SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 534/19

DATE: 2021-08-10

RE: Kyle Vincent James Rogers, Applicant

AND:

Amber-Lee Porga, Respondent

BEFORE: The Honourable Mr. Justice A. Pazaratz

COUNSEL: P. Sangwan, Counsel, for the Applicant

K. Junger, Counsel, for the Respondent

Costs ENDORSEMENT

[1] Paragraph 43 of my motion endorsement of July 5, 2021 set out the following deadlines for written costs submissions:

a. Mother’s written submissions (no more than two pages, plus maximum five pages of attachments, plus bill of costs) by July 19, 2021.

b. Father’s written submissions (same size limitations) by August 3, 2021.

c. Any reply submissions by mother (one page with no more than two pages of attachments) by August 13, 2021.

d. These deadlines cannot be extended without my order.

[2] I have received and reviewed the mother’s costs submissions which were served and filed pursuant to her July 19, 2021 deadline.

[3] To this date the father has not filed his costs submissions. He missed his August 3, 2021 deadline.

[4] This is a fairly straightforward case. In proceeding with my costs determination, I have attempted to anticipate the father’s submissions. The presence or absence of submissions doesn’t change the fact that the law has to be applied appropriately and fairly.

[5] This was an urgent motion to change brought by the mother within the context of broader motions to change which have yet to be determined, brought by both parents in relation to two children ages six and two.

a. Pursuant to a final consent order of November 12, 2019 the parties have shared parenting.

b. The mother brought a motion to allow the oldest child to attend a specific school for the 2021-2022 academic year, because that school offers a unique speech and language program perfectly suited for the boy’s special needs.

c. The father opposed the mother’s request.

d. Lengthy materials were filed.

e. The motion was vigorously argued on July 2, 2021.

f. On July 5, 2021 I issued a lengthy endorsement granting the mother’s request.

[6] The mother now seeks full indemnity costs with respect to a Bill of Costs totaling $7,893.05. Her submissions include:

a. She was successful.

b. The father’s conduct was unreasonable.

c. The mother was forced to devote an unreasonable amount of time and effort pursuing a result which the father should have agreed to.

d. The issue was important. The father’s opposition to the mother’s proposal could have resulted in the child missing out on what I found to be “potentially life-changing therapeutic opportunities.”

e. The mother’s position was logical and child-focused.

f. The father’s position was illogical, poorly articulated, and appeared to be based largely on a competitive and oppositional attitude which was inconsistent with their shared parenting order. The father offered no reasonable counter-proposal to address the child’s special needs.

g. The July 5, 2021 endorsement commented that the outcome “wasn’t even a close call”. The father should have come to the same conclusion, without requiring the issue to be litigated.

h. The father’s conduct was both unreasonable and reflected “bad faith”. The latter should result in full indemnity costs.

i. The mother’s counsel made efforts to resolve the issue without having to bring a motion. The father rejected written proposals. The mother was left with no alternative but to bring an urgent motion, because the opportunity for the child was time-sensitive.

[7] Costs rules are intended to foster four fundamental purposes:

a. To partially indemnify successful litigants;

b. To encourage settlement;

c. To discourage and sanction inappropriate behaviour by litigants; and

d. To ensure that cases are dealt with justly pursuant subrule 2(2) of the Family Law Rules ("the Rules"). Mattina v. Mattina2018 ONCA 867 (Ont CA); Serra v. Serra2009 ONCA 395 (Ont CA).

[8] Costs awards are discretionary. In exercising that discretion, the court should be mindful of two touchstone considerations: reasonableness and proportionality. Beaver v. Hill2018 ONCA 840 (Ont CA).

[9] Costs are an important tool to promote the efficient use of judicial resources and the orderly administration of justice. 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. Costs can be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. British Columbia (Minister of Forests) v. Okanagan Indian Band2003 SCC 71, 2003 S.C.C. 71 (SCC); Lewis v. Silva2019 ONCJ 795 (OCJ); Lawrence v. Lawrence 2017 ONCJ 431 (OCJ); Peladeau v Charlebois 2020 ONSC 6596 (SCJ).

[10] However, the court must also ensure that the threat of costs does not interfere with access to justice. Potential litigants should not be deterred from pursuing legitimate claims out of fear of overly burdensome costs consequences. Weber v. Weber 2020 ONSC 6855 (SCJ); Spadacini-Kelava v. Kelava 2021 ONSC 2490 (SCJ).

[11] Rules 18 and 24 govern the determination of costs in family law proceedings.

[12] Consideration of success is the starting point. Rule 24(1) creates a presumption of costs in favour of the successful party. Sims-Howarth v. Bilcliffe2000 22584 (SCJ).

[13] This was a one-issue motion and the mother was entirely successful.

[14] To determine whether a party has been successful, the court should take into account how the eventual order compares to any settlement offers that were made. Lawson v. Lawson2008 23496 (SCJ); Ajiboye v. Ajiboye 2019 ONCJ 894 (OCJ). Rule 18(14) sets out the consequences of a party's failure to accept an offer to settle that is as good or better than the hearing's result.

[15] In this case neither party appears to have served a formal Rule 18 Offer to Settle.

[16] The failure to make an offer to settle (on any issue where it would have been possible to do so) will generally be regarded as unreasonable behaviour when assessing costs. H.F. v. M.H. 2014 ONCJ 526 (OCJ); J.V.M. v. F.D.P., 2011 ONCJ 616 (OCJ). Sub-rule 2(4) imposes a duty on parties and their lawyers to promote the primary objective of the rules to deal with cases justly (Rule 2(2)). This includes taking appropriate steps to save time and expense (Rule 2(3)). Laing v. Mahmoud 2011 ONSC 6737 (SCJ).

[17] Although the mother did not serve a formal offer, her submissions include copies of written correspondence from her counsel which clearly attempted to resolve the issue and avoid a motion, by making reasonable proposals. Written offers that do not meet the formal requirements of Rule 18 can be considered when a court is exercising its discretion over costs pursuant to paragraph (iii) of clause 24 (12) (a) of the rules. Mussa v. Imam 2021 ONCJ 92 (OCJ).

[18] Rule 24(4) provides that in some circumstances a successful party can be deprived of their costs – or even ordered to pay costs – if they have behaved unreasonably. Ajiboye v. Ajiboye2019 ONCJ 894 (OCJ). However, since I have determined that the mother acted entirely reasonably, there is no basis for any reduction of the costs she would otherwise be entitled to.

[19] Similarly, this is not a case where divided success might result in costs being apportioned pursuant to Rule 24(6). The mother was entirely successful.

[20] Rule 24(10) establishes the general principle that the court shall promptly after dealing with a step in the case determine in a summary manner who, if anyone, is entitled to costs in relation to that step and set the amount of any costs, or alternatively shall expressly reserve the decision on costs for determination at a later stage in the case. Bortnikov v. Rakitova2016 ONCA 427 (Ont CA); Islam v. Rahman2007 ONCA 622 (Ont CA); Weber v Weber 2020 ONSC 6855 (SCJ).

[21] Although both parties still have further motions to change before the court, I find that it is appropriate and important to determine costs in relation to this specific motion, at this time.

a. The parties are still fighting about broader parenting issues.

b. They both need to understand how important it is for parents to act reasonably – especially when they have “shared parenting” – for the sake of their children.

c. At this stage in the case, the father needs to be reminded about the costs consequences of unreasonable behaviour.

d. But given the ongoing litigation, both parents will benefit from a reminder that reasonable behaviour will be rewarded – and unreasonable behaviour will be sanctioned.

[22] As stated, the mother seeks full recovery of the amount set out on her bill of costs.

[23] There is no presumption in the Rules that provides for a general approach of "close to full recovery" costs. Rules 18 and 24 expressly contemplate full recovery only in specific circumstances:

a. Matching/exceeding an offer to settle (Rule 18(14)).

b. Bad faith (Rule 24(8)).

Beaver v. Hill.

[24] And even in circumstances in which Rules 18(14) or 24(8) trigger "full recovery costs", the court still has an overriding discretion and responsibility to determine a costs award that is proportional, fair and reasonable in all the circumstances. Chomos v. Hamilton 2016 6232 (SCJ). “Full recovery” does not mean that the unsuccessful party automatically reimburses the exact amount charged by the successful party’s lawyer. Fearon v Ellsworth 2020 ONCJ 583 (OCJ); Natale v. Crupi 2020 ONSC 8007 (SCJ).

[25] As stated, the mother did not file a formal offer which would trigger Rule 18(14) consequences.

[26] Similarly, although I find that the father took an unreasonable position, I do not find that it constitutes “bad faith” as contemplated by Rule 24(8).

[27] A finding of bad faith on the part of a litigant is rarely made, because it requires a high threshold. S.(C). v. S(M.), 2007 20279 (ON SC), [2007] O.J. No. 2164 (SCJ): Piskor v. Piskor, 2004 5023 (SCJ); Cozzi v. Smith, 2015 ONSC 3626 (SCJ); Hum v. Skoll, 2020 ONSC 275(SCJ).

a. The behavior must be shown to be carried out with intent to inflict financial or emotional harm on the other party or other persons affected by the behavior; to conceal information relevant to the issues at stake in the case; or to deceive the other party or the court. S.(C). v. S(M.).

b. A misguided but genuine intent to achieve the ostensible goal of the activity, without proof of intent to inflict harm, to conceal relevant information or to deceive, saves the activity from being found to be in bad faith. Calver v. Calver, 2019 ONSC 7317(SCJ).

c. The requisite intent to 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.).

d. At some point a party can be found to be acting in bad faith when their litigation conduct has run the costs up so high that they must be taken to know their behavior is causing the other party major financial harm without justification. S.(C). v. S(M.).

e. Deliberate disobedience of a court order can amount to bad faith if the disobedience is intended to achieve an ulterior motive or inflict financial harm. Fatahi-Ghandehari v. Wilson [2018] O.J. No. 460; Spadacini-Kelava v. Kelava 2021 ONSC 2490 (SCJ).

f. 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. Scipione v. Del Sordo, 2015 ONSC (SCJ); Children's Aid Society of the Region of Peel v. F. (I.J.), 2009 ONCJ 252 (OCJ); Biddle v. Biddle, 2005 7660 (SCJ); Leonardo v. Meloche, 2003 74500 (SCJ); Hendry v. Martins, [2001] O.J. No. 1098 (SCJ); Carter v. Carter, 2020 ONSC 1095 (SCJ); Jackson v. Mayerle, 2016 ONSC 1556 (SCJ); Green v. Whyte, 2019 ONSC 7133 (SCJ).

g. To establish bad faith the court must find some element of malice or intent to harm. Harrison v. Harrison, 2015 ONSC 2002(SCJ).

h. There is a difference between bad faith and unreasonable behaviour. The essence of bad faith is when a person suggests their actions are motivated by one purpose when they are actually motivated by another purpose. It is done knowingly and intentionally. A bad faith finding on a specific issue does not necessarily have a spill-over effect to other issues. The court can order full recovery costs in relation to the portion of the proceeding where bad faith is applicable. Hunt v. Hunt, [2001] O.J. No. 5111 (SCJ). Scipione v. Del Sordo; Stewart v. McKeown, 2012 ONCJ 644 (OCJ); F.D.M. v. K.O.W. 2015 ONCJ 94 (OCJ).

i. Even where the "full recovery" provisions of the Rules are triggered by a finding of bad faith, the quantification of costs still requires an overall sense of reasonableness and fairness. The successful party is not entitled to a blank cheque. Goryn v. Neisner, 2015 ONCJ 318 (OCJ); Jackson v. Mayerle 2016 ONSC 1556 (SCJ); Belair v. Bourgon, 2019 ONSC 2170; Slongo v. Slongo, 2015 ONSC 3327(SCJ).

[28] I find that the father demonstrated bad parental judgment, but not “bad faith”. Accordingly, there is no basis for a “full recovery” award.

[29] Rule 24(5) provides criteria for determining the reasonableness of a party’s behaviour in a case. Of relevance here is Rule 24(5)(a) which requires that the court shall examine the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle.

[30] Unreasonable behavior “in relation to the issues” includes behavior that: (1) is disrespectful of other participants or the court; (2) unduly complicates the litigation, (3) increases the cost of litigation. Harper v Smith 2021 ONSC 3420 (SCJ).

[31] Determining costs requires more than a simple mathematical totalling of how much the successful party paid their lawyer.

a. The amounts actually incurred by the successful litigant are not determinative. The Court’s role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees: Aprile v. Aprile, 2016 ONCJ 678 (OCJ).

b. The overall objective in is to fix an amount that is fair and reasonable from the unsuccessful party’s perspective. This includes considering the amount the unsuccessful party could reasonably have expected to pay if they were unsuccessful in the litigation. Boucher v. Public Accountants Council of Ontario 2004 14579 (Ont CA); Arthur v. Arthur, 2019 ONSC 938 (SCJ); Mussa v. Imam 2021 ONCJ 92 (OCJ).

c. Lawyers can charge their own clients whatever they want. But they must always be mindful that the touchstones of reasonableness and proportionality create a tipping point, beyond which the prospects of full recovery rapidly diminish. No matter how much work the successful lawyer performed, costs claims still have to reflect an amount which is fair and reasonable for the unsuccessful party to pay. Boucher v. Public Accountants Council for the Province of Ontario 2004 14579 (Ont CA); Selznick v Selznick 2013 ONCA 35; Kachra v. Skeaff 2020 ONSC 6518 (SCJ).

d. The emphasis on proportionality has led to a de-emphasis on hourly rates and time spent by counsel as the key factor in fixing costs. Delellis v. Delellis 2005 36447 (SCJ); Spadacini-Kelava v. Kelava 2021 ONSC 2490 (SCJ).

[32] A party’s expectation as to their likely exposure to costs if they are unsuccessful should be at least partially informed by their own approach to the litigation. The right to pursue or defend a claim does not give either party an unfettered right to litigate as aggressively as they wish, without regard to the consequences. Sabo v. Sabo [2013] O.J. No. 4628 (OCJ); Spadacini-Kelava v. Kelava 2021 ONSC 2490 (SCJ).

[33] In the absence of costs submissions from the father – and in the absence of the father producing his own legal bill for purposes of comparison – I have no way of knowing if the father challenges the mother’s bill of costs. I will presume he feels the mother’s costs claim is too high.

[34] In relation to the bill of costs submitted by the mother’s counsel, I find:

a. It sets out with sufficient particularity the services which were performed.

b. The amount of time spent was appropriate.

c. The lawyer’s hourly rate is appropriate, given her experience, and the skill with which the motion was pursued.

[35] I have considered ability to pay in a broad context:

a. A costs order should take into consideration the ability of a party to pay costs. MacDonald v. Magel (2003) 2003 18880 (ON CA), 67 O.R. (3d) 181 (Ont CA).

b. Although they are not specified in Rule 24 as factors in determining costs, the financial means of the parties, their ability to pay a costs order, and the effect of any costs ruling on the parties and the children are relevant considerations in reaching a determination on the issue of costs. Fyfe v. Jouppien2012 ONSC 97 (SCJ). Smith v. Reynolds 2021 ONSC 947 (SCJ).

c. A party's limited financial circumstances cannot be used as a shield against any liability for costs Derziyan v. Shebarin 2021 ONCJ 17 (OCJ). Ability to pay will be taken into account regarding the quantum of costs. Snih v. Snih 2007 20774 (SCJ); Dhillon v. Gill2020 ONCJ 68 (OCJ). But ability to pay will be less of a mitigating factor when the impecunious party has acted unreasonably, or where their claim was illogical or without merit. Gobin v. Gobin (2009) 2009 ONCJ 278, 71 R.F.L. (6th) 209 (OCJ).

d. Costs consequents typically have a negative impact on the unsuccessful party. Those consequences should be anticipated at the very outset of the litigation – and revisited on an ongoing basis – to encourage efficient and economical resolution. Freitas v Christopher 2021 ONSC 5233 (SCJ).

e. Parties cannot expect to be immune from an order of costs based on their limited financial resources. If this were the case, parties would be free to conduct litigation as they wished without fear of reprisal in the form of adverse costs orders and this would be contrary to the philosophy and requirements of the Rules. Culp v. Culp2019 ONSC 7051 (SCJ); Mark v. Bhangari2010 ONSC 4638 (SCJ).

f. Ability to pay alone cannot, nor should it, over-ride the other factors in Rule 24(12). Peers v. Poupore2008 ONCJ 615 (OCJ); Lawrence v. Lawrence 2017 ONCJ 431 (OCJ).

g. Those who can least afford litigation should be the most motivated to seriously pursue settlement and avoid unnecessary proceedings. Mohr v. Sweeney2016 ONSC 3238 (SCJ); T.L. v. D.S.2020 ONCJ 9 (OCJ); Balsmeier v. Balsmeier2016 ONSC 3485 (SCJ).

h. All family law litigants are responsible for and accountable for the positions they take in the litigation: Heuss v. Surkos 2004 ONCJ 141 (OCJ); Bernard v. Fuhgeh 2020 ONSC 4850 (SCJ); Hodgson v. Hodgson 2021 ONSC 1357 (SCJ).

[36] Particularly where children are involved, the impact of a costs determination on household budgets applies to both unsuccessful and successful parties.

a. An onerous costs order against an unsuccessful non-primary residence parent may impact on that parent's ability to provide for a child in their care.

b. But equally, an inadequate costs order in favour of a successful primary residence parent may result in similar deprivation for a child in their care. In both instances, we want to ensure that litigation expenses do not impoverish the household where the child resides. D.D. & F.D. v. H.G.2020 ONSC 1919 (SCJ). F.K. v. A.K. and CAS of Hamilton 2020 ONSC 4927 (SCJ).

c. Where parents have approximately equal time and financial responsibility for children, the court must engage in a careful balancing act to minimize the impact of a costs order on children when they are in each household.

[37] Both parties appear to have modest incomes from employment:

a. The court file includes a financial statement sworn by the father on December 30, 2020 setting out a current income of $29,189.64 and a 2019 income of $36,465.00.

b. The court file includes a financial statement sworn by the mother on November 4, 2020 setting out a current income of $25,107.00 and a 2019 income of $18,121.00.

[38] Particularly given their roughly equal time parenting arrangement, neither of these parties can afford expensive litigation.

a. The mother appears to have done everything possible to avoid legal fees on this “choice of school” motion.

b. Unfortunately, the father does not appear to have taken into account the financial reality of both households, when he vigorously advanced an unreasonable position.

[39] As stated, the mother was successful. She was entirely child-focused. She had no choice but to proceed with a motion to address a very serious issue in her son’s life. She tried everything possible to avoid and later resolve the motion. The father left her with no choice but to proceed.

[40] To the extent that the father feels he doesn’t have the ability to pay significant costs, that’s something he should have carefully discussed with his lawyer before insisting on proceeding with a motion he had no chance of winning.

[41] Having regard to all of the above considerations – and particularly applying the principles of reasonableness and proportionality – the father shall pay to the mother costs fixed in the sum of $5,300.00 inclusive of HST and disbursements.

Pazaratz J.

Date: August 10, 2021

COURT FILE NO.: 534/19

DATE: 2021-08-10

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Kyle Vincent James Rogers

Applicant

• and -

Amber-Lee Porga

Respondent

REASONS FOR JUDGMENT

The Honourable Mr. Justice A. Pazaratz

Released: August 10, 2021