COURT FILE NO.: FC-20-00000416-0000

DATE: 2021-08-13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

RYAN LEONARD JOHN HENDERSON

Applicant

– and –

CASSANDRA LEGIEHN

Respondent

Ron Shulman and Laura Paris, Counsel for the Applicant

Self-Represented

The honourable mdm. Justice d. piccoli

Costs endorsment

[1] This endorsement follows the release of my decision on the motion on July 9, 2021 and regards the issue of costs.

[2] The motion took place on July 6, 2021. I released my decision on July 9, 2021.

[3] The motion was with respect to the summer parenting schedule, where the child would attend school in September 2021, and an order for direction with respect to the enforcement of the parenting order of Justice Sloan of November 24, 2020.

[4] The Applicant seeks costs on a full indemnity basis in the amount of $9,850.93, inclusive of HST.

[5] He requests full indemnity costs for the following reasons:

i. He made an offer to settle that was as favourable as or more favourable than the order I made.

ii. He asserts the Respondent is acting in bad faith.

iii. He has been successful.

iv. The issue on the motion was extremely important to him as it involves the best interests of the child.

v. The lawyers’ rates were reasonable considering the applicable year of call and level of expertise.

vi. He made attempts to address the Respondent’s breaches, however, she refused to acknowledge them, explicitly advising that she is not bound by court orders and will not follow them.

vii. The Respondent had adequate notice to prepare material and seek legal advice and deliberately chose not to do so, continuing to assert that she is not bound by the Superior Court.

viii. The facts and issues made the motion complex and difficult and it was brought solely because of the Respondent’s unreasonable behaviour and unilateral breach of the order of Justice Sloan.

ix. The Respondent continues to take unreasonable positions in this litigation.

[6] The Respondent has not filed any submissions with respect to costs despite paragraph 7 of my order in the motion, which states:

The Applicant seeks costs of today’s motion. He did not have a bill of costs. The Applicant may serve and file written submissions on costs within 14 days. The Respondent may serve and file responding written submissions within seven days thereafter. The Applicant may provide brief reply submissions five days thereafter. Submissions are not to exceed five pages, plus a detailed bill of costs and copies of any offers to settle. There shall be no extension of these timelines without my permission. If a party does not provide submissions respecting costs in accordance with these deadlines, there shall be no costs payable to that party, although costs may still be awarded against that party.

The Law

[7] The award of costs is within the discretion of the court: see Courts of Justice Act, R.S.O. 1990, c. C.43, at s. 131(1). The modern costs rules are designed to foster four fundamental purposes:

i. to partially indemnify successful litigants for the costs of litigation;

ii. to encourage settlement;

iii. to discourage and sanction inappropriate behaviour by litigants; and

iv. to ensure that cases are dealt with justly pursuant to subrule 2(2) of the Family Law Rules, O. Reg. 114/99.

See Mattina v. Mattina, 2018 ONCA 867; Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40.

[8] The Court of Appeal for Ontario has stated that proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs: see Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519, at para. 12.

[9] Rule 24(1) of the Family Law Rules states that a successful party is presumptively entitled to their costs.

[10] Rule 24(12) outlines the factors to be considered by a court in setting the amount of costs:

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

i. each party’s behavior;

ii. the time spent by each party;

iii. any written offers to settle, including offers that do not meet the requirements of rule 18;

iv. any legal fees, including the number of lawyers and their rates;

v. any expert witness fees, including the number of the experts and their rates,

vi. any other expenses properly paid or payable; and

b) any other relevant matter.

[11] Rules 24(4) and 24(5) direct the court to evaluate whether a party has behaved reasonably or unreasonably.

[12] If offers to settle that meet the requirements of Rule 18 are made, I am required to have regard to Rule 18(14), which sets out the costs consequences of failing to accept an offer. Rule 18(14) applies where the party made a written offer at least seven days before trial and obtained an order as favourable as or more favourable than the offer.

[13] Rule 18(15) provides that the burden of proving that the order is as favourable as or more favourable than the offer to settle is on the party that claims the benefit of the rule.

[14] In Chomos v. Hamilton, 2016 ONSC 6232, 82 R.F.L. (7th) 395, at para. 19, Pazaratz J. stated that 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.

Offers to Settle

[15] The Applicant made a severable offer to settle dated June 25, 2021. He was more successful at the motion than his offer to settle.

[16] His offer was that the child be enrolled in Kindie Prep n’ Play full time (Part A) which was severable from his offer that the parties agree to a 50/50 summer holiday schedule (Part B).

[17] His offer to settle indicated that if the Respondent accepted the offer on or before July 5, 2021, there would be no costs consequences. If accepted thereafter she would pay 85% of his costs.

[18] She did not accept the offer.

[19] In addition to not providing any submissions on the cost issue, the Respondent did not make an offer to settle the motion.

[20] The Applicant was clearly successful on this motion and is entitled to his costs.

Did the Respondent Act in Bad Faith?

[21] Rule 24(8) of the Family Law Rules reads as follows:

(8) 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.

[22] The Respondent did not provide any submissions regarding how and why her actions are not in bad faith. She did not file any submissions at all.

[23] In Chomos v. Hamilton, at paras. 42-49, Pazaratz J. canvassed the case law pertaining to “bad faith” in the context of costs considerations. His Honour’s review is summarized as follows:

• Pursuant to Rule 24(8), if a party has acted in bad faith, the court shall decide costs on a full recovery basis and order the party to pay them immediately.

• Rule 24(8) requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made: see S.(C.) v. S.(C.), 2007 20279 (ON SC), [2007] O.J. No. 2164; Piskor v. Piskor, 2004 5023 (ON SC), [2004] O.J. No. 796 (SCJ); and Cozzi v. Smith, 2015 ONSC 3626, 2015 ONSC 3626 (SCJ).

• In S.(C) v. S.(C), Perkins J. defined bad faith as follows:

In order to come within the meaning of bad faith in sub rule 24(8), behaviour 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 behaviour, to conceal information relevant to the issues or to deceive the other party or the court. 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. The requisite intent to harm, conceal or deceive does not have to be the person's sole or primary intent, but rather only a significant part of the person's intent. At some point, a party could 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 behaviour is causing the other party major financial harm without justification.

• 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 Children’s Aid Society of the Region of Peel v. F.(K.J.), 2009 ONCJ 252, [2009] O.J. No. 2348 (OCJ); Biddle v. Biddle, 2005 7660 (ON SC), 2005 7660 (SCJ); Leonardo v. Meloche, 2003 74500 (ON SC), 2003 74500 (SCJ); [2003] O.J. No. 1969 (SCJ); and Hendry v. Martins, [2001] O.J. No. 1098 (SCJ).

• 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 that there shall be full indemnity for only the piece of the litigation where bad faith was demonstrated: see Stewart v. McKeown, 2012 ONCJ 644 (OCJ); F.D.M. v. K.O.W., 2015 ONCJ 94 (OCJ).

• To establish bad faith the court must find some element of malice or intent to harm: see Harrison v. Harrison, 2015 ONSC 2002.

[24] In this case, I find that the Respondent is acting in bad faith. She has made it clear that she has no intention of complying with court orders. In fact, she has stated that she is not bound by orders of the court. Overtly deciding not to comply with court orders is egregious behaviour; it is intentional and obstructionist. She is not participating in the court process. She continues to overhold the child from the Applicant.

Quantum of Costs for the Motion

[25] Once liability for costs has been established, the court must determine the appropriate quantum of costs. Rule 24(12) prescribes some of the factors which the court must consider in deciding the appropriate quantum.

[26] As noted above, proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs: see Beaver v. Hill, at para. 12.

[27] The assessment of costs is not a mechanical exercise. It is not just a question of adding up a lawyer’s dockets. The overall purpose is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the circumstances of the case: see Jackson v. Mayerle, 2016 ONSC 1556, 130 O.R. (3d) 683, at paras. 16-21.

[28] In Serra v. Serra, Boucher v. Public Accountants Council (Ontario) (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC (2005), 2005 1042 (ON CA), 75 O.R. (3d) 638 (C.A.), the Court of Appeal for Ontario set out the following additional general principles relating to quantum:

(i) Ultimately, costs decisions should reflect what the court considers to be a fair and reasonable amount that the unsuccessful party should pay.

(ii) Costs need to be proportional to the issues and amounts in question and the outcome of the case.

(iii) Amounts actually incurred by the successful litigant are not determinative.

(iv) In assessing what is fair and reasonable, the expectation of the parties concerning the amount of a costs award is a relevant consideration.

See also Selznick v. Selznick, 2013 ONCA 35.

[29] When applying the relevant factors contained in Rule 24(12), and considering the principles of proportionality and reasonableness,

i. The Applicant achieved success on the motion.

ii. The issues on the motion were important to the Applicant as they involved the best interests of the child, particularly with respect to the child’s schooling and education.

iii. The lawyers’ rates were reasonable considering the applicable year of call and level of experience in the area of family law.

iv. The Applicant made several attempts to address the Respondent’s breaches, however, the Respondent refused to acknowledge them, explicitly advising that she is not bound by court orders and will not follow them.

v. The Respondent had adequate notice to prepare material and seek legal advice on the issues, and she chose not to do so.

vi. The Respondent continues to take unreasonable positions and demonstrates a complete disregard for court orders and its process.

[30] Having reviewed the bill of costs submitted, I note that there was some time in the bill of costs for the preparation of the trial scheduling endorsement form. I also note that approximately $2,400 of the bill of costs is in reference to the preparation of the factum. Although the factum is useful to the court, for the purpose of this motion the time spent on the factum is excessive.

[31] In all the circumstances, $7,500 is a proportionate and reasonable amount of costs for the Respondent to pay to the Applicant.

[32] I order that the Respondent pay to the Applicant the sum of $7,500 forthwith.

[33] Court staff are directed to send a copy of this decision to the Respondent at clegiehn@live.com.

D. Piccoli J.

Released: August 13, 2021