Court File and Parties

Court File No.: FC48/21 Date: April 28, 2021 Superior Court of Justice – Ontario Family Court

Re: S.E.S., Applicant And: T.J.B., Respondent

Before: Tobin J.

Counsel: Erin Burns for the Applicant Brenda D. Barr for the Respondent

Heard: In writing

Endorsement on costs

[1] Following the release of the endorsement in the parties’ two motions regarding their child’s residence, they were given the opportunity to make costs submissions. They did so.

[2] The respondent (the father) asks for costs in the amount of $10,000. The applicant (the mother) submits that the costs of both motions be reserved to a later stage in the case.

[3] Entitlement to costs under the Family Law Rules, O. Reg. 114/99 requires the court to consider success and behaviour. A successful party is presumptively entitled to costs: r. 24(1). However, a successful party may be deprived of their costs or be ordered to pay the unsuccessful party’s costs if they behaved unreasonably during a case: r. 24(4). Even if entitled to costs, a party’s behaviour can have an affect on the amount of costs awarded: r. 24(12)(a)(i).

[4] On the motions before the court, the father was the substantially more successful party. As requested by him, the child was ordered back to his care while this case is ongoing. The mother wanted the child to remain in her care.

[5] The mother was successful on the preliminary issue of urgency. The father resisted the mother’s motion in part, on the basis that it was not urgent.

[6] It is the consideration of reasonable behaviour that is the issue in this costs determination.

[7] This case began when the mother overheld the child from the father because he was charged under the Criminal Code R.S.C., 1985, c. C-46 with distributing an intimate image of the mother online without her consent.

[8] There was conflicting affidavit evidence regarding the mother’s claim. While the mother’s evidence raised a concerning suspicion about the father’s role in the attacks against her, I held that there was insufficient evidence to decide on a balance of probabilities that the father was the perpetrator.

[9] If, after a thorough evidentiary analysis at trial, it is determined that the father is the perpetrator, should the mother nonetheless be ordered to pay costs of these motions?

[10] The father argues that the mother should be ordered to pay costs because she did not meet the test required to vary a final order on an interim basis. He further argues that “whether or not the [mother] would have met the test if the allegations were proven is irrelevant to the issue of costs on [these] motions.” In essence the father argues - she lost and he incurred costs.

[11] With respect, I disagree that the father’s behaviour is irrelevant in determining costs of these motions.

[12] In Snelgrove v. Kelly, 2017 ONSC 4625, Chappel J. held at para. 24:

… 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 …

[13] If the father is the perpetrator, as alleged by the mother, his behaviour would seriously undermine the child’s relationship with the mother. This type of behaviour can be considered as unreasonable under R. 24. Thus, if the father is the perpetrator, it could affect his entitlement to, and the amount of costs awarded.

[14] In family matters, the general rule is that costs are to be determined at each stage of the case. However, r. 24(10(b) provides that the court may “expressly reserve the decision on costs for determination at a later stage in the case.”

[15] In Veneris v. Koh Veneris, 2018 ONSC 4164, Akbarali J. held, at para. 58, as follows:

… Costs of a step in a case may be reserved for determination at a later stage in the case: r. 24(1)(b). The decision to reserve costs to a later step is typically taken when the trier of fact expects that the fair attribution of costs will be better determined in view of the facts that will be known after the completion of the later step. Otherwise there is no reason to defer costs to a later stage in the process. …

[16] The circumstances of this case are such that a determination of costs should be reserved to the trial judge or following other final determination of the case. Costs can then be determined on a full evidentiary record, including as it pertains to the mother’s allegations of the father’s actions.

[17] For these reasons, costs of these motions are reserved to the trial judge or after any other final determination of this case.

“Justice B. Tobin”

Justice B. Tobin

Date: April 28, 2021