Court File and Parties

BARRIE COURT FILE NO.: FC-10-167-01 DATE: 20170418 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Erzsebet Berta Kiss, Applicant AND: Ferenc Kiss, Respondent

BEFORE: THE HON. MADAM JUSTICE E.A. QUINLAN

COUNSEL: C.S. Williams, Counsel for the Applicant C.G. Severn, Counsel for the Respondent

HEARD: By written submissions

Costs Endorsement

Overview

[1] On December 15, 2016, I found that the applicant mother failed to comply in a deliberate and wilful fashion with the access and notification provisions of the Order of Justice Graham dated October 22, 2014. I ultimately adjourned the matter to March 1 to determine the appropriate penalty for the mother's contempt. On March 1, after hearing from a worker from Family Connexions (CAS), the penalty hearing was adjourned to March 3.

[2] The respondent father seeks costs for the contempt and penalty hearings of $13,291.61. The mother seeks to have the father's costs set at $3000.

Legal Principles

General Principles

[3] Section 131 of the Courts of Justice Act provides considerable judicial discretion on the issue of fixing costs. Rule 24 of the Family Law Rules provides a measure of guidance in the exercise of that discretion by enumerating certain factors that the court may consider in assessing costs.

[4] Section 24(11) sets out the following factors for the court to consider in determining costs:

a. The importance, complexity or difficulty of the issues; b. The reasonableness or unreasonableness of each party’s behaviour in the case; c. The lawyer’s rates; d. The time properly spent on the case; e. Expenses properly paid or payable; and f. Any other relevant matter.

[5] In Serra v. Serra, 2009 ONCA 395 our Court of Appeal provided these overarching comments with respect to costs rules:

Modern costs rules are designed to foster three fundamental purposes:

(I) To partially indemnify successful litigants for the cost of litigation; (II) To encourage settlement; and (III) To discourage and sanction inappropriate behaviour by litigants.

[6] The court’s role in assessing costs is not necessarily to reimburse the litigant for every dollar spent on legal fees. There is a component of reasonableness when costs awards are considered. See Benetau v. Young, 2010 ONSC 33 at para. 13.

[7] As noted in Biant v. Sagoo at para. 20, “the preferable approach in family law cases is 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.”

[8] In addition to the presumption that a successful party is entitled to the costs of the case, 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 Rules 24(1) and 24(8) of the Family Law Rules.

[9] In Scalia v. Scalia, 2015 ONCA 492 at para. 68, the Court of Appeal set out the legal test for bad faith in the family law context as follows:

… [t]he impugned 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." In short, the essential components are intention to inflict harm or deceive.

[10] The court in Jackson v. Mayerle, 2016 ONSC 1556 at paras. 56-61 confirmed that rule 24(8) requires a "fairly high threshold of egregious behaviour” and that "bad faith is not synonymous with bad judgment or negligence". Rather, it involves "intentional duplicity, obstruction or obfuscation”.

Analysis

[11] The mother argued that this was a case of divided success. I do not agree. The father was completely successful on his contempt motion. The mother was unsuccessful on her cross-motion to declare the father a vexatious litigant and have the father’s contempt motion dismissed. Although I accepted some of the mother’s suggestions for an appropriate penalty, I found that the mother had not purged her contempt and had no genuine intention to do so. As such, the father should be considered successful with respect to the penalty phase of the contempt hearing and is presumptively entitled to his costs for all three days.

[12] I find that the mother's actions following my finding of contempt against her constitute bad faith. In the lengthy materials the mother filed for the penalty hearing, the mother raised serious allegations against the father of sexual impropriety. She deposed that there was no reason for her to believe that the child’s statements regarding the father having a hidden camera in the child’s bedroom were false. However, the mother's affidavit was sworn 23 days after CAS had investigated the matter. Following that investigation, the mother had been told by the CAS worker that the worker believed the statements made by the child were false. With her materials, the mother filed an affidavit from Lisa Rotar, an OPP officer, again sworn well after the CAS had found the complaint to be unverified. Despite the fact that Ms. Rotar was the mother's friend and was not acting in the capacity of a police officer when she facilitated the mother’s continuing denial of access, Ms. Rotar purported to provide expert evidence as a "certified Behavioral [sic] Analyst Specialist with the OPP". Ms. Rotar deposed that she "would treat [the information received from the child] as worthy of analysis and as a precursor of escalating sexual and/or violent behaviour”. I find that the mother’s decision to file Ms. Rotar’s affidavit, when she was aware that the complaint had not been verified by CAS, is a further demonstration of the mother’s bad faith. I am satisfied that the mother’s behaviour was carried out with intent to inflict emotional harm on the father and to deceive the court. Her conduct meets the threshold of egregious behaviour.

[13] The costs award should not be reduced below what is fair and reasonable because the mother has been ordered to pay for reconciliation counseling between the child and the father. Those costs were ordered as part of the penalty for the mother’s contempt. There is no evidence to support the mother's statement that a costs award would prevent her from being able to provide for the support of the children. If, as she argued, a costs award will "further the animosity" and "prevent this family from healing", the mother should have considered the impact of her behaviour before embarking on her alienating conduct. This court must send a clear message to the mother to discourage and sanction her unreasonable and inappropriate behaviour.

[14] The mother's actions in continuing to claim that the father had hidden a camera in the child's bedroom necessitated the evidence of the CAS worker and increased the length and complexity of the penalty hearing. Even if the mother’s lawyer had been advised by the mother that the CAS worker was attending the penalty hearing and so could have been prepared to cross-examine the worker on the first day, the matter would not have completed that day in any event. As such, the mother should be responsible for not only the costs of the contempt hearing but also of the two day penalty hearing.

[15] I accept that the father's behaviour was reasonable. The hourly rate sought by his lawyer is reasonable. The father is entitled to his disbursements for his counseling sessions with Ms. Cook; those sessions are attributable to the mother's actions. I am not satisfied that the father should be reimbursed for his lost wages.

[16] As noted in Jackson, I must consider a fair and reasonable amount to award for costs. Having reviewed the father's bill of costs, I am satisfied that a fair and reasonable amount to award for costs is $11,000. In view of my finding of bad faith, the costs are on a full recovery basis and are payable forthwith.

Conclusion

[17] For the foregoing reasons, the mother shall pay the father's costs in the amount of $11,000, including disbursements and HST, payable forthwith.

QUINLAN J. Date: April 18, 2017