CITATION: E.L.1 v. N.R., M.N. and A.N., 2017 ONSC 5406

COURT FILE NO.: F1986/11

DATE: 2017/09/13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

E.L.1

Applicant

– and –

N.R., M.N. and A.N.

Respondents

Jennifer Swan, for the Applicant

Monica Scholz, for the Respondents M.N. and A.N.

The Honourable Madam Justice Deborah L. Chappel

REASONS FOR JUDGMENT ON COSTS

PART I: INTRODUCTION

[1] These are my Reasons for Judgment on the issue of costs in connection with a motion I heard on July 21, 2017. The Respondents M.N. and A.N. brought the motion on June 16, 2017. Mr. and Mrs. M.N. are the maternal grandmother and step-grandfather of the child E.L.2, born […], 2011. The Applicant E.L.1 is E.L.2’s biological mother. The Respondent N.R. is the child’s biological father. In their motion, Mr. and Mrs. M.N. (“the grandparents”) sought make-up access with E.L.2, alleging that Ms. E.L.1 (“the mother”) had not complied with a temporary order dated February 28, 2017 which granted them access with the child. Pursuant to that order, the grandparents were granted access with E.L.2 on the second Saturday of each month, from 10:00 a.m. until 8:00 p.m., on December 27, 2017 and for the last week of July, 2017 from Monday July 24, 2017 until Sunday July 30, 2017.

[2] I gave oral reasons on the motion following the hearing on July 21, 2017. In regard to the visit that was to occur on May 13, 2017, the evidence indicated that the child had a violin recital on that date, and that the mother attempted to reschedule the visit to another time. The grandparents suggested as an alternative that they be permitted to take the child to the recital. The mother ended up bringing E.L.2 to the visit on May 13, 2017, but the child arrived three hours late because of the violin recital. The child’s half-sister, Tennille, accompanied the child from the mother’s car, which was around the corner from the grandparents’ house, but then turned around and took E.L.2 back to the mother. The visit never occurred on the date. The grandparents and the mother have very different versions of what occurred and why the visit did not take place. The grandparents allege that E.L.2 was fine when she arrived at their door, whereas the mother states that Tennille brought E.L.2 back to her because the child was upset and wanted to leave. Furthermore, the mother alleges that the step-grandfather followed Tennille to the car and made inappropriate racial comments about the father and the child, which the step-grandfather adamantly denies. In addition, the mother alleges that she attempted to return E.L.2 to the grandparents’ home once the child calmed down, but that the grandparents were no longer home by that time. Again, the grandparents deny this. I noted in my Reasons for Judgment that there were serious credibility issues relating to this visit that could not readily be resolved in the context of a motion with affidavit evidence.

[3] The mother acknowledged that she did not take E.L.2 to the grandparents’ court-ordered visits on June 10, 2017 and July 8, 2017. She indicated that she withheld E.L.2 from the grandparents on those dates because of serious concerns about the safety of E.L.2 in the grandparents’ care and the child’s extreme resistance to seeing the grandparents. The protection concerns that the mother raised regarding the grandparents included the following:

1. She alleged that the grandmother had been emotionally and physically abusive towards her as a child;

2. She stated that E.L.2 had disclosed being physically disciplined by the grandmother; and

3. She stated that the child had made a disclosure of sexual abuse by the step-grandfather in August 2016.

[4] I concluded in my Reasons for Judgment that the evidence did not support the mother’s alleged protection concerns respecting the grandparents, and that the mother was not justified in refusing to make E.L.2 available for access with the grandparents. Accordingly, I made an order granting the grandparents make-up access with E.L.2 from July 21, 2017 until July 24, 2017, when the grandparents’ one week summer access was to begin. The grandparents’ request for make-up access and an order reinforcing their summer access was of considerable importance to them, as they were married during the one week summer period and had planned for E.L.2 to participate in the wedding. I also ordered that all access exchanges for visits with the grandparents occur in the front lobby of the police station located on King Street in Stoney Creek, Ontario, pending further order. Finally, given the high conflict nature of this situation and the significant difficulties that the grandparents have experienced in exercising their access, I made an order for police enforcement of my order and the order dated February 28, 2017.

[5] The grandparents seek full indemnity costs against the mother in connection with the motion, in the amount of $21,008.73, inclusive of disbursements and HST. In support of this request, they state that they were clearly the successful parties and that they acted reasonably in attempting to resolve the access problems. They also submit that the mother acted unreasonably throughout these proceedings, and that her conduct in relation to their access amounted to bad faith.

[6] Ms. E.L.1 requests that there be no costs payable in connection with the motion. She submits that the facts of this case are extremely complex, and that she genuinely believes that E.L.2 is at risk of experiencing both physical and sexual harm in the care of the grandparents. Furthermore, she argued that E.L.2 was experiencing significant emotional distress about visiting with the grandparents. In the event that costs are ordered, the mother’s position is that they should be apportioned between her and the father, since Mr. N.R. fully supported her position on the motion. In addition, she noted that she is a single mother in receipt of Ontario Disability Support Plan (“ODSP”) benefits, and that her very limited financial means should factor heavily in the costs analysis. She submits that a costs award would render her unable to support E.L.2 and her other child who is in her care.

[7] For the reasons that follow, I conclude that the grandparents are entitled to full indemnity costs in connection with the motion, calculated on a reasonable basis. However, I have reviewed the Bill of Costs submitted on behalf of the grandparents, and I am not satisfied that all of the items included are properly the subject of a costs claim in connection with the motion. In addition, I have general concerns that the amount claimed is excessive. My view is that a reasonable sum for full indemnity costs for the motion is $13,190.00, inclusive of HST and disbursements. I find that an order for full indemnity costs is appropriate pursuant to the Family Law Rules, O. Reg. 114/99, as amended, on the basis that the Applicant mother acted in bad faith regarding the issue of access to the grandparents. Even if the mother’s conduct had not crossed the threshold into the realm of “bad faith,” I would have concluded that her conduct was so unacceptable that it justified an award of reasonable full indemnity costs.

PART II: THE LAW RESPECTING COSTS

I. General Principles

[8] The starting point in addressing the issue of costs is section 131 of the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended, which provides that subject to the provisions of an Act or Rules of court, costs are in the discretion of the court, which may determine by whom and to what extent the costs shall be paid. Rule 24 of the Family Law Rules, O. Reg. 114/99, as amended, sets out a number of principles to guide the court in the exercise of its discretion.

[9] The Ontario Court of Appeal established in Serra v. Serra, [2009] O.J. No. 1905, 2009 ONCA 395, 2009 CarswellOnt 2475 (C.A.) that modern rules respecting costs aim to foster the following three fundamental purposes:

1. To partially indemnify successful litigants for the cost of litigation;

2. To encourage settlement; and

3. To discourage and sanction inappropriate behaviour by litigants.

[10] In seeking to advance these objectives, the court must balance the goal of indemnifying the successful litigant for their costs with the importance of not unduly deterring potential litigants from pursuing legitimate claims for fear of overly burdensome cost consequences (Cassidy v. Cassidy, 2011 CarswellOnt 1541 (S.C.J.)).

[11] The Court of Appeal has highlighted the discretionary nature of costs awards, and the importance of the court considering all relevant factors (Andrews v. Andrews, 1980 3619 (ON CA), [1980] O.J. No. 1503 (C.A.)). It has emphasized that although court rules respecting costs have circumscribed the broad discretion which section 131 of the Courts of Justice Act grants the court in regard to costs, they have not completely negated this discretion (M. (C.A.) v. M. (D.), 2003 18880 (ON CA), [2003] O.J. No. 3707, 67 O.R. (3d) 181; 2003 CarswellOnt 3606 (C.A.); Fielding v. Fielding, 2015 ONCA 901 (C.A.)).

II. Liability for Costs

1. Costs Liability to be Determined After Each Step in the Case

[12] As noted above, Rule 24 of the Family Law Rules sets out additional principles and guidelines that apply in determining costs in Family Law proceedings. The Rule sets out a number of factors relevant to the preliminary issue of liability for costs. Rule 24(10) establishes the general principle that the court should determine the issue of costs promptly after each step in the case. If a specific order for costs is not made at the end of a step in the case, including a conference or motion, or costs are not reserved, a judge dealing with a subsequent step or the trial judge should not generally consider the costs associated with that step when determining costs (Islam v. Rahman, 2007 ONCA 622, 2007 CarswellOnt 5718 (C.A.); Bortnikov v. Rakitova, 2016 ONCA 427 (C.A.)).

2. Success in the Case

[13] Rule 24(1) establishes a presumption that a successful party to a motion, enforcement, case or appeal is entitled to costs. The court may also award costs to the party who was more successful on an overall global basis or on the primary issue, subject to adjustments that the court may consider appropriate having regard for the lack of success on secondary issues and any other factors relating to the litigation history of the case (Gomez-Pound v. Pound, [2009] O.J. No. 4161 (O.C.J.); Boland v. Boland, 2012 ONCJ 239, [2012] O.J. No. 1830 (O.C.J.)). If the parties have reached a negotiated resolution of the issues in their case, costs can nonetheless be ordered if the court determines that one party was more successful overall than the other party (Johanns v. Fulford, [2011] O.J. No. 4071 (S.C.J.)).

[14] Rule 24(6) provides that where success in a step in a case is divided, the court may exercise its discretion to order and apportion costs as appropriate. However, the determination of whether success was truly “divided” requires a contextual analysis that takes into consideration the importance of the issues that were litigated and the amount of time and expense that were devoted to the issues that required adjudication (Jackson v. Mayerle, 2016 ONSC 1556 (S.C.J.); Slongo v. Slongo, 2017 ONCA 687 (C.A.)).

3. Successful Party May Nonetheless Be Liable for Costs or Denied Costs

[15] Rule 24(4) provides that the presumption that a successful party is entitled to costs does not apply where that party has acted unreasonably, in which case that party may be deprived of all or part of their costs or may be ordered to pay the unsuccessful party’s costs. Rule 24(5) sets out factors that the court must examine when deciding whether a party has acted reasonably or unreasonably. These factors include the party’s behaviour in relation to the issues from the time they arose, whether the party made an Offer to Settle, the reasonableness of any Offer to Settle that the party made, and any Offer to Settle the party withdrew or failed to accept. It is not any type of unreasonable conduct that will disentitle a successful party to costs. In the context of a custody and access dispute, a pattern of conduct which shows lack of respect for the letter and spirit of court orders or the relationship between a parent and child is the type of behaviour which should cause the court to seriously question the appropriateness of a costs award in favour of the successful party in a proceeding involving the child (Horne v.Crowder, 2015 ONSC 1041 (S.C.J)).

[16] Since costs are ultimately in the discretion of the court, a successful party may be denied costs for reasons other than unreasonable conduct (M. (C.A.)). In this regard, Rule 24 establishes additional presumptions regarding entitlement to costs that apply regardless of success. Rule 24(7) stipulates that if a party does not appear at a step in the case, or appears but is not properly prepared to deal with the issues at that step or otherwise contributes to that step being unproductive, the court shall award costs against the party “unless the court orders otherwise in the interests of justice.”

4. Bad Faith and Liability for Costs

[17] A finding that a party has acted in bad faith will also result in liability for costs as against the offending party, regardless of that party’s success. Rule 24(8) provides that 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. This costs provision is subject to the general principle that costs claimed must be reasonable. Perkins, J. described the concept of “bad faith” within the meaning of this Rule in S.(C.) v. S. (M.), 2007 20279 (ON SC), [2007] O.J. No. 2164 (S.C.J.), aff’d 2010 ONCA 196, [2010] O.J. No. 1064 (C.A.) as follows:

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 persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court… 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.

(See also Scalia v. Scalia, 2015 ONCA 492 (C.A.)).

[18] In Children’s Aid Society of the Region of Peel v. K.J.F. and K.P.F., 2009 ONCJ 252 (O.C.J.), at para. 25, Clark, J. further explained that the concept of bad faith within the meaning of Rule 24(8) is not synonymous with bad judgment or negligence. Rather, as he stated, “it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. What this means is that bad faith involves intentional duplicity, obstruction or obfuscation.”

5. The Importance of Offers to Settle in Determining Liability for Costs

[19] Another important consideration in determining both entitlement to and the quantum of costs is whether or not any party has served an Offer to Settle. Rule 18(14) establishes costs consequences for failing to accept an Offer to Settle that complies with the requirements of that Rule. In order for these costs consequences to come into play, the Offer to Settle must be signed by the party making the offer and their lawyer. Failure to comply with this requirement may result in the offer not being a valid formal offer that attracts the consequences outlined in Rule 18(14) (Riss v. Greenhough, 2003 CarswellOnt 1450 (S.C.J.); Jakubowski v. Kopacz-Jakubowski, 2008 CarswellOnt 2149 (S.C.J.)). The costs consequences, and conditions precedent to these consequences, are set out in Rule 18(14) as follows:

COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER

Rule 18(14)

A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:

1. If the offer relates to a motion, it is made at least one day before the motion date;

2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date;

3. The offer does not expire and is not withdrawn before the hearing starts;

4. The offer is not accepted; and

5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer.

[20] In deciding both liability for and quantum of costs, the court may also take into consideration as a favourable factor any written Offer to Settle, the date it was made and its terms, even if the conditions and presumptive consequences set out in Rule 18(14) do not apply (Rule 18(16)). In this regard, the court may in the exercise of its discretion compare portions of the Offer to Settle dealing with discrete issues to the terms of the order. A party’s failure to serve an Offer to Settle is also a highly relevant factor in determining both liability for costs and the appropriate amount of a costs award (M. (J.V.) v. P. (F.D.), 2011 CarswellOnt 13510 (O.C.J.); Menchella v. Menchella, 2013 ONSC 367 (S.C.J.); Potter v. DaSilva, 2014 ONCJ 443 (O.C.J.)). As Zisman, J. stated in Potter, at para. 22:

Offers to settle play an integral role in saving time and expense by promoting settlements, focusing parties and often narrowing the issues in dispute. Offers to settle are therefore important in any consideration of the issue of costs. In my view, it is unreasonable behaviour for a party not to make an offer to settle.

6. Financial Means of the Parties

[21] Although not specified in Rules 24 and 18 as factors in deciding costs, the financial means of the parties, their ability to pay costs and the effect of any costs ruling on the parties and any children are also relevant to the adjudication of liability for costs and the appropriate quantum of a costs award (Tauber v. Tauber, 2000 5747 (ON CA), [2000] O.J. No. 2133; additional reasons at 2000 22280 (ON CA), [2000] O.J. No. 3355 (C.A.); Biant v. Sagoo, 2001 28137 (ON SC), [2001] O.J. No. 3693 (S.C.J.); Van Rassel v. Van Rassel, 2008 56939 (ON SC), [2008] O.J. No. 4410 (S.C.J.); M.(C.A.); Murray v. Murray, 2005 46626 (ON CA), [2005] O.J. No. 5379 (C.A.); Clark v. Clark, 2014 ONCA 175 (C.A.)). The financial means of a custodial parent may be particularly relevant in assessing costs if a costs award would indirectly impact a child in a negative fashion. As the Ontario Court of Appeal stated in M. (C.A.), at para. 42, “[i]n fixing costs, the courts cannot ignore the best interests of the child and thus cannot ignore the impact of a costs award against a custodial parent that would seriously affect the interests of the child.” However, ability to pay will usually only be relevant to the appropriate quantum of costs and how payment should be effected, and not to the issue of liability for costs (Izyuk). In addition, a litigant’s limited financial means will be given less weight in the costs analysis than the court’s determination regarding overall success in the litigation (Biant; Gobin v. Gobin, 2009 CarswellOnt 3452 (O.C.J.)). Furthermore, ability to pay alone cannot override the other factors set out in Rule 24(11) (Peers v. Poupore, 2008 ONCJ 615 (O.C.J.)). A party’s limited financial means will also be accorded less weight if the court finds that the party acted unreasonably. As Curtis, J. stated in Mooney, “[i]t must be made clear to family law litigants that there is no right to a day in court, or at least, that the right to a day in court is tempered by the requirement that the parties take a clear-headed look at their case before insisting on their day in court

[22] The circumstances discussed above are not the only ones which may give rise to costs liability. The decision respecting liability is ultimately a discretionary one that must take into consideration the overall conduct of the parties and all of the circumstances and dynamics of the case.

III. Quantum of Costs

[23] Once liability for costs has been established, the court must determine the appropriate quantum of costs. In Serra, Boucher v. Public Accountants Council (Ontario), 2004 14579 (ON CA), [2004] O.J. No. 2634 (C.A.) and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC, 2005 1042 (ON CA), 2005 CarswellOnt 189 (C.A.), the court set out the additional general principles relating to the quantum issue:

a. Ultimately, costs decisions should reflect what the court considers to be a fair and reasonable amount that the unsuccessful party should pay;

b. Costs need to be proportional to the issues and amounts in question and the outcome of the case;

c. Amounts actually incurred by the successful litigant are not determinative; and

d. In assessing what is fair and reasonable, the expectation of the parties concerning the amount of a costs award is a relevant consideration

(See also Selznick v. Selznick, 2013 ONCA 35 (C.A.); Delellis v. Delellis, 2005 36447 (ON SC), [2005] O.J. No. 4345 (S.C.J.); Hackett v. Leung, 2005 42254 (ON SC), [2005] O.J. no. 4888 (S.C.J.)).

[24] Polowin, J. commented on these general principles respecting the quantification of costs in Sommerard v. I.B.M. Canada Ltd., 2005 40140 (ON CA), [2005] O.J. No. 4733 (S.C.J.). She succinctly captured the essence of the quantification exercise based on the principles outlined above as follows, at paras. 53-59:

The fixing of costs is not a mechanical exercise of calculating hours times hourly rates. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding. In doing so, I must stand back from the fee produced by the raw calculation of hours spent times hourly rate and assess the reasonableness of the counsel fee from the perspective of the reasonable expectation of the losing party.

[25] Rule 24(11) prescribes some of the factors which the court should consider in deciding the appropriate quantum of costs. These factors include the following:

FACTORS IN COSTS

24 (11) A person setting the amount of costs shall consider,

(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, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;

(e) expenses properly paid or payable; and

(f) any other relevant matter.

[26] In considering the quantum of costs, the court should also consider Rule 1(8), which provides that the court may respond to a failure to follow the Rules or abide by an order by making an order for costs.

[27] In determining the appropriate quantum of costs, the court has an obligation to review the specifics of the costs claim to assess the reasonableness of the amounts requested and whether items claimed are properly the subject of a costs award (Donnelly v. Donnelly, 2004 CarswellOnt 2076 (S.C.J.)). The court must also consider whether the hours spent can be reasonably justified (Pagnotta v. Brown, [2002] O.J. No. 3033 (S.C.J.); Murphy v. Murphy, 2010 ONSC 7204 (S.C.J.); Jackson). However, this analysis should be undertaken in a global fashion. The court is not required to embark upon a painstaking, line-by-line analysis of Bills of Costs and second guess every hour and item claimed, unless there are clear concerns about excessive claims and overreaching (Docherty v. Catherwood, 2016 ONSC 2140 (S.C.J.), at para. 50).

[28] In deciding the quantum of costs, the court should consider Rule 24 in conjunction with Rule 2(2), which provides that one of the primary objectives of the Rules is to ensure that cases are dealt with justly (Mooney v. Fast, 2013 CarswellOnt 15659 (O.C.J.)). In addition, the principle of proportionality must be brought into the fold of the costs analysis. As Pazaratz, J. stated in Jackson, the Supreme Court of Canada recognized in Hryniak v. Mauldin, [2014] 1 S.C.R. 87, 2014 SCC 7 (S.C.C.) that timeliness, affordability and proportionality are essential components of a legal system that ensures true access to justice. In the context of the costs analysis, these factors require the court to ensure that expenses claimed make sense having regard for the importance and complexity of the issues that were litigated.

[29] As I have already noted in my discussion respecting liability for costs, Rule 24(8) directs the court to order costs against a party who has acted in bad faith. This Rule is also critical to the issue of quantum of costs, since it specifically requires that costs be awarded on a full recovery basis and payable immediately. The full recovery portion of the award should relate to the issues affected by the bad faith. Once the full recovery analysis is complete with respect to those issues, the court should assess costs in relation to the other issues by considering the overall circumstances of the case in light of the factors outlined in Rule 24(11), and should use the discretion permitted by that section to reach a correct overall result (Hunt v. Hunt, 2001 CarswellOnt 4548 (S.C.J.); Likins v. MacKenzie, 2003 CarswellOnt 3007 (S.C.J.); additional reasons at 2004 CarswellOnt 2157 (S.C.J.))

[30] Rule 18(14) relating to formal Offers to Settle is also relevant to quantum of costs. If an Offer to Settle does not meet the formal requirements of Rule 18(14), the court may nonetheless take into consideration as a favourable factor any written Offer to Settle, the date it was made and its terms (Rule 18(16)). A party’s failure to serve an Offer to Settle may also be viewed as an adverse factor in determining the quantum of costs (M. (J.V.)). This is so even if the party was the successful litigant (Smith v. Smith, 2007 CarswellOnt 1538 (S.C.J.)).

[31] The costs consequences set out in Rule 18(14) do not automatically apply when the requirements set out in the Rule are satisfied. The Rule simply establishes a rebuttable presumption regarding costs, and the court ultimately maintains the discretion to determine whether the costs consequences are appropriate having regard for all of the circumstances of the case (M. (C.A.); Cole v. Freiwald, 2011 CarswellOnt 10517 (O.C.J.)).

[32] One of the measures that the courts use in determining whether costs claimed are fair, reasonable and proportional is to consider the amount that the other party has paid for their own legal fees with respect to a matter (Durbin v. Medina, 2012 ONSC 640 (S.C.J.)). A significant discrepancy in the amount of fees that the parties have incurred may prompt the court to embark upon a more detailed scrutiny of the costs claimed to ensure that the amount meets the overall objectives of a costs order (Jackson, at para. 99).

[33] In cases involving custody and access claims, a more tempered approach to costs may be appropriate depending on the circumstances of the case. The rationale for this is that parties should not be discouraged from advancing bona fide custody or access claims that are meritorious out of fear of possible deleterious financial consequences (Weaver v. Tate, 1989 CarswellOnt 330 (H.C.)).

[34] The Ontario Rules of Civil Procedure refer to three “scales” or “ranges” for costs award, namely “partial indemnity costs”, “substantial indemnity costs” and “full indemnity” costs. The Family Law Rules do not make reference to these scales, but adopt the phrase “full recovery” costs as being the appropriate award in certain situations. There has been some discussion about whether this phrase refers to the full amount which a party claims, subject to adjustments based on reasonableness, or something between the full amount claimed and the concept of “substantial indemnity.” (See Mary Jo Maur and Nicholas Bala, “Re-thinking Costs in Family Cases: Encouraging Parties to Move Forward,” paper presented at the National Family Law Program, July 2014, Whistler, British Columbia.). In my view, the term “full recovery” refers to the full amount which the party has claimed, subject to any adjustments that the court considers appropriate based on the reasonableness and proportionality of the costs claimed. In other words, it means the total reasonable and proportional amount that a court determines the party should have spent in dealing with the case (Jackson, at para. 91). This conclusion accords with the case-law in the civil context which has interpreted the phrase “full indemnity costs.” (Toronto Standard Condominium Corporation v. Baghai Development Ltd., [2012] O.J. No. 2746 (C.A.)). While the Family Law Rules outline certain circumstances in which full recovery costs are appropriate, the court is not limited to making a full recovery award in those specified situations (Sims-Howarth). It is ultimately a matter of the court’s discretion to determine whether full recovery is appropriate having regard for the particular circumstances of the case.

PART III: ANALYSIS

I. Entitlement to Costs

[35] I have no difficulty in determining that Ms. E.L.1 is liable for costs in relation to the motion. The grandparents were clearly the successful parties, and thus they are presumptively entitled to costs by virtue of Rule 24(1). In addition to the specific relief they requested, I ordered that access exchanges occur at the police station and that access be enforced, which afforded them additional protection with respect to future access. There is no evidence that the grandparents acted unreasonably in relation to the issue of access or in connection with this motion. Although difficulties arose respecting access as of the first visit following the February 28, 2017 order, the grandparents took appropriate steps to resolve those challenges through discussions between counsel. When they did not have their visit with E.L.2 on May 13, 2017, they again attempted to resolve the issue through counsel, and suggested a make-up visit before considering the more drastic route of bringing a motion. They cooperated with respect to an adjournment of the motion on June 16, 2017 to allow the Applicant to consult with counsel and prepare responding materials. Furthermore, they continued in their attempts to resolve the missed access through negotiations between counsel.

[36] My decision respecting the mother’s liability for costs is also based on my conclusion that she acted in bad faith in relation to the issue of access between E.L.2 and the grandparents. The evidence clearly demonstrates a longstanding pattern on her part of obstructing the grandparents’ access and breaching their court-ordered access rights, despite the conclusions of numerous professionals regarding the importance of such access to the child and the lack of protection concerns regarding the grandparents. Her litigation conduct around access to the grandparents has been so unreasonable as to lead me to conclude that she must have known that she was causing the grandparents serious financial and emotional harm without justification. Examples of her conduct which support my finding of bad faith include the following:

1. The mother actively opposed an order granting the grandparents access to E.L.2 in the child protection proceedings that occurred after the father was charged with sexual offences against the child. The issue of the grandparents’ access therefore had to proceed to a hearing. Notwithstanding the mother’s strong opposition to access, Gordon, J. concluded that it was in E.L.2’s best interests that she have access with the grandparents;

2. She consented to a custody and access order dated April 26, 2016 which granted the grandparents access on the same terms as under the previous child protection order, but then obstructed the grandparents’ access following the birth of her second child with the Respondent father in August 2016;

3. In support of her decision to stop access in August 2016 following the birth of her second child with the father, she alleged that E.L.2 had disclosed that it was actually the step-grandfather Mr. A.N. who had sexually abused her, and not the father. This allegation was thoroughly investigated by the police and the Catholic Children’s Aid Society of Hamilton (“the Society”), and it was not verified;

4. The grandparents were required to commence contempt proceedings in December 2016 due to the mother’s lack of compliance with the access terms of the April 26, 2016 order. In December, 2016, the mother set up a “gofundme” page on the internet to seek financial assistance with respect to the contempt motion. On that web page, the mother publicly aired all of the abuse allegations that she had made against the grandparents, notwithstanding that the allegations had not been verified by the Society or the police;

5. The February 28, 2017 temporary order that was the subject of this motion was made in the context of the contempt proceedings, and the mother consented to that order. Notwithstanding her consent, the mother again raised the same protection concerns in support of her denial of access after May 2017 as she had raised to support her decision to stop access in 2016;

6. Despite her consent to the temporary access order dated February 28, 2017, the mother then proceeded to lay a private information with the police against the maternal grandparents in relation to the abuse allegations that she had made against them after the police refused to lay charges. The private information proceeded to a two day hearing in Milton court in May, 2017, and the Justice of the Peace dismissed the mother’s claims;

7. One of the Brayden Supervision Services (“Brayden”) supervisors for the grandparents’ access testified at the hearing of the mother’s private information in Milton. Her evidence did not support the mother’s case, and following the hearing, the mother called Brayden to state that she would call the police if this person supervised another visit with E.L.2;

8. After the April 8, 2017 visit, the mother called the police and alleged that E.L.2 had disclosed to her that the maternal grandmother had threatened to kill the mother during the visit. The police concluded that there was insufficient evidence to support a charge against the grandmother;

9. Although she offered a make-up visit for the scheduled May 13, 2017 visit in advance of the visit due to E.L.2’s violin recital, she refused to agree to a make-up visit after the access did not proceed on that date;

10. She sent E.L.2 to her maternal grandfather’s home on June 10, 2017, when Mr. and Mrs. M.N. were supposed to have access, and did not provide the grandparents with any advance notice that she would not be bringing E.L.2 to the visit. When the grandparents involved the police to determine why the child had not arrived, the mother called the grandmother and made a number of very disturbing comments. Specifically:

i. She stated that if she went to jail as a result of a finding of contempt, she would tell E.L.2 that the grandparents had sent her to jail;

ii. She told the grandmother that she hated her and wished she were dead;

iii. She stated that she would get legal aid certificate after legal aid certificate to keep E.L.2 away from the grandparents;

iv. She stated that if she went to jail for contempt, she would make sure that the people who E.L.2 went to live with did not allow the grandparents to have access with E.L.2. She added that she would make sure that the grandparents never saw E.L.2 again.

11. The mother again failed to produce E.L.2 for access on July 8, 2017 without advance notice to the grandparents. When the access supervisor from Brayden, Ms. Judy Freeman, called her to inquire about where the child was, the mother stated that E.L.2 did not want to go and that the child had made an allegation of sexual abuse against Mr. A.N.. When Ms. Freeman emphasized that there was an access order in effect, the mother demonstrated complete disrespect for the order. She stated that the police could not force her to bring the child to the visit, and that the courts don’t do anything;

12. Although the mother clearly had no intention of complying with the February 28, 2017 order as of June, 2017, she did not take any steps to allow the court to properly adjudicate whether a variation of that order was in E.L.2’s best interests; and

13. The mother continued to rely on her allegations of abuse by the grandparents to support her decision to deny access on June 10, 2017 and July 8, 2017, despite the fact that the Society, the police and the Milton Justice of the Peace had all concluded that the allegations could not be substantiated.

[37] The mother’s conduct as described above reflects a clear and deliberate campaign on her part to obliterate the relationship between E.L.2 and her grandparents, and to flout the authority of this court. Her pattern of behaviour in relation to the grandparents’ access falls squarely within the realm of bad faith so as to attract costs liability on a full indemnity basis. As I have already noted, even if I had not found that her conduct crossed the line into the realm of bad faith, I would have concluded that it was so unreasonable that it would justify a full indemnity costs award.

[38] The mother’s position is that if there is any costs liability to the Respondents, it should be apportioned as between her and the Respondent father. I disagree. Although the father appeared at the hearing of the motion and supported the mother’s position, his involvement in the proceeding was very minimal. He did not file any materials and made very brief submissions in which he relayed his position to the court. Moreover, there was no evidence before me to suggest that his actions or influence played a role in the mother’s decisions and actions which resulted in the grandparents being denied their access. This motion was necessary due to the conduct and attitude of the mother, and allowing her to deflect responsibility by imposing part of the costs burden on the father would be prejudicial to the father and would undermine one of the fundamental goals of costs awards, which is to sanction inappropriate behaviour and litigation conduct.

II. Quantum of Costs

[39] I turn now to the issue of the appropriate quantum of costs. As I have indicated, the Respondents have filed a Bill of Costs which indicates that their full indemnity costs in connection with the motion were $21,008.73. I find that this is an exorbitant amount for a motion of this nature, and that a reasonable full indemnity claim is $13,190.00, inclusive of disbursements and HST. This case highlights the important point that a “full indemnity” costs award does not necessarily require the court to blindly order the amount set out in the claimant’s Bill of Costs. Rather, a full indemnity award represents the court’s determination of the full amount that the claimant should have reasonably incurred in relation to the proceeding, taking into consideration the factors outlined in Rule 24(11) and the need for costs to be proportionate to the issues that were litigated. In order for the court to properly carry out this role, it requires Bills of Costs that provide sufficient detail to satisfy the court that the claims are justified.

[40] The Bill of Costs which the Respondents have filed is problematic in many respects. First, I am not satisfied that all of the time claimed relates to this motion. In this regard, it is important to note that the Respondents’ contempt motion that they had initiated against the mother in December 2016 was still before the court as of the hearing of this motion. There are numerous items in the Bill of Costs that span the period from March 2, 2017 until May 13, 2017, when the grandparents missed their first visit after the February 28, 2017 order. Neither the Bill of Costs nor the grandparents’ Costs Submissions indicate how the tasks referred to during this period related to the motion. In the absence of such details, I am not satisfied that they are properly the subject of a costs claim in connection with the motion.

[41] I have also carefully considered the claims included in the Bill of Costs relating to the period from May 4, 2017 until June 1, 2017. Again, the Bill of Costs does not provide details of the purpose of the tasks, but it appears that they relate to the difficulties respecting the first missed visit on May 13, 2017. I am not including these items in the costs award for a number of reasons. First, as I have already indicated, there are numerous credibility issues relating to the problems that arose both before and during this visit that I could not resolve in the context of the motion. Second, the mother’s counsel at the time, Mr. Fortino, wrote to Ms. Scholz on May 9, 2017 to give advance notice of the problem with the date of the visit due to the child’s violin recital. It is apparent that the mother and her counsel attempted to problem-solve well in advance regarding the conflict between the visit time and the time of the recital. In the letter dated May 9, 2017 and in subsequent correspondence, Mr. Fortino suggested an alternative date for the visit, or that the visit on May 13, 2017 begin after the recital and end later. It appears that there may have been difficulties with respect to the delivery of some of this correspondence to Ms. Scholz, but I am satisfied that the mother made reasonable efforts to enable E.L.2 to attend both the recital and her visit with the grandparents. There is no evidence that the grandparents cooperated with respect to re-arranging the access date or time. Instead, they suggested that they be permitted to take E.L.2 to the recital. It is understandable that this proposal would have been problematic from the mother’s perspective, as she wished to take E.L.2 to the recital herself. I appreciate that after May 13, 2017, the grandparents attempted to negotiate make-up time for the visit that they missed on that date. I am allowing the time claimed in relation to those efforts, as the mother did not cooperate in arranging make-up time.

[42] For the reasons set out above, I have considered only the items in the grandparents’ Bill of Costs from June 1, 2017 onward in calculating the quantum of costs. However, there are certain items included from June 1, 2017 until August 3, 2017 which I found problematic and I have made further adjustments to address these concerns. The issues that I identified were as follows:

1. Approximately 6.2 hours appear to have been claimed for work relating to the preparation of the Notice of Motion and the initial affidavit of the grandparents in support of the motion. This amount is in my view excessive, given that the affidavit was only four pages long. I have allowed only 4 hours in relation to these tasks, which includes the time that counsel met with Mr. and Mrs. M.N.;

2. I have not included claims for the task of preparing and faxing Form 14B confirmations to the court relating to court appearances, as these are tasks that an assistant could have performed rather than counsel; and

3. There are numerous claims for receipt and review of emails from the grandparents, in addition to extensive time claimed for meetings and telephone calls with the grandparents. There are no details regarding the purpose of the numerous email exchanges. These claims are in my view excessive having regard for the nature of the issues involved in the motion, and I have therefore excluded them from my calculation of the costs payable by the mother.

[43] After making the above-noted adjustments, I reached the sum of $13,190.00 as a reasonable full indemnity claim, including disbursements and HST. This sum is broken down as follows:

Legal Fees: $9,960.00 (24.9 hours)

Disbursements: $1,711.80

HST on Fees and

Disbursements: $1,517.33

TOTAL: $13,189.13

I have rounded this figure up to $13,190.00.

[44] With respect to legal fees, the total amount of time that I have allowed, other than time claimed for an agent to attend court on June 16, 2017, is 24.9 hours, resulting in total legal fees of $9,960.00. While this is a great deal of time for a motion of this nature, I note that 7.3 hours were spent in court on the date of the hearing. The reason for this was that I was the only judge sitting in Family Court on that day, and I had an overloaded docket as it was on that date. The motion was brought on an urgent basis, and therefore it could not be heard until the end of the day after I had completed my previously scheduled matters. The total time also includes 2.4 hours relating to preparation of Costs Submissions and the Bill of Costs. Excluding the time spent in court and the time relating to costs, the amount of time that I have allowed is 15.2 hours. While this is still a significant amount of time for a motion for make-up access, I do not find it to be unreasonable on the facts of this case. The dynamics involved in this case and the factual history are complex. In addition, it is clear that a great deal of time was spent attempting to address the access problems through counsel in a genuine attempt to avoid the necessity of a costly motion. It was appropriate for Ms. Scholz to make those efforts, given the amount of work that was ultimately involved in preparing the motion materials and attending the hearing of the motion. Moreover, the order for make-up access that I made on July 21, 2017 reflected precisely the make-up time that the grandparents had requested through various letters that counsel exchanged. The Respondents should not be penalized with respect to costs for making efforts to resolve the access issue without a motion.

[45] In reaching my decision respecting the appropriate quantum of costs, I have also considered the complexity and importance of the access issue. Although the legal issues were not complex, the factual landscape was. There is an extensive history of conflict between the parties and involvement of child protection and police authorities. Furthermore, the access issue was extremely important to the parties and the child. The evidence indicated that the grandparents had been very involved with and attached to E.L.2 for many years, and that ongoing access between them and the child was in the child’s best interests.

[46] As part of the costs analysis, I have also taken into consideration the rate that Ms. Scholz charges, which is $400.00 per hour. While this is a high amount, it is not in my view unreasonable having regard for Ms. Scholz’ year of call and level of experience as a Family Law lawyer. I also note that Ms. Scholz was well prepared and did an excellent job in representing her client in this matter. When the matter was finally called on July 21, 2017, she presented her case in an orderly and efficient manner.

[47] The grandparents’ Bill of Costs includes a claim for disbursements relating to the motion in the amount of $1,711.80. While this appears at first blush to be a very high amount for disbursements, I note that it includes the cost of retaining an agent to appear in court on the first appearance of the motion on June 16, 2017. Taking these costs into account, I find that the total amount claimed is fair, reasonable and proportional.

[48] Finally, I have taken into consideration the mother’s very limited financial means. I am aware that she will experience great difficulty paying this costs award without assistance from other individuals, and that the costs order will have an indirect impact on her ability to provide her children with the type of lifestyle that she would like to offer them. However, my finding of bad faith on the part of the mother limits the flexibility that I would otherwise have with respect to quantum of costs based on financial hardship. The objectives of fair compensation for the successful party and appropriate sanction for the offending party must be the overriding considerations in cases involving bad faith of the type that the mother demonstrated in this case. Having said this, the costs order must be realistic having regard for the mother’s ability to pay and the likelihood that she will need to seek out assistance to pay the award. An appropriate balance must be achieved between the mother’s need for sufficient time to obtain the funds and the grandparents’ interest in obtaining compensation in a timely manner. On the facts of this case, I conclude that this balance can be achieved by allowing the mother until March 16, 2018 to pay 50% of the costs award, and until September 14, 2018 to pay the balance.

PART IV: TERMS OF ORDER TO ISSUE

[49] Based on the foregoing, an order shall issue as follows:

1. The Applicant E.L.1 shall pay the Respondents M.N. and A.N. costs in connection with their motion originally returnable on June 16, 2017 (“the motion”) in the amount of $13,190.00, inclusive of disbursements and HST.

2. There shall be no costs payable by the Respondent N.R. in relation to the motion.

3. This costs award shall be paid by way of certified cheques made out to Monica Scholz Professional Corporation, in trust for M.N. and A.N..

4. The following deadlines shall apply with respect to payment of this costs award:

i. The sum of $6,595.00 shall be paid by no later than March 16, 2018; and

ii. The balance of $6,595.00 shall be paid by no later than September 14, 2018.

The Honourable Madam Justice Deborah L. Chappel

Released: September 13, 2017

CITATION: E.L.1 v. N.R., M.N. and A.N., 2017 ONSC 5406

COURT FILE NO.: F1986/11

DATE: 2017/09/13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

E.L.1

Applicant

– and –

N.R., M.N. and A.N.

Respondents

REASONS FOR JUDGMENT

Chappel, J.

Released: September 13, 2017