COURT FILE NO.: FC-19-477

DATE: 20210317

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jason Michael Sears, Applicant

AND

Sarah Linda Coristine, Respondent

BEFORE: Justice Hélène C. Desormeau

COUNSEL: Richard Bowles, for the Applicant

Ian Vallance for the Respondent

HEARD: In Writing

RULING ON COSTS

DESORMEAU J.

Introduction

[1] On November 27, 2020 the court heard a motion which had been commenced in June 2020. This is the ruling on costs.

[2] In June 2020, the Mother raised allegations of physical and sexual abuse by the Father toward one or both of the children, which were vehemently denied by the Father. On June 9, 2020, Master Kaufman determined the matter was urgent, and on consent of both parties, he endorsed that the Father’s access was suspended until a motion could be heard on the issues.

[3] There were approximately eight subsequent court appearances, including conferencing in the context of this motion. With the Corthorn J.’s assistance, the parties ultimately agreed to a temporary, without prejudice order with supervised parenting time between the Father and the children. The motion itself was argued in its entirety before me on November 27, 2020. In my Ruling, I dismissed the Mother’s motion, and ordered that the Father’s unsupervised parenting time with the children would resume immediately, on a graduated schedule. The reasons for the ruling are set out at Sears v. Coristine, 2020 ONSC 7968.

[4] I invited the parties to resolve the issue of costs, failing which both parties were to provide brief written submissions of no more than 3 pages, plus bills of costs, offers to settle, and case law.

Costs

[5] The starting point in addressing the issue of costs is section 131 of the Courts of Justice Act, which provides that subject to the provisions of an Act or rules of court, costs are within the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.

[6] Rule 24 of the Family Law Rules (FLR) addresses the issue of costs, and states that there is a presumption that a successful party is entitled to the costs of a motion.

[7] Modern costs rules accomplish various purposes in addition to the traditional objective of indemnification. An order as to costs may be designed to penalize a party who has refused a reasonable settlement offer. Costs can also be used to sanction behaviour that increases the duration and expense of litigation or is otherwise unreasonable or vexatious. In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice: [British Columbia (Minister of Forests) v. Okanagan Indian Band], [2003 SCC 71], [[2003] 3 S.C.R. 371]](https://nextcanada.westlaw.com/Link/Document/FullText?findType=Y&pubNum=6407&serNum=2003895083&originationContext=document&transitionType=DocumentItem&contextData=(sc.History*oc.DocLink)) (S.C.C.), para. 25; Lawrence v. Lawrence, 2017 ONCJ 431, at para. 31.

[8] The justice system is a precious public resource. Access to the justice system by individuals must be balanced with the need to ensure that the resource is available for all those who need it. This is one of the purposes of Rule 2: Lawrence v. Lawrence, supra, at para. 52.

[9] Parties to litigation must understand that court proceedings are expensive, time-consuming and stressful for all concerned. They are not designed to give individual litigants a forum for carrying on in whatever manner they may choose, oblivious to the impact of that conduct on the other side and, perhaps most importantly for the purposes of this case, oblivious to the mounting costs of the litigation: Lawrence v. Lawrence, supra, at para. 54.

[10] In Boucher v. Public Accountants Council (Ontario) (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (Ont. C.A.), the Ontario Court of Appeal indicated that a costs award should be a "fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs of the successful litigant". A "fair and reasonable amount" is that amount which the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation: [Lupien v. Carmichael], 2017 ONSC 2929, at para. 9.

[11] 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 their own legal fees. See Goryn v. Neisner, 2015 CarswellOnt 8562, and Mohr v. Sweeney, 2016 ONSC 3238.

[12] A successful party in a family law case is presumptively entitled to costs, subject to the factors set out in Rule 24 FLR. The Family Law Rules expressly provide that, depending on the conduct of the parties and the presence or absence of offers to settle, a judge may increase or decrease what would otherwise be the appropriate quantum of costs awarded. See Beaver v. Hill, 2018 ONCA 840, at paras. 9 and 10.

[13] Determining the amount of costs is not simply a mechanical exercise. Costs must be proportional to the amount in issue and the outcome: Boucher v. Public Accountants Council (Ontario), supra.; Lawrence v. Lawrence, supra, at para. 64.

[14] Proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs. Proportionality is a core principle that not only governs the conduct of the proceedings generally, but is specifically applicable to fixing costs: Beaver v. Hill, supra, at paras. 12 and 19.

[15] An award of costs is subject to: the factors listed in Rule 24(12) FLR, Rule 24(4) and 24(5) FLR pertaining to unreasonable conduct of a successful party, Rule 24(8) FLR pertaining to bad faith, Rule 18(14) FLR pertaining to offers to settle, and the reasonableness of the costs sought by the successful party: Berta v. Berta, 2015 ONCA 918 at para. 94.

[16] Rule 24(8) of the Rules states 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. Persistent refusal by a party to make accurate financial disclosure and reveal their true income may rise to the level of bad faith: DePace v. Michienzi (2000) 2000 22460 (ON SC), 12 R.F.L. (5th) 341 (Ont SCJ); Kardaras v. Kardaras, 2008 ONCJ 616. A bad faith finding on some specific issue does not necessarily have a spill-over effect to other issues: Hunt v. Hunt [2001] O.J. No. 5111 (SCJ).

[17] Rule 24 (8) requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made. (See Cozzi v. Smith, 2015 ONSC 3626; Scipione v. Scipione, 2015 ONSC 5982) There is a difference between bad faith and unreasonable behaviour. The essence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose. It is done knowingly and intentionally: S.(C.) v. S. (M.) (2007), 2007 20279 (ON SC), 38 R.F.L. (6th) 315 (Ont. SCJ). 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. (See Scipione, supra.)

[18] Even where the "full recovery" provisions of the Rules are triggered, either by an offer which meets Rule 18(14) requirements, or by a finding of bad faith, quantification of costs still requires an overall sense of reasonableness and fairness: Goryn v. Neisner 2015 ONCJ 318 (OCJ). The Rules do not require the court to allow the successful party to demand a blank cheque for their costs: Slongo v. Slongo 2015 ONSC 3327 (SCJ). The court retains a residual discretion to make costs awards which are proportional, fair and reasonable in all the circumstances: M.(C.A.) v. M.(D.) 2003 18880 (ON CA), [2003] O.J. No. 3707; Scipione v. Scipione, supra.; Jackson v. Mayerle, 2016 ONSC 1556.

[19] Family law litigants are responsible for and accountable for the positions they take in the litigation: Heuss v. Surkos, 2004 ONCJ 141.

[20] Rule 18(14) sets out the costs consequences of failure to accept an Offer to Settle.

[21] The burden of proving that the order is as favourable as or more favourable than the offer to settle is on the party who claims the benefit of Rule 18(14) FLR: Rule 18(15) FLR. See Neilipovitz v. Neilipovitz [2014] O.J. No. 3842 (SCJ).

[22] When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, when exercising its discretion over costs, even if Rule 18(14) FLR does not apply: Rule 18(16) FLR.

[23] Close is not good enough to attract the costs consequences of 18(14) FLR. The offer must be as good as or more favourable than the trial result. However, even if the offer does not attract the costs consequences set out in Rule 18(14) FLR, it may be considered under Rule 18(16) FLR: Gurley v. Gurley, 2013 ONCJ 482.

[24] The court is not required to examine each term of the offer as compared to the terms of the order and weigh with microscopic precision the equivalence of the terms. What is required is a general assessment of the overall comparability of the offer as contrasted with the order: Wilson v Kovalev, 2016 ONSC 163; also see Muncan v. Muncan, 2021 ONSC 1369.

[25] As stated by Chappel J. in Proulx v. Proulx, 2017 ONSC 5134, at paras. 51and 53:

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 (Ont. C.A.); additional reasons at 2000 22280 (ON CA), [2000] O.J. No. 3355 (Ont. C.A.); Biant v. Sagoo, 2001 28137 (ON SC), [2001] O.J. No. 3693 (Ont. S.C.J.); Van Rassel v. Van Rassel, 2008 56939 (ON SC), [2008] O.J. No. 4410, (Ont. S.C.J.); [M. (C.A.)]; Murray v. Murray, 2005 46626 (ON CA), [2005] O.J. No. 5379 (Ont. C.A.); Clark v. Clark, 2014 ONCA 175 (Ont. 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.)], supra, 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 v. Bilousov, 2011 ONSC 7476, [2011 CarswellOnt 14392] (Ont. S.C.J.)). 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] (Ont. C.J.)). Furthermore, ability to pay alone cannot override the other factors set out in Rule 24[12] (Peers v. Poupore, 2008 ONCJ 615 (Ont. 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."

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] (Ont. H.C.)).

Analysis

[26] The issue argued at the motion was whether or not the Mother met her onus to continue a suspension of, or modification to, the Interim Order of Corthorn J. dated March 6, 2020, with regard to the Father’s parenting time with the children.

[27] The Father was wholly successful in his motion.

[28] In determining the quantum of costs, I have taken into account the factors set out in Rule 24(12):

(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

The issues at the motion were important to both parties. Both parties’ evidence was voluminous, but given the important and serious nature of the allegation, to a certain degree, necessary.

(i) each party’s behaviour:

In the circumstances as I have found them, I find the Father’s behaviour at this motion to be reasonable. He agreed that the allegation advanced by the Mother was serious and on June 9, 2020, consented to an interim suspension of his parenting time with the children. This was despite his position that the allegations were without merit.

I am alert to the Mother’s argument that the Father brought on the motion prematurely in September 2020, which necessitated an adjournment of the motion. However, Corthorn J.’s endorsement of September 14, 2020 set out that the Ottawa Police Services (“OPS”) had closed its investigation of the allegations and no charges were laid. “Either on the day prior to or the day of the hearing, counsel for the mother received information to the effect that the OPS investigation file is being ‘reviewed’”. I find that subject to the late-breaking development, the Father’s request to bring on the motion was reasonable.

The Mother suggests that the Father’s behaviour was unreasonable by asking for questioning and then not proceeding with same. Master Kaufman’s endorsement of June 15, 2020 permitted both parties to question on the affidavits, limited to one hour per party. I am not persuaded failure by either party to proceed to questioning constitutes unreasonable behaviour.

I am equally not persuaded that any request for reintegration assistance, then determining not to use such assistance, is unreasonable behaviour.

I have considered the Mother’s assertion that the Father’s failure to pay costs from the June 3, 2020 endorsement, refusing to provide disclosure regarding emails from info@tremblant.cc account and refusing to consent to a disclosure order after clarification had been given was unreasonable behaviour. There is no evidence that any of these issues had any bearing on the motion, or any impact on the costs incurred by either party for this motion.

The Mother also suggests that the Father’s request that the court consider over 400 pages of CAS records, without rectifying the evidentiary issues as Corthorn J. alerted him to in the September 14, 2020 endorsement was unreasonable behaviour. The court dealt with this issue in the Ruling.

The Father equally alleges that the Mother was unreasonable by asserting claims not properly before the court. However, this too was quickly rectified. The parties were able to work out between themselves what affidavit material should be struck from the Mother’s evidence.

I am alert to the Father’s argument that the Mother’s behaviour was unreasonable by refusing to facilitate any parenting time whatsoever between the Father and the children until October 2, 2020, despite the OPS not laying charges and the CAS not verifying the Mother’s concerns.

(ii) the time spent by each party:

The court has reviewed the Father’s bill of costs. Given the litigious nature of this file, the allegations advanced therein, and the numerous court appearances, I find the time spent by the Father was reasonable.

Despite the clear directive for the parties to provide bills of costs in support of their cost submissions, the Mother has failed to do so.

When the unsuccessful party fails to provide their bill of costs, it is a reasonable inference that the party devoted as much or more time and money. This is a consideration in the unsuccessful litigants reasonable expectations: Smith Estate v. Rotstein, 2011 ONCA 491, [336 D.L.R. (4th) 112] (Ont. C.A.), at para. 50, additional reasons (2011), [73 E.T.R. (3d) 191] (Ont. C.A.), leave to appeal to S.C.C. refused to [297 O.A.C. 398 (note)] (S.C.C.); Enerworks Inc. v. Glenbarra Energy Solutions Inc., 2016 ONSC 4291, [90 C.P.C. (7th) 287] (Ont. S.C.J.), at para. 80. For example, in Risorto v. State Farm Mutual Automobile Insurance Co., 2003 43566 (ON SC), [2003 ONSC 43566], [64 O.R. (3d) 135] (Ont. S.C.J.). Also see Kalogon Spar Ltd. v. Papageorge, 2020 ONSC 3234, at para. 41.

The court is mindful that failure to file a bill of costs does not mean the party against whom costs are sought is barred from critiquing the bill of costs of the successful party: Kalogon Spar Ltd. v. Papageorge, supra, at para. 43.

For various reasons, the Mother argues that the time associated with the September 14, 2020, October 5, 2020, November 5, 2020 and November 9, 2020 court dates should not be included for determining the quantum of costs at this motion. As discussed below, I disagree.

(iii) any written offers to settle, including offers that do not meet the requirements of Rule 18:

Please see below.

(iv) any legal fees, including the number of lawyers and their rates:

Again, though I have no bill of costs from the Mother, I take no issue with the Father’s counsel’s hourly rate for legal fees.

(v) any expert witness fees, including the number of experts and their rates: n/a

(vi) any other expenses properly paid or payable:

The disbursements claimed by the Father are reasonable.

(b) any other relevant matter:

The Mother argues that public policy considerations do not support a costs award on a full indemnity basis in this instance. She relies on Proulx v. Proulx, supra, in support of her argument, indicating that a costs decision against her would have possible deleterious financial consequences and may impede her from advancing a bona fide claim for decision making or parenting time. She also argues that “[s]uch a substantial costs award could deter future parents from advancing concerns of abuse, which puts children at risk.”

This Court recognizes the importance of not putting children at risk, and the importance of parties in advancing concerns of abuse. However, the facts as I have found them at the motion, confirm that the police did not charge the Father, and the CAS determined that the allegations of physical and sexual abuse were inconclusive. The CAS however verified emotional harm to the children due to the conflict between the parents.

[29] I have deliberated on the public policy reasons as asserted by the Mother.

[30] I have reflected on the Mother’s request that the court not consider the four court dates set out above. In my view, having reviewed all of the endorsements from June 15, 2020 onward, all of the court appearances were as a result of the Mother’s request to suspend the Father’s parenting time with the children. It is clear that both parties, and the court, engaged in significant efforts to resolve the issue, which led to some interim orders. Nevertheless, except where costs have already fixed, I find it is appropriate to consider all of the court dates since June 15, 2020, in determining costs.

[31] I have considered the Mother’s argument that the Father acted in bad faith. The case law is clear that this arguments requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made. The essence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose. On the facts as I have found them, I am not persuaded that the Father has acted in bad faith.

[32] I have also considered all of the factors as set out in Rules 24 and 18 FLR.

[33] I have reflected on the serious nature of the allegations advanced by the Mother, and that by letter of September 24, 2020, the Society advised the parties that the allegations of physical and sexual abuse were inconclusive. From that point onward, the Mother’s position was no longer tenable.

[34] I have reviewed the offers to settle exchanged by the parties. As stated by Chappel J. in Proulx, supra, formal offers to settle can provide an added incentive for the other party to take a hard look at the evidence and engage in meaningful settlement discussions: Proulx, supra, at para. 58.

[35] With the burden being on the Father, I am satisfied that his offer from September 4, 2020 were as good or more favourable than the results of the motion.

[36] I have considered the capable submissions of counsel, the case law, the Rules, and a general assessment of the overall comparability of the offer by the Father as contrasted with the order. I recognize that ultimately, the court retains a residual discretion to make costs awards which are proportional, fair and reasonable in all the circumstances.

[37] In these circumstances, I find that it is fair, reasonable and proportional to the circumstances that costs for this motion should be fixed at $35,000.00.

Disposition

[38] As a result, costs are fixed at $35,000.00, inclusive of HST and disbursements, payable by the Mother to the Father. However, this amount shall be immediately set off against the amount of costs owing to the Mother from the Father, which as of February 10, 2021 were $12,839.53, including post-judgment interest. Subject to any mathematical calculations which I request counsel to perform to ensure the costs are properly set off, inclusive of post-judgment interest, set-off costs are fixed at $22,160.47, payable by the Mother to the Father, forthwith.

Madam Justice Hélène C. Desormeau

Released: March 17, 2021

COURT FILE NO.: FC-19-477

DATE: 20200317

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jason Michael Sears, Applicant

AND

Sarah Linda Coristine, Respondent

BEFORE: Justice Hélène C. Desormeau

COUNSEL: Richard Bowles, for the Applicant

Ian Vallance, for the Respondent

HEARD: In writing

RULING ON COSTS

Madam Justice Hélène C. Desormeau

Released: March 17, 2021