Court File and Parties
COURT FILE NO.: FC-20-20 DATE: 2020/08/10
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: O.M., Applicant AND S.K., Respondent
BEFORE: Justice R. Ryan Bell
COUNSEL: Erin Lepine, for the Applicant Rachelle Laforge, for the Respondent
HEARD: In writing
COSTS ENDORSEMENT
Overview
[1] On February 11, 2020, I heard the parties’ motions for interim relief. The main issues were custody and access, child support, spousal support, and temporary exclusive possession of the matrimonial home. While the February motions were under reserve, O.M. and S.K. signed minutes of settlement on May 8 and May 13, respectively. The minutes resolved the issue of child support on an interim and without prejudice basis; the other issues, including custody and access, were resolved on a final basis.
[2] On June 11, I heard O.M.’s motion seeking temporary sole custody of the parties’ four and a half year old daughter with whom he had not had parenting time since May 15, notwithstanding that the minutes of settlement provide for joint custody and equal parenting time. O.M. also sought to enforce the other terms of the minutes dealing with child support, spousal support and exclusive possession of the matrimonial home.
[3] On June 12, I granted O.M. temporary sole custody of the parties’ daughter and ordered that on a temporary basis, the child is to reside in O.M.’s primary care with limited access to S.K. I confirmed that O.M. is entitled to exclusive possession of the matrimonial home, that the lump sum payment of $115,000 from O.M. to S.K. is in full and final satisfaction of all spousal support claims, and that child support and s. 7 expenses are to be paid on an interim and without prejudice basis in accordance with the provisions in the minutes of settlement.
[4] In my reasons for decision (O.M. v. S.K., 2020 ONSC 3816), I found that S.K. had engaged in parental alienation. I rejected her claim that she was forced to sign the minutes of settlement out of fear for her own safety and that of the child. I concluded that S.K.’s allegation that O.M. had sexually abused his daughter was false. I found that S.K.’s evidence was neither credible nor reliable. I accepted O.M.’s version of events.
[5] O.M. now seeks his costs of the February 11 and June 11 motions on a full recovery basis in the amount of $40,000. For the following reasons, I conclude that S.K. is liable to pay O.M. his costs in this amount.
Partial Indemnity or Full Recovery of Costs
[6] Modern family costs rules are designed to foster three fundamental purposes: (i) to partially indemnify successful litigants; (ii) to encourage settlement; and (iii) to discourage and sanction inappropriate behaviour by litigants. A fourth fundamental purpose is to ensure that cases are dealt with justly under Rule 2(2) of the Family Law Rules (Mattina v. Mattina, 2018 ONCA 867, at para. 10).
[7] The Family Law Rules only expressly contemplate full recovery costs in specific circumstances, for example, where a party has behaved unreasonably, in bad faith, or has beat an offer to settle under Rule 18(4).
Offer to Settle
[8] S.K. acknowledges that O.M. was the successful party on the June 11 motion. There can be no doubt that O.M. was also successful on the February motions: the issues were the same and the June hearing was necessitated by S.K.’s own conduct violating the terms of the minutes of settlement.
[9] On January 26, O.M. made an offer to settle the February 11 motions. O.M.’s offer provided for interim joint custody, an interim equal parenting schedule, exclusive possession of the matrimonial home to O.M., interim set-off child support based on an income to O.M. of $148,292 and an imputed income to S.K. of $80,000, payment of the child’s daycare expenses by O.M., proportionate sharing of other s. 7 expenses, and interim and without prejudice spousal support payable to S.K. in the amount of $1,671 per month.
[10] Beginning at the end of March, the parties exchanged numerous offers to settle. Ultimately, the parties signed the minutes of settlement on May 8 and 13. The minutes of settlement largely mirror O.M.’s offer of January 26. The minutes resolve all parenting issues on a final basis with the parties having joint custody of the child and an equal parenting schedule. They provide that O.M. would have exclusive possession of the matrimonial home on a final basis and that O.M. would make a lump sum payment of $115,000 in full satisfaction of his spousal support obligation. The parties also agreed, on an interim and without prejudice basis, that set-off child support would be based on an income to O.M. of $148,292 and an imputed income to S.K. of $50,000, and that s. 7 expenses would be shared in proportion to their respective incomes.
[11] O.M. did not make another offer to settle between May 13, when S.K. signed the minutes, and June 11, when the motion was heard. S.K. suggests that because she accepted O.M.’s May 7 offer within the stipulated timeframe (no costs payable to either party if accepted within 24 hours), O.M.’s costs incurred prior to May 8 ought not to be considered.
[12] I reject this submission. First, it ignores O.M.’s January 26 offer and the February 11 motions. Second, there would have been no reason for O.M. to make another offer to settle because his second motion was to enforce the minutes of settlement signed by the parties. O.M. was left with no choice but to bring the June 11 motion when, two days after she signed the minutes, S.K. began violating the parenting schedule to which both parties had agreed.
[13] The result achieved by O.M. was, in my view, at least as favourable as his January 26 offer. On the issues of child support, spousal support, and exclusive possession, I made orders confirming the terms of the minutes of settlement. I note that in her affidavit filed on the motion, S.K. stated that she agreed to the terms in the minutes on these issues. I denied her last minute request to adjourn the hearing on these issues. On the central issue of custody and access, neither party requested an order confirming the joint custody and equal parenting arrangements provided for in the minutes of settlement. I found it to be in the child’s best interests that O.M. have sole custody and primary parenting of the child on an interim basis, with access to S.K.
[14] On this basis alone, I find that O.M. is entitled to full recovery costs for the motions.
Bad Faith and Unreasonable Behaviour
[15] Under Rule 24(8), where a party has acted in bad faith, the court shall order costs on a full recovery basis, payable forthwith. The intentional failure to follow an order or an agreement to achieve an ulterior motive will constitute bad faith. In order to come within the meaning of bad faith in Rule 24(8), the behaviour must have been carried out with intent to inflict financial or emotional harm on the other party, or to deceive the other person or the court. The intent to inflict harm does not have to be the person’s sole or primary intent, but rather, only a significant part of the person’s intent ((S.(C.) v. S.(M.), 2007 20279 (ON SC), at para. 17; Beaver v. Hill, 2018 ONSC 3352, at para. 32).
[16] Unreasonable behaviour, even if it does not rise to the level of bad faith, can result in an order for costs on a full recovery basis (Jackson v. Mayerle, 2016 ONSC 1556, at para. 62. citing Sims-Howarth v. Bilcliffe, 2000 22584 (ON SC)).
[17] Parental conduct that alienates a child from the other parent amounts to bad faith within the meaning of Rule 24(8) (M.G. v. G.G., 2010 ONSC 792, at para. 9; Cantave v. Cantave, 2014 ONSC 5999, at para. 9).
[18] I have no hesitation in finding that S.K.’s behaviour in relation to the child’s contact with her father rises to the level of bad faith. In my reasons for decision, I found that S.K. had engaged in significant alienating behaviours, including by engaging in “badmouthing” behaviour, limiting and interfering in the child’s contact with O.M., attempting to create the impression that O.M. is a person to be feared, and by over-involving the child in adult and litigation matters. Most significantly, I found that S.K. had fabricated allegations that O.M. had physically and sexually abused the child. While the evidence before me did not establish that the child was exhibiting the behaviours of an alienated child, I found that S.K. was depriving the child of her relationship with her father and that her behaviour evidenced a disregard for the importance of the child maintaining a healthy relationship with both her parents. I concluded that it was necessary, in the short term, to limit S.K.’s access to the child to stop S.K. from pursuing her campaign to deprive the child of her relationship with her father and to permit the child and her father to rebuild their bond.
[19] S.K. unilaterally terminated access between the child and her father, two days after she had signed minutes of settlement providing for joint custody of the child and an equal parenting schedule. I reject S.K.’s submission that her conduct was not intended to cause emotional harm to O.M., and that her behaviour was simply “misguided,” the result of stress in the context of a “history of family violence” exasperated by the pandemic. This submission ignores my findings of credibility on the motion: I found that S.K.’s evidence was neither credible nor reliable, and I accepted O.M.’s version of events. I rejected S.K.’s claim that she was forced to sign the minutes of settlement out of fear for her own safety and that of the child. S.K.’s conduct was in breach of the minutes of settlement and many of her more recent allegations were inconsistent with the position she advanced at the time of the February 11 motions. S.K.’s behaviour was clearly aimed at undermining and depriving the child of her relationship with her father.
[20] On this basis, too, I find that O.M. is entitled to full recovery costs of the motions.
Quantum
[21] O.M. seeks his costs on a full recovery basis in the all-inclusive amount of $40,000. In settling the amount of costs, the court is required to consider the reasonableness and proportionality of each of the factors set out in Rule 24(12), as the factor relates to the importance and complexity of the issues. The factors include: each party’s behaviour, the time spent by each party, any offers to settle, legal fees, and any other relevant matter. Where cases raise complicated or important issues, the principle of proportionality can support a higher award (Beaver, at para. 45).
[22] I find that the amount sought by O.M. is proportionate and reasonable in the circumstances of these motions having regard to the following:
• the relative complexity of the main issues on the June 11 motion: the allegations of parental alienation and the need to respond to S.K.’s allegations of physical and sexual assault required that a significant amount of evidence be marshalled and put before the court;
• the importance of the issues on the motion: O.M.’s relationship with his daughter is of fundamental importance;
• S.K.’s involvement of the police and the Children’s Aid Society added to the complexity of the June 11 motion;
• the time spent in negotiating detailed minutes of settlement;
• the need for two hearings on the same issues;
• the correspondence between counsel stemming from S.K.’s allegations and unilateral behaviour; and
• the hourly rates charged by counsel: I find the hourly rates charged by O.M.’s counsel and the articling student at her firm to be reasonable, and the allocation of work between them to be appropriate.
[23] S.K. submits that the costs incurred by O.M. are excessive and include the preparation of “unnecessary materials.” These materials are not identified in S.K.’s submissions. I reject the submission that O.M.’s counsel prepared materials beyond those that were reasonable, necessary, and proportionate in the circumstances of these motions. I also reject the submission that the total time spent was excessive. O.M. has provided a detailed breakdown of his costs claim. S.K. has not. Indeed, S.K. has provided no disclosure about her own legal fees. One measure of what is fair and reasonable to pay in costs may be arrived at by looking at what the unsuccessful party paid for her own legal fees. Where the main complaint levelled is that the successful party’s bill of costs is excessive, such disclosure, although not mandatory, would generally be helpful to the court.
[24] The assessment of costs is not a mechanical issue (Boucher et al v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), at para. 26). Given the complexity of the issues, the importance of the matters before the court, and the manner in which these motions unfolded, I find that the hours incurred by O.M.’s counsel were reasonable, necessary, and proportionate.
[25] Finally, S.K. submits that costs of $40,000 are beyond her financial means. She asks that any costs awarded be limited and payable on a monthly payment plan. S.K. relies on Arthur v. Arthur, 2019 ONSC 938, where the court at para. 23 stated: “in most cases, a party’s limited financial means will be relevant to the appropriate quantum of costs and how payment should be effected.” S.K. points to the fact that her expected 2020 income will be approximately $30,000. She reiterates her claim that she works reduced hours “given the history of family violence.” No such finding has been made by this court. In May 2020, pursuant to the minutes of settlement, S.K. received from O.M. a lump sum spousal support payment in the amount of $115,000, more than sufficient to cover a full recovery costs award of $40,000. Her claim that she has already depleted much of the lump sum spousal support payment in litigation costs is not substantiated and flies in the face of her submission that O.M.’s costs are excessive.
[26] S.K. breached the very minutes of settlement that provided for the lump sum payment. Her conduct resulted in the need for the second hearing. She has acted in bad faith. As the court stated in Mooney v. Fast, [2013] CarswellOnt 15659, “[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.”
[27] I find that S.K. has the present ability to pay O.M.’s full recovery costs and that it would be inappropriate in all the circumstances to defer the payment of the costs award.
Conclusion
[28] S.K. acted intentionally to cause harm to the child’s relationship with her father. She breached minutes of settlement only two days after she had signed them. S.K. acted in bad faith and her conduct is deserving of this Court’s sanction. An order shall go requiring S.K. to pay to O.M. full recovery costs fixed in the all-inclusive amount of $40,000. This amount is to be paid within 30 days.
[29] As the successful party on the motions, O.M. is also entitled to costs of the attendance before Master Kaufman on January 9, 2020 and the case conference before Master Fortier on January 15, 2020, which were fixed in the total amount of $1,250 in the cause.
Justice R. Ryan Bell Date: August 10, 2020
COURT FILE NO.: FC-20-20 DATE: 2020/08/10
ONTARIO SUPERIOR COURT OF JUSTICE
RE: O.M., Applicant AND S.K., Respondent
BEFORE: Justice R. Ryan Bell
COUNSEL: Erin Lepine, for the Applicant Rachelle Laforge, for the Respondent
COSTS ENDORSEMENT
Ryan Bell J.
Released: August 10, 2020