COURT FILE NO.: FC-14-856-00 DATE: 20160425 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KELLY MAY COWIESON, ALLAN REID COWEISON (commonly known as “Reid Cowieson”) and GREGORY ROSS CAMPION, Applicants AND: ROBERT DANIEL STEWART, Respondents

BEFORE: THE HON. MR. JUSTICE J.P.L. McDERMOT

COUNSEL: T.M. Bair, for the Applicants Respondent Self-Represented

HEARD: By written submissions

COSTS ENDORSEMENT

Introduction

[1] The respondent in this matter is a corporal in the Canadian Armed Forces. He is the natural father of Jordyn Stewart who is 9 years of age. Jordyn came into Mr. Stewart’s care as a result of the 2008 death of his wife Nicole Stewart.

[2] The applicants are Jordyn’s grandparents. Kelly Cowieson and Gregory Campion are the parents of Nicole Stewart. Allan Cowieson is the step-grandfather of Nicole and is now married to Kelly Cowieson. The applicants all live in Manitoba where Mr. Stewart also used to live until being posted to Borden, Ontario in 2010.

[3] The applicants began this application to obtain access to Jordyn. They say that up to and after Nicole’s death they had a close and loving relationship with Jordyn. Once Mr. Stewart commenced a new relationship with his current parent Ymanne Teriaky, the applicants say that there were gradually shut out of Jordyn’s life. Mr. Stewart says that the applicants became quite reactive when exercising access to Jordyn and that this was distressing to Jordyn. He took the position in this litigation that access was not in Jordyn’s best interests.

[4] Strenuous efforts were made by the applicants to exercise access to Jordyn including telephone access, Skype access and a face-to-face visit exercised in Ontario. The Children’s Lawyer investigated. The Children’s Lawyer’s social worker recommended that access continue. Notwithstanding these recommendations, this matter eventually settled with the applicants essentially giving up their right to ongoing face-to-face or computer or telephone access, settling for cards and letters to be exchanged at their discretion.

[5] On July 30, 2015, the parties appeared before me on a motion brought the Office of Children’s Lawyer which was intended to address Mr. Stewart’s non-cooperation in the investigation by the OCL. During argument Mr. Stewart agreed to reinstatement of telephone access as requested by the OCL and a settlement of the motion was arrived at. Ms. Bair’s clients, the applicants herein, requested costs. I agreed with Ms. Bair that the respondent Mr. Stewart was guilty of unreasonable conduct and that there would be an award of costs in favour of the applicants. Because of concerns regarding continued compliance with the orders I elected not to award costs at that time and determined that the costs would be dealt with upon return of the motion on October 8, 2015.

[6] The matter was never brought back before me but was finally settled before Graham, J. on January 21, 2016 by Final Minutes as described above. Costs remain unresolved. Although the applicants were essentially unsuccessful in their attempt to obtain reasonable access to Jordyn, Ms. Bair requests full recovery costs based upon the bad faith conduct or alternatively unreasonable behaviour on the part of Mr. Stewart. Mr. Stewart also requests costs in the amount of $6,000 as the successful party in the case.

Entitlement to Costs

[7] There is no issue that the applicants are entitled to the costs of the July 30, 2016 motion. That issue has already been decided.

[8] Regarding the remaining costs of this application, I firstly note that neither party made an offer to settle other than the Offer to Settle presented to Mr. Stewart on January 21, 2016 which Mr. Stewart accepted. Mr. Stewart says in his materials that he considered himself to be the successful party in this proceeding as the Offer to Settle he accepted was essentially what he wanted which was little or no contact between the applicants and Jordyn. Contact between the applicants and Jordyn is now restricted to letters and cards.

[9] Although the respondent did not make an offer to settle in this proceeding, I suspect that he is correct that he was the successful party in this application. As the successful party Mr. Stewart is presumptively entitled to costs: see rule 24(1) of the Family Law Rules. [1]

[10] Under rule 24(4), a successful party who has behaved unreasonably may still be ordered to pay costs:

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.

[11] Under rule 24(5)(a) in deciding whether a party has behaved reasonably or unreasonably the court must examine the “party’s behaviour in relation to the issues from the time they arose including whether the party made an Offer to Settle;” Finally under rule 25(11)(b) I am take into account the “reasonableness or unreasonableness of each parties’ behaviour in the case”.

[12] The issue of issue of bad faith stands apart from unreasonable behaviour. The rules make it mandatory that the court award full recovery costs. Rule 24(8) reads as follows:

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.

[13] As can be seen from the above, bad faith conduct goes beyond unreasonable behaviour. For the court to find bad faith conduct there must be some dishonest intention on the part of the party from whom costs are being sought. In Biddle v. Biddle, [2005] O.J. No. 1056 (S.C.J.) Blishen, J. noted 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 a court order with a view to achieving another purpose.

[14] She refers to her decision in Piskor v. Piskor, [2004] O.J. No. 796 where the court cited Campbell, J. who, in Hendry v. Martins, [2001] O.J. No. 1098 (S.C.J.) adopted the definition of “bad faith” from Black’s Law Dictionary, 6th ed. (1990):

Bad faith is not simply bad judgment or negligence but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity ... it contemplates a state of mind affirmatively operating with furtive design or ill will.

[15] Perkins, J. distinguished between bad faith and unreasonable behaviour in S(C) v. S(C), [2007] O.J. No. 2164 (S.C.J.):

In order to come within the meaning of bad faith in Rule 24(8), behaviour must be shown to be carried out with intent to inflict financial or emotional harm on the other party or 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.

[16] In the present case, the behaviour complained of by the applicants as well by the Office of Children’s Lawyer (which is not seeking costs) was Mr. Stewart’s fairly obvious attempts to both frustrate the investigation by the OCL social worker as well as to frustrate the access sought to be exercised by the applicants. Mr. Stewart was warned about this fairly early on by McGee, J. who stated on May 26, 2015 that if was extremely serious for a party to prevent the participation of Jordyn in the OCL investigation process. Notwithstanding this warning Mr. Stewart continued with this behaviour. On July 30, 2015, when I heard this matter, I found unreasonable conduct on the part of Mr. Stewart.

[17] Notwithstanding this finding, it appears that he continued to indulge in this behaviour. According to the OCL report Mr. Stewart “repeatedly caused significant delay for this investigation and has at times refused cooperation for the furtherance of an investigation.” [2] Later the OCL investigator stated that “it became clear that the level of cooperation on the party of Mr. Stewart was simply so low that there would not be any possibility of completing a fulsome investigation.” [3] The OCL investigator further concluded that “although Mr. Stewart agreed to certain Skype visits between Jordyn and the grandparents [he] approached the schedule with such extreme rigidity that the facilitated access essentially broke down and the investigation was closed due to Mr. Stewart’s initial refusal to confirm a reoccurring day and time for the visits followed his refusal to accommodate a request for modification of the schedule.” [4] The investigator further confirmed that during the last scheduled Skype visit Mr. Stewart displayed anger, agitation, low engagement and tension which communicated to Jordyn her father’s unwillingness that she take part in the Skype visit. Because of the actions of the respondent, Jordyn was given very little option in continuing her access to the grandparents; this lack of choice for this little girl resulted from the actions and views of her father which were made apparent to her by her father.

[18] Mr. Stewart takes very little responsibility for this. He blames the grandparents for being overly emotive and upsetting to Jordyn during the face-to-face access visits. He says that they broke down on several occasions during these visits thereby causing Jordyn unnecessary stress.

[19] As is also confirmed by correspondence from Mr. Stewart’s lawyer dated January 27, 2016 filed as part of Mr. Stewart’s costs submissions, Mr. Stewart blames the legal system for his problems as being “biased and imperfect”. [5]

[20] In fact, Mr. Stewart’s responsibility, as a parent, was to isolate his daughter from his own views about the maternal grandparents in order to ensure that Jordyn was able to continue her relationship with her late mother’s side of the family. It does not lie in his mouth to complain about the applicants’ emotional behaviour during access when it appears that he was unable to cover up his own apparently visceral dislike of the applicants which prevented the Skype and face to face visits from being successful. By his actions, Mr. Stewart has deprived his daughter of a relationship with her mother’s parents which may very have been meaningful to her, not only right now, but in the future. It is also to the credit of the applicants that they elected to end this litigation because it was obviously causing harm to their granddaughter.

[21] Although Mr. Stewart’s behaviour is unimpressive and hurtful to his daughter, I do not find dishonest motive to warrant a finding of bad faith conduct. I believe from a review of Mr. Stewart’s submissions that he honestly believes for whatever reason that including the maternal grandparents in Jordyn’s life is not in Jordyn’s best interests. To the applicants’ credit they recognized that the real loser in all of this was Jordyn who appears to be a victim of her father’s animosity toward the applicants.

[22] As such, I do not find bad faith conduct on the part of Mr. Stewart. I do find him to be guilty of unreasonable conduct in the conduct of this litigation and his behaviour throughout the litigation as disclosed the OCL investigation and the facts which were placed before me on July 30, 2015. His behaviour escalated the costs of the applicants and resulted in this litigation being more protracted than it should have been. For this reason alone, he should be responsible for at least a portion of the Applicants’ costs.

[23] Although Mr. Stewart was ultimately successful, under rule 24(4) I can award costs against a party who acted unreasonably. Mr. Stewart’s actions were hurtful to his child and he takes no responsibility for his actions. He did not submit an offer to settle in this matter. Although Mr. Stewart was ordered to cooperate on several occasions he appears to have paid lip service to the order and continued essentially to not cooperate with the attempts of the OCL to complete its investigation. As stated in Belisle v. Abbott, 2013 ONSC 7473, the failure to participate in a clinical investigation was found to be “irresponsible conduct” [para. 31].

[24] As such I find Mr. Stewart guilty of unreasonable conduct and as such notwithstanding a success in the matter, there shall be award of costs against Mr. Stewart for these proceedings.

Quantum of Costs

[25] Ms. Bair has requested $25,000 in costs which effectively is substantial recovery of the costs to her clients of $28,824.34 inclusive of disbursements and HST.

[26] There were three court appearances as well as a disclosure meeting with the OCL social worker and counsel outlined in Ms. Bair’s Bill of Costs. There was attendance before me of July 30, 2015. The matter was adjourned by me to October 8, 2015; that motion was adjourned at the request of the OCL for further Skype access. There was a disclosure meeting with the OCL on January 13, 2016 and the matter was finally settled in court with the Justice Graham on January 21, 2016.

[27] Taking into account the costs submissions and the time spent counsel on this matter as well as Ms. Bair’s rate of $400 per hour is reasonable under the circumstances.

[28] Based upon the respondent’s conduct which I found to be unreasonable, costs should be closer to a full recovery basis than partial recovery: see Biant v. Sagoo, [2001] O.J. No. 3693 (S.C.J.) at para. 20.

[29] The applicants shall therefore have their costs of this proceeding payable by the respondent in the amount of $19,000 inclusive of HST and disbursements.

McDERMOT J.

Date: April 25, 2016

Footnotes

[1] O. Reg. 114/99 [2] OCL Investigation dated February 8, 2016 at p. 14 [3] Ibid., p. 12 [4] Ibid., p. 14 [5] Correspondence from Andy Cassolato dated January 27, 2016 attached to Respondent’s costs submissions.