Court File and Parties

CITATION: Glegg, 2016 ONSC 7181

COURT FILE NO.: FS-16-20826

DATE: 20161121

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Olivia Glegg, Applicant

AND: Robert Keith Glegg, the moving party on this motion

AND: Tika Van Den Hurk, a responding party on this motion

BEFORE: Kiteley J.

COUNSEL: Jesse Mark, Justice for Children and Youth, for the Applicant Gary S. Joseph and Ryan M. Kniznik, for Robert Keith Glegg, the moving party on this motion Christina Doris, for Tika Van Den Hurk, a responding party on this motion

HEARD: In writing

ENDORSEMENT AS TO COSTS

[1] On August 22, 2016 I released an endorsement[^1] in which I dismissed the motion by Mr. Glegg for an order, inter alia, setting aside my order dated April 28, 2016. At paragraph 48, I established a timetable for the delivery of written submissions as to costs.

[2] In submissions dated September 8, 2016 Jesse Mark asked for full recovery costs in the amount of $6,063.52. In submissions dated September 15, 2016, Ms. Doris asked for full indemnity costs in the amount of $10,631.26. In submissions dated September 26, 2016, Mr. Joseph took the position that there should be no costs awarded either to Ms. Glegg or Ms. Van Den Hurk and if costs are ordered in favour of Ms. Glegg, it should not exceed 60% of the full recovery costs.

Costs claimed by Olivia Glegg

[3] Pursuant to rule 24(1), Ms. Glegg was successful and is presumed entitled to costs. I agree with Mr. Joseph that this motion should be considered “novel” insofar as it raised the issue of the circumstances in which a court could make a declaration that a young person has withdrawn from parental control. However, all of the other issues reflected in paragraph 3 of the earlier reasons were not in that category but were issues routinely raised in family law proceedings. That modest element of novelty does not undermine the presumption of entitlement to costs. I agree with Mr. Joseph that this motion raised a public interest component on the same basis but it is also not sufficient to undermine the presumption of entitlement.

[4] I turn to the question of the amount of costs. Ms. Glegg made an offer to settle dated August 3 that was open until 9:00 a.m. on August 10 which provided that if Mr. Glegg withdrew the motion by that time, there would be no costs but if withdrawn after that time, she would claim costs on a full indemnity basis. That offer was not open until the hearing starts and accordingly the cost consequences set out in rule 18(14) do not apply. I agree with Mr. Mark that the court should consider all offers and the existence of this offer showed her willingness to compromise on costs.

[5] Mr. Mark takes the position that the outcome of the motion was a foregone conclusion and that Mr. Glegg nonetheless brought a motion founded on that untenable position. As indicated at paragraph 3 of the earlier endorsement, some of the relief sought engaged procedural issues while the underlying issue was the circumstances in which the court could make a declaration that a young person has withdrawn from parental control. I do not accept the submission that the outcome of the entire motion was a foregone conclusion and do not take that submission into consideration in deciding the issue of costs.

[6] Mr. Mark takes the position that I should find that Mr. Glegg acted in bad faith in two ways. First, that the motion was an attempt to re-litigate the custody decision of Gibson J. and second, that the affidavit evidence filed by Mr. Glegg was replete with unfounded allegations, exaggerated language and unwarranted attacks on the character and dignity of both Ms. Glegg and her mother.

[7] In Scalia v. Scalia[^2] the Ontario Court of Appeal adopted the legal test for bad faith in the family law context as set out by Perkins J. at paragraph 17 of S. (C.) v. S. (M.)[^3]:

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 other person 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.

[8] There is no evidence that he acted with intent to inflict financial or emotional harm on his daughter or that he concealed information or deceived his daughter, her counsel or the court. I am not persuaded that he had acted in bad faith and therefore full recovery costs as contemplated in rule 24(8) does not apply.

[9] I do however find that Mr. Glegg acted unreasonably in several respects. The first arises from the conclusions I reached in paragraphs 30 and 31 of the earlier endorsement that he had the personal essay and the letter dated May 21, 2015 but he deliberately omitted attaching them. That is not evidence of concealment or deceit but it was not reasonable for him to have signed an affidavit omitting such evidence. The second is his reliance on the letter dated August 4, 2016 which, as indicated in paragraph 32 of the earlier endorsement was of no evidentiary value in this court. The third is that the tone and content of his affidavits was unnecessarily accusatory. And the fourth is that he neither responded to his daughter’s offer to settle nor made an offer himself. Pursuant to rule 24(11), I find that his unreasonable behaviour mandates full indemnity costs.

[10] I agree with Perkins J. at paragraph 20 of Biant v. Sagoo[^4] that the preferable approach in family law cases is to have costs recovery generally approach full recovery, so long as the successful party has behaved reasonably and the costs claimed are proportional to the issues and the result. That view was expressed in a family law case involving two parents while the case before me involves only one party, the Applicant Ms. Glegg. However, the same sentiment should apply. In responding to her father’s motion, Ms. Glegg behaved reasonably. The costs claimed on her behalf are proportional to the issues and the result, and, compared to the costs reflected in Mr. Joseph’s bill of costs which he provided, her costs are not only reasonable but modest. For those additional reasons, I agree with Mr. Mark that Ms. Glegg should recover full indemnity costs.

[11] At paragraph 2 of his written submissions, Mr. Mark indicated that “the Applicant also requests that the beneficiary of any costs order in her favour should be Justice for Children and Youth, the legal clinic funded by Legal Aid Ontario that represented the Applicant on the motion.” Ms. Glegg did not sign the written submissions and she has not otherwise confirmed that request in writing. Before making an order that a third party, namely Justice for Children and Youth, be the recipient of the costs, the Applicant must personally provide a written direction. In the absence of such authorization, the order will be made in her favour. Before payment is made by Mr. Glegg, Ms. Glegg can provide a written direction as to the payee of the funds.

Costs claimed by Tika Van Den Hurk

[12] I do not intend to consider the offer that Ms. Van Den Hurk made (that was open until the commencement of the motion) or the submissions made on her behalf which were largely similar to those made by Mr. Mark. Ms. Van Den Hurk did not have to participate in this motion. She did so for purposes of supporting the position her daughter took. No doubt that is of considerable emotional value to her daughter but it ought not to be reflected in an order that Mr. Glegg pay her costs.

ORDER TO GO AS FOLLOWS:

[13] By December 21, 2016 at 5:00 p.m. EST, Robert Keith Glegg shall pay to Olivia Glegg costs of the motion heard August 18, 2016 on a full indemnity basis fixed in the amount of $6063.52.

[14] Robert Keith Glegg is not required to contribute to the costs claimed by Tika Van Den Hurk.

Kiteley J.

Date: November 21, 2016

[^1]: Glegg, 2016 ONSC 5292 [^2]: 2015 ONCA 492 at para. 68 [^3]: 2007 CanLII 20279 (ON SC), 38 R.F.L. (6th) 315 (Ont. S.C.J.), at para. 17, aff’d 2010 ONCA 196 [^4]: 2001 CanLII 28137 (ON SC), [2001] O.J. No. 3693