Court File and Parties

Court File No.: FC-20-337-00 Date: 20200611 Superior Court of Justice - Ontario

Re: Justin Michael Cole, Applicant And: Andrea Jane Barrett, Respondent

Before: J.P.L. McDermot

Counsel: Ashley H. McInnis, for the Applicant Trevor B. Owen, for the Respondent

Heard: By written submissions

Endorsement

[1] On April 15, 2020, I heard a teleconference motion in respect of the Respondent Mother’s refusal to provide time sharing to the Applicant Father. In doing so, she also refused to adhere to the status quo that the parties had concerning their time-sharing arrangement for their son, Logan which was, until Covid-19, shared.

[2] I determined that the parties needed to return to the status quo. However, the Applicant also argued for his own change in the status quo to have the child no longer attend at his present child care provider, and that he also be ordered a “right of first refusal” for child care when the Respondent Mother was working. That motion was dismissed.

[3] Based upon the argument at the motion, success was divided. However, a review of the Offers to Settle make it clear that the major issue was the time sharing issue and the return to the status quo. On that point, the Applicant’s offer was on all fours with my order. The Applicant requests full recovery costs on the basis of his success at the motion and his Offer to Settle.

[4] As well, the Applicant says that the Respondent is guilty of unreasonable behaviour and bad faith conduct which also warrant an award of full recovery costs.

[5] The Respondent says that to order costs would work a hardship on her, and that costs should be in the cause which is not yet determined. She notes that the parties were only one day apart on the time sharing (noted as well during argument) and that the costs are not warranted under the circumstances.

Offer to Settle

[6] The Applicant’s Offer to Settle the motion was clearly similar to the result on the issue of time sharing. The offer provides that the child will be with the Applicant from Friday to the following Thursday every second week, which was the status quo prior to the Respondent Mother withholding the child. That was the same as my order.

[7] Mr. Owen submits that the offers were only one day apart every two weeks. However, the real issue at the motion was whether the parties would return to what was a shared arrangement and status quo prior to Covid, not the number of days. The fact that the parties were only one day apart was less important than the Respondent’s arbitrary decision to change the status quo back to what it had been prior after withholding all contact for a period of time. It was not the days apart, but the nature of the time sharing that was argued and on that major issue, the Applicant Father was wholly successful. His offer reflected that success, and under Rule 18(14) of the Family Law Rules, he is entitled to full recovery costs from the date of the service of the Offer to Settle.

[8] I note as well that, if the number of days apart was so unimportant, then the Respondent Mother could have easily accepted the Applicant’s Offer and avoided the motion. She did not and there must be consequences to that decision.

[9] On the major issue argued at the motion, then, the Applicant’s Offer to Settle complies in all respects with Rule 18(14) of the Family Law Rules. However, there is one issue that was not addressed by the Applicant’s offer, which was my order requesting the appointment of the OCL. Although not controversial, this issue did not go on consent at the motion.

[10] Unless the result at the motion is more favourable to the offeror as to all of its terms, it cannot attract the costs consequences of Rule 18(14) of the Family Law Rules: see Paranavitana v. Nanayakkara, supra, Rebiere v. Rebiere, 2015 ONSC 2129 and Scipione v. Scipione, 2015 ONSC 5982. Rule 18(14) of the Family Law Rules is therefore not available to award the Applicant full recovery costs.

[11] However, as noted, on the major issue litigated the Applicant’s offer is on all fours as to the result. Therefore, I take it into account in determining costs under Rule 18(16) of the Family Law Rules.

Unreasonable / Bad Faith Behaviour

[12] The Applicant urges me to find both unreasonable behaviour as well as bad faith conduct on the part of the Respondent respecting her refusal of access after the Applicant’s self-isolation because of his partner’s return from out-of-country travel.

[13] Ms. McInnis suggests that the Respondent was duplicitous in her refusal of access. Originally, Ms. Barrett suggested that the Applicant could not have access because of Covid-19 and then she allowed a birthday visit with social distancing. It was only after the motion was set and she received legal advice that she began to allow access, but only as was in place prior to the shared custody that the parties had agreed to last fall. Ms. McInnis says that the Respondent was attempting to obtain a change in the status quo through Covid restrictions, and that this constituted bad faith conduct.

[14] Certainly, the Respondent was acting unreasonably when she refused access. She had no evidence that the Applicant was failing to meet the Covid requirements in order to ensure Logan’s safety. This is especially so where the Applicant had self-isolated for 14 days after a family member’s travel to the United States. The Respondent’s almost immediate relaxing of those restrictions upon seeking legal advice speaks to that issue. The question is whether this crosses into bad faith behaviour.

[15] As pointed out by Pazaratz J. in Scipione v. Del Sordo, 2015 ONSC 5982 at para. 96, bad faith behaviour is a significant step beyond unreasonable conduct:

Bad faith is not synonymous with bad judgment or negligence; rather, it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. Bad faith involves intentional duplicity, obstruction or obfuscation.

[16] Later in his decision, Pazaratz J. notes that bad faith requires that the court find that the wrongdoer acted with “malice or intent to harm.” He points out that a finding of bad behaviour is rarely made out because of the high threshold of proof: see S. (C.) v. S. (C.), 2007 ONSC 20279; Piskor v. Piskor, 2004 ONSC 5023; Cozzi v. Smith, 2015 ONSC 3626.

[17] I do not find malice in the Respondent’s actions. I find that she acted in what might be called a confused manner. Once she had legal advice, she immediately provided access to the Applicant. Although she did not adhere to the status quo, this might be seen as consistent with her position that the shared arrangement was a trial arrangement only that the child did not like.

[18] Therefore, although I find that the Respondent’s behaviour to be unreasonable, I do not find that it crossed the boundary into bad faith conduct. Therefore, although the Respondent’s behaviour was unreasonable as defined in Rule 24(5) of the Family Law Rules, the automatic costs consequences under Rule 24(8) of the Family Law Rules are not applicable in the present case.

Impecuniosity

[19] Mr. Owen says that I should take the hardship that a costs award will have on the Respondent and suspend any award of costs, especially seeing that the Applicant only pays $250 per month in child support and has not yet filed a financial statement indicating his present financial circumstances. He points out that a costs award will visit a hardship on the Respondent and the child in her care and control.

[20] Ms. McInnis suggests that financial circumstances are not a factor in determining costs and relies upon Heuss v. Surkos, 2004 ONCJ 141. However, that is not what that case says; it states in fact that the financial circumstances of a costs payor must be taken into account:

However, in deciding this issue, I must have regard to Mr. Heuss' ability to pay. See, for example, the decision of Justice Craig Perkins in Biant v. Sagoo, 2001 ONSC 28137. I recognize that this factor alone cannot — nor should it — override the other considerations. Nevertheless, it is undisputed that the father is a very modest income earner and a person with few or no assets. In my opinion, an award of near-"full costs" recovery would be too onerous having regard to his income and his child support obligations.

[21] That the ability to pay costs is a factor to be taken into account has been determined at a very high level in M. (C.A.) v. M. (D.), 2003 ONCA 18880 where Rosenburg J.A. said exactly this at para. 42:

In my view, a consideration of particular relevance may be the financial position of the parties, especially of an unsuccessful custodial parent. See Biant v. Sagoo, 2001 ONSC 28137 at para. 17 and Brennan v. Brennan at para. 11. In 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.

[22] Ms. McInnis is, however, correct that a party’s impecunious circumstances are not a factor for the awarding of costs. There is nothing in Rule 24 of the Family Law Rules that permits a court to take that into account in the awarding of costs. However, the provision which speaks of “any other relevant matter”, which Rosenburg J.A. relied upon as jurisdiction to consider a party’s financial circumstances in M. (C.A.) v. M. (D.), is a factor in “setting the amount of costs” in Rule 24(11)(f) of the Family Law Rules.

[23] Certainly, even with the “shared” arrangement which was ordered, the child still spends more of his time in the care of the mother. The support being paid by the Applicant is minimal and the Respondent earns minimum wage income. I therefore take into account the financial circumstances of the Respondent in determining the amount of costs in this matter.

Conclusion

[24] The Applicant was the successful party on the major issue argued in the motion, which was whether the parties should be bound by the status quo which was the shared arrangement agreed to in 2019. Her offer on that issue is on all fours with that major issue although it did not address the appointment of the Office of the Children’s Lawyer.

[25] The Respondent was unreasonable in withholding access because of Covid-19. She had no reasonable excuse to do so, and her actions resulted in this motion being found to be urgent and having to be argued. She should bear, at least in part, the costs of the motion as a result.

[26] Mr. Owen suggests that I defer the decision on the costs of the motion because we don’t know who will be successful in the litigation. That goes against the provisions of Rule 24(10) of the Family Law Rules which suggests that it is best for a court to determine the costs for each step in the proceeding at the time of the step. Generally, in family law matters, reservation of costs as permitted by Rule 24(10)(b) of the Family Law Rules is the exception rather than the rule. There needs to be some reason why costs should be deferred to another date to another judge. And that is especially so where the Respondent’s actions so clearly resulted in this motion being brought.

[27] I therefore believe that it is entirely appropriate to determine the costs of this motion at this point in the proceedings.

[28] Normally, I would have assessed costs on a full recovery basis because of the Respondent’s behaviour in the case and the Applicant’s offer to settle. The Respondent’s behaviour can be considered in setting the amount of costs under Rule 24(12)(a)(i) of the Family Law Rules and I can only repeat that her behaviour in withholding access was clearly improper and caused this motion.

[29] What gives me pause is the Respondent’s financial circumstances. The child has historically lived in her home, and the amount of support payable by the Applicant appears to be a low amount. Her standard of living is important to the child’s well being and to impose a large award of costs would impose a hardship on the child. There is no way for me to look at the parties’ comparative financial circumstances as suggested in Heuss v. Surkos as the Applicant has not yet filed a financial statement in this proceeding; I understand that his lifestyle is important too as Logan spends significant periods of time in his home, but I have no information on his own standard of living or as to the impact of the lawyer’s fees in this matter.

[30] Therefore, I am assessing costs on a partial recovery basis against the Respondent for this motion because of the Applicant’s limited ability to pay costs.

[31] The amount of costs requested was $5,113.25. There was no issue taken with the hourly rates charged by Ms. McInnis or as to whether the time was properly spent to be considered under Rule 24(12)(a) of the Family Law Rules.

[32] The Respondent shall pay the Applicant’s costs in the amount of $3,000 inclusive of HST and disbursements. Costs shall be payable within 90 days.

McDermot J. Date: June 11, 2020