Court File and Parties

COURT FILE NO.: FC-21-351

DATE: 2021/11/16

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: C.T., Applicant

AND:

C.S., Respondent

BEFORE: Madam Justice J. Breithaupt Smith

COUNSEL: Mason Morningstar, Counsel for the Applicant

Anthony Colizza & Emily O’Keefe, Counsel for the Respondent

HEARD: September 21, 2021

ENDORSEMENT

Overview

[1] This Endorsement follows upon my unreported Endorsement of September 21, 2021 regarding the three motions before the Court on that date: Applicant Mother’s Amended Notice of Motion; Applicant Mother’s Supplemental Notice of Motion; and Respondent Father’s Notice of Motion. As was set out in detail in my prior Endorsement, all issues raised were dealt with other than the following:

a. The issue of disclosure of the file of Mr. J. Pietrangelo, prior counsel to the Respondent Father, was adjourned to a date to be scheduled through the Trial Co-ordination office, to proceed discretely on a regular short motions list timeslot. Costs relating to this issue are reserved to the judge ultimately addressing it.

b. The issue of striking Respondent Father’s pleadings and prohibiting any further filings by him was reserved, and this is my decision regarding that issue, in which I conclude that Respondent Father’s Notice of Motion will be struck and, although he will be permitted to file responding pleadings, he will not be able to do so unless and until he brings the outstanding costs and child support arrears into good standing.

c. Respondent Father’s Notice of Motion sought to have C.G.S. returned to his care and to have the child attend a high school within driving distance of his home. As I am striking that document, the issue of C.G.S.’ residency on an interim basis is no longer live. The Temporary Order of Justice MacLeod dated August 5, 2021 provides that the child shall be returned to Applicant Mother’s care and shall not be removed from the City of Ottawa by Respondent Father without Applicant Mother’s prior written consent. That portion of the Temporary Order was made on consent and is not marked “without prejudice.”

d. Finally, costs regarding all issues heard before Justice Gibson and before Justice MacLeod; and costs regarding the hearing before me on September 21, 2021 are addressed herein.

[2] For clarity, Respondent Father has not yet filed his Answer and attendant documentation, despite having been served with the Application (dated July 23, 2021) on July 29, 2021. There is an Amended Application (dated August 24, 2021) in the Continuing Record but no Affidavit of Service has been provided for this document. It is unclear whether the Amended Application has ever been served. If the Amended Application had been served on its date of issue, then it is logical that Respondent Father’s Notice of Motion of even date would not seek leave to late file, as at that point his response period had just started to run. Therefore, Applicant Mother’s request is not just to strike Respondent Father’s Notice of Motion but also to prohibit him from filing any responding pleadings. This would, of course, have the practical result of barring him from participating as a party in this litigation.

[3] I will briefly review the factual and litigation background, much of which was already set out in my unreported Endorsement of September 21, 2021. This information is important to provide context in this matter and because Applicant Mother argues that Respondent Father’s behaviour should ground a finding of “exceptional circumstances” to bar him from further participation in this litigation.

[4] For convenience, and as the file was ordered initialized by Justice MacLeod, I will refer to the Applicant Mother as “Mother” and the Respondent Father as “Father.”

Background – Family History and Arbitration

[5] The parties were married on September 6, 2003 and separated on May 23, 2015. Together, they are the parents of two children, C.G.S. born May 20, 2006 and S.S. born December 19, 2008. Immediately before the current litigation started, they were engaged in Mediation/Arbitration with Ms. Shelly Harper, who has issued Arbitration Awards in that context. In her most recent Arbitration Award Endorsement of July 28, 2021, Arbitrator Harper succinctly summarizes this family’s post-separation history:

The parties have a long litigation history including involvement by the society, police, a section 30 assessment, views and preference reports and a failed reunification therapy. Immediately before separation [Father] was charged for assault against [Mother], to which he later pled guilty in January 2016. The parties litigated the outstanding family issues for four years until they were resolved by Minutes of Settlement with the assistance of a mediator. These Minutes were subsequently taken out into the Final Order of the Honorable J. D. Lemon dated May 22, 2019.

[6] The litigation did not end with Justice Lemon’s Final Order, and contempt motions and other proceedings continued thereafter until the parties agreed to Mediation/Arbitration with Arbitrator Harper in November of 2020.

[7] On July 7, 2021, Arbitrator Harper made a Temporary Without Prejudice Arbitration Award (“the July 7th Award”) on Motion by Mother authorizing her to relocate to Ottawa with the younger child, S.S. The older child, C.G.S. was to reside with Father from July 1 – 30, 2021 and with Mother from July 30, 2021 to August 29, 2021. This Award also provided that each parent would have telephone or video contact with the child not in his or her care on alternate days, with the children being able to initiate further contact at their request. Additional terms were:

a. Paragraph 4 – All communication was to be “civil, respectful and child-focussed” and, should either party communicate otherwise, he or she would be liable for a monetary penalty of $500 per instance.

b. Paragraph 5 – Should either party fail to co-operate with the exchange arrangements for C.G.S. planned for July 30, 2021, he or she would be liable for a monetary penalty of $1,000.

c. Paragraph 6 – Father was not to attend at any place where Mother was known to be without her prior consent.

d. Paragraph 7 – Father was not to harass Mother’s partner.

e. Paragraph 8 – Mother was to disclose her residential address via counsel.

f. Paragraph 9 – Costs of the Motion were reserved.

[8] On July 15, 2021, Arbitrator Harper released her reasons for the July 7th Award. Among other findings, she held:

a. the relationship between Father and S.S. had broken down such that parenting time was not possible and reunification therapy would be necessary;

b. Father “has shown an inability to communicate appropriately” and his communication is “wholly unacceptable and inappropriate”; and

c. there existed a “major concern about [Father’s] mental health issues as deposed by [Mother] and as evidence in his written communication with both [Mother] and [S.S.]”.

[9] Father’s text messages to Mother sent on the date of release of Arbitrator Harper’s reasons can only be described as vile and disturbed, and frankly summarize the entire tone of his communications and attitude. So as to avoid sensationalism, and as the penalty for these text messages was already dealt with in my Endorsement on September 21, 2021, I will not repeat any of the text message exchanges verbatim.

[10] Father attests that he has no recollection of sending these messages, or any messages at all during the month of July of 2021, due to a change in the medication prescribed for his various mental health conditions. He expresses remorse and says that he is “appalled at the text messages.” He attests that he has been feeling much better since one of his medications, Seroquel, was reduced down to its previous dosage level after his psychiatrist appointment on August 9, 2021. As I indicated in my Endorsement of September 21, 2021, I simply do not believe this excuse, as the messages quoted by Arbitrator Harper for the period immediately preceding the July 7th Arbitration Award include the following [sic]:

May 11, 2021: “You lie so much you don’t know what the truth is anymore. So it’s not safe to be around you. I’ve told you many times to contact my lawyer but you don’t. You are a sick person. Don’t contact me again.”

May 18, 2021: “Fuck off. And yes it is you child monster. I have a peace order coming. So Fuck Off” AND “Call the cops you crazy cunt”

May 30, 2021: “Stop messaging me. The peace order is coming. Nex time you will get arrested. Fuck off you psycho. I am done compensating for your damaged mind” AND “If you message me I will terrorize your family for 7 years the way you terrorized mine. This includes Dan’s family.”

June 13, 2021: “Fuck off you crazy bitch.”

July 2, 2021: “Your a selfish heartless Cunt. All you ever do if prove me right. Your a pathetic parent.”

[11] Clearly, Father’s pattern of communication is not connected to a change in his Seroquel dose early in 2021. I note that the messages did increase in intensity and fervour in mid-July and included statements of grandiosity, curses against Mother and her family, and threats of harm.

[12] On July 22, 2021, Arbitrator Harper heard a second Motion brought by Mother, this time seeking C.G.S.’ immediate return to her care and imposing a monetary penalty of $5,000 for failure to co-operate with the parenting exchange. Arbitrator Harper granted that request and ordered that Father’s parenting time with C.G.S. take place only by telephone or video call.

[13] On July 28, 2021, Arbitrator Harper released her reasons for the July 22nd Arbitration Award. She made the following important findings:

a. having regard to the continuing and escalating instability demonstrated by Father since the July 7th Arbitration Award, she concluded that only Mother could provide stability for C.G.S.;

b. C.G.S.’ views and preferences focused on his attendance at school in Erin, Ontario and he would be changing schools in September of 2021 as neither parent continued to reside in the catchment area for his previous highschool;[^1]

c. the evidence as a whole demonstrated that C.G.S. is exhibiting early signs of a child who will soon be alienated from his mother and potentially his sister;

d. she had no doubt that Father would limit contact between C.G.S. and Mother if the child were to stay in Father’s care;

e. it was reasonable to infer that Father has conveyed to C.G.S. a sense that Mother and S.S. are “weaponized” (Father’s word) or otherwise dangerous;

f. Father’s behaviour is extremely damaging to C.G.S.’ emotional and psychological well-being, and he is unable to properly care for C.G.S.’ mental and psychological well-being; and

g. Father’s conduct demonstrates a lack of insight into its impact upon the children and shows that Father has “no intention of placing [C.G.S.]’ needs above his own.”

[14] In August of 2021, the professional retained by the parties to provide a Views and Preferences Report in the context of the Arbitration, Ms. Annette Katchaluba, released her findings. Ms. Katchaluba met with the children in the Spring of 2021, with her most recent appointment being with C.G.S. in May. Ms. Katchaluba disclosed that both children were clear in stating that Father discusses the litigation openly with them and speaks negatively about Mother and maternal family. S.S. expressed the insight that conversations of this type with Father have “taken a toll on her mental health” and shared that Father would insist on discussing the conflict with her at bedtime, even when she tried to go to bed early to avoid the conversations.

[15] Mother is 45 years of age and Father is 48 years of age. It is undisputed that Father has not been employed consistently on a full-time basis since the Final Order was made. Father attests that he is meeting his living expenses by depleting his retirement savings. As of the date of argument of the motions, Father was residing temporarily in rural Tanzania on the African continent, with no clear plans to return to Canada.

Additional Litigation Background

[16] As noted by Arbitrator Harper in the quotation above, the parties had originally settled all issues between them by way of a mediated settlement which was incorporated into the Final Order of Justice Lemon dated May 22, 2019 (the “Final Order”). Child support was ordered as payable by Father to Mother at the rate of $459 monthly for May – December 2019 based on an imputed income of $30,000 (paragraph 50 of the Final Order) and at the rate of $755 monthly commencing January 1, 2020 based on an imputed income of $50,000 (paragraph 51 of the Final Order). Child support was to be reviewed annually effective July 1st in each year commencing July 1, 2021 (paragraph 52 of the Final Order). According to a Director’s Statement of Arrears appended to Mother’s Affidavit dated July 15, 2021, child support arrears had mounted to $12,918.35 as of July 1, 2021.

[17] On July 28, 2021, Arbitrator Harper awarded $9,000 in fines to be paid by Father to Mother for the text messages sent between July 16 and July 18, 2021.

[18] Mother’s original Motion was first before Justice Gibson, who granted the ex parte Temporary Order placing C.G.S. in Mother’s care inclusive of a Restraining Order of short duration on July 26, 2021; and then before Justice MacLeod on August 5, 2021, when His Honour determined the motion to be urgent (and thus able to proceed to argument in advance of a case conference) and both granted the fresh Restraining Order and ordered that Mother’s Motion and “the motion to be filed by the father” would be scheduled for a half-day of argument on an urgent basis.

Law & Discussion

[19] This brings us to the argument before me on September 21, 2021. The issues that remain can be framed as the following questions:

a. What, if anything, is the distinction between striking a Notice of Motion and prohibiting future filings?

b. Should Father’s Notice of Motion be struck and/or his future filings be prohibited for: i. breach of the Restraining Order; ii. non-payment of the costs award of $9,000; or iii. non-payment of child support?

c. If not, what alternative remedy is appropriate in the circumstances?

d. How are costs to be addressed regarding the litigation before each of Justice Gibson and Justice MacLeod?

Striking Pleadings or Prohibiting Future Filings

[20] Is there any distinction between striking out pleadings and prohibiting future filings? The applicable Family Law Rules regarding this question in this particular case are Rules 1(8)(c); 1(8.4) and 10(5), which read as follows:

1(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit or any other document filed by a party,

1(8.4) If an order is made striking out a party’s application, answer, motion to change or response to motion to change in a case, the following consequences apply unless a court orders otherwise:

1. The party is not entitled to any further notice of steps in the case, except as provided by subrule 25(13) (service of order).

2. The party is not entitled to participate in the case in any way.

3. The court may deal with the case in the party’s absence.

4. A date may be set for an uncontested trial of the case.

10(5) The consequences set out in paragraphs 1 to 4 of subrule 1(8.4) apply, with necessary changes, if a respondent does not serve and file an answer.

[21] Rule 1(8) (c) includes “notice of motion” and “any other document filed by a party” in the list of documents that may be struck out. However, Rule 1(8.4) does not include either of those items in its corresponding list of documents. Therefore, the striking of a notice of motion does not have clearly-defined consequences. Obviously, the relief sought in a notice of motion that is struck out will not be granted, but is the moving party precluded from seeking the same relief at a future date? If the latter, how is the analysis influenced by the jurisprudence under Rule 14(21), wherein the court may prohibit future motions without permission only where a party is found to have abused the court’s process? Is non-compliance under Rule 1(8.4) akin to abuse of process under Rule 14(21)? Although these questions are not directly before me at this time, I highlight them as they may well present themselves should Father seek to revive his motion vis-à-vis the residency arrangements for C.G.S.

[22] In contrast, the connection between Rule 10(5) and Rule 1(8.4) clearly confirms that the striking out of an Answer is equivalent to a prohibition on its future filing. Thus, the analysis applies equally. Father argues that, practically speaking, extensions of thirty (30) days to serve and file Answers are granted routinely even in the face of the language of Rule 10(5). He submits that it would be procedurally unfair to him not to provide a reasonable extension to serve and file his responding documents. Further, the absence of his participation would negatively impact upon the Court’s ability to address critical parenting issues for the parties’ children. These submissions go not to the scope of potential relief under Rule 10(5) but rather to the question of appropriate remedy; they will be addressed at that stage of the analysis.

If Father’s Notice of Motion is to be Struck or His Future Filings Prohibited, what is the Reasoning?

“Complete Code” #1 – Restraining Orders

[23] Mother firstly suggests that Father’s pleadings should be struck out, or his future filings prohibited, because of breach of the Restraining Order. Although it may be possible to engage Rule 1(8) in connection with the breach of a Restraining Order, the intention of a Restraining Order is to provide protection from harm rather than to address litigation processes. Breach of a Restraining Order can be enforced as an offence under the Provincial Offences Act[^2] or can result in criminal prosecution leading to a term of imprisonment not greater than two years in duration.[^3] Taken together, these enforcement mechanisms provide a complete code to address the breach of a Restraining Order. Practically speaking, police are better positioned than the court to act swiftly to protect one individual from physical harm at the hands of another. If I am wrong, and it is open to the Court to strike pleadings for breach of a Restraining Order, then it is my view that the facts in this particular case do not justify such an application of the scope of Rule 1(8).

“Complete Code” #2 – Enforcement of Child Support

[24] It is often said that the Family Responsibility and Support Arrears Enforcement Act[^4] provides a complete code for the enforcement of support. Certainly, section 6 authorizes the Director of the Family Responsibility Office to enforce support orders and subsection 6(7) specifically prohibits any person other than the Director and his assigns to enforce “a support order that is filed in the Director’s office.” It would seem at first blush that this is the end of the inquiry, and much of Rule 26 of the Family Law Rules speaks to the procedural means by which the Director goes about the business of enforcement, including Rule 26(3) which sets out specific mechanisms for the enforcement of payment orders[^5]. However, importantly, Rule 26(2) confirms that these mechanisms are “in addition to any other method of enforcement provided by law,” and thus it is open to look to other options in situations of non-compliance.

Striking Pleadings

[25] Counsel agree that the starting point is the three-part test for striking pleadings as set out in Van v. Palombi:[^6]

a. Is there a triggering event justifying the striking of pleadings?

b. Is it appropriate to strike the pleadings in the circumstances of the case?

c. Are there other remedies in lieu of striking pleadings that might suffice?

[26] Because the striking of pleadings prohibits a litigant from participating, such a lack of participation in the context of our adversarial system creates a risk that the court will not have the necessary information to reach a just result. Thus, pleadings are not automatically struck for non-compliance; a cautious approach is warranted. The party seeking to strike must show exceptional circumstances “where no other remedy would suffice”.[^7]

[27] Exceptional circumstances regularly include repeated refusals to comply with disclosure orders, which phenomenon has been called the “cancer of family law.”[^8] Non-disclosure is not argued in this case; we are too early in the litigation process to know with certainty what approach will be taken by Father vis-à-vis disclosure obligations as this matter unfolds.

[28] As an alternative to striking pleadings, the court has discretion under Rule 1(8.4) to adjust the participation rights of the offending party.[^9] This is consistent with the court’s ability to make procedural orders under Rule 1(7.2) in accordance with its over-arching duty to deal with cases justly under Rule 2(3) – (5).

[29] More recently, the Court of Appeal has instructed that, once a triggering event is established, the motions judge is to determine the “best remedy” [my emphasis]:[^10]

[44] First, when faced with an allegation of failure to obey a disclosure order, before granting a remedy, the judge must be satisfied that there has been non-compliance with the court order.

[45] Second, once satisfied, a judge may have recourse to the alternatives described in Rule 1(8). In assessing the most appropriate remedy, a judge should consider the following factors:

• the relevance of the non-disclosure, including its significance in hindering the resolution of issues in dispute;

• the context and complexity of the issues in dispute, understanding that an uncomplicated case should have little tolerance for non-disclosure, whereas a case involving extensive valuation of assets may permit some reasonable delay in responsiveness;

• the extensiveness of existing disclosure;

• the seriousness of efforts made to disclose, and the explanations offered by a defaulting party for the inadequate or non-disclosure; and

• any other relevant factors.

[46] Having considered these factors, the judge will then determine the best remedy. The orders identified in Rule 1(8) are not exclusive. Other approaches may be appropriate. For example, one option might be to invite the moving party to seek at trial an adverse inference from the failure to disclose and for the motion judge to memorialize this invitation in reasons for decision. Parties frequently rely on another option, namely a request for an adjournment to allow for more time to effect disclosure. Occasionally this may be appropriate especially in a complex case, but an adjournment should not be considered to be automatic. Fully compliant disclosure is the expectation, not the exception.

[47] If the judge decides to strike, as in the case under appeal, Rule 1(8.4) becomes applicable. As mentioned, this subsection provides that certain consequences apply unless a court orders otherwise. Accordingly, a party is not entitled to participate in a case in any way unless the court orders otherwise. This provision gives the judge the ability to frame the procedural consequences to a party in default. In making this determination, consideration should be given to whether the consequence is responsive to the breach and whether it achieves a just outcome.

[48] If the judge decides to strike, Rule 1(8)(c) does not refer to striking “pleadings”. Instead, it specifically distinguishes amongst striking out an application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party. Rule 1(8.4) addresses the consequences if an order is made striking an application, answer, motion to change or response to a motion to change. Ideally, when making an order under this subsection, the judge should specify what is being struck.

[49] The decisions to strike a document and to determine the parameters of trial participation are discretionary in nature, and as stated by Lang J.A. in Purcaru, at para. 50, are “entitled to deference on appeal when exercised on proper principles. The exercise of discretion will be upheld where the motion or trial judge fashions a remedy that is appropriate for the conduct at issue.”

[30] Having regard to the Court of Appeal’s more recent guidance in Mullin v. Sherlock, factors (b) and (c) in the three-part test set out in Van v. Palombi are not actually sequential but are comparative. The test seems, in fact, to be a two-step inquiry where, once the “triggering event” (being the breach of a court order) is established, the second step is for the court to determine what remedy, including but not limited to the striking of pleadings, is warranted. A detailed order that is tailored to address the offending conduct is the goal.[^11]

[31] Do either of the non-payment of Arbitrator Harper’s costs award of July 28, 2021 or the accumulation of arrears of child support satisfy the requirement for a “triggering event”? Or, put another way using the language in Mullin v. Sherlock, is non-compliance with a court order clear in this case?

[32] With respect to the non-payment of costs under Arbitrator Harper’s July 28, 2021 Award, forty-three (43) days had elapsed between the date of the costs award and the date upon which Mother served her Supplemental Notice of Motion seeking to strike Father’s pleadings for non-payment. However, it was not until the parties appeared before me on September 21, 2021 that the arbitral award was incorporated into an order pursuant to Rule 32.1 of the Family Law Rules. Although both Rule 32.1 and section 59.8 of the Family Law Act are silent regarding the effective date of the terms of an order arising from an arbitral award, section 59.8(4)(a) of the Family Law Act requires the court to wait until the appeal period from the award has expired before making such an order, and the Court of Appeal opined indirectly in 2011 that the date of the incorporating order becomes the operative date.[^12] Thus, if the operative date of the requirement that Father pay $9,000 in costs to Mother was September 21, 2021, he could not have failed to comply with it when Mother served her Supplemental Notice of Motion on September 9, 2021.

[33] Non-compliance with the Final Order regarding child support is much clearer. Father complains that he is not working and has only his retirement savings upon which to live, but he did not commence a Motion to Change the Final Order. This may well be, as Mother argues, because Father was not fully employed when the Final Order was reached on the basis of income figures imputed to him, and thus there has been no real material change in Father’s circumstances which would justify a change in child support. In any event, Father’s Financial Statement filed in the arbitration shows total Registered Retirement Savings Plan assets of approximately $396,000 as of January 13, 2021. Presumably, these are the retirement savings being drawn down by Father for his personal costs of living, and it behooves him to include the payment of child support under the Final Order as part of his ongoing lifestyle expenses. Father has ample resources with which to satisfy the comparatively modest child support arrears amount which is now likely between $15,000 and $16,000. Even grossing that amount up for income taxes triggered by the liquidation of retirement savings, Father is unlikely to need much more than 5% of his retirement savings to satisfy his outstanding obligation to his children.

[34] In Holly v. Greco[^13], Justice Gibson held that a payor’s failure to comply with a child support order despite an annual income of almost one million dollars was a “wilful, flagrant and calculated disobedience of a court order” and “egregious and exceptional” conduct justifying the striking of pleadings. The facts in this case are dramatically different in that Father’s income is not one million dollars: for our purposes on these motions, his income is the $50,000 last imputed to him by the Final Order. However, his simple refusal to pay child support despite the availability of retirement savings for that purpose is undoubtedly a breach of the Final Order.

[35] Mother’s counsel capably urges me to find that Father’s inexcusable behaviour through the Summer of 2021, including the vile text messages sent to Mother, satisfies the requirement of “exceptional circumstances” and justifies the striking and prohibition upon filing of his pleadings. The court must be very cautious in limiting participation in litigation, and in this particular case it is important to note that, as set out in my Endorsement on September 21, 2021: (1) Father was penalized for his behaviour, in accordance with the terms of Arbitrator Harper’s July 7th Award, by the fine of $16,000 payable within thirty days; and (2) many of the procedural and disclosure issues raised by Mother’s motions were dealt with on consent.

[36] Nonetheless, there is another aspect of the overall circumstances which is sufficiently exceptional to justify the striking of Father’s Notice of Motion. Paragraph 2 seeks an order that C.G.S. be returned to Father’s care. Paragraph 3 seeks an order compelling the child to attend a high school located approximately one hour’s drive northeast of Kitchener. On September 21, 2021, Father was in Tanzania indefinitely, with no clear plans to return to Canada. Father’s decision to relocate, even if temporarily, to another continent when his request for primary residency of C.G.S. remains live is sufficiently exceptional to warrant the striking of his Notice of Motion.

[37] Father is in breach of the Final Order regarding child support. The court has the discretionary ability under Rule 26(2) to enforce the payment of child support through an order under Rule 1(8). As the Court of Appeal has guided us, the goal on a motion seeking to strike pleadings is to craft an order that will remedy the situation so that the litigation can proceed fairly within the parameters of our adversarial system. Thus, I exercise my discretion to require Father to bring child support arrears into good standing as a prerequisite to filing his responding pleadings. If, as of the date of this decision, Father is also in breach of paragraph 13 of my Endorsement of September 21, 2021, which required payment of costs totalling $21,000 by October 21, 2021, and of Arbitrator Harper’s costs award of $9,000, incorporated into an Order of the Superior Court effective September 21, 2021, then he shall also be required to pay out those obligations before filing his Answer and attendant documents.

Costs

[38] This leaves the issue of costs. There are three events for which costs submissions have been provided: the urgent ex parte motion before Justice Gibson addressed on July 26, 2021; the return of same before Justice MacLeod on August 5, 2021; and the motion argument before me on September 21, 2021.

[39] In order to analyze costs consequences arising from a comparison of the results of the attendances against Offers to Settle, we must define the specific issues that were actually argued. As the materials before Justice Gibson were ex parte, no Offer to Settle analysis applies. When Mother’s motion returned before Justice MacLeod on August 5, 2021, His Honour wrote: “Counsel were able to come to an agreement on most terms. The portion of the mother’s motion that is not consented to by the father relates to a request for restraining orders against the father vis-à-vis [the children].” His Honour continued the restraining orders on a temporary, without prejudice basis on that date, which was the only contested issue addressed in argument. Similarly, on September 21, 2021, I ruled or reserved the following issues, which were contested by Father except as otherwise noted:

a. quantum of the fine payable by Father for breaching paragraph 4 of the July 7th Award regarding respectful communication (note that Father conceded that a fine was payable by him in some amount);

b. adjournment of the request for the disclosure of the file of Father’s former counsel (neither party took any firm position, and it was my conclusion that former counsel should have the opportunity to file responding materials and attend the motion);

c. striking of Father’s Notice of Motion and prohibition upon future filings (with accompanying scheduling impact upon the substantive question of C.G.S.’ residency if Father’s Notice of Motion were not struck);

d. disclosure of text messages between Father and C.G.S. for the period from July 1 – September 21, 2021;

e. variation of the Restraining Order against Father to allow for one supervised telephone communication weekly between Father and C.G.S.; and

f. request for the involvement of the Office of the Children’s Lawyer (which was contested by Mother).

[40] Modern costs rules are designed to foster four fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants and; (4) to ensure that cases are dealt with justly under Rule 2 (2) of the Family Law Rules.[^14]

[41] Costs awards are discretionary and engage two important principles in the exercise of judicial discretion: reasonableness and proportionality. There is no distinction between family cases having a financial component and family cases that focus exclusively on parenting issues; costs consequences and considerations apply equally to all family litigation. Consideration of success is the starting point. Whilst there is a presumption that the successful party is entitled to costs, judicial discretion prevails; a costs award is not automatic.[^15] An assessment of reasonableness and proportionality of costs includes the following factors:[^16]

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

2. Costs need to be proportional to the issues and amounts in question and the outcome of the case.

3. Amounts actually incurred by the successful litigant are not determinative.

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

[42] Of course, the factors set out under Rule 18(14) – (16) and Rule 24(1); 24(4) – (10); and 24(12) are also applicable, portions of which restate the concepts set out in the jurisprudence.

[43] Further, Mother raises the issue of “bad faith” in this matter. The essence of bad faith is the representation that one’s actions are directed toward a stated goal while one’s secret, actual goal is something else.[^17] Bad faith can be demonstrated by one party’s intention to inflict emotional or financial harm upon the other party or by an attempt to conceal information or to deceive the other party or the court.[^18] If bad faith is found, Rule 24(8) requires the court to decide costs on a full recovery basis and to order that they be paid immediately.

[44] Mother seeks a total of $24,723.84 in costs, apportioned as $4,774.82 for the ex parte materials before Justice Gibson; $6,660.22 for the attendance before Justice MacLeod; and the balance, which I calculate to be $13,288.80, for the argument before me on September 21, 2021 (inclusive of subsequent written submissions at my request). Her position on costs can be summarized as follows:

a. The ex parte motion was necessary as Father refused to abide by Arbitrator Harper’s Award of July 22, 2021 compelling him to return C.G.S. to Mother’s care and therefore police assistance was required.

b. The only unresolved matter before Justice MacLeod – a Restraining Order prohibiting contact between Father and the children – was decided in Mother’s favour and the Restraining Order was issued accordingly.

c. Of the contested issues before me, Mother was successful on all but one, namely the request for the appointment of the Office of the Children’s Lawyer, which she had resisted on the basis that the children had already been involved with three separate interviewing or assessment professionals.

d. Of the contested issues before me, all were addressed in Mother’s Offer to Settle served September 16, 2021 in a manner as or more favourable than the result, including a proposal that the fine levied pursuant to the July 7th Award be $10,000 rather than the $16,000 ordered by me.

e. Father’s alienating behaviours, immediate breach of the Restraining Order issued by Justice Gibson on July 26, 2021 and departure for Tanzania during these active proceedings supports a finding of bad faith against him.

[45] Father submits that:

a. Mother’s materials were unreasonably voluminous.

b. Counsel rates are inconsistent with Waterloo Region, and the consultation with a Senior Partner at the rate of $600 hourly was not warranted.

c. Mother’s costs are disproportionate and could not have been reasonably anticipated by Father; by way of example the fee for the appearance before Justice MacLeod exceeds the fees billed to Father for the entire proceeding to date.

d. Father consented to much of the relief sought in the ex parte motion (upon its return before Justice MacLeod), although Father acknowledges that the ex parte motion was necessary in order to obtain police assistance.

e. Father consented to almost all of the procedural relief sought in Mother’s Supplementary Motion (before me).

f. Father was successful on the preliminary issues relating to the best interests of C.G.S., in that: i. Mother was not successful in prohibiting communication between Father and C.G.S., as I ordered limited and supervised telephone contact; and ii. Mother was not successful in resisting the request for the appointment of the Office of the Children’s Lawyer.

g. An increased costs award for bad faith stemming from Father’s behaviour would be inappropriate as fines have already been levied against him in accordance with the July 7th Award (both by Arbitrator Harper and by me).

[46] I will award costs totalling $15,000, inclusive of disbursements and H.S.T., apportioned as $4,000 for the ex parte motion; $3,000 for the attendance before Justice MacLeod; and $8,000 for the full day’s argument before me. I make this award for the following reasons:

a. The ex parte motion was necessary due to Father’s ungovernable behaviour.

b. Father failed to instruct his counsel in advance of the return of the matter before Justice MacLeod regarding the issues resolved on consent on that date, thus wasting time and court resources.

c. Father has already been penalized for his unreasonable behaviours through the implementation of fines arising from Arbitrator Harper’s July 7th Award.

d. Mother’s reasoning for resisting the request for the appointment of the Office of the Children’s Lawyer arose from her sincere concern that the children needed time away from direct involvement in this acrimonious litigation.

e. The adjustment to the Restraining Order to permit limited and supervised telephone contact between Father and C.G.S. was done at my initiative having regard to my assessment of the best interests of C.G.S.

f. Other than the request for appointment of the Office of the Children’s Lawyer and the adjustment to the Restraining Order between Father and the children, Father ought to have accepted Mother’s severable Offer to Settle, as all other issues addressed therein were decided in her favour.

g. Although Mother is free to retain counsel of her choice, the rates charged to her are inconsistent with reasonable rates for Waterloo Region having regard to counsel’s experience (here, $315.00 hourly for 4 years of experience). One litigant’s choice of expensive Toronto counsel is not the responsibility of the other litigant.

[47] Father is reminded that a failure to pay costs as ordered today may be considered a failure to obey an Order of the Superior Court of Justice and may have escalating consequences, including a renewed possibility that he may be prevented from fully participating in the litigation moving forward, as described in Family Law Rule 1(8).

[48] Based on all of the foregoing, Temporary Order to go:

1. The Notice of Motion filed by the Respondent Father, C.S., dated August 24, 2021 is struck out.

2. The Respondent Father, C.S., shall be entitled to serve and file his Answer, Form 35.1 Affidavit, Financial Statement, and any other attendant responding documents, only upon providing proof of payment in full of: a. child support arrears as calculated by the Director of the Family Responsibility Office as at November 1, 2021; b. costs totalling $21,000 pursuant to the Endorsement of Justice Breithaupt Smith dated September 21, 2021; c. costs of $9,000 pursuant to Arbitrator Harper’s costs award, incorporated into an Order of the Superior Court effective September 21, 2021.

3. The Respondent Father, C.S., shall pay costs to the Applicant Mother, C.T., fixed in the amount of $15,000 covering the urgent ex parte motion before Justice Gibson addressed on July 26, 2021; the return of same before Justice MacLeod on August 5, 2021; and the motion argument before Justice Breithaupt Smith on September 21, 2021.

J. Breithaupt Smith, J.

Date: November 16, 2021

[^1]: I note here that Mother attests that C.S.G. is in fact attending school virtually at the Erin school from her home in Ottawa. [^2]: R.S.O. 1990, c. P.33. [^3]: Criminal Code of Canada, R.S., 1985, c. C-46, s. 127. [^4]: S.O. 1996, c. 31 as am. [^5]: “Payment Orders” are defined in Rule 2 as including support orders; support deduction orders; and costs orders. [^6]: 2017 ONSC 2492 (Div. Ct.) at paragraph 30. [^7]: For detailed references, see Gibson, J.’s review of these principles at paragraphs 35 – 40 of Holly v. Greco, 2018 ONSC 6219, approved by the Ontario Court of Appeal at paragraph 6 of Holly v. Greco, 2019 ONCA 464. [^8]: Leitch v. Novac, 2020 ONCA 257 at paragraph 44. [^9]: See Mullin v. Sherlock, 2018 ONCA 1063. [^10]: Mullin v. Sherlock, supra note 9 at paragraphs 44 – 49. [^11]: Note that at paragraph 10 of Holly v. Greco, supra note 7, the Court of Appeal gave deference to Gibson, J.’s decision but clearly favoured the approach delineated in Mullin v. Sherlock. [^12]: At paragraph 70 of Thibodeau v. Thibodeau, 2011 ONCA 110, the Court made the following comment: “In any event – even if it could be argued that the date of the arbitration award was the operative date, and not the date of the incorporating order (about which I am dubious) …” [^13]: Supra, note 7. [^14]: Family Law Rules, rule 2(2); Mattina v. Mattina, 2018 ONCA 867 at paragraph 10. [^15]: Mattina, supra, at paragraphs 12 & 13. [^16]: Snelgrove v. Kelly, 2017 ONSC 4625 at paragraph 31 citing Serra, Boucher v. Public Accountants Council (Ontario), 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634 (C.A.) and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC, 2005 CanLII 1042 (ON CA), 2005 CarswellOnt 189 (C.A.). [^17]: S.(C.) v. S. (M.), 2007 CanLII 20279, aff’d 2010 ONCA 196, [2010] O.J. No. 1064 (Ont. C.A.) at paragraph 16. [^18]: S.(C.) v. S. (M.), supra note 4 at paragraph 17.