ONTARIO COURT OF JUSTICE

CITATION: Maharaj v. Fazio-Morris, 2021 ONCJ 47

DATE: 2021 01 18

COURT FILE No.: Toronto DFO-20-15411

BETWEEN:

Asha Maharaj Applicant maternal grandmother

— and —

Giuseppina Fazio-Morris and Daljit Bachra Respondent stepmother and Respondent paternal grandmother

Ruling on Costs of Urgent Ex Parte Motion (In Chambers)

Sage Harvey (not counsel at time of ex parte motion)................... Counsel for the applicant Maxine Jagdeo .................................................. Counsel for the respondent Ms Fazio-Morris Respondent Daljit Bachra................................................................................ Acting in person

O’CONNELL J.:

Introduction:

[1] Ms Fazio-Morris, the Respondent step-mother, seeks her legal costs following an ex parte motion brought by Ms Maharaj, the Applicant grandmother, for temporary custody (as well as other relief) of her granddaughter, Gia, following the tragic death of Gia’s father.

[2] Ms Fazio-Morris seeks full recovery of her costs in the amount of $9,937.78. She submits that Ms Maharaj acted in bad faith and misled the court.

[3] Ms Maharaj submits that no costs should be ordered because the matter settled without an adjudicated hearing following the return of the ex parte motion.

Brief Background:

[4] The Applicant is the maternal grandmother of Gia. Following the death of Gia’s father, the Applicant brought an ex parte motion (a motion without notice to affected parties) seeking temporary custody of Gia, age 11 at the time. She also sought supervised access, a non-removal order and an order for the child’s passport and health card.[^1]

[5] The evidence filed on the ex parte motion strongly suggested that there was a great risk that the Respondent paternal grandmother, Ms Daljit Bachra, who lives in England, was going to remove Gia from Canada after the funeral of Gia’s father. The paternal grandmother had travelled to Canada from England for the funeral.

[6] Ms Fazio-Morris, who is only briefly mentioned in passing in the Applicant’s supporting affidavit for the ex parte motion, was not identified as Gia’s step-mother in the affidavit, nor was her role in Gia’s life described. Her role in Gia’s life appeared to be minimal. She was presented as a girlfriend of the father.

[7] According to the Applicant’s Affidavit, there was a grave risk that the child would be removed from Canada by the paternal grandmother before the issue of custody could be adjudicated, and that there was no appropriate caregiver for Gia other than the Applicant. According to the affidavit filed, the Children’s Aid Society had been involved with the father in the past.

[8] I therefore granted a temporary “without prejudice” order placing Gia in the Applicant’s care, along with other relief, based on the evidence filed on the ex parte motion. I authorized the police to locate and apprehend Gia forthwith and I made an order that she could not be removed from the jurisdiction.

[9] I adjourned the motion for seven days to effect service on the other parties and to permit the police to enforce the order. The hearing returned before me following week.

[10] Upon the return of the hearing before me, Ms Fazio-Morris had retained counsel and had filed extensive materials. It was clear from the evidence that Ms Fazio-Morris was, in fact, Gia’s step-mother, that she had lived with Gia and the father for a number of years and been very involved with her care and upbringing. Gia and the step-mother are very closely bonded. Gia is doing very well in the step-mother’s care. Although the Applicant had reported the family to the Children’s Aid Society in the past, the Society had no concerns regarding the Respondent’s parenting of Gia.

[11] It was also clear from the evidence that there was no issue of flight risk and no plan to remove Gia from Canada.

[12] Following receipt of this evidence, the court made some observations and statements in court at the outset of the hearing. The matter was held down so that the parties could have discussions. Upon return, on consent, the ex parte order was set aside. Gia was returned to her step-mother’s care, along with her passport and health card. The parties then negotiated a temporary access order.

[13] The parties continue to appear before me in the case management process to monitor and address the issue of sibling access between the two families.

The Law and Governing Principles:

[14] 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, 2008 23496 (ONSC), [2008] O.J. No. 1978 (S.C.J.).[^2]

[15] 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.

[16] 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, 2003 S.C.C. 71, paragraph 25; Gordon v. Wilkins, 2020 ONCJ 199 (O.C.J.), at paragraph 4.

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

[18] 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 (O.C.J.), at paragraph 6.

[19] 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.

[20] 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 (ON. SCJ).

[21] 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.) (2007), 2007 20279 (ON SC), 38 R.F.L. (6th) 315 (ON SCJ).

Analysis:

[22] Ms Fazio-Morris was clearly the successful party on the Applicant’s ex parte motion. Upon the return of the motion, after service was effected, the court set aside the order and returned Gia to her step-mother’s care. The court encouraged the parties to resolve the issues, but there is no question that the evidence filed by Ms Fazio-Morris clearly demonstrated that the ex parte motion should never have been brought.

[23] Upon receiving the affidavit evidence of Ms Fazio-Morris, the court was very concerned at the misleading picture that was painted by the Applicant, without notice to Ms Fazio-Morris. The Applicant neglected or failed to disclose that Ms Fazio-Morris was Gia’s step-mother and caregiver, that she lived with Gia and she was deeply involved in her care for a number of years, and that she and Gia were closely bonded. Any mention of Ms Fazio-Morris was in passing, mentioned twice in the affidavit, and she appeared to be only a girlfriend of the deceased father.

[24] Ms Maharaj also neglected to mention that the father had left testamentary custody of Gia to Ms Fazio-Morris in his Last Will and Testament. She also neglected to disclose that her reports made to the Children’s Aid Society about the father’s care of Gia were unfounded and not verified by the Children’s Aid Society.

[25] Having said that, although I am very troubled by the Applicant’s conduct, I am not entirely convinced that the Applicant acted in bad faith, given the very high legal threshold that must be met. In order to find bad faith, the court must be satisfied that the Applicant knowingly and intentionally misled the court for another purpose other than what she was seeking.

[26] The Applicant deposed that she had a real and genuine fear that Gia would be removed from Canada to England by the paternal grandmother. There is a very long and toxic history between the maternal grandmother and the paternal grandmother. These parties do not communicate with each other effectively and deeply mistrust each other for reasons that are not entirely clear to the court. Emotions were running high following the tragic death of the father, which may cause people to behave irrationally.

[27] However, although I do not make a legal finding that the Applicant acted in bad faith, her conduct was certainly very unreasonable. The Applicant’s ex parte motion was misguided and misleading.

[28] On an ex parte motion, the supporting affidavit needs to be scrupulously honest or the order will be set aside. See: Sangster v. Sangster, 2003 48248 (ON CA), 2003 O.J. No. 69 (Ont. C.A). Counsel must make full, fair and candid disclosure of all non-confidential, non-privileged material facts, including those which are unfavourable to his or her position. See: Alexander v. Cherry, 2007 ABCA 128.

[29] Ex parte orders, particularly in custody cases, can cause enormous harm and the need for caution is even more significant. See Alexander v. Cherry, 2007 ABCA 128, 2007 CarswellAlta 863 (Alta. C.A.).

[30] In the case before me, the undisputed evidence before the Court at the return of the motion demonstrated that Gia was deeply traumatized by being removed by the police from her step-mother’s care shortly after the death of her father as a result of the material omissions in the Applicant’s ex parte motion materials.

[31] In A.M. v. J.M., 2016 ONCA 644, the Ontario Court of Appeal stated the following regarding ex parte motions:

“Where a motion is brought without notice, the person bringing the motion must make full and fair disclosure of all material facts (rule 39(6) of the Rules of Civil Procedure), including facts that may not be helpful to that party’s position. An ex parte order that is obtained without full and fair disclosure, even if the lack of full disclosure was unintended, is subject to being set aside. See for example, Rinaldi v. Rinaldi, 2013 ONSC 7368.

Notice and the opportunity to be heard are basic tenets of our justice system. Ex parte orders are therefore made only in very limited circumstances. The requirement for full and frank disclosure is essential to allow a court to fairly make a temporary order that will affect the rights of another person in an emergency situation where the court has not heard both sides of the story.”

[32] Ms Fazio-Morris should be able to recover a significant portion of the legal costs that she incurred to successfully set aside the ex parte order. Ms Fazio-Morris is now a single parent of limited resources and had to spend a great deal of money to respond to unnecessary litigation. This motion placed a serious financial strain on Ms Fazio-Morris, which directly impacts on Gia’s best interests.

[33] The Respondent’s counsel, Ms Jagdeo, is in her 2nd year of practice and bills at an hourly rate of $250.00. In addition, two other lawyers in her firm assisted her. Ms Jagdeo spent 23.1 hours ($5,775.00), Mr. Nuri spent 2.9 hours ($1,160.00 at a rate of $400.00) and Ms McMahon spent 6.8 hours ($1,700.00 at a rate of $250.00). The total amount sought, as previously indicated is $9,937.78, almost $10,000.00.

[34] The hourly rates and time spent on responding to and bringing a motion to set aside the ex parte motion were reasonable, given the high stakes and the important interests involved. The court was impressed at how quickly counsel put together very comprehensive and detailed evidence at the return of the motion.

[35] In my view, a fair and reasonable cost award payable to Ms Fazio-Morris should be $6,000.00, having considered all of the circumstance of this case.

Conclusion and Order:

[36] Therefore, for the above reasons, I order that the Applicant, Ms Maharaj, shall pay costs to the Respondent, Ms Fazio-Morris, in the amount of $6,000.00, inclusive of HST and all disbursements, to be payable forthwith, or no later than 30 days from the date of this Order.

Date: January 18, 2021 Justice Sheilagh O’Connell

[^1]: The Applicant grandmother has custody of Gia’s sibling. The biological mother is not in a position to care for her two children. [^2]: See also Gordon v. Wilkins, 2020 ONCJ 199 (O.C.J.), Justice Stanley Sherr, paragraphs 1 to 7.