Court File and Parties

ONTARIO COURT OF JUSTICE DATE: April 4, 2022 COURT FILE No.: D48617-09

BETWEEN:

V.S. Applicant

— AND —

I.M.B. Respondent

Before: Justice Roselyn Zisman

Heard: by written submissions Reasons for Judgment released on: April 4, 2022

Counsel: Brigitte Barsalou, for the applicant Michael H. Tweyman, for the respondent

Costs Decision

Zisman, J.:

Background

[1] The Applicant (father) seeks full recovery of costs related to a contempt motion that resulted in the court finding that the Respondent (mother) was in contempt of the Order of Justice Sherr dated April 21, 2015 and the Order of Justice Spence dated May 29, 2019.

[2] The contempt motion required 9 separate attendances on November 5, 2020, November 30, 2020, February 18, 2021, April 22, 2021, June 23, 2021, October 21, 2021, December 10, 2021, December 16, 2021 and December 22, 2021. There were also numerous 14B motions filed by both parties.

[3] Prior to proceeding with the father’s contempt motion, the court and parties attempted to resolve the issue of the mother’s non-compliance with the outstanding court orders. The mother’s non-compliance resulted in the father having no contact with the child as of May 24, 2020 and the mother making unilateral decisions about the child without the father’s consent or knowledge contrary to the terms of the outstanding court orders.

[4] Due to the mother’s ongoing unwillingness to resolve the issues, the contempt motion was heard on June 23, 2021. On July 5th, 2021, the court released its decision finding the mother in contempt of multiple breaches of the orders of Justice Sherr and Justice Spence.

[5] Specifically, the court found that the mother had intentionally failed to ensure that the father’s parenting time was respected. By the time the motion was argued on June 23, 2021, the father had missed 104 days of parenting time.

[6] There was a further finding that the mother willfully and intentionally breached the order of Justice Sherr by failing to consult with the father with respect to the child’s major medical and schooling issues, failing to advise him of all of the child’s medical appointments including appointments with his paediatrician, psychiatrist and new counsellor and failing to give the father notice about school meetings.

[7] There was also a finding that the mother willfully and intentionally breached the order of Justice Spence as she failed to permit the father to have direct access to information from child’s service providers by not advising him of the names of the service providers and in the case of the school by removing his name as a contact. As a result, the father was not able to directly access important information about his son.

[8] The mother was also found in contempt of the consent court order of Justice Spence in that she removed the child’s cell phone and interfered with his use. The mother did not dispute that since August 2019, she kept child’s cell phone while he was in her care and prevented the child from using his cellphone to communicate with the father.

[9] In view of these findings and a finding that the mother had effectively attempted to erase the father from the child’s life, the court found if the child remained in the care of the mother there would be no realistic hope that she would now encourage a relationship or involve the father in the child’s counselling.

[10] A temporary order was made that the child be transferred to the care of the father and that the mother’s contact be suspended for 60 days with ancillary terms that would permit the father and child to engage in reunification therapy. The order further provided that after the 60 day black out period the child’s parenting time with the mother would be in the father’s discretion and in consideration of the child’s wishes.

[11] The court held that it would not impose a further financial penalty at that time but adjourned the further sentencing phase of the contempt hearing to assess whether the mother had complied with the order and purged her contempt.

[12] During the 60 days the child did not have any contact with the mother it appeared that his relationship with the father began to improve.

[13] The father subsequently agreed that the mother have both virtual and in person contact with the child. However, as soon as the child began to have contact with the mother he again began to repeat the many baseless allegations made against the father and refused to abide by the parenting arrangements that had been made.

[14] The decision on the sentencing was released on December 23, 2021. The mother had reverted to the same behaviour that resulted in the court finding that she was in contempt of the orders of Justice Sherr and Justice Spence.

[15] Accordingly, the court held that the mother had not purged her contempt. The evidence established that the mother was doing exactly what she had done previously that is, telling the child he should abide by the parenting time schedule and if he refused, the mother again took the position that she could not force the child to abide. A finding was made that the mother had not acted in ways to ensure and support the child having a positive relationship with the father.

[16] Based on the number of breaches and the duration of those breaches, the lack of remorse and the continuation of the same breaches, the mother was ordered to pay a penalty of $5,000 to the father, to be paid in installments of $500.00 per month. A further order was made, pursuant to a Motion to Change issued by the father that the child remain in the primary residence of the father with parenting time to the mother.

[17] Throughout the proceedings, counsel for the father made it clear that she would be seeking costs, if successful. When the penalty for the contempt finding was imposed the father’s counsel clearly indicated that this monetary penalty was not in lieu of her requests for costs.

Position of the parties

[18] It is the position of the father that he is entitled to full recovery of costs on the basis that the mother acted in bad faith. The initial bill of costs submitted requests costs of $75,0000. Subsequently in an attendance before me counsel for the father indicated that there was an error in the bill of costs and she was only seeking $68,500.

[19] The court requested that counsel provided a more detailed bill of costs due to this revised submission and considering the submission by mother’s counsel that some of the attendances were not with respect to the contempt motion.

[20] Mother’s counsel was permitted to make any further submissions once in receipt of the father’s more detailed bill of costs.

[21] The more detailed bill of costs was submitted. The bill of costs deducted a courtesy discount provided to the father and deducted a further $6,500 to account for some time spent that were unrelated to the contempt motion. The total costs now requested on a full recovery basis is $64,992.11.

[22] Further costs submissions were made by mother’s counsel that I have considered.

[23] It is the position of the mother’s counsel that costs should be fixed at $15,000 and that the mother be given time to pay.

[24] It is submitted by counsel for the mother that the father is not entitled to a full recovery of costs as the mother did not act in bad faith and was only fighting for her son. It is submitted that the father should not be able to claim costs for all of the prior court attendances on the contempt motion.

[25] It is further submitted that due to the mother’s financial circumstances a large cost award would be financially devastating to her and she should be permitted to pay any costs by a small monthly amount.

[26] It is submitted that the mother is remorseful regarding her past conduct and is working with her own therapist to improve herself. She is also paying for her own therapist and half the cost of the reunification therapist.

General principles

[27] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that cost orders are in the discretion of the court.

[28] Subrule 24 of the Family Law Rules (FLR) sets out a framework for awarding costs for family law cases.

[29] In the case of Mattina v. Mattina, 2018 ONCA 867, the Ontario Court of Appeal has confirmed that modern family cost 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 pursuant to subrule 2 (2) of the FLR.

[30] Subrule 24(1) Family Law Rules (FLR) creates a presumption that the successful party is entitled to costs.

[31] The exercise of judicial discretion in awarding costs is guided by FLR 24 (12) both in terms of the entitlement of a party to an award of costs as well as to the quantum of that award.

[32] The Ontario Court of Appeal in the case of Beaver v. Hill, 2018 ONCA 5412, clarified several aspects of the cost rules namely, that there is no provision in the FLR that provides for a general approach of fixing costs at “close to full recovery” and that “proportionality and reasonableness are the touchstone consideration” to be applied in fixing the amount of costs.

[33] The court held that a cost award is subject to the factors listed in FLR 24(12), the directions set out under FLR 24(4) (unreasonable conduct by the successful party), FLR 24(8) (bad faith), FLR 18(14) (offers to settle) and the reasonableness of the costs sought by the successful party.

[34] FLR 24 (12) provides the considerations in setting the amount of costs, including the reasonableness and proportionality regarding the parties’ behaviour, the time spent by each party, any written offer to settle, legal fees and any other expenses paid.

[35] The court’s role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees. An award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings rather than an exact measure of actual costs to the successful litigant. See: Boucher v. Public Council (Ontario) 2004 14579 (ON CA), [2004] OJ No. 2634 (OCA); Delellis v. Delellis 2005 36447 (Ont. SCJ).

[36] In determining the appropriate quantum, the court should consider the amount that the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation. See: Arthur v. Arthur, 2019 ONSC 938.

[37] The court should also take into consideration the ability of a party to pay costs. See: MacDonald v. Magel (2003), 2003 18880 (OCA), 67 O.R. (3d) 181 (Ont. C.A.).

[38] However, a party’s limited financial circumstances will not be used as a shield against any liability for costs but will be taken into account regarding the quantum of costs. See: Snih v. Snih, 2007 20774 (ON SC), 2007CanLII 20774 (Ont. SCJ paras. 7-13).

[39] Difficult financial circumstances are a factor but not are always a reason to deprive a successful party of costs or to reduce the amount of costs. See: Beaulieu v. Diotte, 2020 ONSC 6787.

[40] Those who can least afford to litigate should be most motivated to seriously pursue settlement and avoid unnecessary proceedings. See: Mohr v. Sweeney, 2016 ONSC 3238; Balsmeier v Balsmeier, 2016 ONSC 3485.

Application of general principles to the facts

Success

[41] There is no issue that the father was the successful party. The issue is therefore what amount of costs should be awarded.

Offers to settle

[42] In this case neither party made an offer to settle.

[43] The Family Law Rules expressly provide that depending on the conduct of the parties and the presence or absence of offers to settle, a judge may increase or decrease what would otherwise be the appropriate quantum of costs awarded, although there is no obligation to make an offer to settle. See: Beaver v. Hill, 2018 ONCA 840.

[44] In this case, the father sought a finding that the mother was in contempt of court orders and sought remedies that she be required to comply. The mother took the position that she was not in contempt and that she had done everything she could to comply. Accordingly, the issues were binary, as either the mother was or was not in contempt.

[45] However, I do note that the father acted reasonably and made attempts to resolve the issues before commencing this litigation by offering a modified parenting proposal and suggesting counselling. Even after filing the contempt motion, he attempted to resolve the issues before proceeding with the contempt motion by agreeing to reintegration therapy with the hope that the mother would encourage the child to spend time with him. The lack of any offer to settle is therefore not a relevant consideration.

Bad faith

[46] Counsel for the father seeks a finding that the mother acted in bad faith.

[47] FLR 24 (8) provides 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.”

[48] Bad faith has been explained as “not simply bad judgement or negligence but rather implies the conscious doing of a wrong because of a dishonest purpose or moral obliquity…it contemplates a state of mind affirmatively operating furtive design or ill will.” See: S. (C.) v. S. (M.) 2007 20279 (Ont. S.C.) at para. 16 and the many cases cited therein.

[49] Justice Perkins, in S. (C.) v. C.(M.), supra, at para. 17 further explains bad faith in the context of family law proceedings as follows:

In order to come within the meaning of bad faith in sub rule 24(8), behaviour must be shown to be carried out with intent to inflict financial or emotional harm on the other party or other persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court. A misguided but genuine intent to achieve the ostensible goal of the activity, without proof of intent to inflict harm, to conceal relevant information or to deceive, saves the activity from being found to be in bad faith. The requisite intent to harm, conceal or deceive does not have to be the person's sole or primary intent, but rather only a significant part of the person's intent. At some point, a party could be found to be acting in bad faith when their litigation conduct has run the costs up so high that they must be taken to know their behaviour is causing the other party major financial harm without justification.

[50] In the case of S. (C.) and D. (M.), supra, the court held that the father’s behaviour crossed the line from unreasonable behaviour to a finding that he acted in bad faith due to his deliberate failure to abide by court orders that he had consented to. The court held that the father’s campaign against the mother to alienate the children from her caused the mother emotional distress and caused the children emotional harm. The father’s motives were to cause harm to the existing relationship between the children and the mother.

[51] In the case of Piskor v. Piskor, 2004 5023 (ON SC), [2004] O.J. No. 796, (SCJ), 2004 CarswellOnt 5313, at para. 9 Justice Blishen held that bad faith can be established by the intentional failure to fulfill an agreement in order to achieve an ulterior motive or, an intentional breach of court order with a view to achieving another purpose. See also Erikson v. Erikson, 2001 39078 (ON SC), 2000 29675 (ON SC), [2000] O.J. No. 1569 (S.C.J.) and Hunt v. Hunt, [2001] O.J. No. 5111 (S.C.J.).

[52] In the case of Piskor v. Piskor, supra, the father made the unilateral decision not to comply with a spousal support order, failed to comply with disclosure orders and failed to provide complete and timely financial disclosure. The court held that his behaviour was unreasonable to the extreme and amounted to bad faith.

[53] Similarly, in the case of Henderson v. Legeighn 2021 ONSC 5543 Justice Piccoli held that a mother acted in bad faith when she made it clear that she had no intention of complying with court orders regarding that the father’s parenting time and stated that she was not bound by orders of the court. The court held that overtly deciding not to comply with court orders is egregious behaviour; it is intentional and obstructionist. In that case the mother also chose not to participate in the court process and continued to overhold the child from the father.

[54] In the case of Van Westerop v. Van Westerop 2000 29674 (ON SC), [2000] OJ No. 4346 Justice McKinnon held that the father acted in bad faith in maintaining that his income was $36,000.00, in circumstances where the court has imputed income of $150,000.00 to him. The court ordered full recovery of costs and held that the father acted unreasonably when he refused to sign the closing documents for the sale of the matrimonial home despite a court order that the home be sold and despite the fact that he had not pursued a motion to stay the order when that was an available remedy.

[55] In this case similarly to the cases cited above, I find the mother conducted herself unreasonably and that she acted in bad faith in the following ways:

1. The mother failed to provide the father with his court ordered parenting time as of May 24, 2020 but she took no steps to change the orders of Justice Sherr and Justice Spence that provided the father with regular parenting time and holiday time.
2. The mother rejected any proposals by the father to reinstate some parenting time after the child refused to see or speak to him as of May 24, 2020.
3. The mother did not advise the father that she arranged for the child see a Dr. Solomon, a psychiatrist, despite advising the father when he requested that they arrange for such therapy that it was not necessary.
4. The mother did not advise the father that in accordance with Dr. Solomon’s recommendations the child began to see a counsellor, Caleb Van Wyk.
5. The mother hired Vernon Beck, an unqualified self-proclaimed child advocate to prepare a purported Voice of the child Report without advising or consulting with the father. She did this to bolster her position in the litigation rather than attempt to either work cooperatively with the father to reinstate his parenting time or obtain a court order to change the parenting order.
6. The mother did not advise the father that the child had threatened to harm himself and was taken to the hospital. She did not advise the father that the hospital concluded that the child did not intend to actually harm himself.
7. The mother did not advise the father of the child’s medical appointments as required by the court order and therefore deprived him of his ability to participate in those appointments as permitted by the court orders.
8. The mother did not advise the father that the child had seen his paediatrician 10 times in the last 2 years and seen other specialists and had gone to the hospital emergency department twice.
9. The mother assured both the child’s psychiatrist and his counsellor that the father was aware of the child’s counselling when it was clear that this was not true.
10. The mother failed to provide the father with the necessary information about any of the service providers involved with the child and thereby deprived him of the ability to obtain this information directly as he was entitled to in accordance with the terms of the court order.
11. The father was entitled to obtain information directly from the child’s school however, the mother removed him as a contact person and only listed herself as the child’s guardian for access to his online learning account. The mother was also required to advise the father of any school meetings which she failed to do. Once the father was able with the assistance of counsel to obtain access to the child’s school record, he discovered that the child had been referred for psychoeducational assessment. The father was never advised of this nor did it appear that the mother followed through.
12. The mother only agreed to reunification therapy after two months of it being proposed by the father and only after he has commenced court proceedings and prepared court materials. The mother then further delayed by not submitting her intake forms. The mother then did not ensure that the child attended the therapy.
13. Immediately upon the release of the July 5th decision that transferred the child into the care of the father, the mother took the child to the hospital emergency alleging that he made threats of self-harm that were not verified by the hospital.
14. Even after findings of contempt, the mother took no responsibility for her role in alienating the child from the father and continued the same pattern of behaviour that caused the initial finding of contempt and a subsequent finding that the mother had not purged her contempt.

[56] The mother’s long standing and ongoing behaviour to sever the relationship between the child and the father is the epitome of unreasonable behaviour and bad faith. The mother has intentionally acted in a manner to cause emotional distress and harm to the father and her actions have also caused emotional harm to the child. The mother continues to put child in the middle of the conflict. She refuses to acknowledge that it is in this child’s best interests to have a loving and meaningful relationship with his father.

[57] One of the express purposes of the costs rules in family law proceedings is to discourage and sanction inappropriate behaviour by litigants.

[58] Costs can be used to sanction behaviour that increases the duration and expense of litigation or is otherwise unreasonable or vexatious. Courts routinely 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.

[59] Even if there has not been a finding of bad faith, the mother’s ongoing unreasonable behaviour warrants a full recovery of costs in order to express the court’s disapproval of her unreasonable conduct in this litigation.

Prior steps related to the contempt motion

[60] Counsel for the mother submits that counsel for the father should not be entitled to claim costs for all the prior attendances. However, he acknowledges that the prior steps were all “technically” part of the contempt proceeding.

[61] He further submits that counsel for the father should not be entitled to claim for costs that are not directly related to a step in the proceeding.

[62] However, the mother could not realistically have expected that there would be no cost consequence when she requested adjournments, or when she refused to arrange some virtual parenting time for the father or when she caused a wasted attendance by only agreeing to attend reunification therapy before proceeding with the contempt motion was to be argued. The mother could not have expected that there would be no cost consequences when she continually breached orders of the court.

[63] It was reasonable that the father did not argue that costs be fixed at each court attendance as initially he hoped to resolve the issues co-operatively. But having determined that there was no way to resolve the issues without proceeding with the contempt motion on its merits, he is now entitled to claim costs for all prior attendances. Further, he is entitled to claim costs for work that was not related to any particular step such as meetings with his counsel, correspondence, drafting the contempt motion.

[64] The mother should have been aware that if found in contempt and if found not to have purged that contempt that the father would seek costs for all of the prior attendances and for other legal expenses incurred due to the necessity of bringing this proceeding. Counsel for the father made it clear that she was seeking costs and that the temporary orders made or the penalty imposed on the mother were not in lieu of costs.

Full recovery of costs

[65] Although I find that the mother acted in bad faith and that the father is entitled to full recovery of his costs that does not mean that the father is entitled to be reimbursed for all his legal expenses. Full recovery of costs refers to the full amount that the party has claimed in the context of the litigation, considering the factors listed in FLR 24 (12) and subject to any adjustments that the court finds are appropriate based on the reasonableness and proportionality of the costs claimed. See Piskor v. Piskor 2004 5023 (ON SC), [2004] O.J. No. 796 (SCJ) and Van Westerop v. Van Westerop 2000 29674 (ON SC), [2000] O.J. No. 4346 (SCJ) for similar comments.

[66] I do not accept the submissions of the mother’s counsel that the time spent was excessive compared to the time he spent and the time spent by another counsel who previously acted as agent for the mother.

[67] The father was desperately attempting to restore his relationship with his son, it is understandable that he would expect his counsel to use all resources available to put forward a compelling case for him. The contempt motion was therefore very important to the father and complex in view of the history of the proceedings and the volume of materials filed.

[68] The father’s counsel was at each stage of this proceeding fully prepared. On the father’s behalf, 15 affidavits were filed, 2 factums, a statement of law and a book of authorities. There were 9 separate attendances that included cross-examination. The mother filed 9 affidavits.

[69] It is submitted by mother’s counsel that the mother could not have expected the father’s legal costs to be so high as her own legal expenses were only $28,508.21 on a full recovery basis or $17,926.99 on a partial indemnity basis.

[70] I find that the legal expenses and effort expended by father’s counsel were proportionate to the issues even though the mother’s legal fees were considerably less.

[71] The hourly rates of father’s counsel, her associates and law clerk are reasonable. I would reduce some of the time spent to consult with more senior counsel. Although it is correct to submit that if senior counsel had carriage of this case, the father’s bill of costs would have been substantially higher nevertheless, the time spent amounted to an additional $8,570.72 and I find that the mother should not be responsible for this full amount. Counsel for the father also removed from the bill of costs time spent with respect to other issues.

Inability to pay

[72] It is submitted that the mother’s ability to pay should be considered as the mother only earned $39,653 last year. It is submitted that the mother has already been ordered to pay a penalty of $5,000, is paying for half of the reunification therapy and her own counselling. I am aware that she also has been ordered to pay costs related to an unsuccessful motion in the Superior Court of Justice.

[73] A finding of contempt is one of the most serious findings a court can make. It means that the court has found, beyond a reasonable doubt, that a party has intentionally and willfully breached a court order. In this case, there were findings that there were multiple breaches of court orders over a prolonged time, a total denial of parenting time to the father without the mother taking any steps to change the court orders, the mother showed no remorse and did not change her behaviour.

[74] To then permit someone who intentionally breached court orders to rely on his or her impecuniosity to avoid bearing the cost of their behaviour is to diminish to seriousness of such behaviour. This simply cannot and should not be tolerated as it simply encourages such behaviour to continue.

[75] If the mother is not ordered to pay a substantial portion of the father’s legal expenses it would result on the father having to bear the burden of financing the contempt proceedings. He would be required to pay for legal expenses that he would never have had to incur in the first place if the mother had simply abided by the court orders.

[76] Impecuniosity of contemnor should be given minimal consideration in costs analysis. A contempt finding is serious and is not made lightly. The message needs to be sent that a party cannot be in contempt of an access order and then try to hide behind their impecuniosity when it comes to the costs reckoning. See: Nelson v. Davidson, 2021 ONCJ 70 for a similar finding.

Order

[77] Considering all the facts of this case, the case law and the factors set out in FLR 24 (12), I find that it is fair and reasonable and consistent with the reasonable expectations of the parties for the Respondent to pay the Applicant costs of $55,000.

[78] There will be an order as follows:

1. The Respondent I.M.B. shall pay to the Applicant V.S. costs fixed at $55,000 inclusive of applicable taxes payable forthwith.

Released: April 4, 2022 Signed: Justice Roselyn Zisman