Court File and Parties

COURT FILE NO.: FS-20-19068-0000

DATE: 20210429

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Randy Covens, Applicant

AND:

Lindsay Ram, Respondent

BEFORE: S. Shore, J.

COUNSEL: Ken H. Nathens, for the Applicant

Avra Rosen, for the Respondent

HEARD: In Writing

ENDORSEMENT

[1] This is a decision with respect to costs, following a long motion,

[2] In October 2020, the Applicant father brought an urgent, ex parte motion, prior to a case conference, for sole custody and primary residence of the children and exclusive possession of the matrimonial home, amongst other relief. Relying on the Applicant’s materials and having found that the children were being exposed to high conflict between the parties, I made an order that on a without prejudice basis, the children were to remain in the matrimonial home, under the Applicant’s care. The motion then returned before me in November 2020. Having the benefit of materials from both parties for this attendance, I reversed my initial order, and the children were placed in the primary care of the Respondent mother, with the children remaining in the matrimonial home, and the parties rotating in and out according to their parenting time.

[3] The parties both made written submissions with respect to costs. The Respondent is seeking costs on a full recovery basis in the sum of $17,764.80, inclusive of disbursements and HST. The Applicant submits that there should be no award of costs, or in the alternative that costs should be reserved for a later stage in the process.

[4] I find that, for the reasons set out below the Respondent is entitled to costs of the motion.

The Framework for costs:

[5] Subject to the provisions of an Act or the rules of court, costs are in the discretion of the court, pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[6] Pursuant to r. 24(10)(a) of the Family Law Rules (FLRs), the court is directed to decide the costs of a step in the case promptly after dealing with the step, in a summary manner.

[7] Modern family costs rules are designed to foster four fundamental purposes: to indemnify successful litigants for the cost of litigation, to encourage settlements, to discourage and sanction inappropriate behaviour by litigants: and to ensure that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867, 299 A.C.W.S. (3d) 770 (Ont. C.A.), at para. 10. The touchstone considerations of costs awards are proportionality and reasonableness: Beaver v. Hill, 2018 ONCA 840, 17 R.F.L. (4th) 147 (Ont. C.A.), at para. 12.

[8] A party who is successful on a motion is presumptively entitled to an order for costs of the motion: r.24(1) of the Family Law Rules (FLRs). Where success on a motion is divided, the court may nonetheless make an order for costs: r.24(6).

[9] Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs: r. 24 (4).

[10] If the court determines that it would be appropriate to make an order for costs, then the factors to consider in setting the amount of costs are listed in r. 24(12). The court must consider the reasonableness and proportionality of the factors enumerated in the subrules as they relate to the importance and complexity of the issues. These factors include each party’s behaviour; the time spent by each party; any written offers to settle, including those that do not meet the requirements of r. 18; any legal fees; any other expenses; and any other relevant matter.

[11] There is no general approach in family law of “close to full recovery costs”: Beaver, at para. 11. Rather, full recovery is only warranted in certain circumstances, such as bad faith under r. 24(8), or beating an offer to settle under r. 18(14): Beaver, at para. 13.

[12] Costs must always be proportional to what is at stake in the case, and to the unsuccessful party’s reasonable expectation as to what costs he/she may face, if he/she is unsuccessful. In appropriate circumstances, unreasonable behavior will result in a higher award of costs.

Analysis:

[13] The Respondent was successful on her motion in that the children were returned to her primary care. I find the Respondent acted reasonably throughout, and therefore rule 24(4) is not engaged.

[14] Pursuant to rule 24(10)(a), I am not prepared to adjourn the issue of costs to a later date, as suggested by the Applicant. Unless there is good reason, costs should be determined promptly after dealing with each step.

[15] This motion was brought on an urgent ex parte basis. Pursuant to rule 14(4), no motion may be brought prior to a case conference, unless there is a situation of urgency (rule 14(4.2). Pursuant to rule 14(12), a motion may be brought without notice if, “(c) there is an immediate danger to the health or safety of a child…and the delay involved in serving a notice of motion would probably have serious consequences”. A person bringing an ex parte motion must make full and fair disclosure of all material facts, including facts that may not be helpful to that party’s position. An ex parte order that is obtained without full and frank disclosure, even if unintended, is subject to be set aside, as occurred in the case before this court. The obligation for disclosure is high, given that notice and the opportunity to be heard are basic tenants of the legal system.

[16] I find that the Applicant did not make full and fair disclosure when bringing his ex parte motion and mislead the court on the ex parte motion and with respect to its urgency. Had the Applicant made full and fair disclosure, it is unlikely the motion would have been heard on an urgent basis prior to a case conference, because the children were not in danger from their mother.

[17] There was high conflict in the home, and concerns that both parties were exposing the children to this conflict, but the matter could have been scheduled for an early case conference date.

[18] The following are some examples (although there are more, as set out in my Reasons) of the Applicant’s failure to provide full and fair disclosure in his materials:

a) In his affidavit material for the ex-parte motion, the Applicant alleged he was fearful leaving the children alone with the mother. However, he failed to advise that he frequently and regularly left the children alone with the mother when he went to work every day, until brining his motion.

b) In his affidavit material for the ex-parte motion, the Applicant alleged the mother is a drug addict stating “[s]she continues to use drugs in the presence of and when caring for the children” (emphasis added). The Applicant provided a list of concerning behaviour. However, the Applicant failed to advise that the mother had been under the care of an addiction specialist at CAMH since January 2019 and was required to undergo random drug testing as part of her program. The Respondent’s tests were all negative and is considered in remission. There was no evidence that she continued to use drugs, other than prescribed medications.

c) In his affidavit material for the ex parte motion, the Applicant emphasized his concerns regarding the Respondent’s mental health issues and how it affected her ability to care for the children. However ultimately there was no evidence of any concern about her ability to care for the children. Further, as I set out in my reasons, given the unwarranted stigma attached to mental health issues, I find this claim to be particularly aggregious, especially because the Respondent had taken the necessary steps to address her issues, something not disclosed by the Applicant in his ex parte material.

[19] In his costs submissions the Applicant continues to justify raising these concerns about the Respondent. What he fails to appreciate is that he provided only the evidence that supported his position and failed to advise the court that the Respondent has been in remission since January 2019, was being regularly tested for drug use, and was receiving treatment for her mental health issues, to name just a few. His materials fell far short of meeting his obligation to provide full and frank disclosure.

[20] The Applicant submits that his allegations of drug use and mental health issues did not have a material impact on my decision. Misleading the court is serious, regardless of whether the misrepresentation is material to the decision or not, but even more so on an ex parte motion. The Applicant did not know, when bringing his motion, what factors would have influenced the Court’s decision.

[21] Bringing a motion prior to a case conference is reserved for the rarest of cases. Bringing an ex parte motion is even rarer. There needs to be consequences for failing to provide full and frank disclosure to the court in these circumstances.

[22] The Applicant misused the tools reserved for the most serious of cases, taking away resources from other litigants in need. Family courts have to sanction the deliberate misuse of the court’s emergency, ex-parte process: see Kaverimanian v. Kaverimanian, 2013 ONSC 5265. The sanctions available to the court include costs, often fully indemnifying the aggrieved party: see Kaverimanian and Goldstein v. Walsh, 2019 ONSC 3174 at pars. 4, 10 and 12.

[23] Further, as set out in my reasons on the motion, the manner in which the Applicant served the order and then locked the Respondent out of the home following the ex parte motion aggravated the situation and further involved the children in the conflict, contrary to the best interest of the children.

[24] The Applicant did not simply show poor judgement by his actions, but I find he deliberately obfuscated the truth from the court to gain the upper hand in the litigation. He had to have known the emotional and psychological harm his actions would have had on both the Respondent and the children.

[25] Pursuant to r. 24(8), if I find the Applicant acted in bad faith, the court shall decide costs on a full recovery basis. I find the Applicant acted in bad faith in failing to provide full and frank disclosure to the court when bringing his urgent, ex parte motion.

[26] In determining the quantum of costs, I have also considered the factors set out in Rule 24(12) of the FLRs as they apply to this case, including but not limited to the reasonableness and proportionality having regard to the following:

a) The issue on the motion, being the children’s residential schedule, was important to the parties. Given the types of allegations raised by the Applicant, including drug use and mental health issues, responding to the motion material was more complicated then in some other cases;

b) the unreasonable and bad faith behaviour of the Applicant, as discussed above;

c) the legal fees and lawyers’ rates which I will expand on below;

d) given the tight timeline the Respondent had to retain counsel and file responding material, I do not fault the Respondent for failing to serve an offer to settle in these circumstances; and

e) other relevant matters as set out in the parties’ submissions.

[27] The Respondent is seeking costs in the sum of $17,764.80 inclusive of disbursements and HST. The Applicant took no issue with the Respondent’s bill of costs. The lawyers’ hourly rates are reasonable having regard to their years of call and expertise in family law. Further, Ms. Rosen used a less expensive lawyer to do most of the work on the file, keeping the costs down. The lawyers did not charge if there was some duplication of work from having two lawyers working on the file.

[28] Having considered the legal framework and the factors set out in the cost submissions, some of which are outlined above, I find that it would be fair and reasonable to award the Respondent fees on a full recovery basis, and for the Applicant to pay the Respondent costs in the sum of $17,764.80, inclusive of disbursement and HST.

Order to go as follows:

[29] Pursuant to the Family Law Rules, the Applicant shall pay the Respondent costs in the sum of $17,764.80, inclusive of disbursements and HST, payable within 30 days.

S. Shore, J.

Date: April 29, 2021