ONTARIO COURT OF JUSTICE

CITATION: Crowell v. Delisle, 2021 ONCJ 246

DATE: 2021 04 27

COURT FILE No.: Sudbury D127-19

BETWEEN:

Megan Leanne Crowell

Applicant

— AND —

Zachary Ryan Joseph Delisle

Respondent

Before Justice H-A Mendes

Cost Submissions Received March 26, 2021 and April 6, 2021

Cost Decision released April 27, 2021

Nicola S. Munro............................................................... counsel for the applicant mother

Darren L. M. Berlinguette............................................ counsel for the respondent father

Mendes J.:

Overview

[1] This matter was set for a two-day trial on the Running Trial List the weeks of January 18 and January 25, 2021. The trial in the matter was heard over seven days on January 18, 19, 20, 21, 22, 25 and 26, 2021.

[2] The trial decision was released on February 26, 2021 and the Court invited counsel to make written submissions regarding the issue of costs of the trial as well as the motions brought by the Respondent regarding the return of the child to the District of Sudbury from Nova Scotia. The motions were heard in June 2020 and then again in October 2020.

[3] The Applicant submits that she was the successful party at trial and further, that due to the Respondent’s lack of financial disclosure, the time required for trial was greatly increased and the proceedings were protracted. The Applicant submitted a bill of costs in the sum of $47,934.04.

[4] The Respondent seeks costs in the sum of $10,000 plus HST for the motions in relation to the child being removed from the District of Sudbury unilaterally and moved to Nova Scotia by the Applicant in April 2020 and then again in August 2020. It is the Respondent’s position that the Applicant acted in bad faith and costs should be awarded in consideration of her actions.

[5] The Respondent further submits that success was divided at trial but seeks costs for the trial as a result of the Applicant’s behaviour and actions which caused the matter to proceed to trial. The Respondent submitted a bill of costs in the sum of $45,905.57.

[6] Neither party in their cost submissions provided any Offers to Settle made pursuant to Rule18 of the Family Law Rules. It appears that in this case, neither party made any offer in writing, be it even a time-limited offer or a partial offer to resolve or attempt to resolve any of the issues that were adjudicated at trial. This is despite the fact that the Trial Management Conference Endorsement of December 2, 2020 provided at paragraph 14 that “the Court expects that Offers to Settle will be made”.

[7] As set out in the case Mattina v Mattina, 2018 ONCA 867,

Costs rules are designed to foster four (4) 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 Rule 2(2) of the Family Law Rules.

[8] Rule 24 of the Family Law Rules sets out that there is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.

[9] Rule 24(4), 24(5), 24(6) and 24(8) of the Family Law Rules states the following:

SUCCESSFUL PARTY WHO HAS BEHAVED UNREASONABLY

(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.

DECISION ON REASONABLENESS

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

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

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

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

DIVIDED SUCCESS

(6) If success in a step in a case is divided, the court may apportion costs as appropriate.

BAD FAITH

(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.

[10] In the case Jackson v Mayerle, 2016 ONSC 1556 at paragraph 58, the Court held:

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.

[11] Rule 24(12) of the Family Law Rules sets out the factors the court must consider when setting costs amounts 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] As held in the case Mark v. Bhangari, 2010 ONSC 4638 (SCJ),

“Parties cannot expect to be immune from an order of costs based on their limited financial resources. If this were the case, parties would be free to conduct litigation as they wished without fear of reprisal in the form of adverse costs orders and this would be contrary to the philosophy of the Rules and to their requirements…”

[13] The Court is of the view that success at the trial was entirely divided. The Applicant sought an order for sole custody of the child and the Respondent sought an order for joint custody with the child to primarily reside with the Applicant in Ontario. The Court made an order for joint custody with the child to primarily reside with the Applicant. The Applicant’s mobility claim was granted and so the child’s ordinary residence will be Shelburne, Nova Scotia.

[14] The parties were in agreement that the other parent would have access with the child during the school holidays and this was granted by the Court. The Applicant sought that the Respondent receive a travel credit due to the increased cost of exercising access, to be deducted from the child support obligations. The Respondent sought that the Applicant be responsible for the cost of access. The Court ordered that the cost of exercising access shall be shared equally between the parties with each party being responsible for a return-trip for the child when exercising access.

[15] Regarding support, the Applicant sought that income be imputed to the Respondent and that he pay child support to her for the child as well as a lump sum award of spousal support fixed amount of $10,000. The Respondent agreed to pay child support but in accordance with his social assistance income and he sought that the spousal support claim be dismissed. The Court imputed income to the Respondent and set child support payable based on this income and dismissed the Applicant’s claim for spousal support.

[16] Regarding the Respondent’s lack of financial disclosure and the Applicant’s claim that the trial was protracted due to the length of the cross examination required to determine the Respondent’s income, the Court is of the view that much of the trial time could have been reduced had the parties undertaken questioning to address the issue of the Respondent’s income.

[17] Unfortunately, questioning could not be conducted in this matter as this case was set down for trial urgently in October 2020 after the Applicant unilaterally removed the child from the District of Sudbury for the second time, thus creating the situation for the trial of the matter to be heard on an urgent basis.

[18] Given the above, the Court finds that neither party is entitled to their costs with respect to the trial in this matter.

[19] Regarding the costs of the Motion for the return of the child from Nova Scotia to Ontario, I find that the Applicant’s actions were entirely surreptitious, inappropriate, unreasonable and done in bad faith when the Applicant left in April 2020 for Nova Scotia without the consent of the Respondent or a Court order and in direct contravention of the alternate weekend access order.

[20] The regular operations of the Ontario Court of Justice were suspended as of March 16, 2020 due to the COVID-19 global pandemic. At that time only motions that were deemed to be urgent by the Court were scheduled for hearing.

[21] In April 2020 the Applicant brought an urgent motion seeking to relocate with the child from the District of Sudbury to Nova Scotia. On April 30, 2020, it was determined by the Court that the mobility issue was not urgent and was to remain before the Court. Further, it was determined that the existing order of alternate weekend access for the Respondent to the child was to continue. Despite this endorsement, the Applicant relocated with the child to Nova Scotia.

[22] As a result of the Applicant’s move with the child, the alternate weekend access did not continue despite the existing Court Order of June 2019 and endorsement of April 2020 confirming the existing order was to continue. On June 3, 2020 a further order for virtual access by the Respondent to the child was made and the matter adjourned two weeks to June 17, 2020 so that the Applicant could present her plan to the Court as to when she intended to return to the District of Sudbury as she claimed that her trip to Nova Scotia was temporary.

[23] On June 17, 2020 the Applicant again claimed to the Court that her trip to Nova Scotia was temporary but she did not have a plan to return to the District of Sudbury, as such the Court ordered the return of the child to the District of Sudbury by no later than July 16, 2020.

[24] The Applicant returned to the District of Sudbury on July 15, 2020 pursuant to the Court order of June 17, 2020. The Applicant remained in the District of Sudbury until August 2020 and then she left once again with the child for Nova Scotia, despite the Order of June 17, 2020.

[25] The Respondent brought a further urgent motion to have the child returned to the District of Sudbury and the matter was set for a hearing on September 17, 2020. At that time the affidavit material before the Court was deficient and there was insufficient time to address the motion for mobility, so the matter was scheduled for a full day hearing on October 14, 2020.

[26] On October 14, 2020, the Applicant was permitted to remain in Nova Scotia with the child and the matter was set down for an early trial date based on urgency, given the Applicants unilateral actions of again removing the child from the District of Sudbury.

[27] In considering the above, the Respondent was the successful party at the Motions heard on June 3, 2020 and June 17, 2020. Notwithstanding that the Respondent was not successful in having the child returned to the District of Sudbury in October, 2020, this was the second time the Applicant surreptitiously, without notice and in the face of a Court Order removed the child from the District of Sudbury and relocated to Nova Scotia.

[28] The Court cannot and does not condone parents resorting to self-help and taking the law in to their own hands to establish a new status quo and move across the country without consent of the other parent or by valid Court order. The Applicant was represented at both instances in time and was involved in the Court process since April 2019 and ought to have brought the appropriate motion and abided by the existing Court order and endorsement.

[29] Despite this, the Applicant simply up and left with the child in complete disregard for the existing status quo, Court order and the Court’s endorsement which provided that the issue of mobility was not going to be dealt with at that time and which confirmed the Respondent’s alternate weekend access with the child.

[30] The Applicant cannot expect to be immune from costs based on her eventual success with respect to her mobility claim when she should have followed the appropriate Court procedures, endorsements and orders. Furthermore, the Applicant cannot rely on her financial circumstances to be exempt from costs given her egregious conduct regarding the removal of the child from the District of Sudbury on not one but two occasions and given that she created the circumstances which led to the matter being set down for trial on a priority basis.

[31] As such, I find that the Respondent, Zachary Delisle, is entitled to his costs for both motions. I find that the Respondent is entitled to costs on a full indemnity basis, plus HST, from April 24, 2020 when he discussed with his counsel the Motion brought by the Applicant to relocate with the child to Nova Scotia through to July 16, 2020 when the child was returned to the District of Sudbury.

[32] In addition, the Respondent is also entitled to costs on a full indemnity basis, plus HST, from August 31, 2020 when the Applicant left with the child again for Nova Scotia through to October 14, 2020 when the Motion was heard by the Court and the decision rendered.

[33] I find that the Respondent’s counsel’s Bill of Costs attached as an exhibit to the submissions on costs is reasonable, as is his hourly rate in conjunction with his years of experience. I calculate the full indemnity costs to be $9,320 for the aforementioned period and with the addition of HST, the total cost award is $10,351.60.

[34] The costs owed by the Applicant to the Respondent shall be repaid by the Applicant at the monthly rate of $200 commencing May 1, 2021 until repaid in full.

Released: April 27, 2021

Signed: Justice Heather-Ann Mendes