Court File and Parties

Court File No.: 5448/15 Date: 2016-05-09 Ontario Superior Court of Justice

Between: J.S., Applicant – and – M.M., Respondent

Counsel: Paul Amey, Counsel for the Applicant Nicole Matthews, Counsel for the Respondent

Reasons for Costs

The Honourable Mr. Justice A. Pazaratz

Endorsement

[1] I have reviewed the Respondent’s costs submissions dated April 12, 2016 and the Applicant’s costs submissions dated April 18, 2016. No reply submissions were received by the Respondent within the time limits stipulated in my March 31, 2016 motion endorsement.

[2] The Respondent mother seeks full indemnity costs of $9,219.67. The Applicant proposes that there be no costs awarded.

[3] This was a relatively straightforward custody/access motion which unfortunately became needlessly complicated by the Applicant father’s unfortunate decision to attach nude photographs of the Respondent, and about 89 pages of “sexting” between the Respondent and another man. The scandalous materials had been retrieved from a damaged cell phone discarded by the Respondent.

[4] Dealing with the offensive materials was easy: They were struck from record and removed from the court file. I imposed further restrictions on the Applicant disseminating those materials in any other fashion.

[5] As I set out in paragraph 17 of my endorsement, the parenting dispute involving an eight year old boy and a 16 month old girl was straightforward. a. The Applicant complained the Respondent had exercised self-help in seizing control of the children, thereby changing what he described as a status quo in which he was the primary (and more reliable) parent. He proposed that he have primary care of the older child and expanded access to the younger child including overnights. b. The Respondent denied the Applicant’s allegations and proposed that there be no change in existing arrangements pending involvement of the OCL. c. The Applicant sought to restrict the Respondent relocating the children outside of Hamilton. By the time the motion was argued, the mother had consented to such a restriction. d. My order set out that there would be no major change in timesharing arrangements on a temporary basis. I specified some expanded times in relation to each child, including the implementation of overnights for the 16 month old.

[6] In Serra v. Serra, 2009 ONCA 395 the Ontario Court of Appeal confirmed that costs rules are designed to foster three important principles: a. To partially indemnify successful litigants for the cost of litigation. b. To encourage settlement; and c. To discourage and sanction inappropriate behaviour by litigants.

[7] The assessment of costs is not a mechanical exercise. It’s not just a question of adding up lawyer’s dockets. Boucher et al v. Public Accountants Council for the Province of Ontario, 2004 ONCA 14579; 71 O.R. (3d) 291 (Ont. C.A.); Dingwall v. Wolfe, 2010 ONSC 1044 (SCJ).

[8] The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant. Selznick v Selznick, 2013 ONCA 35 (Ont. C.A.); Delellis v. Delellis, 2005 ONSC 36447; 2005 CarswellOnt 4956 (SCJ); Serra (supra); Murray v. Murray, (2005) 2005 ONCA 46626 (Ont. C.A.); Guertin v Guertin, 2015 ONSC 5498 (SCJ).

[9] The starting point in any costs analysis is the presumption that a successful party is entitled to costs. Rule 24(1) of the Family Law Rules. Sims-Howarth v. Bilcliffe, 2000 ONSC 22584 (SCJ). a. The Applicant achieved some success in obtaining an expansion of access, particularly in relation to the youngest child. b. The Respondent achieved greater success in resisting the Applicant’s requests for a more dramatic change in timesharing, and in resisting the Applicant’s request for primary residence of the older child. c. The Applicant’s motion led to early agreement by the Respondent that she would not relocate with the children out of Hamilton. d. The Respondent was completely successful striking the Applicant’s offensive materials.

[10] Rule 24(6) of the Family Law Rules directs the court to consider whether there was divided success, and if so, to apportion costs appropriately. But divided success does not necessarily mean equal success. And “some success” may not be enough to impact on costs. Jackson v. Mayerle, 2016 ONSC 1556 (SCJ).

[11] I find that there was divided success in the sense that the Applicant had modest success in relation to access, and the Respondent had major success in relation to primary residence, maintaining the status quo, and striking pleadings.

[12] Success is also evaluated based on consideration of Offers to Settle. Unfortunately, neither party appears to have filed any offers. This is unfortunate. The failure of both parties to submit formal offers under Rule 18 of the Family Law Rules constitutes unreasonable behaviour. In the Respondent’s case, it is certainly fatal to any request for full recovery costs, even if there hadn’t been divided success. Laing v. Mahmoud, 2011 ONSC 6737; S.S. v. S.K. 2013 ONCJ 481 (OCJ).

[13] The Respondent submits the Applicant’s decision to include humiliating nude photographs and salacious texts – which had no legitimate relevance to parenting issues – was so unreasonable as to constitute bad faith. Pursuant to Rule 24(8) of the Family Law Rules, if a party has acted in bad faith, the court shall decide costs on a full recovery basis and order the party to pay them immediately.

[14] Bad faith is not synonymous with bad judgment or negligence. Rather, it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. Bad faith involves intentional duplicity, obstruction or obfuscation: Children’s Aid Society of the Region of Peel v. F.(K.J.), 2009 ONCJ 252, [2009] O.J. No. 2348 (OCJ); Biddle v. Biddle, 2005 ONSC 7660 (SCJ); Leonardo v. Meloche, 2003 ONSC 74500; [2003] O.J. No. 1969 (SCJ); Hendry v. Martins, 2001 ONSC 28019; [2001] O.J. No. 1098 (SCJ).

[15] 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. The court can determine that there shall be full indemnity for only the piece of the litigation where bad faith was demonstrated. Stewart v. McKeown, 2012 ONCJ 644 (OCJ); F.D.M. v. K.O.W. 2015 ONCJ 94 (OCJ).

[16] To establish bad faith the court must find some element of malice or intent to harm. Harrison v. Harrison, 2015 ONSC 2002.

[17] I find that the Applicant’s inclusion of the nude photographs and texts amounted to bad faith behaviour: a. The materials were irrelevant to the determination of any issue before the court. b. The Applicant claimed he filed nude photographs of the mother so the court would understand how badly the eight year old son was traumatized when he viewed the images. But I made a determination that it was entirely the Applicant’s fault that the boy was able to view the pictures. c. The essence of bad faith is that a party claims to be acting with one purpose, when really they are motivated by another purpose. d. I had no difficulty concluding that the inclusion of such offensive materials in the Applicant’s affidavit constituted a transparent effort to humiliate the Respondent – and perhaps dissuade her from pursuing her claims. e. However, this bad faith determination impacts on costs only with respect to the portion of the case where bad faith was demonstrated. f. I make no finding of bad faith or even unreasonable behaviour in relation to the balance of the Applicant’s approach to the motion. I find that the Respondent acted reasonably throughout.

[18] Among my additional considerations: a. The issues involved were fairly straightforward, but the subject matter was of great importance to both parents. (Rule 24(11)(a) of the Family Law Rules). b. The hourly rate of $250.00 charged by the Respondent’s lawyer is reasonable. (Rule 24(11)(c) of the Family Law Rules). c. The preparation time charged by the Respondent’s counsel appears somewhat high, given that the parties were dealing with fairly common factual and legal issues. (Rule 24(11)(d) of the Family Law Rules). d. Disbursements claimed are reasonable. (Rule 24(11)(e) of the Family Law Rules).

[19] Even where the “full recovery” provisions of the Rules are triggered – either by an offer which meets Rule 18(14) of the Family Law Rules requirements, or by a finding of bad faith – quantification of costs still requires an overall sense of reasonableness and fairness. Goryn v. Neisner, 2015 ONCJ 318 (OCJ). The Rules do not require the court to allow the successful party to demand a blank cheque for their costs. Slongo v Slongo, 2015 ONSC 3327 (SCJ). The court retains a residual discretion to make costs awards which are proportional, fair and reasonable in all the circumstances. M.(C.A.) v. M.(D.) (supra); Scipione v Scipione, 2015 ONSC 5982 (SCJ). A costs determination must reflect proportionality to the issues argued. Jackson v. Mayerle (supra).

[20] Balancing all of these considerations, I order the Applicant to pay to the Respondent costs fixed at $6,300.00 inclusive of H.S.T. and disbursements. For clarity this includes an extra $1,000.00 attributable to the Applicant’s bad faith inclusion of the humiliating pictures and texts.

Pazaratz, J. Released: May 9, 2016