Court File and Parties

COURT FILE NO.: FS-22-27482 DATE: 2022-03-04 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DANIEL DWORAKOWSKI AND: WENDY TASINE DWORAKOWSKI

BEFORE: Madam Justice Papageorgiou

COUNSEL: Clifton Leung, for the Applicant James S. Marks, for the Respondent

HEARD: Written Submissions

Costs Endorsement

The Motion

[1] The Applicant Daniel Dworakowski (the “Father”) sought to bring an urgent ex parte motion for an Order preventing the Respondent, Wendy Tasine Dworakowski (“the Mother”) from removing the child of the marriage (the “Child”) from Toronto or Ontario. The Father asserted his belief that the Mother had forged the Child’s passport application, was not a Canadian citizen and was imminently planning to abscond with the Child.

[2] I determined that the Father must give three days’ notice to the Mother.

[3] The Mother brought her own urgent motion claiming child and spousal support and other matters.

[4] I heard both motions.

[5] I made an Order on consent that the Mother could not leave from Ontario. I also made child and spousal support orders as well as a parenting order, all on an interim interim basis and sent this matter to an urgent case conference where all issues could be case conferenced.

[6] The Mother seeks full recovery of costs in the amount of $21,653.63. For the reasons that follow, I am awarding the Mother $17,000 in costs.

The Law

[7] Modern costs rules are designed to foster four fundamental purposes: to indemnify successful litigants for the cost of litigation, to encourage settlement, to discourage and sanction inappropriate behaviour, and to ensure that cases are dealt with justly under Rule 2(2) of the Family Law Rules (the “Rules”): Matina v. Matina, 2018 ONCA 867 at para 10, Probst v. Shah, 2020 ONSC 2290, at para 2; Serra v. Serra, 2009 ONCA 395.

[8] “Proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs.”: Beaver v. Hill, 2018 ONCA 840 at para 12; Boucher v. Public Accountants Council (Ontario), 2004 CarswellOnt 2521 (OCA) at paras 24, 26 and 37-38. A costs award should always reflect what is a fair and reasonable amount to be paid to the successful party taking into account the reasonable expectations of the parties: Oduwole v. Mosses, 2016 ONCJ 653; Boucher v. Public Accountants, 2004 CarswellOnt 2521 (ONCA) at pars 24 & 38.

[9] Although the Family Law Rules do provide for an entitlement to full recovery costs in specific circumstances, including bad faith: Rule 24(8) of the Family Law Rules, “there is no provision in the Family Law Rules that provides for a general approach of ‘close to full recovery’ costs: Beaver.

[10] Neither is there a presumptive entitlement to substantial indemnity costs; as the Ontario Court of Appeal commented in Serra, at para 8, family costs rules are designed to “partially indemnify successful litigants for the cost of litigation.”

[11] The Court of Appeal also confirmed in M.(C.A.) v. M.(D.), 2003 CarswellOnt 3606 (OCA) at para 43 and Berta v. Berta, 2015 ONCA 894 at para 94 that the overriding consideration in family law cases is “reasonableness of the costs sought” and actual costs are not determinative.

[12] Pursuant to Rule 24(12) of the Family Law Rules, the court is directed to consider the reasonableness and the proportionality of a number of factors as they relate to the importance and complexity of the issues, including each party’s behaviour, the time spent by each party, any written offers to settle, any legal fees, including the number of lawyers and their rates, any expert witness fees, any expenses paid or payable and any other matter: Rule 24(1) and Rule 24(12) of the Family Law Rules, Belair v. Bourgan, 2019 ONSC 2170 at para 37.

Analysis

The Successful Party

[13] The Mother was the more successful party for the following reasons: a) The Father had sought an Order that the Child not be removed from Toronto. The parties consented to an Order that the Child not be removed from Ontario. b) The Mother successfully obtained an order imputing income to the Father as well as child and spousal support orders.

[14] I note as well that while the Father did obtain an order for parenting time, this was an oral motion brought at the time of the hearing. The Mother’s counsel was extremely reasonable by not opposing this motion being heard despite the absence of notice. Even though I made the parenting order sought, it would not have cost the parties any significant expenditure given that it was an oral motion without notice and without materials apart from in court examinations which I permitted.

The Father’s Behavior

[15] The Mother asserts that the Father’s behaviour was unreasonable and that he acted in bad faith.

[16] The Mother relies upon Rule 24(8) of the Family Law Rules which states:

“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.”

[17] To come within the meaning of bad faith in Rule 24(8) of the Family Law Rules the behaviour must be shown to be carried out with the 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: S.(C.) v. S.(M.), [2007] O.J. No. 2164 at para 17.

[18] In this case, the Mother is already under threat of deportation because, as set out in my decision, after the Father used the Mother’s only money ($50,000) to purchase a property in Niagara in his own name he sent a letter to Immigration Canada removing his support of her immigration. Immigration Canada immediately sent a letter advising the Mother that she must leave the country within three days. The Mother was able to obtain a one-year extension from Immigration Canada to permit her to make an immigration application on compassionate grounds. She then obtained a job as a dental assistant and has been working as one ever since.

[19] I found as a fact that the Father had signed the passport which he alleged had been forged by the Mother. I also found that it was not believable that the Father simply did not know what he was signing or that he did not recall doing so given the video footage which the Mother had produced of him signing the passport application. Therefore, the Father had attempted to bring an urgent ex parte motion using false affidavit evidence.

[20] In the circumstances of this case, where the Father has already taken steps which may result in the deportation of the Mother, I find on a balance of probabilities that the Father’s conduct in swearing an affidavit which asserted that he did not sign the Child’s passport, and attempting to bring an ex parte motion on the basis that the Mother had forged his signature, qualifies as an attempt to inflict emotional or financial harm on the Mother, or to conceal the truth and deceive the court.

[21] Consider the potential impact on the Mother’s immigration application if this matter had proceeded ex parte as the Father had intended, with a non-removal Order made based upon concerns that the Mother was imminently about to abscond with the Child.

[22] Consider the potential impact on the Mother’s emotional status if she had not been able to urgently retain competent counsel to represent her, or if she had not had the foresight to video-tape the Father signing the passport application previously. Had the Father been able to proceed as he attempted and obtained the urgent ex parte Order he sought, it would have given the Father significant leverage with respect to the monetary issues in this proceeding given her insecure immigration status.

[23] Unfortunately, these urgent motions are sometimes brought improperly with devastating consequences for those on the receiving end and such consequences are sometimes difficult to subsequently address. [^1] Moving parties in such cases know that their evidence cannot be tested and when they make extreme allegations, it puts pressure on the Court to take the safest, most conservative approach to prevent an alleged imminent disaster. Even on short notice, the responding party will often not have enough time to satisfy the Court as to extreme allegations. Once an Order is made, there is momentum in favour of the moving party and inertia to setting aside such Orders. Courts must be alive to the fact that this is sometimes what is going on, and there should be cost sanctions when it happens.

[24] The Mother argues that the Father has also shown bad faith because of his evidence regarding his income.

[25] As set out in my decision, the Father asserted that his income was only $61,800 in circumstances where he admits to owning a painting business which has gross income of almost $200,000 and also earns rental income in the approximate amount of $45,600. The Father did not report any of the rental income on his income tax statements.

[26] The Father’s claim that he only earns $24,000 from his business and that it has expenses of almost 90% of its gross income was not believable.

[27] This was buttressed by the fact that the Father’s own evidence demonstrated that he has been able to pay down the mortgage on the matrimonial home by $100,000 in the last year and keeps at least $10,000 in cash in his home. This would simply not be possible if he was earning as little as he claims.

[28] Again, I agree that the Father’s misleading evidence with respect to his income constituted bad faith and an attempt to mislead the court as to his actual income so as to reduce both his spousal and child support obligations.

[29] Therefore I am satisfied that the Mother has established bad faith for both of the reasons set out above.

[30] Furthermore, it is clear from caselaw that family violence is not limited to physical violence. In my view, the manner in which a spouse litigates a case may very well fall within the definition of family violence and the circumstances of this case qualify.

The Mother’s Behavior

[31] The Father asserts that the Mother’s behaviour has been unreasonable because he sent her an email on January 7, 2022 advising that they were on the brink of an urgent motion if the parties did not agree to a mutual non-removal order from the Greater Toronto Area. She responded with only “noted”.

[32] The Mother did not want to agree to a non-removal Order from the Greater Toronto area because the Father had purchased a home in Niagara using the Mother’s money and it had a vacant apartment which she sought to live in if the Father would not agree to her moving into the Matrimonial Home or its basement apartment in Toronto.

[33] In essence, the Father’s position was that the Mother and Child had to stay in Toronto, but could not reside in the Matrimonial Home in Toronto, could not reside in its basement apartment in Toronto and could also not reside in the vacant Niagara apartment, all the while he failed to pay any child support or provide financial assistance, all the while knowing that the Mother was under threat of deportation.

[34] Although I did not grant the Mother’s various requests regarding accommodation, but sent these issues to an urgent case conference in line with the existing caselaw and family law rules and practice directions, in my view it was not unreasonable for the Mother to take the position she took with respect to the Father’s proposed removal Order from Toronto given her desire to reside in the property in Niagara, which has not yet been considered.

[35] The Father also alleges that the Mother has been unduly litigious with her actions. I find this surprising. The Father left the Mother little choice but to retain counsel and respond to his urgent motion. As well, she had little choice but to bring her own urgent motion. She had been living for months without any support, first in a women’s shelter and later with friends. She was living like a vagrant while the Father lived in the 3-bedroom Matrimonial Home without paying any child or spousal support or the cost of daycare which the Mother needed to be able to work.

[36] As set out in my decision, I did not think there was any basis for supervised parenting and did not agree that the concerns which the Mother asserted were significant enough to stop the Father’s parenting time in December. She had said that he continually returned the Child to daycare sick and tired which resulted in her having to take off work to care for him which she could not afford.

[37] While her concern did not justify her position in law, it is understandable. People whose finances are stretched and who are income insecure do not always make sound decisions when backed into a corner. In my view, she likely believed she was making the only decision she could to ensure she could continue working and supporting herself and the Child.

[38] This did not justify the Father making the untrue allegations he made. If he was not receiving his parenting time, all he had to do was bring that motion. I awarded him his parenting time based on his oral motion; it was that easy.

Offers to Settle

[39] The Father asks that I take into account his Offer to Settle.

[40] First, his Offer to Settle is dated January 17, 2022 which was the date of the motion. At this point, most of the expense had already been incurred.

[41] Second, the Father’s Offer to Settle was based upon his alleged income of $61,800 which would have provided only $574 in support to the Child, and no support to the Mother. On the facts before me, this would be insufficient for the Mother to obtain suitable accommodation for her and the Child.

[42] The Father also complains that the Mother’s request for support required her to have prepared a financial statement; however, it was the Father who forced this matter on with his original urgent motion. The Mother had limited time to respond and it was not inappropriate for her to seek spousal and child support even without a financial statement given her circumstances.

[43] As to the Father’s unsworn evidence in his costs argument regarding alleged discrepancies in her financial statement now filed, this is not before me. As noted in my decision, the orders have been made on an interim interim basis because of urgency and either party may reattend to seek adjustments once disclosure is complete.

Complexity and Importance of the Issues

[44] The matter was complex. There were significant materials before me and the issues were of great importance given the Mother’s and the Child’s living situation.

Time Spent

[45] The urgent motions took half a day to argue.

[46] The Mother’s counsel’s hourly rate is $525 per hour which is reasonable for counsel with more than 20 years-experience as a family lawyer with an L.L.M. in family law. The Mother has provided a Bill of Costs which sets out that her counsel spent 14 hours preparing the Mother’s affidavit in response to the Father’s urgent motion and in support of her cross-motion, 8 hours reviewing the Father’s responding affidavit and financial information (which comprised a 147-page affidavit including exhibits). He also spent an additional 10.5 hours preparing a factum at my request and direction because the Father had complained that the Mother had not prepared a factum.

[47] The Father’s counsel complains that the Mother’s Bill of Costs only has one entry which shows that he spent 36.5 hours and does not itemize the time. However, the Mother’s counsel provided this detail in the cost submission which I have summarized above. Given the time the Mother’s counsel had to prepare the materials (3 days), I am not surprised that he has simply set out large continuous blocks of time for the work which he did.

[48] As well, the Father’s counsel similarly noted that his team spent 35.9 hours on the motion. However, he asserts that costs were reduced because they used the assistance of a law clerk resulting in total costs of $12,657.78. I have reviewed the Father’s Bill of Costs and the majority of the work was done by the lawyer. The law clerk only spent 4.5 of the 35.9 hours spent by the Father’s counsel. The main difference between the Mother’s Bill of Costs and the Father’s is that the Mother’s counsel is a senior counsel whose hourly rate is $525 per hour while the Father’s counsel is a more junior lawyer whose hourly rate is $325 per hour.

[49] In my view, the Father’s Bill of Costs demonstrates that the time spent by the Mother’s counsel was reasonable and within the reasonable contemplation of the Father. It was also proportionate to the issues before me.

[50] Even though I did not make Orders in respect of all of the issues before me but sent them to be case conferenced, as required by existing caselaw, in my view the bulk of the materials were relevant, with the exception of some parts of the factum related to the matters sent to be case conferenced.

[51] Taking into account all of the circumstances, a costs award in the amount of $17,000 inclusive of HST is fair, reasonable and proportionate to the issues which were before me and is necessary to sanction the Father’s unreasonable bad faith conduct with respect to his urgent motion and his income. While quite significant, there must be consequences for such conduct.

[52] These costs shall be payable as follows: $8,500 within 30 days and $8,500 within 30 days thereafter.

[53] In making this Order, I have deducted some costs which are relevant to some of the other relief requested by the Mother and portions of the factum related to that she may claim if she is successful on these motions.

Papageorgiou J. Date: March 4, 2022

[^1]: See for example T.P. v. A.E., 2021 ONSC 6022 where a father brought an urgent short served motion seeking to remove the child from the custodial Mother alleging the Mother was abusing alcohol and drugs, was mentally unfit and was imminently about to abscond. He succeeded and it took two years for this to proceed to trial where the determination was made that none of these allegations were true. Meanwhile the child had been removed from the mother’s care for over a year and the father had cut off spousal support which cast the mother into immediate financial insecurity which hampered her ability to seek legal representation. In the end, even when the trial court made an order for shared parenting, the mother could not afford to take the child. See also K.K. v. M.M., 2021 ONSC 3975, [2021] O.J. No. 3820, affirmed by K.K. v. M.M., 2022 ONCA 100 where two children were removed from a custodial mother’s care on the basis of an ex parte motion brought by the father alleging alienation. The case took over 6 years to get to trial and during that time the mother had very little contact with the children including no contact at times because of court orders. After a nineteen day trial, the trial judge determined that the children had been subjected to verbal, emotional and psychological abuse by the father and ordered that they reside with the mother. It was actually the father who had been alienating the children notwithstanding his allegations.