Court File and Parties

COURT FILE NO.: FC-20-56110

DATE: 2021/05/12

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ionatan (Jonathan) Todor, Applicant

AND:

Jontue Elan Todor, Respondent

BEFORE: Justice D.A. Broad

COUNSEL: Taryn Simionati, for the Applicant

Gloria Ichim and Tiffani A. Frederick, for the Respondent

costs ENDORSEMENT

[1] In my Endorsement released March 25, 2021 I directed that, if the parties are unable to settle the issue of the costs of the motions, they may make written submissions with respect to the motions, including the appearance before Walters, J. on January 20, 2021 firstly by the applicant, then by the respondent in response, followed by any reply submissions of the applicant.

[2] The parties have been unable to settle the issue of costs and have each delivered written submissions.

Position of the Applicant

[3] The applicant seeks costs on a full recovery basis as follows in respect of the following attendances in the proceeding:

(i) his urgent ex parte motion heard by Sloan, J. on November 3, 2020 in the sum of $10,485.27 comprised of fees in the sum of $9,279 and HST thereon in the sum of $1,206.27;

(ii) the motion heard January 20, 2021 in the sum of $25,696.20 comprised of fees in the sum of $22,740 and HST thereon in the sum of $2,956.20;

(iii) the motions heard March 24, 2021 (including the attendance on February 10, 2021 the costs of which were reserved to March 24, 2021) comprised of $17,540.93 comprised of fees in the sum of $15,522.50 and HST thereon in the sum of $2,017.93.

[4] The applicant submits that he was successful in obtaining an order for the return of the child to Kitchener from Alberta pursuant to the urgent ex parte motion before Sloan, J. The return of the ex-parte motion was heard on January 20, 2021. Following a full day of argument, the parties settled at a mid-hearing settlement conference, in respect of which the applicant was again successful.

[5] The respondent filed her motion on January 28, 2021 in which the applicant submits the respondent sought to re-litigate the consent disposition of the January 20, 2021 motion.

[6] The applicant says that he has been successful at each and every step in the case and is entitled to his costs pursuant to Rule 24(1) of the Family Law Rules.

[7] The applicant further submits that the respondent has behaved unreasonably and with bad faith during the entire proceeding. The urgent ex parte motion was brought because the respondent refused to return the child to Kitchener. Eight days after the parties agreed upon the terms of the consent order of January 20, 2021, the respondent filed a motion seeking the same relief and relying on substantially the same material without proving a material change in circumstances.

[8] The applicant submits that the time spent by his counsel on preparing the material was appropriate as the respondent served voluminous materials for each court attendance, and also served materials late. Factums were required for the January 20, February 10 and March 24, 2021 motions.

[9] The applicant points to the offers to settle that he served prior to the January 20 and the February 10, 2021 motion hearings,

[10] The applicant submits that, given his offers to settle, the increased costs due to the respondent’s unreasonableness, and the applicant’s success at each step, full indemnity costs should be awarded to him. He says that the respondent has the ability to pay costs as her Financial Statement dated December 7, 2020 disclosed that she had in excess of $76,000 in her chequing account.

Position of the Respondent

[11] The respondent acknowledges that, as her motion was dismissed and she did not receive the primary or alternative relief she requested, the applicant is presumptively entitled to costs pursuant to rule 24(1) of the Family Law Rules. However, the respondent submits that an award of costs on a substantial or full indemnity scale on the issues raised in the motions would be unfair because there are no aggravating factors to justify such an award. She submits that she acted reasonably in pursuit of a request for unsupervised access and did not act in bad faith.

[12] Moreover, the respondent submits that there are no other unusual or special circumstances that would justify an award of substantial indemnity costs and points out that the costs claimed are to be proportional to the issues and the result.

[13] The respondent states that her motion was brought on account of the passage of time with the child in the supervised schedule, behaviour engaged in by the supervisors that she believed was unreasonable, her demonstration that she is no longer a flight risk, and her belief that it is in the best interests of the child to have a graduated and/or an end date to the supervision. Although she was ultimately unsuccessful, none of these arguments demonstrate that the respondent acted unreasonably. Moreover, in her Offers to Settle dated March 20, 2021 and February 3, 2021 she attempted to engage in further discussion to work out the issues with the supervisors.

Applicant’s Reply Submissions

[14] In reply, the applicant submits that the respondent’s Offers to Settle were unreasonable. The respondent withdrew her Offer to Settle of February 3, 2021 on February 11, 2021 and only served her subsequent Offer to Settle on March 22, 2021 which expired on March 24, 2021 when the motion was heard.

Guiding Principles Respecting Costs

[15] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, provides that "subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid."

[16] Pursuant to sub rule 24(1) of the Family Law Rules, the successful party is presumed to be entitled to recover costs. Sub rule 24(11) requires the court, in setting the amount of costs, to consider a number of factors including the importance, complexity and difficulty of the issues, the reasonableness or unreasonableness of each party's behavior in the case, the lawyer's rates, the time properly spent on the case, expenses properly paid or payable, and any other relevant matter. These factors are to be applied flexibly (see M. (C.A.) v. M. (D.) (2003), 2003 CanLII 18880 (ON CA), 67 O.R. (3d) 181 (Ont. C.A.) at para 42).

[17] Consideration of the relative success of the parties on the issues in the case is the starting point in determining costs (see Butty v. Butty, 2009 CanLII 23111 (ON SC), [2009] O.J. No. 1887 (Ont. S.C.J.) at para. 4, citing Sims-Howarth v. Bilcliffe, 2000 CanLII 22584 (ON SC), [2000] O.J. No. 330 (Ont. S.C.J.)). In the case of Johanns v. Fulford, 2010 ONCJ 756 (Ont. C.J.) at para. 13, it was held that, for the purpose of Rule 24(1), "success" is assessed by comparing the terms of an order against the relief originally requested in the pleadings and against the terms of any offers to settle.

[18] In M. (C.A.) v. M (D.) the Court of Appeal confirmed, at paras. 40-42, that:

(a) although the Family Law Rules have circumscribed the broad discretion granted by s. 131(1) of the Courts of Justice Act, they have not completely removed the trial judge's discretion;

(b) although the general provision, Rule 24(1), enacts a "presumption" that the successful party is entitled to costs of the case it does not require that the successful party is always entitled to costs;

(c) a successful party may not obtain a costs award in his or her favour even in circumstances not falling within sub rule 24(4);

(d) there may be circumstances aside from the unreasonableness of the successful party's conduct that rebut the presumption; and

(e) the financial situation of the parties can be taken into account in setting the amount of the costs award either under Rule 24 or Rule 18 pursuant to the direction in sub rule 24(11) that the court take into account "any other relevant matter".

[19] The Court of Appeal has observed that modern costs rules are designed to foster three fundamental purposes: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behavior by litigants (see Fong v. Chan, [1999] O.J. No. 3707 (Ont. C.A.) at para. 24).

[20] Importantly, the case law directs that a costs award must represent a fair and reasonable amount that should be paid, rather than an exact measure of the actual costs, must be consistent with what the unsuccessful party might reasonably have expected to have to pay, and must reflect some form of proportionality to the actual issues argued, rather than an unquestioned reliance on billable hours and documents created (see Mason v. Smissen, [2013] O.J. No. 4229 (Ont. S.C.J.) at paras. 5 and 6 and the cases therein referred to).

[21] In the case of Beaver v. Hill, 2018 ONCA 840 the Court of Appeal has recently stressed that proportionality and reasonableness are the touchtone considerations to be applied in fixing the amount of costs in family proceedings. Moreover, a “close to full recovery” approach is inconsistent with the fact that the Family Law Rules expressly contemplate full recovery in specific circumstances, for example bad faith or besting an offer to settle (see paras. 12-13).

[22] The Court in Beaver v. Hill also noted that, while it may be appropriate in the exercise of a judge’s overriding discretion to reduce the quantum of costs that a party will have to pay because of their financial condition, the principle does not apply in the reverse so as to increase the amount of costs as a consequence of the payor’s ability to pay.

Discussion

[23] It is noted that the applicant in his submissions includes a claim for costs in relation to the initial urgent ex-parte motion before Sloan, J. on November 3, 2020, notwithstanding that I did not invite submissions with respect to that motion in my Endorsement.

[24] The respondent took no position with respect to this aspect of the matter in her responding submissions. In the introduction to her submissions the respondent stated that what followed constituted her submissions on the issue of costs associated with her motion dated January 28, 2021 and the applicant’s motion dated February 4, 2021. The respondent did not respond to the applicant’s submissions seeking to have the costs before Sloan, J. fixed by me.

[25] Paragraph 18 of the Sloan Order (in the form proposed by the applicant) simply ordered “costs” without fixing the amount or setting forth a method or timing for the quantum to be determined.

[26] I am not satisfied that, in the absence of costs being reserved in the Sloan Order or of the direction in my Endorsement, that it was incumbent upon counsel for the respondent to address the issue of costs of the Sloan Order in her responding submissions.

[27] In my view would be appropriate to adjourn the question of the methodology and timing for the costs of the Sloan Order to be determined to the Settlement Conference presently scheduled for May 28, 2021.

[28] In the case of Scalia v. Scalia, 2015 ONCA 492 summarized at para. 69 the legal test for bad faith in the family law context requires that the impugned behaviour be shown to be carried out with an intention to inflict harm or deceive.

[29] At para. 69, Epstein, J.A., writing for the panel, drew a distinction between unreasonableness and bad faith which requires a level of wrongdoing, dishonest purpose or moral in iniquity.

[30] Justice Pazaratz in the case of Jackson v. Mayerle, 2016 ONSC 1556 (S.C.J.) elaborated upon the distinction between bad faith and bad judgment or negligence at paras. 58-61 as follows (citations omitted):

58. 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...

59. 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. The court can determine costs at a far higher level than those that there shall be full indemnity for only the piece of the litigation where bad faith was demonstrated.

60. To establish bad faith, the court must find some element of malice or intent to harm.

61. Bad faith can be established by the intentional failure to fulfill an agreement in order to achieve an ulterior motive, or an intentional breach of court order with a view to achieving another purpose.

[31] Although the respondent acted unreasonably in bringing her motion for unsupervised access, or in the alternative, a change in the supervisors, a mere eight days after a consent order was made providing for supervised access and which also set a date for a settlement conference four months hence, I am not satisfied that the respondent’s conduct in doing so constituted bad faith as that phrase is understood in the jurisprudence.

[32] The Court in Beaver v. Hill at para. 16 noted that “the failure of an offer to settle to contain a true element of compromise is a factor to be considered in deciding whether the offer properly impacts on the appropriate award of costs.”

[33] The applicant’s Offer to Settle dated December 16, 2020 simply mirrored the relief sought by him in the Application and the Offer to Settle dated February 3, 2021 simply provided for the respondent’s motion returnable February 10, 2021 to be dismissed with costs. In my view, neither Offer contained a true element of compromise so as to impact an appropriate award of costs.

[34] In light of the foregoing, an award of full indemnity costs is not, in my view, warranted in keeping with the direction given by the Court of Appeal in Beaver v. Hill as neither of the elements of bad faith or besting an offer to settle is present

[35] The respondent in her submissions did not take issue with counsels’ hours and hourly rates claimed by the applicant in his costs outlines for the periods November 7 to January 20, 2021 and January 28 to March 24, 2021 respectively.

[36] In the applicant’s Costs Outline referable to the period from November 7, 2020 to January 20, 2021 20.3 hours of counsel time totalling $4,355.66 is stated to be in reference to “communication, internal and external, communication with client, and counsel and all other work to move matter forward. ” It is not clear that this time was in reference to the motions heard on January 20 and March 24, 2021 but may more correctly be referable to the proceeding generally to be addressed at the conclusion of the case.

[37] The same comment applies to 9.8 hours of counsel time totalling $2,395.26 on a partial indemnity basis in the Costs Outline for the period January 28 to March 24, 2021.

[38] In my view it is appropriate to fix the applicant’s costs of the motions heard January 20 and March 24, 2021 in the amounts of $18,107.10 in respect of fees and $2,353.92 in HST for a rounded total of $20,460.

Disposition

[39] In accordance with the foregoing, it is ordered that the respondent pay to the applicant costs of the motions heard on January 20 and March 24, 2021 fixed in the sum of $20,460 inclusive.

[40] This amount is to be paid within 30 days hereof

D.A. Broad, J.

Date: May 12, 2021