D.D. (E.P.) v. C. (M.M.), 2017 ONSC 4679

CITATION: D.D. (E.P.) v. C. (M.M.), 2017 ONSC 4679

COURT FILE NO.: FC-15-00000049-0000

DATE: 20170803

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

D.D. (E.P)

Applicant

– and –

C. (M.M.)

Respondent

E.H. Gamus, for the Applicant

R.L. Senjule, for the Respondents

HEARD: By written submissions

RULING ON COSTS

DOUGLAS J.

[1] This is my ruling on costs resulting from my ruling on the Applicant’s Motion for Summary Judgment in the above matter released May 3, 2017. I have now received and reviewed the parties’ extensive written submissions on costs.

[2] The Applicant was clearly the successful party and is presumptively entitled to costs under Rule 24 of the Family Law Rules. She seeks $42,000 (inclusive of $9,000 already paid, $2,000 claimed for costs submissions, HST and disbursements) and submits her April 11, 2017 offer triggers costs consequences. She submits bad faith on the part of the Respondent.

[3] The Respondent submits the parties should bear their own costs and denies the allegation of bad faith. It is submitted the Respondent acted solely in pursuit of what she believed to be in the child’s best interests; that is, to maintain the relationship between mother and child. She further submits the time expended by Applicant’s counsel was excessive, citing as an example repetitive affidavits with lengthy attachments and over $13,000 in fees generated before the first appearance before Kaufman J., and 10 hour court appearances for each of October 5, 2016 and April 5, 2017. The Respondent also argues her financial circumstances militate against a costs award (she says she resides with her parents and is in receipt of social assistance). The Respondent submits a bill of costs in the amount of $15,200 including HST and disbursements of about $1,100.

[4] Regarding bad faith, it has been described by Perkins J. as “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” (see C.(S.N.) v. M.(S.M.) 2007 ONSC 2279). In the same case, the court also observed that bad faith can include the intention to inflict emotional or financial harm and that a party may 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.

[5] I am not prepared to make a finding of bad faith in this case. There can be little doubt that the Respondent mother has conducted herself at times unreasonably; for example, her failure to comply with disclosure orders in a timely way, or at all, and her requests for adjournment to secure affidavits from her parents which then never materialized. While extremely concerning, this conduct does not rise to the very high bar established by the concept of “bad faith”. I will nevertheless consider the Respondent’s unreasonable conduct in determining an appropriate result on the issue of costs.

[6] The issues raised on the motion before me were important and conceded as “complex” by the Respondent in her submissions. It is difficult to imagine issues more important than those raised on this motion.

[7] No issue is raised with respect to the lawyers’ rates.

[8] As noted above, the Respondent submits that the time spent by Applicant’s counsel was excessive. Having reviewed the expansive affidavit material filed in respect of the proceedings before me, I must agree with the Respondent’s submission in this regard, to some extent. There was much repetition of evidence and attachments to affidavits submitted as exhibits more than once. The result was an unnecessarily expansive continuing record. Having said this, there can be little doubting the Respondent’s unreasonable behaviour contributed to much of the expansion of the evidentiary record and it is disingenuous for her to now offer complaints beyond expansion of the record through repetition.

[9] The Respondent expresses concern with respect to the almost $4,000 claimed by the Applicant in disbursements. Given the circumstances, I do not find that the disbursements are grossly excessive.

[10] The Respondent argues that her financial circumstances militate against a costs award. I am not persuaded by this argument given the findings I have made regarding her lifestyle (resulting largely from her failure to explain evidence from the Applicant of a lifestyle entirely inconsistent with one supported entirely by payments from social assistance). I am also considering in this regard he deemed admissions arising from the unanswered Request to Admit served upon the Respondent regarding a recent purchase of a designer accessory despite her claims of impecuniosity.

[11] The Respondent should also not be entitled to use her impecuniosity as a shield to a costs award, particularly where her conduct has at times been manifestly unreasonable with the effect of driving up costs unnecessarily. In making this finding, I am not finding that she has done so deliberately, but rather through recklessness.

[12] The Applicant served a Rule 18 Offer dated April 11, 2017 relating to settlement of the subject motion. I find that it triggers costs consequences from its date. The Applicant also served an Offer regarding the issue of costs. It too triggers costs consequences.

[13] Ultimately, I must resolve the issue on terms that appear reasonable to a reasonable unsuccessful party.

[14] In this regard I note that the Respondent has been billed approximately $15,200. Counsel for the Respondent was retained in November 2016. These proceedings were commenced a year earlier and thus the $15,200 figure does not necessarily represent a reasonable assessment of costs from the commencement of these proceedings in 2015.

[15] In all the circumstances, I award costs to the Applicant fixed in the amount of $25,000 inclusive of HST and disbursements, payable at the rate of at least $250 per month commencing September 1, 2017. The $5,000 held as security for costs shall be forthwith paid out to the Applicant in reduction of the Respondent’s obligation in this regard.

DOUGLAS J.

Released: August 3, 2017