ONTARIO COURT OF JUSTICE DATE: 2021 02 16 COURT FILE No.: Toronto D11658/17

BETWEEN:

Anik Camille Levesque (Deceased) and Kristina Shirley Lamarre Applicants

— AND —

Casey Stanley Baldwin Respondent

Before: Justice Robert J. Spence

Endorsement on Costs following Written Submissions

Released: February 16, 2021

Counsel: Robert Molinari, for the applicants Michael Stangarone, for the respondent

R. J. SPENCE J.:

1. Introduction

[1] The parties in this proceeding are:

• Anik Levesque, the deceased mother (mother) of the child, J., who is the subject of the application currently before the court;
• Kristina Lamarre, the maternal grandmother (grandmother or applicant) of the child; and
• Casey Baldwin, the father (father) of the child.

[2] On January 15, 2021, the court heard a contempt motion brought by the grandmother against the father, seeking to find the father in contempt of a court order.

[3] The court found the father to be in contempt.

[4] On the same day, the court granted leave for the grandmother to seek costs of the contested motion.

[5] The parties subsequently filed costs submissions.

[6] The grandmother seeks costs in the amount of $5,000, all inclusive.

[7] The father submits that the costs should be fixed in the amount of $2,500, all inclusive.

2. Brief Background

[8] The mother and the father were married in 2012. Their son, J. was born in 2013. The parents separated in 2017.

[9] Following separation, the father moved to Brooklyn, New York, while the mother and J. remained in the matrimonial home in Toronto.

[10] The father continued to have periodic physical access to J., as well as Skype and phone access.

[11] In the autumn of 2017, the grandmother moved into the mother’s home, at which time she became actively involved in parenting J.

[12] The mother had been diagnosed with metastatic breast cancer and by July 2018, her cancer had spread to her brain. As a result, the grandmother became J.’s primary caregiver.

[13] Sadly, the mother died on May 16, 2020. She was 43 years old.

[14] While the mother was still alive, two applications were brought for custody – one application by the mother in Toronto, and one application by the father in New York.

[15] The New York application was contested by the mother, on the grounds of jurisdiction, specifically, that the child’s habitual residence was Ontario and the child’s best interests required that the determination of parenting issues be decided by a court in Ontario.

[16] On February 22, 2018, the New York court agreed with the mother and dismissed the father’s application for custody, holding that the New York court was without jurisdiction to hear the father’s claim.

[17] The current application is essentially a dispute between the grandmother and the father. [^1] The father seeks full custody of the child and an order that the child’s primary residence be with the father in New York.

[18] Because of the length of time the child had lived in Toronto and had been primarily parented by the grandmother, the court ordered the Office of the Children’s Lawyer (OCL) to conduct an investigation.

[19] In November 2020, the OCL released its report and recommendations. Among other things, the OCL recommended that the child live primarily with the grandmother and that the grandmother have sole decision-making authority.

[20] On November 26, 2020, the court ordered the father to pay $407 per month to the grandmother, on a temporary without prejudice basis, commencing January 1, 2020.

[21] On December 14, 2020, on consent of the parties, the court granted temporary access to the father, to occur between December 18, 2020 and December 26, 2020.

[22] The parties consented to this temporary order which provided that the access would take place in Brooklyn, New York and that the father would be responsible for all transportation, including pick up at the grandmother’s home and return of the child to the grandmother’s home on December 26, 2020.

[23] The father failed to return the child to the grandmother on December 26, 2020.

[24] The grandmother issued her contempt motion on December 29, 2020.

[25] The father returned the child on January 11, 2021.

[26] The motion was argued on January 15, 2021. The father did not deny that he had disobeyed the court order. However, he argued that there were extenuating circumstances which mitigated his breach of the court order.

[27] In her submissions, the applicant asked the court not to impose any punishment on the father, apart from the payment of her costs.

3. Legal Considerations

[28] The case of Mattina v. Mattina, 2018 ONCA 867 sets out the following fundamental purposes of modern costs rules:

(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, O. Reg. 114/99 (all references to the rules in this decision are to the Family Law Rules).

[29] The Court of Appeal in Beaver v. Hill, 2018 ONCA 840 emphasized the importance of reasonableness and proportionality, in the exercise of the court’s discretion in awarding costs.

[30] An award of costs is subject to the factors listed in the Rules, specifically, subrule 24(12), subrule 24(4) pertaining to unreasonable conduct of a successful party, subrule 24(8) pertaining to bad faith and subrule 18(14) pertaining to offers to settle.

[31] Subrule 24(1) provides:

SUCCESSFUL PARTY PRESUMED ENTITLED TO COSTS

24. (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. O. Reg. 114/99, r. 24 (1).

[32] Subrule 18(14) sets out the consequences of a party’s failure to accept an offer to settle that is as good as or better than the trial result of the person making the offer. It reads as follows [my emphasis]:

COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER

18 (14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:

1. If the offer relates to a motion, it is made at least one day before the motion date.
2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
3. The offer does not expire and is not withdrawn before the hearing starts.
4. The offer is not accepted.
5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer.

[33] Even if subrule 18(14) does not apply, subrule 18(16) provides that the court may take into account any written offer to settle, the date it was made and its terms when exercising its discretion over costs.

[34] The onus of proving that the offer is as good as, or more favourable than the trial result is on the person making the offer. See: Neilipovitz v. Neilipovitz, [2014] O.J. No. 3842 (SCJ).

4. Analysis

4.1 Offers to Settle

[35] The respondent states that he made two offers to settle. The first offer was made on January 13, 2021, offering to pay costs in the amount of $1,000 in exchange for the applicant withdrawing her motion.

[36] His second offer was made on January 14, 2021, offering to pay costs in the amount of $2,500 in exchange for the applicant withdrawing her motion.

[37] The applicant made no offers to settle.

[38] The motion proceeded and the court made a finding that the respondent was in contempt.

[39] The respondent did not achieve a result as good as or better than either of his two offers to settle.

4.2 Applicant is the successful party

[40] The applicant succeeded in her motion. She was the successful party.

[41] As noted earlier, subrule 24(1) creates a presumption that the successful party is entitled to costs of the motion.

[42] Accordingly, the court must consider the relevant factors under Rule 24 to decide the amount of costs having regard to what is reasonable and proportional.

[43] For the purpose of this decision, the most relevant consideration under Rule 24, is subrule 24(8).

4.3 Bad Faith

[44] Subrule 24(8) provides:

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. O. Reg. 114/99, r. 24 (8)

[45] The applicant submits that the contemptuous conduct of the respondent amounts to bad faith. The respondent disagrees.

[46] The respondent submits that a finding of bad faith requires a court to conclude there was some element of malice or intent to harm. See: Stewart v. McKeown, 2012 ONCJ 644 and Harrison v. Harrison, 2015 ONSC 2002.

[47] This court accepts that some element of malice or intent to harm is generally a precondition to a finding of bad faith.

[48] In Jackson v Mayerle, 2016 ONSC 1556, Justice Alex Pazaratz stated at paragraph 58 [my emphasis]:

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: Children’s Aid Society of the Region of Peel v. F.(K.J.), 2009 ONCJ 252, [2009] O.J. No. 2348 (OCJ); Biddle v. Biddle; Leonardo v. Meloche; [2003] O.J. No. 1969 (SCJ); Hendry v. Martins, [2001] O.J. No. 1098 (SCJ)

[49] The court adopts the highlighted portion of Justice Pazaratz’s statements in Jackson.

[50] In order to better assess whether the respondent’s actions constitute bad faith it is necessary to look more closely at the events immediately around, and subsequent to, the respondent’s failure to return the child to the grandmother on December 26, 2020.

[51] The court order dated December 14, 2020 required the father to return the child on December 26, 2020 at 4:00 p.m.

[52] On December 26, 2020 at 2:08 p.m., the grandmother texted the father: “Are you travelling?” The father did not respond.

[53] On the same day, at 5:31 p.m., the grandmother again texted the father: “Hello Casey and Brandon [^2], are you on your way back?”

[54] At 6:53 p.m. the respondent texted the grandmother: “We are not on our way back.”

[55] The grandmother responded by texting: “How come? Well?” The respondent texted: “He’s with me”. Again, grandmother asked: “Where?” Where is he Casey?” Father responded: “He is with me.” Grandmother: “Where?”

[56] The grandmother then tried contacting the paternal grandmother (Ursula) to find out what was happening. Ursula later telephoned the grandmother and said she would have the respondent call the grandmother.

[57] The respondent then telephoned the grandmother. The content of that telephone call and what the respondent said to the grandmother is somewhat in dispute. However, what is not in dispute is that the respondent told the grandmother that J. was with him, without telling the grandmother: where they were, why he was not returning J., and if or when he would be returning J. to the grandmother.

[58] By now, the grandmother was extremely upset. She contacted Canada Border Services who advised her to contact the police. She did so. The following is an extract from the Toronto Police Services report, dated December 27, 2020 [my emphasis]:

Officers called Casey in New York. During the conversation, Casey explained to officers that J. is in good health, however he would not be bringing him back to Canada until his lawyer contacts her lawyer . . . Officers advised Casey that a Canada wide warrant may be issued should he enter the country. Casey indicated he understood, however was adamant about his lawyer handling it. Casey would not disclose his current location to officers during the phone call.

[59] The grandmother contacted her lawyer on December 27; in turn, her lawyer emailed the father’s lawyer, asking for an explanation.

[60] On the following day, December 28, the respondent’s lawyer sent a Notice of Change in Representation, signed by the respondent, indicating that the respondent was now representing himself.

[61] On December 29 at 4:00 p.m., grandmother’s counsel emailed the contempt motion to the father.

[62] I excerpt the following from the grandmother’s costs submissions (not denied by the father) [my emphasis]:

By his newly retained lawyer Mr. M. Stangarone’s emailed letter to her lawyer on Friday, January 8th, grandmother first became aware that the father went on a plane with the child to Florida during Covid-19 to visit paternal grandfather and that he would return the child either on Monday January 11th if she met him at the border of his choosing otherwise at some later date . . . . After additional letters and phone calls between counsel regarding the child’s return, on the evening of January 11th grandmother travelled on her own by car for more than 3 hours to the U.S.-Canada border to pick up the child, at which time she was relieved and she hugged the child. She had been scared sick.

[63] The essence of the respondent’s argument that there was no bad faith is best summarized in the following extract from the respondent’s costs submissions [my emphasis]:

There was no bad faith; the respondent never intended to refuse the return of the child, and his contempt was purged by returning J. safely at the time and location conferred between counsel. The extenuating circumstances of his father’s failing health and the COVID-19 pandemic are also mitigating factors. The respondent’s actions were not malicious or intended to hurt the applicant; rather his actions were of poor judgment which were results of the tragic news that he received on the day before J.’s scheduled return and the fact that the paternal grandfather had not seen J. for 3 years prior to December 2020.

[64] The core of the respondent’s defence to the allegation of bad faith is that his actions were “not intended to hurt the applicant.”

[65] In the case of R. v. Purcell, 2007 ONCA 101, the court of appeal had the following to say about the mens rea of intent in the context of a charge of assault, beginning at paragraph 14 [my emphasis]:

[14] The distinction between offences of general or specific intent has been of most importance in addressing the question of whether drunkenness can negate the mental element required for conviction. . . . General intent offences as a rule are those which require the minimal intent to do the act which constitutes the actus reus. Proof of intent is usually inferred from the commission of the act on the basis of the principle that a person intends the natural consequences of his or her act. … Specific intent offences are as a rule those that require a mental element beyond that of general intent offences and include “those generally more serious offences where the mens rea must involve not only the intentional performance of the actus reus but, as well, the formation of further ulterior 2007 ONCA 101. Applying the definitions of general and specific intent offences articulated by Sopinka J., I agree with the trial judge that s. 85(1)(a) is a crime of general intent. The requisite mens rea relates only to the conduct which constitutes the actus reus (the use of the weapon) and not to an ulterior motive or purpose.

[66] In other words, for general intent purposes in criminal law, it is not necessary to crawl inside someone’s mind and determine what that person actually intended. It is sufficient to determine only whether the person intended the act itself, on the basis that persons “intend the natural consequences of his or her act”.

[67] If general intent is all that is required for certain types of cases in criminal law, where an accused can be convicted of a crime, and potentially be sentenced to a lengthy term of incarceration, this court, can see no logical reason for applying a requirement for specific intent in a civil contempt motion.

[68] Accordingly, I conclude that general intent is all that is required in order to establish an intention to harm in the context of a family law contempt proceeding.

[69] I find that the respondent in this case acted in bad faith as his conduct was intentional, and that he should have known that the natural consequences of his conduct would be to inflict emotional harm on the grandmother. Specifically the court notes the following acts by the father:

(a) The father ignored the grandmother’s repeated text messages which she sent over a period of several hours inquiring as to the child’s whereabouts, as well as the timing of the child’s return to the grandmother;

(b) When the father finally responded, he stated simply: [the child] “is with me”. He refused to say where the child was;

(c) When the father finally did telephone the grandmother, he again refused to provide the location of the child;

(d) The father’s refusal to give any meaningful information to the grandmother necessitated grandmother contacting Canada Border Services and then Toronto Police Services (TPS);

(e) The father refused to disclose his whereabouts to TPS;

(f) The father told TPS he would not return the child until his lawyer had become involved;

(g) The father then dismissed his lawyer; and

(h) The father then instructed his newly-retained lawyer that he would return the child on January 11th, provided the grandmother drove to a border location of his choosing.

[70] All these acts by the father were intentional. All these acts, particularly when taken together, would cause any reasonable person to understand the emotional harm that would inevitably be inflicted on the grandmother.

[71] All of this is over and above the intentional act of disobeying a court order.

[72] The father’s explanation that he took the child to Florida to visit the paternal grandfather who had been diagnosed with dementia and that the father should be excused for this reason, carries no weight with this court.

[73] The father provided no evidence of the paternal grandfather’s illness.

[74] If the father’s statement about this was true, the court must ask, why didn’t he simply tell the grandmother this?

[75] Why did he avoid speaking with her?

[76] Why did he refuse to tell her that he and the child were going to Florida?

[77] Why did he refuse to tell this to the TPS?

[78] For 13 days, the grandmother had no idea where J. was. She had no idea if she would ever again see J. And then, when a return date was finally set by the father, unilaterally, and the border crossing set by the father, unilaterally, the grandmother was forced to drive for three hours to meet her grandson.

[79] The court considers these latter two unilateral actions by the father to be particularly high-handed.

[80] Returning to Jackson, supra, all of the father’s actions, taken together, demonstrate “intentional duplicity, obstruction and obfuscation”.

[81] For all of these reasons, the court concludes that the respondent’s behaviour must be characterized as bad faith.

5. Costs Payable

[82] As subrule 24(8) provides, once a court determines that a party has acted in bad faith, the court “shall decide costs on a fully recovery basis”.

[83] This subrule does not confer any discretion on a court to order something less than full recovery of costs. The mandatory requirement for costs on a full recovery basis, is an indication that the Rules Committee wanted courts to treat bad faith as very serious business, by sending a strong denunciatory message to parties who behave in such a manner.

[84] I have reviewed the applicant’s counsel’s Bill of Costs which reveals that counsel spent 12.5 hours on this matter. In the context of all the events which transpired between December 26, 2020, until the child was returned and, ultimately, the time spent in preparing for and arguing the contempt motion, I conclude that this time spent was reasonable.

[85] Counsel was called to the bar in 2002. I find that his rate of $450 per hour is reasonable.

[86] However, the analysis does not end with a computation based on time spent multiplied by the hourly rate. As this court noted in Fearon v. Ellsworth, 2020 ONCJ 583, full recovery of costs does not mean simply, submit your Bill of Costs and the court will automatically order whatever that Bill totals.

[87] Instead, full recovery requires that any costs order be reasonable and proportionate. In other words, the court has an obligation to review the contents of the Bill of Costs and determine whether the requested amount is reasonable and proportionate in the context of the overall proceeding.

[88] I find the time spent and the hourly rate in counsel’s Bill of Costs to be reasonable and proportionate. In the present case, the arithmetic computation produces a result which, overall, is reasonable and proportionate.

[89] Moreover, the amount requested by the applicant represents a discount of approximately 20% from the actual time spent and the fees charged.

[90] The Bill of Costs totalled $6,356.25, inclusive of H.S.T.

[91] Interestingly, the first sentence in the applicant’s costs submissions stated:

Grandmother is seeking full recovery (or something close to full recovery) costs of $5,000, all inclusive.

[92] The applicant did not seek full recovery of costs in the amount of $6,356.25.

[93] While I would have been inclined to order the full amount set out in the Bill of Costs had the applicant requested this, I am not prepared to order more than the $5,000 specifically requested.

[94] The court orders the respondent to pay costs to the applicant in the amount of $5,000.

[95] As subrule 24(8) provides, those costs are to be paid immediately.

[96] I have two final comments for the father. First, he is fortunate that the grandmother did not seek her actual costs as set out in her counsel’s Bill of Costs.

[97] And second, he is particularly fortunate that the grandmother generously asked the court not to impose any punishment on the father following the finding of contempt. In this regard, I fully agree with the observations of Justice Joseph Quinn in Hatcher v. Hatcher, at paragraph 68 [my emphasis]:

[68] Not only was the wife successful on her contempt motion . . . but her success was in respect of something that, if left unprosecuted, erodes the effectiveness of family courts and frustrates litigants. I am speaking of the deliberate breach of court orders.

[98] Order to go accordingly.

Released: February 16, 2021 Justice Robert J. Spence (Signed electronically)

[^1]: The grandmother is a co-applicant. [^2]: J.’s uncle who was facilitating with transportation.