ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: E.T. (Applicant)

AND:

L.D.(Respondent)

BEFORE: M. D. FAIETA, J.

COUNSEL: Martha McCarthy and Faria Marlatt, for the Applicant L.D., Self-represented

HEARD: Submissions in Writing

C O S T S E N D O R S E M E N T

BACKGROUND

[1] The Applicant seeks her costs in respect of motions held March 15, 2018, March 26, 2018, June 1, 2018 and June 8, 2018 as well as a 14B motion dated May 10, 2018.

[2] I will not repeat the background and outcomes related to these motions which is described in my decisions dated March 21, 2018 (see ET v LD, 2018 ONSC 1897), August 31, 2018 (see ET v. LD, 2018 ONSC 5132) and October 16, 2018 (see ET v. LD, 2018 ONSC 6094).

[3] The Respondent has failed to provide responding costs submissions.

ANALYSIS

[4] In a family law proceeding, the award of costs is governed by section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended (“CJA”), as well as by the Family Law Rules, Ontario Regulation 114/99, as amended.

[5] Section 131 of the CJA provides that, subject to the rules of court, costs of a proceeding are in the discretion of the court. While under the Family Law Rules there is a presumption that a successful party is entitled to their costs of the proceeding, the Ontario Court of Appeal has recently made it clear in Beaver v. Hill, 2018 ONCA 840, paras. 8-13, that a successful party is not entitled to its costs on a full recovery or “close to full recovery” basis unless such result is expressly contemplated by the Family Law Rules such as when a party obtains a result that is at least as favourable as its offer to settle Rule 18(24) or when a party has acted in bad faith (Rule 24(8)).

[6] In setting the amount of costs, Rule 24(12) requires that a court consider any relevant matter including the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

(i) each party’s behaviour, (ii) the time spent by each party, (iii) any written offers to settle, including offers that do not meet the requirements of Rule 18, (iv) any legal fees, including the number of lawyers and their rates, (v) any expert witness fees, including the number of experts and their rates, and (vi) any other expenses properly paid or payable.

[7] An award of costs under the Family Law Rules, as under the Rules of Civil Procedure, “… should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties”: Serra v. Serra, 2009 ONCA 395, para. 12.

[8] The application of the above principles is addressed below.

Reasonableness and Proportionality of the Parties’ Behaviour

[9] Given their primary purpose, the Applicant’s motions were of great importance. The Applicant’s behavior on these motions has been reasonable, proportional and primarily focused on the well-being of her children. In very large measure, she successfully obtained the orders that she sought including an order for the family to participate in the Family Bridges’ program.

[10] On the other hand, read together, the decisions referenced above demonstrate that the Respondent’s behavior has been unreasonable throughout and rises to the level of “bad faith” given his intention to inflict harm on the Applicant: Scalia v. Scalia, 2015 ONCA 49. The Respondent’s conduct after being required to pay more than $27,000 per month in January 2017 (see 2017 ONSC 248) in telling them that their future education plans and extracurricular activities were at risk given the support order, was the first of many actions that have inflicted harm on the Applicant and her children by making them pawns throughout this litigation. The Respondent’s intention to inflict harm on the Applicant is reflected in the actions which gave rise to the motions and the orders sought. In my view, the Respondent’s bad faith throughout this proceeding has regrettably and repeatedly been demonstrated in the circumstances that have necessitated the motions brought and orders sought.

[11] Not surprisingly, there is no evidence that the parties exchanged written offers to settle any of these motions.

The Reasonableness and Proportionality of the Costs, including Witness Fees and Expenses Sought

[12] The Applicant has had the benefit of very experienced counsel, as well as her associates, that have worked at one-half of their usual rate. I found the hourly rates claimed to be reasonable.

[13] In my view the time docketed by counsel for the Applicant reflects what might reasonably have been expected and required given the various motions and the urgent circumstances in relation to at least one of the motions. I also find that the expert fee incurred in respect of Ms. Vanbetlehem to be reasonable.

[14] The costs incurred by the Applicant in relation to these motions are proportionate to the concerns, issues and results achieved.

[15] However, any fees and disbursements that post-date the motions, as shown on page 3 of the Bill of Costs should be excluded, and thus I limit the recoverable fees and disbursements to $69,419.86 as shown on page 2 of the Bill of Costs.

[16] Ms. Popielarczyk testified on March 26, 2018 for the purpose of: (1) describing the steps taken by the parties to comply with my earlier order that they participate in the Families Moving Forward program; (2) explaining that it was no longer appropriate for this family because of the children’s unwillingness to participate; (3) describing her concerns regarding the children which led her to report this matter to the JFCS. Ms. Popielarczyk’s invoice to both parties in the amount of $4,485.00, while reasonable, remains unpaid.

Conclusions

[17] I find that it is fair and reasonable for the Respondent to order that the Respondent shall, forthwith, pay costs of $69,419.86 to the Applicant and shall pay Ms. Linda Popielarczyk the sum of $4,485.00. In the event that the Applicant pays or has paid Ms. Popielarczyk’s account, then the Respondent shall forthwith reimburse the Applicant for the amount that she has paid to Ms. Popielarczyk. Had I not concluded that costs should be awarded to the Applicant on a full recovery basis because of the Respondent’s bad faith, I would have ordered that the Respondent pay, forthwith, costs of $59,000, rather than $69,419.86.

M. D. FAIETA, J. Released: October 29, 2018