Ontario Court of Justice
Date: 2024 03 07 Court File No.: Sudbury D 351-13 ext. 03
Between:
ROBERT PERREAULT Applicant
— AND —
SIERRA GOUDREAU Respondent
Before: Justice G. Jenner
Heard: In writing Released on: March 7, 2024
Counsel: Daniela Legere............................................................................... counsel for the applicant Sara Rainsberry......................................................................... counsel for the respondent
JENNER J.:
Costs Endorsement
Part One – Introduction
[1] The parties attended a scheduled motion on February 13, 2024. That motion, brought by the respondent mother, sought to strike the applicant father’s pleadings pursuant to r. 1(8) of the Family Law Rules. The basis for the motion to strike was the applicant’s failure to comply with the previous costs order of this court dated December 20, 2022 (the “costs order”). The motion was not argued, as the applicant paid the costs award on January 16, 2024.
[2] Pursuant to my endorsement of February 13, 2024, the issue of costs of the motion was to be addressed by the parties in writing. Both parties filed submissions. The respondent seeks costs on a full recovery basis fixed in the amount of $3,091.12, payable forthwith. The applicant asks that no costs be ordered.
Part Two – Brief facts and procedural history
[3] The underlying proceeding is a motion to change a final order. A settlement conference was scheduled for December 20, 2022. The applicant was self-represented at the time. The respondent was represented by counsel. The court’s endorsement from that date reflects that while the applicant had been present in court, he decided to leave prior to the conference commencing. The matter was adjourned to March 28, 2023, to set a new date. The applicant was ordered to pay forthwith costs to the respondent in the amount of $250.
[4] On March 28, 2023, the applicant attended court with legal representation and the matter was adjourned to June 13, 2023, to see if the applicant had paid the costs order. The matter returned to court early on April 5, 2023, for the applicant’s counsel’s motion to be removed, which was granted on consent.
[5] On June 13, 2023, the court noted the outstanding costs order and stressed that no further steps would be scheduled until costs are paid. The applicant advised he will pay the costs, and that he wished to cease all action on the matter. Counsel for the respondent indicated she needed to seek instructions from her client and the matter was adjourned to August 16, 2023.
[6] On August 16, 2023, the matter was addressed in the applicant’s absence. The court noted the costs remained outstanding and reiterated that no steps would occur until costs were paid, but adjourned the matter to October 18, 2023, as the parties were in settlement discussions. The applicant attended court after the matter had been addressed.
[7] On October 18, 2023, the applicant did not attend court. Counsel for the respondent was present and indicated her client will bring a motion under r. 1(8) of the Family Law Rules to strike the applicant’s pleadings. The matter was adjourned to January 9, 2024. On that date, both parties were in attendance. In canvassing a date for the motion to be heard, the applicant insisted on the earliest possible date. He explicitly turned down the option of a later date which would have permitted him time to retain counsel. The date of February 13, 2024 was selected for argument. The respondent filed her notice of motion later that day, along with a supporting affidavit (Tabs 47 and 48 of the Continuing Record).
[8] In response, the applicant filed an affidavit on January 16, 2024. He included proof that he had completed, that very day, an e-transfer of the outstanding $250. The applicant also attempted to file a notice that he was withdrawing all his claims. The notice of withdrawal was not formally accepted by the court but was nonetheless attached to the court file.
[9] On February 13, 2024, the motion did not proceed on the question of striking of the applicant’s pleadings, because the non-compliance animating the motion had been cured by the payment of the costs order. The issue of the costs of the motion to strike, however, remained live. The court attempted to facilitate oral costs submissions, but the applicant continuously and repeatedly interrupted counsel and the court. A short recess was required to permit the applicant to calm himself. Ultimately, to circumvent the applicant’s inappropriate courtroom behaviour I determined that the issue of costs would be addressed in writing.
[10] On being questioned by the court with respect to the notice of withdrawal, the applicant resiled from his position and indicated he would be retaining counsel to continue with the litigation. [i] The underlying motion to change was adjourned to March 19, 2024, to be spoken to.
Part Three – Positions of the parties
3.1 The respondent’s position
[11] The respondent submits that as the successful party she is presumed to be entitled to costs: Family Law Rules, r. 24(1). She further asserts that full recovery costs are necessary to foster the fundamental purposes of the family costs rules. She highlights the five wasted court appearances in the wake of the costs order, and her being forced to resort to a motion to motivate the applicant to satisfy the award.
[12] The respondent stresses her attempts at settlement—including an offer to reduce the outstanding cost award to $0.00 as part of a larger global resolution—and the applicant’s outright refusal to engage in meaningful discussions.
[13] In her costs submission the respondent includes numerous examples of the applicant’s inappropriate and unreasonable behaviour throughout his communications with her and during the court appearance of February 13, 2024. Those communications include, in the respondent’s submission, malicious attacks on counsel without evidentiary foundation.
[14] The respondent furnishes a bill of costs to support her request.
3.2 The applicant’s position
[15] The applicant is opposed to any costs being ordered against him.
[16] He indicates that on December 20, 2022, he left court before the settlement conference commenced because “court was delayed and the parties’ child needed to be picked up at daycare.” He contends that he advised the respondent and that she verbally agreed to adjourn the conference. The applicant offers this as an explanation for his resistance in paying the cost order. He submits that the multiple attendances and the need for respondent’s motion should not be attributed to his unreasonableness: he was simply trying to advance his position that the costs should not be payable.
[17] With respect to the respondent’s offer to settle, the applicant counters that the offer was not severable and had an expiration date. At the time it was made, the applicant was simply not prepared to accept its terms with respect to parenting time.
[18] The applicant agrees that successful parties are presumed to be entitled to costs but does not agree that the respondent was a successful party. He takes the position that the motion simply did not proceed.
[19] The applicant acknowledges that he has been difficult at some court appearances but explains that it was grounded in a feeling of being misunderstood and of having to fight for his point of view to be heard. He does not agree that his behaviour was so egregious that it would compel a full recovery of costs.
Part Four – General Legal Framework
[20] Rule 24 of the Family Law Rules establishes the framework for awarding costs for family law cases in this court. The elements of that framework which are germane to this matter are as follows:
Costs Successful party presumed entitled to costs
- (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.
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,
(a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
(b) the reasonableness of any offer the party made; and
(c) 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.
Absent or unprepared party
(7) If a party does not appear at a step in the case, or appears but is not properly prepared to deal with the issues at that step or otherwise contributes to that step being unproductive, the court shall award costs against the party unless the court orders otherwise in the interests of justice.
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.
Deciding costs
(10) Promptly after dealing with a step in a case, the court shall, in a summary manner,
(a) determine who, if anyone, is entitled to costs in relation to that step and set the amount of any costs; or
(b) expressly reserve the decision on costs for determination at a later stage in the case.
Same
(11) The failure of the court to act under subrule (10) in relation to a step in a case does not prevent the court from awarding costs in relation to the step at a later stage in the case.
Setting costs amounts
(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,
(b) any other relevant matter.
[21] This framework must be read in conjunction with r. 18(14)-(16) with respect to the costs consequences of failure to accept an offer to settle.
[22] In Mattina v. Mattina, 2018 ONCA 867, the Court of Appeal for Ontario articulated that modern costs rules are designed in furtherance of four fundamental principles:
(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 rule 2(2) of the Family Law Rules).
Part Five: Legal issues
[23] In applying the above framework to this matter, the following issues must be considered:
(1) Is the respondent a successful party? (2) What is the impact of the offer to settle? (3) What is the impact of the applicant’s conduct, and has the applicant acted in bad faith? (4) What amount of costs is appropriate?
[24] An additional issue may arise:
(5) Should any ancillary terms be attached to a further cost order?
5.1 Is the respondent a successful party?
[25] Despite the motion not being heard, I conclude that the respondent was a “successful party” within the meaning of r. 24(1).
[26] The motion was brought pursuant to r. 1(8), which “provides broad discretion to courts to make orders it considers necessary to fully address a party’s failure to comply.” While it operates to impose sanctions, r. 1(8) is by nature remedial, and “serves to provide the means of enforcement so that … substantive rights may be realized”: Bouchard v. Sgovio, 2021 ONCA 709, at paras. 49-51. While the striking of pleadings may be a remedy available under r. 1(8), it is a means to an end: enforcement of the substantive right in question, in this case the satisfaction of the costs award.
[27] The respondent’s clear aim in bringing her motion was to enforce the costs award and to move the matter forward. The applicant concedes that it was not until the motion was brought that decided to comply with the order. He notes, at para. 7 of his costs submissions, that “when he received the motion to strike his pleadings, he feared being barred from putting forward his child’s best interest, [and] he then complied.”
[28] The respondent clearly achieved her aim. She was the successful party. I am not persuaded that r. 24(1) requires a motion to be fully argued and decided for there to be a “successful party”. A party that accedes entirely to the relief sought on a motion may reduce their costs jeopardy by avoiding further unnecessary steps in the litigation—and that is to be encouraged—but rendering an issue moot after a motion has been prepared and filed does not permit a party to escape the consequences of r. 24(1). Put another way, a party that persuades another to their position by filing a motion is no less successful that a party who persuades the court.
4.2 The offer to settle
[29] The offer to settle in this case does not comply with the strictures of r. 18(14), and I do not understand the respondent to advance such an argument. While r. 18(16) permits—and r. 24 requires—that the court consider any written offer to settle, I do not place great weight on the offer in this case. The offer related to the entire proceedings comprising issues which tend to eclipse the comparatively modest question of the outstanding costs order. Nonetheless, the offer is probative in one regard: it demonstrates the respondent’s willingness to engage in civil resolution discussions. That willingness is in sharp contrast to the applicant’s approach, detailed below.
4.3 The applicant’s conduct
[30] The following examples of the applicant’s behaviour are of concern to the court:
(i) The applicant responded to the offer to settle in a rude and derisive manner and limited any future negotiations to the singular issue of parenting time.
(ii) In an email from the applicant to the respondent’s counsel dated June 15, 2023, he declares he will not be paying the $250 in costs owing (Affidavit of the Respondent, Exhibit F, at Tab 48 of the Continuing Record). He indicates he is only willing to discuss the amount in the context of a set-off against his own claims. The costs had been owing for approximately six months at that time.
(iii) In letters dated October 15, 2023, addressed to respondent’s counsel the applicant threatens to destroy certain items belonging to the child, including toys, an iPhone, trading cards, and a lunch bag. This effort is in response to the respondent’s allegedly withholding parenting time and owing the applicant funds. The applicant justifies his position in part on his disapproval of those items being sent with the child to school (Affidavit of the Respondent, Exhibit G, at Tab 48 of the Continuing Record).
(iv) In an email dated January 9, 2024, one week before he paid the costs order, the applicant threatened to sue the respondent’s counsel for “misconduct, misrepresentation, and defamation.”
(v) When the applicant paid the outstanding costs via e-transfer he included a message:
Full and final payment for the nonsense order maliciously sought against me and ordered by the Sudbury Family court. The $250 sought by you and your client against me for having to leave the courthouse to pick up [the child] on Dec 20th, 2022. Please note that I have warned you on record numerous times about enabling liars in the courtroom and that I would seek damages against you. See you in court.
(Affidavit of the Applicant, Exhibit A, Tab 49 of the Continuing Record).
(vi) In an email dated January 31, 2024, the applicant cautions the respondent’s counsel “against any further action against [him] or anyone for that matter which are on such an unfounded basis such as what you appear to be seeking Feb 13th, 2024 at 10 AM,” and advises that he has filed a Law Society complaint against her.
(vii) At the court appearance of February 13, 2024, applicant continuously and repeatedly interrupted counsel and the court, precipitating both a recess for the applicant to calm himself and the decision to address the issue of costs in writing.
[31] The applicant’s approach to this litigation has been, in a word, toxic. To be sure, family litigation can be an exceptionally stressful experience, and the court cannot expect parties to be paragons of politeness. There is no excuse, however, for the applicant’s conduct in this case. That his behaviour is unreasonable within the meaning of r. 24(12) is clear. That it is inappropriate and worthy of discouragement and sanction, per the principles in Mattina, is also clear.
[32] More nuanced is the question of whether this conduct constitutes bad faith, within the meaning of r. 24(8). If the applicant has acted in bad faith, then costs must be assessed on a full recovery basis and be made payable immediately.
[33] The threshold for a finding of bad faith was recently explored in detail by Justice S.B. Sherr in Kumar v. Nash, 2024 ONCJ 16, at paras. 13-15:
Subrule 24 (8) requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made. See: Cozzi v. Smith, 2015 ONSC 3626; Scipione v. Del Sordo, 2015 CarswellOnt 14971 (Ont. SCJ).
There is a difference between bad faith and unreasonable behaviour. 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: S.(C.) v. S. (M.) (2007), 2007 20279 (ON SC), 38 R.F.L. (6th) 315 (Ont. SCJ); Stewart v. McKeown, 2012 ONCJ 644.
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. See: Scipione, supra.
[34] The court must also be mindful that bad faith on one issue, or one step in the litigation, does not necessarily justify full recovery costs across all issues and steps. See Kumar v. Nash, 2024 ONCJ 16, at para. 19.
[35] Certain of the applicant’s behaviours, while unreasonable, do not meet the high threshold of bad faith. In this category I include his unwillingness to engage in civil negotiations, his general rudeness towards the respondent’s counsel, and his disruptive courtroom presence.
[36] I am, however, of the view that the applicant acted in bad faith in the three following ways.
[37] First, the applicant was duplicitous with respect to his intention to pay the costs award. On June 13, 2023, he advised the court that he intended to pay the cost award. Only two days later, on June 15, 2023, he advised the respondent’s counsel that he had no intention of doing so. Litigants are entitled to change their minds and doing so is not, in and of itself, acting in bad faith. But I reject the inference that the applicant simply changed his mind. He had not paid the award to date, and his correspondence demonstrates a consistent disdain for the costs order. I find that on June 13, 2023, he suggested his aim was to pay the costs following the adjournment when his true purposes were to delay enforcement and to hold the award hostage in pursuit of his own demands. In doing so, he acted in bad faith. In my view, this conduct ought to apply to the costs incurred by the respondent related to and following the court appearance of June 13, 2023.
[38] What of the applicant’s claim that his refusal to pay the costs was justified? That it was based in his belief that the respondent had verbally consented to his early departure from court on the conference date, before sharply obtaining a costs award against him? The court cannot give effect to this submission. This is neither an appeal of the costs order, nor a motion to set it aside, and the court is in no position to revisit its merits. I am mindful of the broad scope of r. 24(12)(b), which empowers the court to consider “any other relevant matter.” I cannot conclude, however, that a judge deciding costs is permitted to go behind an earlier order of the court and excuse a party’s willful refusal to comply. Such an approach would exceed the court’s jurisdiction and would be contrary to the primary objective of the Family Law Rules, to deal with cases justly (r. 2). It would send the absurd signal to litigants that they may ignore court orders they disagree with and transform enforcement motions into retrials of previously determined issues.
[39] The second example of bad faith is the applicant’s threat, made in writing on October 15, 2023, to destroy the child’s belongings, including toys and trading cards. His comments are shocking and egregious. Parents might reasonably disagree about what personal items a child should bring to school. But the applicant’s proposed course of action is intentionally cruel and provocative, to say nothing of its potential criminality. I find this conduct was sufficiently morally repugnant to rise to the threshold of bad faith. This conduct arose in the context of attempted settlement discussions, and it colours the corresponding period in this litigation from late summer 2023 to fall 2023.
[40] The third and final example of bad faith comprises the applicant’s actions aimed directly at the respondent’s counsel. As set out above, the applicant has threatened suit against the respondent’s counsel for misconduct, misrepresentation, and defamation; has issued warnings against her enabling perjury; has cautioned her against taking any further action against him or, remarkably, anyone; and has indicated he has filed a complaint of professional misconduct against her. [ii]
[41] Attacks on opposing counsel were the subject of a bad faith finding in Kumar v. Nash, 2024 ONCJ 16, and the court’s comments at paras. 24-27 are apt:
Malicious attacks of this nature on justice participants without an evidentiary foundation cannot be condoned by the court. They undermine the integrity of and respect for the administration of justice. Serious costs consequences should follow when a litigant chooses this path.
Practising family law is challenging work for lawyers. Counsel are expected to have thick skins. However, no lawyer should be subjected to the type of attacks the father has made against the mother’s counsel in this case. The father has crossed the line – by a wide margin. The court shares Justice Kristjanson’s concern, expressed in E.K.B., that allegations such as these may have a chilling effect on lawyers who seek to provide access to justice for vulnerable litigants.
It is incumbent upon courts to protect counsel in these circumstances and subrule 24(8) provides the court with a mechanism to do so.
See also Kenora-Rainy River Districts Child and Family Services v. P.N.R. & K.R., 2023 ONSC 7117, Mohamed v. Mohamed, 2018 ONCJ 530, and E.K.B. v. Jewish Family and Child Services, S.K.B. and R.G., 2020 ONSC 2924.
[42] In the present case, the applicant has advanced no basis for his attacks on the respondent’s counsel. While his efforts at intimidation have not appeared to succeed in the face of counsel’s patience and professionalism, they must still be met with firm condemnation from the court. The applicant’s attacks permeated the conduct of the motion to strike, and the finding of bad faith will apply to that period of the litigation.
4.4 Amount of costs
[43] Having determined that the applicant has acted in bad faith concerning certain issues and steps in this litigation, the corresponding costs must be decided on a full recovery basis. The recovery of the full amount of costs claimed does not follow automatically. The court must still screen against any unreasonable or disproportionate claims: Kumar v. Nash, 2024 ONCJ 16, at para. 29, Jackson v. Mayerle, 2016 ONSC 1556.
[44] I have reviewed the respondent’s detailed bill of costs. The rate, fees, disbursements, and time spent appear reasonable and proportionate to the magnitude and complexity of the issues. Of the fees, $141.25, inclusive of HST, reflect the period preceding the applicant’s bad faith conduct. The remaining fees and disbursements total $2,949.87, inclusive of HST.
[45] The court will fix the costs payable at $3,000 inclusive of HST, due and payable immediately.
4.5 Ancillary terms
[46] The terms of the original costs order required that it be paid forthwith. The applicant failed to pay the costs order until over a year after it was made, and even then, not until he had been served with motion materials in pursuit of enforcement. Rule 1(8) broadly empowers a court to respond to a party's failure to obey an order and sets out a non-exhaustive list of tools. Save and except a contempt order, those tools are available to the court even in the absence of a motion.
[47] In the present circumstances, the court is justified in taking steps necessary to ensure that a further period of delay and associated expenses are not visited upon the respondent while costs remain owing. The applicant will therefore be precluded from bringing any motions or obtaining any relief from the court without leave, until he files proof that he has satisfied this costs order.
Part Six – The order
[48] A final order shall go as follows:
(a) The applicant shall pay the respondent her costs fixed at $3,000, inclusive of fees, disbursements and HST. The costs are due and payable immediately.
(b) The applicant is prohibited from bringing further motions or from obtaining relief from this court in this proceeding or a related proceeding without leave of the court, until such time as the above costs have been paid in full, and the respondent has filed proof of same.
Released: March 7, 2024 Signed: Justice G. Jenner
[i] As the Notice of Withdrawal had not been successfully filed, it was simply discarded.
[ii] I have no information before me to corroborate that a complaint was actually filed.
