Court File and Parties

Ontario Court of Justice

Date: 2020-04-24

Court File No.: Toronto DFO-18-16053

Between:

Wesley Eric Smith Applicant father

— and —

Michelle Bowen Respondent grandmother

Ruling on Costs of Urgent Covid-19 Motion

(In Chambers)

Counsel:

• Margaret Osadet, for the applicant
• Naghmeh Attaran, Duty counsel for the respondent

Before: O'Connell J.

Introduction

[1] On April 17, 2020, the respondent grandmother sought leave to bring an urgent motion for the return of her grandson to her care.

[2] Due to the COVID-19 global crisis, the Ontario Court of Justice issued a Practice Directive (updated March 28, 2020) that all family court matters scheduled up to May 29, 2020 shall be adjourned for eight to twelve weeks, with exceptions for certain urgent matters as specified in the Court's Practice Directive.

[3] In order to protect the health and safety of all court users and to help contain the spread of COVID-19, members of the legal profession and members of the public are asked not to attend courthouses in person at this time unless a judge orders otherwise or if a party is unable to email family court documents relating to an urgent family matter.

[4] The Practice Directive also provides that under no circumstances should members of the legal profession or the public come into a courthouse if they have been advised not to by public health officials, their doctor or the Ontario Ministry of Health (MOH) website.

[5] This court directive applies to all family court matters scheduled in the Ontario Court of Justice up to Friday May 29, 2020.

[6] The Ontario Court of Justice Directive provides that urgent matters will proceed on a prioritized basis. These matters include:

1. Child, Youth and Family Services Act: place of safety hearings (s. 90); temporary care and custody hearings (s. 94), restraining orders (s. 137), status review hearings (s. 113), and secure treatment orders (s. 161);

2. Domestic matters: urgent custody and access motions; motions for restraining orders; Hague applications and non-Hague abduction cases; and

3. Family Responsibility and Support Arrears Enforcement Act: refraining motions (s. 35).

[7] Any other requests for an urgent family hearing are to be determined by a judge. Counsel are to serve and file a 14b motion request not to exceed ten pages setting out the reasons for urgency.

[8] If a judge does not declare the matter to be urgent, then the documents submitted to the court may not be processed until regular court operations resume.

[9] A review of the Ontario Court of Justice's Covid-19 Pandemic Planning Directive makes it clear that the definition of urgency is not restricted to only those types of cases enumerated under the Directive. Further, the urgency in question does not need to be related to or caused by the Covid-19 emergency.

The Urgency in this Case

[10] On May 8, 2018, the maternal grandmother was granted final custody of her grandson, Olyver, age 11, pursuant to the Final Order of Justice B. Scully. The final order is still in full force and effect. Olyver has been in the grandmother's sole care and custody since May of 2018. Prior to that, he has lived with and been in the grandmother's primary care since 2016.

[11] For reasons disputed by the parties, Olyver has had little contact with his father until recently. On October 25, 2019, the father brought a motion to change the final order for custody. He also sought access to Olyver. On December 18, 2019, on consent of the parties, the father was granted specified alternating weekend access.

[12] The order for access between Olyver and his father was made on a temporary without prejudice basis. The matter was adjourned to April 29, 2020 for a continuing case conference. The access between the father and Olyver was to be reviewed at that time.

[13] On March 28, 2020, given the closure of schools due to the Covid pandemic, the grandmother agreed to additional access between the father and Olyver. The parties agreed that Olyver would remain with his father for the week, until April 5, 2020.

[14] However, since April 5, 2020, according to the evidence filed and not disputed, the father refused to return Olyver to the grandmother. The father told the grandmother that he would not be returning Olyver because he was concerned about the effect of the Covid-19 pandemic on him while he was at the grandmother's home. It was the father's position that Olyver should remain with him for the balance of the Ontario government's state of emergency and school closure.

[15] The parties were not able to resolve the issue and the police would not assist in the enforcement of the order.

[16] This was a direct breach of a Court Order. I determined that the matter was urgent and required an immediate hearing.

The Hearing of the Urgent Motion

[17] The motion was heard before me on April 20, 2020. The grandmother was assisted by Ms Attaran, duty counsel through the Family Law Services Centre of Legal Aid Ontario.

Ms Attaran spoke at length to the grandmother prior to the hearing and assisted her in preparing and serving her materials electronically.

[18] The parties served and filed their materials electronically, in accordance with the Court's Covid-19 Practice Directive. The parties and counsel participated by telephone conference. The hearing was recorded by a court reporter in the courtroom.

[19] Fortunately, the parties reached a resolution of the motion and the father agreed to return Olyver to the grandmother's custody. However, I heard further submissions about a number of issues regarding access and Covid-19 related issues.

[20] For oral reasons delivered, and reserving my right to deliver further written reasons if necessary, I made the following Order on that day:

1. The child shall be returned to the custodial care of the grandmother forthwith, and no later than April 20, 2020. The Final Custody Order of Justice Brian Scully continues to be in full force and effect.

2. On a temporary basis, during the Covid Pandemic, the Court makes the following Orders:

   a. Commencing Friday May 1, 2020, the father shall have alternating weekend access to the child from Friday at 4:30 PM to Sunday at 5:00 PM. The father shall pick up the child from the grandmother's home and return the child to the grandmother's home at the conclusion of the weekend visit.

   b. The Father shall continue to have telephone or video face time with the child on Mondays, Wednesdays, and Fridays at 7:00 PM, in addition to reasonable further contact, as described below.

   c. The child shall be permitted to bring his iPhone with him to communicate with this father, however, this will be restricted to reasonable times in accordance with the rules of Ms Bowen's household.

   d. The parties must follow the government protocols that have been directed regarding the COVID-19 pandemic. This includes handwashing, social distancing where possible, limiting exposure to other individuals, including social isolating when necessary, the use of sanitizers, hand soap and other protective products.

   e. In particular, neither Olyver nor his brother (also in the grandmother's custody) shall visit the biological mother's new home in Oshawa with her new partner and baby at this time, although the mother may visit the children in Ms Bowen's home, so long as she adheres to the government protocols as described in paragraph 4 above.

   f. In the circumstances of the Covid-19 emergency, this endorsement shall be deemed to be an order of the court that is operative and enforceable without any need for a signed or entered, formal, typed order.

   g. Following oral submissions, the Court shall deliver a further written ruling regarding the issue of costs, to be forwarded separately.

The Issue of Costs

[21] Duty counsel on behalf of the grandmother seeks the full recovery of costs of the urgent motion. She is seeking $2,100.00, payable to Legal Aid Ontario. Ms Attaran was called to the bar in 2010 and her private hourly rate is $350.00. She spent six hours on the preparation and attendance for this motion.

[22] Costs in family law proceedings are governed by the Family Law Rules. Subrule 24 (1) of the Rules creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. 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.

[23] 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.

[24] Costs can be used to sanction behaviour that increases the 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; Gordon v. Wilkins, 2020 ONCJ 199, at paragraph 4.

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

[26] 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; Gordon v. Wilkins, 2020 ONCJ 199, at paragraph 6.

[27] Bad faith is governed by subrule 24 (8) of the Family Law Rules. This rule 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.

[28] A finding of bad faith is rarely made under subrule 24(8). It requires a very high threshold of egregious behaviour. See: Cozzi v. Smith, 2015 ONSC 3626; Scipione v. Del Sordo, 2015 CarswellOnt 14971.

[29] There is a difference between bad faith and unreasonable behaviour. As Justice Stanley Sherr states in Gordon v Wilkins, supra, "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 also S.(C.) v. S. (M.).

Analysis

[30] Ms Attaran submits that the only reason that the father returned the child to the grandmother's custodial care was because he was served with the urgent motion.

[31] She submits that the father willfully and deliberately breached a court order in order to bolster his own custody claim, which he recently commenced, and that he deviously used the Covid-19 pandemic to do so. She therefore argues that the father was acting in bad faith and that the grandmother is entitled to her full recovery of costs.

[32] I was not advised of any offers to settle that may have been exchanged between the parties. Nevertheless, it is clear that the grandmother was the successful party on this motion.

[33] I agree that, but for this motion, the father would very likely not have returned Olyver to the grandmother's care.

[34] I also agree that the father behaved unreasonably by refusing to respect and follow the final court order. This motion should not have been necessary.

[35] The rapidly developing body of COVID-19 case law in family law custody and access cases is clear. There is a presumption that all custody and access orders should be respected and complied with. See: Ribeiro v. Wright, 2020 ONSC 1829, per Justice Alex Pazaratz.

[36] The onus, therefore, is on the party seeking to restrict access to provide specific evidence or examples of conduct by the other party that are inconsistent with COVID 19 protocols and expose the child to risk. See: Ribeiro v. Wright, supra; Tessier v. Rick, 2020 ONSC 1886.

[37] A parent is not permitted to simply engage in self-help, or to interpret public health directives as a license to terminate parenting time. If the parent fears that the child's routine may compromise his or her well-being, or the health of a person in the home; then the parent must provide specifics and bring a motion to change the order. See Almadi v. Kalashi, 2020 ONSC 2047.

[38] Although I am very troubled by the father's conduct, I am not convinced that the father acted in bad faith by using the Covid-19 pandemic solely to strengthen and advance his custody claim, thereby creating a false status quo.

[39] I also note that the father has now said that he will immediately comply with any order made and return Olyver to the grandmother forthwith.

[40] The father appeared to express sincere concern about Olyver's exposure to the Covid virus in the grandmother's household. Having said that, the father should have then brought an urgent motion seeking a temporary change in custody citing specific evidence and concerns. He failed to do so, and instead, engaged in what can only be described as self-help without consulting his lawyer.

[41] These are extraordinary times. Parents and guardians are understandably very anxious and fearful about COVID-19 and its impact on their children. As a result, they may behave irrationally and unreasonably.

[42] After hearing submissions during the motion, I was satisfied that the grandmother is behaving very responsibly and taking all the necessary precautions to protect the children in her care from the virus. It was clear that she is strictly adhering to all federal and provincial health and safety directions regarding Covid-19, including regular hand-washing, sanitization, social distancing and self-isolating, for both herself and everyone in her household.

[43] Ordinarily, I would have very likely ordered costs against the father for breaching the final court order.

[44] However, as I have indicated, these are not ordinary times. During this time of Covid-19, and on this occasion only, I am prepared to give the father the benefit of the doubt. I will not order costs against him for his unreasonable behaviour.

Conclusion and Order

[45] Therefore, for the above reasons, there will be no costs ordered. However, the father has been put on notice that should he engage in any "self-help" remedies again, he will very likely face cost sanctions. The father has a lawyer, and he should be directed by the Family Law Rules and appropriate legal conduct.

[46] I wish to thank counsel, and in particular, duty counsel and Legal Aid Ontario for assisting the respondent grandmother in this matter.

Justice Sheilagh O'Connell

Endorsement sent to both counsel by PDF attachment through email.

Footnotes

[1] See COVID-19 Pandemic – Scheduling of Family Matters in the Ontario Court of Justice.

[2] During the Covid-19 crisis, Legal Aid Ontario has set up a remote system to provide assistance to unrepresented litigants with urgent matters in court. Each duty counsel office has a password protected email box and anyone can email confidential details to the address seeking assistance for litigants. Duty counsel are also available by telephone to speak to unrepresented litigants.

[3] Although counsel for the father objected to this rate because Ms Attaran is a staff duty counsel with Legal Aid Ontario, the case law is clear that the court is not restricted to ordering costs at a legal aid rate. See: Ramcharitar v. Ramcharitar; Holt v. Anderson; Children's Aid Society of the Regional Municipality of Waterloo v. C.T., 2017 ONSC 3188.

Pursuant to subsection 46(1) of the Legal Aid Services Act, 1998, "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". A legally aided client "stands before the court in exactly the same position as any other litigant". See: Baksh v. Baksh, 2017 ONSC 3997, per Justice R.P. Kaufman.

[4] See also Gordon v. Wilkins, 2020 ONCJ 199, per Justice Stanley Sherr, at paragraphs 1 to 7.

[5] The case law has developed somewhat differently in child protection cases under the Child, Youth and Family Services Act.