L.G. v. G.P.B., 2024 ONCJ 186

ONTARIO COURT OF JUSTICE

DATE: April 15, 2024

COURT FILE No.: Toronto DFO-23-1084

BETWEEN:

L.G.

Applicant

— and —

G.P.B.

Respondent

Before Justice Sheilagh O’Connell

In Chambers

Costs Endorsement

Counsel: Emma Byrnes................................................................................... counsel for the applicant G.P.B............................................................... acting in person at time of costs submissions

O’CONNELL J.:

Introduction:

[1] The court heard two motions regarding parenting on December 20, 2023 and delivered oral reasons and a written ruling on December 21, 2023.

[2] The applicant requests costs on a full recovery basis in the amount of $20,621.08 arising from the motions.

[3] The respondent acknowledges that the applicant was successful on the issue of parenting time, but requests that costs be fixed at $3,500.00, to be paid by him at a rate of $500.00 per month, commencing March 15, 2024.

[4] Both parties served and filed written cost submissions and bills of costs on January 30, 2024. Neither party attached Rule 18 Offers to Settle to their cost submissions, although the court understands some informal offers to settle were made.

[5] The respondent was assisted by Susan Blackwell, a lawyer/agent on a limited scope retainer, at the time the motions were argued. His costs submissions appeared to be prepared with counsel’s assistance.

Background:

[6] The applicant, L.G., is the stepparent to the children P., age 13, and L., age 11. The respondent, G.P.B., is the children’s father. The children’s mother, the late G.B., died tragically on July 28, 2023, following complications from a double lung transplant. She was 45 years old. Ms G.B. suffered from an auto-immune disorder and had been previously hospitalized for a period of time in the spring of 2023.

[7] Prior to her death, Mx L.G. and Ms G.B. had been in a spousal relationship since 2018. They became involved and started cohabiting following Ms G.B.’s separation from the respondent father. The children went back and forth in an equal shared parenting relationship between their parents’ two households until February of 2022. The parenting schedule changed at that time for reasons set out below.

[8] Mx L.G. co-parented P. and L. with Ms G.B. and the children lived with them in a blended family. Mx L.G. has two children from a previous relationship, who are P. and L.’s stepsiblings.

[9] It is not disputed that L. has a warm and loving relationship with Mx L.G. and her stepsiblings. L. and Mx L.G. are very closely bonded. P. also had a loving relationship with Ms L.G. and his stepsiblings for many years. Sadly, P.’s relationship with Mx L.G. and his stepsiblings have changed since his mother’s death, as will be set out below in more detail.

[10] At the time of her death, Ms G.B. and the respondent father were engaged in very acrimonious family litigation in this court regarding parenting and support issues. This had been ongoing since 2019 following an application brought by Ms G.B. to alter the parties’ separation agreement [1].

[11] Ms G.B. and Mr. G.P.B. reached temporary and final Minutes of Settlement regarding some of the parenting issues in March of 2021, which were incorporated into court orders. However, the issue of joint versus sole decision-making could not be resolved.

[12] Unfortunately, the 2021 temporary and final consent orders quickly broke down and Ms G.B. brought a motion to change the parenting schedule, in particular with respect to L.. The issue of joint versus sole decision-making responsibility, the parenting schedule and support issues were all headed to trial.

[13] At the time of Ms G.B.’s death, the parties were scheduled for a trial management conference before me on September 15, 2023. Their case had been assigned to the October 2023 trial sittings.

[14] It is not disputed that in late February 2022, L. began primarily residing with her mother and Mx L.G. following a violent incident that occurred between L. and her father at his home. P. continued the shared parenting arrangement, going back and forth between his father’s home and the home of Mx L.G. and his mother. Initially, L. refused to see her father at all and would not go to school should her father attempt to pick her up there pursuant to the existing parenting order. The police and the children’s aid society became involved.

[15] Following a contested motion before me on April 1st, 2022, I ordered, on a temporary without prejudice basis, that the father’s parenting time with L. be supervised once a week for a period of four hours by a professional third-party supervisor, preferably with a therapeutic component, pending the appointment of the Office of the Children’s Lawyer (“OCL”) for a full investigation and report.

[16] On December 1, 2022, after a lengthy clinical investigation and report, the OCL recommended that a graduated “step-up” parenting schedule for L. be implemented, in five stages, subject to some conditions, and that the equal parenting arrangement for P. continue.

[17] At the time of her mother’s death, L. continued to reside primarily with her mother and Mx L.G. She visited her father on alternating weekends from Friday after school to Sunday at 8:00 PM, and on Wednesday during the school week.

[18] On July 27, 2023, the day before Ms G.B.’s death, the OCL released an updated “Voice of the Child” Report regarding the children’s views and preferences, given that the parties were proceeding to trial in the fall. L.’s views, which had been consistent for a lengthy period of time, were that she wished to continue residing primarily with her mother and Mx L.G. and to see her father on Wednesdays and alternating weekends. P. wished for the equal parenting schedule to continue. L. did not want to return to the 50/50 schedule.

[19] According to the OCL Report, when both children were asked about their views and preferences should their mother be hospitalized again, P. was unsure of his wishes in the future. L. advised the clinician that should her mother be admitted to the hospital again in the future, she wanted to continue with the parenting schedule of primary residence in her mother’s home with Mx L.G. because, as she put it, “Mx L.G. is still her parent”.

[20] It was not disputed that L. has lived with the mother and Mx L.G. in the maternal family home since she was six years old, and P. since he was 8 years old during his parenting time with his mother and Mx L.G..

Events following the Death of the Children’s Mother:

[21] Immediately following Ms G.B.’s death, the respondent father unilaterally changed the parenting schedule and insisted that both children reside with him. The respondent father took the position that the 2018 separation agreement, in particular the “right of first refusal”, now governed, and was triggered as a result of the mother’s death. The respondent father removed P. from Mx L.G.’s home on July 28, 2023. L. was removed from her home with Mx L.G. by the police on July 29, 2023.

[22] On July 29, 2023, the day after her mother’s death, the police attended at L.’s home with Mx L.G. and advised that L. must be placed in the father’s care. It is not disputed that the father called the police and reported that Mx L.G. was “a flight risk.” At the time, Mx L.G. and L. were traveling with the maternal grandmother to a cottage to mourn the mother’s death.

[23] It is not disputed that the police advised Mx L.G. and the maternal grandmother that if they did not return L. to the father, they could be charged with kidnapping.

[24] According to the evidence of Mx L.G., following the police direction to her and the children’s maternal grandmother, L. refused to go and began vomiting when being transported to the father in her car. According to the father’s evidence, “L. did not appear or sound upset” when she learned that the police were involved and that she had to be removed from her home and the care of Mx L.G. and her maternal grandmother, one day after her mother’s death.

[25] After this occurred, the father severely restricted L.’s parenting time with Mx L.G. and her stepsiblings. The father initially would not allow L. to have overnight visits with Ms L.G. in her home, despite the fact that this was L.’s maternal home and the place where she primarily resided prior to the death of her mother.

The Motions:

[26] Mx L.G. issued an application and brought an urgent motion prior to a case conference to reinstate the parenting orders and status quo that existed following Ms G.B.’s death. She further sought an order for shared holidays, an order that the OCL appoint separate counsel for the children, and that her application be consolidated with the original litigation between the parents.

[27] Mr. G.P.B. responded with a cross-motion seeking orders for sole-decision making responsibility and primary residence for both children, an order that P.’s parenting time with Mx L.G. and his extended maternal family be in accordance with P.’s wishes, and that L.’s parenting time be limited to specific day visits only, subject to a number of conditions including travel and driving, as specified in his notice of motion.

[28] A lengthy contested hearing occurred on December 20, 2023. The Court learned during the hearing, according to his evidence filed, that the father was considering relocating with both children outside of Toronto, resulting in a change of their schools and community. The children have lived in Toronto since their birth.

[29] The father had also set up a “GoFundMe” fundraiser depicting and naming the children on social media as well as details of this litigation. He had also commenced estate litigation over the mother’s estate, seeking Ms G.B.’s life insurance proceeds and the RESP that she had set up for the children.

[30] The court further learned that after living with his father for only four months, P. no longer has any contact with Mx L.G. or his stepsiblings and refuses to do so. The respondent father states that this is P.’s “choice”.

[31] The Court did not grant the father’s motion, but granted almost all of the relief requested in the applicant’s motion.

[32] The Court made the following temporary order, for oral reasons delivered on December 21, 2023:

1. Commencing January 8, 2024, the status quo that existed prior to the death of Ms G.B. shall be reinstated, in accordance with the OCL’s recommendations and the court order. L. will return to her primary residence with Mx L.G. and have parenting time with her father on Wednesday after school to Thursday morning and on alternating weekends from Friday after school to Sunday at 8:00 PM. P. should be strongly encouraged by the Respondent father Mr. G.P.B. to have parenting time with Mx L.G. and his stepsiblings as well.
2. There will be no restrictions on Mx L.G.’s parenting time. She shall be permitted to drive with the children.
3. Mx L.G. shall be permitted to travel with both children for vacation purposes or family reasons outside of the Province of Ontario without the consent of the Respondent father. The Respondent father’s consent is dispensed with. Should Mx L.G. travel to Rochester with the children to see the maternal grandmother and extended family, Mr. G.P.B. shall provide the children’s passports to Mx L.G..
4. For Christmas 2023, the children, shall have Christmas time with Mx L.G. from December 25 at 1:00 PM to December 27, 2023, and then from December 30, 2023 to December 31st or January 1st, 2024. It is hoped that P. will be encouraged to attend.
5. L. shall continue to attend the […] School.
6. The Court refers this case to the Office of the Children’s Lawyer for an updated investigation and report, including the children’s views and preferences, following the tragic death of the children’s mother.
7. Mr. G.P.B. is granted an extension to serve and file his Answer and Financial Statement to February 2, 2024.
8. Neither parent shall post any photos of the children, court documents or information about these court proceedings on the internet or social media in any manner that would identify the parties or the children.

The Law and Governing Principles:

[33] Costs in family law proceedings are governed by Rule 18 and Rule 24 of the Family Law Rules. Rule 24 (1) of the Family Law Rules provides that 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).

[34] In Mattina v. Mattina, 2018 ONCA 867, the Ontario Court of Appeal 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 in appropriate behaviour by litigants;
4. to ensure that cases are dealt with justly under subrule 2(2) of the Family Law Rules.

[35] Costs can be used to sanction behaviour that increases the duration and 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.

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

Offers to Settle:

[37] Subrule 18 (4) sets out that an offer shall be signed personally by the party making it and also by the party’s lawyer, if any.

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

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.

[39] Even if subrule 18 (14) does not apply, 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 (subrule 18 (16)) or, in assessing the reasonableness of a party under subrule 24 (5) (b) and subrule 24 (12) (a) (iii) of the Rules.

Reasonableness:

[40] Subrule 24 (5) provides some criteria for determining the reasonableness of a party’s behaviour in a case and states the following:

(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.

Bad Faith:

[41] Bad faith is governed by subrule 24 (8) of the Rules, which 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. See: O. Reg. 114/99, r. 24 (8).

[42] A finding of bad faith requires a fairly high threshold of egregious behaviour, and as such, it is rarely made under subrule 24(8). See: S.(C.) v. S. (M.) (2007); Cozzi v. Smith, 2015 ONSC 3626; and Scipione v. Del Sordo, 2015 CarswellOnt 1497 (ON SCJ), per Justice Alex Pazaratz at paragraph 99.

[43] In S.(C.) v. S. (M.) (2007), supra, Justice Craig Perkins stated the following regarding the conduct required to meet the standard of bad faith, at paragraph 17 of his decision:

“In order to come within the meaning of bad faith in subrule 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.” [paragraph 17.]

[44] There is a difference between bad faith and unreasonable behaviour. As Justice Stanley Sherr states in Gordon v Wilkins, 2020 ONCJ 199, “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.” [paragraph 15.]

[45] 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: Rebujio v. Rosario, 2022 ONCJ 452, per Justice Stanley Sherr, at paragraph 36.

Other factors affecting costs orders:

[46] Subrule 24 (12) reads as follows:

(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.

Ability to Pay:

[47] The court should also take into consideration the ability of a party to pay costs. See: MacDonald v. Magel (2003), 67 O.R. (3d) 181 (Ont. C.A.). Difficult financial circumstances are a factor but are not always a reason to deprive a successful party of costs or to reduce the amount of costs. See: Beaulieu v. Diotte, 2020 ONSC 6787. Ability to pay will be less of a mitigating factor when the impecunious party has acted unreasonably, or where their claim was illogical or without merit. See: Gobin v. Gobin, 2009 ONCJ 278; D.D. and F.D. v. H.G., 2020 ONSC 1919.

[48] 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, particularly when they have acted unreasonably and are the author of their own misfortune. Snih v. Snih.

[49] 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 and requirements of the Rules. See: Culp v. Culp, 2019 ONSC 7051 (SCJ); Mark v. Bhangari, 2010 ONSC 4638 (SCJ).

Application of the Law and Legal Principles to this Case:

[50] The applicant, Mx L.G., was clearly the successful party on the motions before me. The father did not rebut the presumption that Mx L.G. is entitled to legal costs.

[51] This case was very important to the parties. The issues were not entirely straightforward, given the tragic death of the mother. The applicant had to bring a de novo application, form 35.1 affidavit, and a number of 14b procedural motions because the respondent father would not consent to Mx L.G. being added as a party to his litigation with the late Ms G.B.. Mx L.G. also had to seek to consolidate both proceedings.

[52] Neither party served a formal Offer to Settle in accordance with Rule 18 requirements. Neither party attached offers to settle to their cost submissions. The costs consequences of that rule do not apply.

[53] However, Mx L.G. still seeks full recovery of her costs on the basis of bad faith. She submits that the father’s conduct in this matter was so egregious that it should attract the higher cost award triggered by bad faith conduct.

[54] The court recognizes that it should exercise caution before making a bad faith finding on a temporary parenting motion, without the benefit of oral evidence and the ability to make credibility findings. See: Rebujio v. Rosario, 2022 ONCJ 452.

[55] The court has carefully considered whether it should make a finding that the father acted in bad faith in this case. To do so, the court must find that the father deliberately and intentionally used the mother’s death to remove the children from their permanent and stable home in the wake of tragedy in order to advance his own litigation claims, not because of the children’s best interests, as he claims.

[56] The father denies that he acted in bad faith. In his written submissions, he states that the applicant “still fundamentally misunderstands [his] request to change the children’s residence following [their mother’s] death” and that “the children’s best interests were always [his] primary consideration” [2].

[57] The father’s position is distressingly detached from reality.

[58] It also defies credulity. The father did not act in L.’s best interests when he called the police to forcibly remove L. from her primary residence the day after her mother died. L. clearly expressed that she wanted to stay with her stepparent and maternal grandmother in the maternal home where she had lived with her mother and Mx L.G. since she was six years old. This was her primary residence at the time of her mother’s death. It is not disputed that L. is closely bonded with Mx L.G. and has a close and loving relationship with her.

[59] As counsel for Mx L.G. submits, the father’s position that the separation agreement, and in particular the ‘right of first refusal’, should dictate the parenting time upon the death of the children’s mother, intentionally “ignores years of strenuous litigation surrounding the agreement that was set to go to trial.” [3] Indeed, the family trial was only twelve weeks away at the time of the mother’s death.

[60] This is not the first time that the father has acted in this way. As the case management judge, the court has addressed similar conduct by the father. In the spring of 2023, the children’s mother spent time in and out of hospital, as a result of her double lung transplant. During this time, the father brought a motion to remove the children from the mother and Mx L.G.’s home entirely, arguing that it was owed to him as his right of first refusal under the parties’ separation agreement. He also sought to increase L.'s parenting time to a ‘week-about’ 50/50 schedule, despite L.’s consistent preference to remain in the primary residence of her mother. The court dismissed both of these motions and ordered an updated Voice of the Child report, which confirmed both P.’s and L.’s views.

[61] On the day after her partner’s death, the father reported Mx L.G. to the police and alleged that she was a “flight risk” and accused her of attempting to kidnap L..

[62] The court also learned during the motions that immediately following the mother’s death, the father commenced civil litigation against Mx L.G. and the mother’s estate seeking, among other relief, the mother’s RESP for the children and the proceeds of her life insurance. In her Last Will and Testament, the mother had named Mx L.G. and the trustee of her estate and her sole residual beneficiary.

[63] Mx L.G., instead of being permitted to grieve the death of her life partner, was forced to deal with the police, retain counsel and deliver L. to the father, or be faced with potential kidnapping charges.

[64] The court is also very troubled by the fact that P. has now refused all contact with Mx L.G. and his stepsiblings after living with his father for only four months following the father’s unilateral change in the parenting order after the mother’s death.

[65] In my view, the father knowingly and intentionally attempted to use the mother’s death to advance his claims in the family and estate litigation, not to advance the best interests of the children, as he claims. His conduct has deliberately caused emotional and financial harm to Mx L.G. and the children and amounts to bad faith.

[66] If I am wrong in finding bad faith conduct, I find that the father did not act reasonably. His conduct was egregious, and he exercised extremely poor judgment, devoid of any consideration of the children’s best interests. This is a relevant factor in determining the legal costs owed.

Determining Quantum:

[67] Notwithstanding my findings above, the quantum of costs claimed by Mx L.G. must be reasonable and proportional. The court should still exercise its discretion in determining a cost award that achieves these principles.

[68] The hourly rate claimed by applicant’s counsel is reasonable for Toronto counsel. She was called to the bar in 2020 and her hourly rate is $325.00 per hour. Although on the higher scale, this is not unreasonable for a family lawyer practicing in Toronto.

[69] The time claimed by the mother’s counsel for the drafting, preparation and attendance on the motion (54.15 hours) was excessive. The court agrees with the respondent’s submissions that the applicant is only entitled to costs related to the motions heard on December 20, 2023. The applicant’s bill of costs does not appear to distinguish between the costs of the motion and the other costs relating to the preparation of the pleadings, including the application, 35.1 affidavit, and other procedural issues.

[70] The court finds that given the nature of the motion, the issues at stake and the difficulties Mx L.G.’s counsel had in corresponding with the respondent father, 30 hours to draft, prepare and attend at the motions is a more reasonable estimate of time. This results in legal costs of $9,750.00 owed to the applicant, not including HST.

[71] The father can afford to pay the costs that will be ordered. He states that he earns at least $80,000.00 annually from both his T-4 income and his net rental income from his property, although the determination of his rental income is unclear. He has also raised several thousands of dollars through his “GoFundMe” campaign for his litigation.

[72] The father claims that that he used all of this money to pay his own legal fees. Yet according to the bill of costs for the lawyer who assisted him on a limited scope basis, he incurred legal costs of approximately $5,500.00 for these motions.

[73] The father cannot expect to be immune from an order for costs based on his limited financial resources, particularly when his conduct was egregious and caused the litigation between these parties. The father will be given a reasonable period of time to pay the costs.

Conclusion and Order:

[74] In considering all of the factors above, the court finds that a reasonable and proportional cost award in the circumstances of this case is $10,000.00 and makes the following orders:

1. Mr. G.P.B. shall pay the Mx L.G.’s costs in the amount of $10,000.00, inclusive of fees, disbursements and HST, payable in full forthwith, or at a rate of $1,000.00 per month, commencing May 15, 2024.
2. If Mr. G.P.B. is more than 30 days late in making any monthly payment towards costs, then the full amount of the costs owing shall immediately become due and payable.

Released: April 15, 2024 Signed: Justice Sheilagh O’Connell

[1] G.B. v G.P.B., DFO-19-15579

[2] See paragraph 14, page 3 of the respondent father’s Costs Submissions.

[3] See paragraph 8, page 2 of the applicant’s Cost Submissions.