Family Law Rules. Rule 18 has no application here. No offer to settle (as defined by the Rules) was made by either party.
[16] Father says that full recovery is justified because he was entirely successful, and Mother acted in "bad faith" by bringing the motion asking that Liam be enrolled in a Toronto school, despite the Michigan court order which provides that the child be registered in school there.
[17] Is Father entitled to full recovery cost because Mother acted in bad faith? I do not think so. Bad faith is a high bar. Bad faith is not established simply by disobedience of a court order or unreasonable litigation behavior.[2] As Justice Jennifer MacKinnon held, bad faith is made out when there is "intentional failure to fulfill an agreement in order to achieve an ulterior motive or an intentional breach of a court order with a view to achieving another purpose".[3]
[18] Father's success on the motion means that he should have some costs, unless he acted in bad faith or behaved unreasonably. In my view, Father's refusal to permit Liam to attend school in Toronto pending determination of the Hague application was unreasonable behavior.
[19] It was in Liam's best interest to be able to attend school during the 3 months required to deal with Father's Hague application. Neither parent argued that it was not in his best interests.
[20] Father, however, would only permit Liam to attend school if the child was returned to him in Michigan – a quick and easy resolution of his Hague application with respect to the child. This was tantamount to a refusal to permit Liam to attend school.
[21] This refusal might have been justified, if agreement to the child's school attendance in Toronto would have seriously imperiled Father's position on the Hague application. However, that was not the case. Given Mother's offer to stipulate that Liam's attendance in Toronto schools would not be relied upon by her in argument about habitual residence, there would have been no apparent damage to Father's position in the litigation if he had agreed to allow enrollment in a Toronto school.
[22] The result of Father's decision is that by the time his Hague application is determined, Liam will have missed school in excess of three months. Father's approach on this issue was not a child-focused approach. It was a mean-spirited position that served only to punish Liam because of Father's displeasure with Mother's behavior.
[23] Hague applications are not custody trials, and the issue in these applications is not a child's best interests. That does not mean that a court in conducting such hearings should not require that the parties conduct themselves in ways that protect children's interests – ways that are possible without compromising the party's position – pending determination of the application.
[24] Rule 24(4) provides that despite the presumption that a successful party should be awarded some costs, the court may deprive a successful party who has behaved unreasonably of all or part of his costs or order him to pay all or part of the unsuccessful party's costs. In light of Father's unreasonable behavior noted above, I decline to order that he be paid any amount towards his costs on the motion.
Released: November 29, 2019
Signed: Justice E. B. MURRAY
Footnotes
[1] This action is stayed pending determination of the Hague application.