COURT FILE NO.: FS-21-00000072-0000 Orangeville

DATE: 2021 09 27

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SUSANNA CORLETT, Applicant

AND:

GEOFFREY CORLETT, Respondent

BEFORE: Justice McSweeney

COUNSEL: C. Mamo, Counsel for the Applicant

R. Brant, Counsel for the Respondent

HEARD: In Writing

Costs ENDORSEMENT

The urgent motion heard July 26, 2021:

1On July 26, 2021 I heard an urgent motion brought by the Applicant mother to enforce parenting terms of the Arbitral awards of Stephen Grant dated September 16, 2020 (the “Consent Award”) and July 4, 2021 (the “Return Award”) and to order the Respondent father to return the parties’ twin 16-year-old sons from Florida.

2My endorsement ordering the return of the boys was released July 30, 2021 and is reported as Corlett v. Corlett, 2021 ONSC 5311. For reasons given in that endorsement, I made an order enforcing the Consent Award. Although I did not make an order enforcing the Return Award, I found that the best interests of the children required their immediate return to Canada, and ordered their return pursuant to this Court’s parens patriae jurisdiction.

3I have now received and reviewed the parties’ cost submissions. This is my decision and order on costs.

Position of the parties:

4The Applicant seeks full indemnity costs of $20,509.50. Her partial indemnity costs are $13,536.27. Her claim for full indemnity scale costs is based on her position that the Respondent acted in bad faith.

5The Respondent disputes characterization of his actions as amounting to bad faith, submits that partial indemnity is the appropriate scale and that counsels’ hourly rate is excessive, as are the number of hours claimed in the Applicant’s bill of costs.

Legal framework for family law cost awards:

6As summarized by the Court of Appeal for Ontario in Mattina v. Mattina, 2018 ONCA 867, at para. 10, modern family cost rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement, and; (3) to discourage and sanction inappropriate behaviour by litigants. Rule 2(2) of the Family Law Rules, O. Reg. 114/99, adds a fourth fundamental purpose: to ensure that cases are dealt with justly, and Rule 24(12), which sets out factors relevant to setting the amount of costs, specifically emphasizes “reasonableness and proportionality” in any costs award.

7The Family Law Rules direct that the court “shall” decide costs on a full indemnity basis, and order immediate payment of costs, where it finds that a party has acted in bad faith: Rule 24(8).

8The meaning of “bad faith” behaviour in the family law context was considered by my colleague Kurz J. in Cameron v. Cameron, 2018 ONSC 6823, at paras. 45 and 46:

45 [d]eliberate disobedience of a court order can be bad faith if that disobedience is intended to achieve an ulterior motive (Fatahi-Ghandehari v. Wilson, [2018] O.J. No. 460 at par. 39) or inflict financial harm (S.(C) v. S.(C), 2007 CanLII 20279 (ON SC), [2007] O.J. No. 2164 (S.C.J.)); and

46 As Pazaratz J. of this court's Family Court wrote in Jackson v. Mayerle, 2016 ONSC 1556: ‘... Rule 24(8) requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made. … Bad faith requires some element of conscious wrongdoing.’ As Pazaratz J. put it at paras. 58-59: ‘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...’

Analysis:

9I have reviewed the Applicant’s bill of costs and considered both parties’ submissions. With respect to entitlement, the Applicant was successful and is presumptively entitled to costs (see Rule 24(1) of the Family Law Rules).

10There are two issues I must determine – whether substantial indemnity costs are appropriate; and also whether the costs claimed are reasonable. The second determination requires the Court to review the costs claimed in light of the Court of Appeal’s direction that although an award of costs may be on a full indemnity basis, that does not mean that the successful party is entitled to whatever costs were incurred. The Court assessing costs must still consider all appropriate cost factors United Soils Management Ltd. v. Mohammed, 2019 ONCA 128, at para. 42.

Issue 1 - Scale of costs:

11As per the cases cited above, bad faith findings are relatively rare, and require a level of egregious behaviour including some element of “conscious wrongdoing”.

12In my endorsement of July 26, 2021, I found that the Respondent had ‘engaged in “self-help” in blatant contravention of the terms of the Consent Award’: para. 23. In doing so he acted contrary not only to the Consent Award, but contrary to what I found to be his children’s best interests.

13As found in Stephens-Hinds v. Hinds, 2020 ONSC 6187, at para. 13, bad faith may be demonstrated by a party knowingly failing to abide by agreements or court orders. Similar to the actions of Mr. Corlett in this case, the Applicant in that case was found to have used self-help in moving the children from their habitual residence in order to relocate them to another community, residence and school, which was done without the required notification or approval of the other parent.

14In this case, as in the cases cited by the Applicant, which include my decision in Medu v. Medu, 2020 ONSC 2465, in determining costs, the Court must consider the purposes of the Family Law Rules, one of which is to “discourage and sanction inappropriate behaviour by litigants”: Mattina, at para. 10.

15Respondent’s counsel acknowledged that the parties’ process required them to go back to the Arbitrator, Grant, before making a significant change, and that keeping the children in Florida and enrolling them in school there was such a change.

16The mother was entitled to rely on the agreement reflected in the Consent Award, and to expect that father would initiate a return to Arbitrator Grant as a first step prior to any implementing any relocation plan, let alone a proposed international relocation during a global pandemic.

17In this case the egregious nature of the Respondent’s actions is underscored by his enrolling the children in in-person high school in Florida, during the ongoing pandemic, knowing his sons are not vaccinated against COVID-19. Such an assumption of health risk on behalf of the children, on its own, should not have been done surreptitiously and without consultation with the other parent.

18The Respondent did not dispute that he acted unilaterally. He continues in his cost submission to assert that the proceeding before me was occasioned, not by his contravention of the Consent Order, but by “Susanna’s continued refusal to listen to the wishes of the children.”

19As found in my endorsement of July 26, 2021, the parties’ Consent Order and agreed arbitral process included hearing the children’s views. By surreptitiously enrolling the children in school in Florida while on a “2-3 week” vacation, the Respondent knowingly violated the Consent Order, caused distress to the children as evident on the record, and put the Applicant through enormous stress and significant time and cost expenditure.

20The case law cited above supports an appropriate characterization of the Respondent’s conduct, as described above, as bad faith within the meaning of the Family Law Rules. As such, Rule 24(8) applies: costs will be payable by the Respondent on a full indemnity scale, and payable immediately.

21Even if the Respondent’s conduct were viewed as egregious but something short of bad faith, I would nonetheless find that full indemnity costs are appropriate in this case, given the Respondent’s continued outrageous position, reiterated in his submissions, that the necessity for the motion was the Applicant mother’s fault, not his. His unrepentant contravention of the Consent Order is behaviour which the Court cannot condone or encourage. An order for full indemnity costs underscores to the Respondent the Court’s condemnation of his self-help actions.

Issue 2 – Reasonableness of costs claimed by the Applicant

22I have considered the relevant factors in Rule 24(12) to determine an appropriate amount of costs.

With respect to the importance of the issue:

23The immediate return of the children to Ontario, and enforcement of the parties’ Consent Order by which each had made a legal commitment not to relocate unilaterally, was of the utmost importance.

24I note further that the Applicant appropriately first attempted to persuade the Respondent to return the children, then sought assistance from Arbitrator Grant, and only thereafter brought this motion before the court as a final resort.

25The Applicant’s actions in bringing the motion in the manner she did were therefore reasonable, necessary and proportionate to the importance of the issue. The steps taken by Applicant’s counsel between July 9 and 26, 2021, reflected in the bill of costs filed, were required by the Respondent’s refusal to return the children in compliance with the Consent Order.

Regarding hourly rate:

26I agree with the Respondent that the hourly rate for Mr. Mamo, a seven-year lawyer, is high at $415.00. A full recovery rate of $375.00/hour is more appropriate for his experience and “legal vintage”. A similar proportionate reduction for his six-year lawyer colleague, Ms. Gordon, is a full recovery rate of $355.00/hour.

Regarding use of lawyer’s time:

27I note that no law clerk or student time was included in the bill of costs. All steps were performed by a 6- or 7-year lawyer.

28Some reduction is appropriate for the more administrative work performed by the lawyers, which could have been performed more economically by other staff, (e.g. work described as phone calls to court clerk, filing materials with court, compiling exhibits, etc). A reduction of 3 hours of Ms. Gordon’s time is appropriate under this category.

Conclusion:

29I have found that the steps taken by the Applicant were reasonable and proportionate to the circumstances. She ensured that the Respondent had an opportunity to return the children without the necessity or cost of court involvement. He chose not to do so. Had he chosen otherwise, the costs he is now ordered to pay to the Applicant would have been much lower.

30Applying the principles referred to above, and considering the specific factors in this case, a just and fair cost award is $17,200.00, inclusive of taxes, fees and disbursements.

Order:

31I therefore order that the amount of $17,200.00 is payable forthwith by the Respondent Geoffrey Corlett to the Applicant Susanna Corlett.

32This costs order is digitally signed by me and is enforceable as an order of the Court once released to the parties. It is not necessary for the parties to take out a separate cost order.