Court File and Parties

COURT FILE NO.: FS-18-00092838-0000 DATE: 2022 03 23

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E N:

A.C. J. Lagoudis for the Applicant Applicant

- and -

K. C. Self Represented Respondent

HEARD: March 4, 2022

Reasons on Motion for Contempt

Dennison J.

[1] The Applicant Father brought a motion for contempt of my order dated January 11, 2022. The initial motion, heard on January 11, 2022, dealt with the issue of whether their child D.C., aged 9, should be homeschooled as the Mother wished or should attend public school as the Father wished. The parties consented to an order that the Father have parenting time every other weekend and every Tuesday overnight. I dealt with issues as to who was responsible to facilitate parenting time.

[2] The following portions of my order are relevant to the contempt motion. I ordered that:

1. Their child, D.C., was to immediately be enrolled in a public school, where the Mother lives, with the goal of having D.C. attend school on January 17, 2022, along with the rest of the children in the province.
2. The Mother was to provide proof of D.C.’s enrollment to the school immediately, and if such proof was not provided by the middle of next week the Father was permitted to bring an urgent motion for contempt.
3. The Father was to have parenting time every other weekend and every Tuesday over night.

[3] The Father, through his counsel, asserts that the Mother did not comply with the court order. Since being registered to attend school on January 26, 2022, until when the Father filed the motion on February 19, 2022, D.C. missed 12 full days of school, two half days and was late four times. D.C. only attended school for two days. In addition, the Father did not have parenting time on three Tuesdays; January 25, February 8, and February 15, 2022.

[4] The issue to determine on this motion is whether the Mother violated the terms of the court order and whether she should be found in contempt. If she is found in contempt, I advised the parties I would hear further submissions on the penalty aspect of the contempt motion.

Background Facts

School enrollment

[5] On January 11, 2021, I made an order that the parties’ son D.C. be immediately enrolled in school with the intention that he attend school in person on January 17, 2022, as that was the first day that all children in Ontario were to attend in person school since the winter break.

[6] D.C.’s first day of school was officially set to be January 25, 2022, two weeks after my order. D.C. did not actually attend until February 2, 2022. The Mother states D.C. was ill.

[7] The Father provided an email sent between the parties which shows that the Mother did not contact the school until January 14, 2022. This was three days after my order.

[8] The Mother stated that she did not receive the email with the order until January 13, 2022, because it was D.C.’s birthday on the 12th and she did not check her email. She promptly contacted the school on January 14, 2022 and filed an email to that effect.

[9] On January 18, 2022, the school advised the Mother of the documents that she needed to provide to complete D.C.’s registration. The Mother sent some documents on January 19, 2022. There was still a document missing as of Friday February 21, 2022. The school advised that D.C. would start school on Tuesday January 25, 2022.

[10] The Mother points out that there was no start date in the order and there was “nothing to indicate that arranging the best possible start for D.C. would be interpreted as a violation of the order”.

[11] The Mother stated there was some delay in D.C. starting because a snowstorm occurred on January 17, 2022, and the schools went online and then back in person. She thought it was best that D.C. start school at the start of the week, as stated by the school secretary.

School Attendance & Parenting Time

[12] The Mother initially submitted that the school attendance is a separate issue from the contempt order and is not relevant to this motion. She then stated that she made some mistakes with how she handled the situation by trying to ease D.C. into school and that he was legitimately ill.

[13] On Tuesday January 25, 2022, at 8:36 a.m., nine minutes before school started, the Mother emailed the school and advised them that D.C. did not pass the school’s Covid screening test because he had a sore throat. The Mother did not advise the Father of this until approximately 1 p.m. that day.

[14] The Father was suspicious of the Mother because the Father had parenting time that weekend with D.C. and dropped him off on Monday January 24, 2022, and D.C. was fine at that time.

[15] The Father’s counsel contacted the Mother’s counsel and indicated that once D.C. had two rapid tests and showed no symptoms for 24 hours he could return to school. The Mother’s counsel responded “understood”.

[16] The Mother advised the Father that parenting time with D.C. that Tuesday could not take place because they were self-isolating. The Father was unable to confirm whether D.C. had any symptoms.

[17] The Father emailed the Mother to ask if she had booked a PCR test for D.C. The Mother responded that she was not going to do that because PCR tests were not readily available, and she was concerned that D.C. would test positive because he had Covid in December 2021.

[18] On January 26, 2022, counsel for the Father sent a letter to the Mother’s counsel advising that if D.C. was not back at school the following Monday, then they would consider bringing a contempt motion. On January 29, 2022, the Mother emailed the Father and stated that it was a minor cold. She also stated that testing is not mandatory. The Father wrote back that if D.C. was tested, he would not have to miss as much school.

[19] D.C. attended school on the morning of January 31, 2022. The Mother decided to have a parent approved absence for the second half of the day. The Mother sent an email to the Father stating that D.C. had returned to school. The Mother did not advise the Father about the afternoon absence.

[20] The Father was advised by the school secretary that D.C. goes home for lunch every day and on two occasions has not returned.

[21] On February 2, 2022, D.C. missed the second half of the school day for a Doctor’s appointment. The Mother did not advise the Father of the appointment and has not shared any information about that appointment.

[22] On Tuesday February 8, 2022, at 2:09 p.m., the Mother advised that D.C. was not at school because he had a sore throat, stuffy nose, headache, and diarrhea. The Father was again surprised because he had parenting time with D.C. on the weekend and he was fine. The Father asked the Mother if she was going to test D.C. for Covid and she did not respond.

[23] On February 10, 2022, the Father emailed the mother to see if D.C. had been tested. The Mother did not respond. She did not drop off D.C. for his parenting time on February 10, 2022. D.C. also missed school from February 8-11, 2022.

[24] D.C. missed another half day of school on February 15, 2022.

[25] On February 16, 2022, the Mother sent an email to the Father advising for the first time that D.C. was having difficulties at school. This was the same day that the mother had her parent teacher meeting. The Father was scheduled to have his parent teacher meeting the following day. The Mother advised the Father that at her parent teacher meeting, the teacher told her that D.C. was not doing any schoolwork and refused to wear his mask. She stated that D.C. did not come for his Tuesday visit because D.C. thought his Father would be angry about him not wanting to go to school.

[26] At the Father’s parent teacher interview, the teacher advised the Father that D.C. appeared to enjoy his first week. In the following weeks the teacher noted a shift in D.C.’s behavior and that he had difficulty focusing and did not want to participate in work. In three weeks of school, he had not completed one assignment. The teacher also stated that D.C. may need some testing and a multi-disciplinary approach would need to be taken. The teacher also stated that D.C. is completely resistant to wearing a mask in class.

[27] Out of the 18 possible days of school prior to the motion being filed, D.C.’s attendance at school is as follows:

1. Absent 12 full days
2. Absent 2 half days
3. Present 2 full days
4. Late 4 times.

Position of the Parties

Position of the Father

[28] The Father submits that because of the Mother’s conduct, the Father had no choice but to bring the contempt motion. The Mother has done what she can to ensure that D.C. does not attend school. For example, she refused to test D.C. so that he could return to school earlier. She did not respond to his emails about testing or let him see D.C. to ensure that D.C. was in fact ill. Rather, she continued to isolate D.C. from his Father.

[29] The Father is aware that the Mother is opposed to the Covid vaccine and to having D.C. wear masks and submits that the Mother has pushed those beliefs on D.C. so that he will not wear his mask at school.

[30] The Mother has a repeated history of not working cooperatively with the Father, forcing him to bring various motions to secure parenting time. She has also repeatedly withheld information about D.C.’s education.

[31] The Father submits that the Mother is in contempt of the court’s order dated January 11, 2022, and that the following orders should be made in the best interest of D.C.:

a) The Father should have sole decision-making responsibility for D.C. b) D.C.’s primary residence be with the Father. c) The Mother provide all of D.C.’s government issued identification to the Father d) the Mother’s parenting time and contact with D.C. be suspended.

The Mother’s Position

[32] The Mother is representing herself as she cannot afford counsel. The Mother is highly educated and able to express her views and beliefs clearly. While she did not have counsel attend at the motion, she advised the court that she had the assistance of counsel in preparing her material which included a factum and affidavit.

[33] The Mother submits that she is not in contempt of the court order. She states that she may have made some mistakes in how she handled the situation, but she did not willfully disobey the court order.

[34] The Mother states that she tried to gradually engage D.C. in school. The Mother submits that letting D.C. eat lunch at home was a strategy she used to help him adjust. She states that she was faced with a child who was devastated with the decision of having to attend school.

[35] The Mother submits that D.C. was legitimately sick for several days. The Mother submits that D.C. is often ill after returning from his Father’s because he has a younger child who attends day care.

[36] The Mother submits that the Father did not meaningfully consult with the Mother prior to bringing this motion as required by the Family Law Rules, O. Reg. 114/99. Had the Father consulted with the Mother, he would have understood that she was not willfully disobeying the court order. The Mother submits that she thought the Father was okay with his missed parenting time and that it would be made up.

[37] The Mother also submits that while she had applied for and was denied a mask exemption for D.C., she provided D.C. with masks for him to attend school.

Analysis

Test for Contempt

[38] An order other than a payment order may be enforced by a contempt motion even if another penalty is available: see Rule 31 of the Family Law Rules.

[39] Rule 1(8) of the Family Law Rules also sets out remedies for a failure to obey an order of the court which include:

(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,

(a) an order for costs; (b) an order dismissing a claim; (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; (d) an order that all or part of a document that was required to be provided but was not, may not be used in the case; (e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise; (f) an order postponing the trial or any other step in the case; and (g) on motion, a contempt order. O. Reg. 322/13, s. 1.

(8.1) If a person fails to follow these rules, the court may deal with the failure by making any order described in subrule (8), other than a contempt order under clause (8) (g). O. Reg. 322/13, s. 1.

[40] Bringing a motion for civil contempt in family law proceedings serves two purposes. First, to ensure compliance with a court order for the benefit of the aggrieved party. Second, to ensure social respect for the courts by enforcing the efficacy of the court process and safeguarding respect of the judicial system: Boily v. Carleton Condominium Corp, 2014 ONCA 574, 121 O.R. (3d) 670; See also Kopaniak v. MacLellan, 212 D.L.R. (4th) 309 (Ont. C.A.).

[41] Civil contempt has three elements that must be proven beyond a reasonable doubt:

1. The terms of the order alleged to have been breached must be clear and unambiguous;
2. The person alleged to have breached the order must be given proper notice of the terms of the order that they have allegedly breached; and
3. The person allegedly in breach of the order must have intentionally breached the order.

See Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 32-35; and Moncur v. Plante, 2021 ONCA 462, 57 R.F.L. (8th) 293, at para. 10.

[42] As explained in Greenberg v. Norwack, 2016 ONCA 949, 135 O.R. (3d) 525, at para. 27, the court does not have to find that the Mother intended to disobey the court order:

the required intention relates to the act itself not the disobedience; in other words, the intention to disobey, in the sense of desiring or knowingly choosing to disobey the order is not an essential element.

[43] In considering whether the Mother is in contempt, the court relied on the affidavit evidence filed by the parties. I did not hear viva voci evidence. In considering this issue, I have kept in mind that the Mother is self represented, although she had some assistance from counsel outside of court in preparing her materials.

Did the Mother Intentionally fail to do the Acts required by the Order?

i) By Intentionally not Registering D.C. for School Immediately

[44] While I find it likely that the Mother delayed in registering D.C. for school, I am not satisfied of this fact beyond a reasonable doubt.

[45] It was clear from the order that D.C. was to be registered immediately. I find it suspect that the Mother did not check her email on her son’s birthday and was unaware of the order given her position on the motion. It was clear at the time of the motion that this matter was urgent and that a decision would be issued the same day or next.

[46] There is also no evidence before me that the Mother took any steps to ensure that the enrollment took place immediately. There is nothing in the Mother’s communication with the school requesting that enrollment be expedited or take place immediately. The only evidence is that the school emailed the Mother requesting forms on January 18, 2022. I agree that the Mother sent almost all of the forms back the following day. In the circumstances, I am not satisfied beyond a reasonable doubt that the Mother breached the requirement that D.C. be immediately enrolled in school.

ii) By Not having DC immediately attend school

[47] I am satisfied beyond a reasonable doubt that the Mother failed to comply with the court order that D.C. attend school immediately. The Mother’s conduct demonstrates a repeated pattern of doing whatever she could to ensure that D.C. wanted to stay home and in fact did stay home from school. I rely on the following to support this finding.

[48] First, the order stated that D.C. was to be immediately enrolled in and attend school. The endorsement made it clear that the goal was to have D.C. attend school in person with all of the other children in Ontario on January 17, 2022, when school resumed in person at the end of the Covid lockdown. There was nothing in the order to suggest that the Mother could delay the start date or decide whether or not D.C. attend school.

[49] There is no evidence that the Mother made any effort to have D.C. immediately attend school. There is no evidence that she advised the school that there was a court order that D.C. was to be immediately enrolled in and attend school. Rather, the evidence is that the Mother thought it made sense that D.C. start school on January 26, 2022 based on the recommendation of the school secretary.

[50] Second, I find that the Mother used the Covid screening and D.C.’s “illnesses” as an improper means to prevent D.C. from attending school. In coming to this conclusion, I rely on the following evidence:

[51] The Mother did not advise the Father that D.C. failed the Covid screening test until 1 p.m. on Tuesday January 25, 2022.

[52] On Monday January 24, 2022, the Father dropped off D.C. at home and D.C. had no symptoms.

[53] The Father contacted the Mother and advised that if D.C. had two rapid tests or a PCR test and D.C. showed no symptoms he could return to school. The Mother was also advised that if D.C. had a PCR test and it was negative, he could return to school. The Mother declined to use any of these tools to have D.C. attend school sooner. She did not even promptly respond to these suggestions.

[54] The Mother made no effort to allow the Father to confirm that D.C. had any symptoms. There is also no medical documentation to demonstrate that D.C. had any symptoms that would justify his lack of attendance at school on January 26, 27, 28, or from February 8 to 11. D.C. missed two weeks out of his first four of school for being ill.

[55] The Mother unilaterally decided to take D.C. out of school for various parent approved absences on the afternoon of January 31, for a doctor’s appointment on February 2, and on the afternoons of February 14 and February 16.

[56] The Mother did not advise the Father that D.C. had any issues attending school until February 16, 2022, which was the day prior to the Father’s parent teacher interview where he would learn about D.C.’s issues at school first-hand from the teacher.

[57] The Mother has a history of not advising the Father about D.C.’s schooling as outlined in the January 11, 2022 endorsement, which further supports an inference that she continued to do what she wanted as opposed what the court ordered.

[58] Third, I find that the Mother is largely responsible for the difficulties that D.C. is having transitioning to public school. It is clear that the Mother is vehemently opposed to her son attending school. She also feels that D.C. should not be required to wear a mask while attending school. The Mother’s views about the Covid vaccine or mask wearing are not at issue in this motion. The issue is whether the Mother conveyed her views on D.C. such that he would not wear a mask at school. Children are like sponges, they pick up on what their parent’s wishes are and often will seek to ensure that they are happy. D.C.’s conduct at school demonstrates that D.C. is aware of his Mother’s beliefs and desire that he not attend public school.

iii) By Intentionally withholding parenting time with the Father

[59] The parties do not disagree that D.C. did not attend his parenting time with the Father for three Tuesdays. The Mother states that D.C. was sick, and on the third occasion he did not want to attend because he was worried his Father would be mad at him.

[60] The Mother has a positive obligation to ensure D.C. spends time with his Father as ordered by the court. A parent is not entitled in law to leave that decision up to the child: see Hatcher v. Hatcher, 68 R.F.L. (6th) 179 (Ont. S.C.), at paras. 27-28. A parent must “require” the child to go spend time with the other parent. Failure to require the child to go spend time with the other parent pursuant to a court order is contempt: see Sickinger v. Sickinger, 69 R.F.L. (6th) 299 (Ont. S.C.), at para. 30, aff’d 2009 ONCA 856.

[61] It is completely unacceptable that the Mother did not require D.C. to spend time with his Father because D.C. stated he did not want to go. There is no evidence before the court that the Mother engaged in a discussion with D.C. or contacted the Father to let him know that D.C. did not want to see his Father. There is no evidence that any incentive was made to try and get D.C. to spend time with his Father or that D.C. would face any disciplinary measures should D.C. refuse to attend.

[62] With I strongly suspect that D.C. was not ill as claimed by the Mother, on the one occasion she advised the Father they were self isolating and therefore I do not find that on that occasion she breached the court order as she followed Covid protocols. With respect to the third Tuesday that was missed, there is no evidence that the Mother addressed D.C. spending time with his Father so there is no reason provided for why D.C. did not spend parenting time with his Father.

[63] It is also important to note that on the previous motion, the Mother was opposed to doing any of the driving for D.C. as the Father had moved. I ordered that she was to drop off D.C. off at his Father’s on Tuesdays. For two of the three Tuesdays the Mother did not provide a sufficient reason for why she did not drive D.C. to his Father’s.

Should the Court make a Finding of Contempt?

[64] Court orders are not suggestions or recommendations. When a court makes an order, the court order must be followed unless there are clear and compelling reasons to justify violation of an order, such as a reasonable belief of imminent harm to the child: Janowski v. Zebrowski, 2019 ONSC 4046, 29 R.F.L. (8th) 186, at para. 24.

[65] A finding of contempt is a discretionary decision. The importance of the child’s best interests causes courts to exercise a high degree of caution before resorting to contempt remedies in family law proceedings. Contempt findings should be made sparingly and as a last resort where other motions for enforcement have failed: Godard v. Godard, 2015 ONCA 568, 387 D.L.R. (4th) 667, at para. 17; Moncur v. Plante, 2021 ONCA 462; Hefkey v. Hefkey, 2013 ONCA 44, 30 R.F.L. (7th) 65.

[66] It would be an unusual case where a contempt finding would be made on a first non-compliance of an access order. Accordingly, in a usual case on a first default, a warning, admonition, or a penalty in costs would generally be more appropriate: Jean v. O’Callaghan, 2017 ONSC 4027, at para. 11.

[67] In determining whether to make a finding of contempt, the court’s paramount consideration is what is in the best interests of the children: Moncur, at para. 10.

[68] I find that the Mother breached my court orders. Had the Father not brought this motion, I have no doubt that D.C. would have failed to meaningfully attend school. That being said, I am not prepared at this time to make a finding of contempt at this point.

[69] The Mother has a responsibility and a duty to ensure that the court order is followed. She must put her own views aside and do what is in the best interests of D.C., as was determined by the court. It is not up to her to decide not to follow the court order or to try and manipulate the school system to avoid compliance with the court order.

[70] This endorsement puts the Mother on notice that she must require D.C. to attend school as outlined in my order. She cannot engage in tactics to have D.C. not attend school and she cannot allow D.C. to engage in games to try and get out of attending school.

[71] This endorsement should also put the Mother on notice that she does not have sole decision-making authority as it relates to D.C. There is no such order in place. The parties must meaningfully consult with one another about all decisions involving D.C.

[72] The Mother has a history of not advising the Father about D.C.’s education, as outlined in my previous endorsement and this endorsement. The Mother did not advise the Father of the difficulties that D.C. faced in school until the day before she knew he would learn of them. Similarly, she has taken D.C. to medical appointments and has not advised the Father, nor did she advise the Father that she sought a mask exemption for D.C. This type of behaviour must stop.

[73] I do not accept the Mother’s submission that had the Father consulted with the Mother, this motion would not have been necessary. The Father repeatedly reached out to the Mother about D.C.’s schooling and the Mother was not forthcoming or responsive to his concerns. After the motion was brought, D.C.’s attendance at school greatly improved.

[74] I also note that even if I were to find the Mother in contempt, I would not be prepared to grant the order requested by the Father at this time. I do not find that it would be in D.C.’s best interest to leave the residence of the Mother or change schools yet again when he has barely started at this school. This is a child who need stability and needs to be properly assessed. Prior to Covid, the parties were advised the D.C. needed to be assessed and required assistance at school. His new school, in very short order also recognized that D.C. needs to be assessed.

[75] This is not to say that day will not come. If the Mother continues to engage in the type of behaviour she has engaged in, the situation may evolve to the point where a court would find that it is in D.C.’s best interests that he resides with his Father as opposed to his Mother.

[76] The parties must put aside their differences and put D.C. first. This means first that the court order must be complied with. It also means that the Mother and Father must communicate about D.C.’s schooling and health and make decisions that are in D.C.’s best interests and not guided solely by the views of either parent.

Additional Terms

[77] To ensure that D.C. attends school, pursuant to Rule 1(8) of the Family Law Rules, I make the following orders to ensure that the terms of my previous order are complied with. The terms are to remain in place unless otherwise agreed to in writing by both parties.

[78] I make the following orders:

1. The contempt motion is dismissed without prejudice for the Father to renew the motion if the Mother does not comply with the terms of the order.
2. The child is to attend school everyday unless there is a medical reason he cannot attend or otherwise agreed to by the parties.
3. The child is to remain at school for lunch with the other children unless otherwise agreed to by the parties.
4. There are to be no parent approved absences without the Father’s prior written consent.
5. If the Mother is of the view that the child cannot attend school due to illness, she is to immediately contact the Father and set up a video conference to ensure that the child indeed is ill.
6. If the child has Covid symptoms, he is to be immediately tested no later than 12 hours after his symptoms arise so he can promptly attend school.
7. The Father has already had one make-up day. The Father is to have make up time for the two Tuesdays missed on dates agreed to by the parties. If the parties cannot agree, the make up time is to be on the alternate Friday nights from afterschool until Saturday morning at 9:00 a.m.

Costs

[79] The Father seeks costs on a substantial indemnity basis in the amount of $13,196.70, including HST and disbursements, and on a partial indemnity basis in the amount of $8,788.01, including HST and disbursements. He submits that the Mother acted in bad faith and had he not brought the motion, the Mother would not have started to comply with the court order.

[80] The Mother submits that costs should not be ordered because had the Father consulted with the Mother as is required by the Family Law Rules, he would have understood that she was doing the best she could.

[81] In Mattina v. Mattina, 2018 ONCA 867, at para. 10, the Court of Appeal confirmed that modern costs rules are designed to foster: i) partial indemnification of the cost of litigation for the successful litigants; ii) encouragement of settlement between parties; and iii) deterrence and sanctioning of inappropriate behavior by litigants. The Court also held that the purpose of costs is to ensure that the cost award is reasonable and proportionate.

[82] Rule 24(1) of the Family Law Rules creates a presumption that the successful party in the proceeding is entitled to costs. This is a rebuttable presumption. In assessing costs, the court is still required to consider all relevant factors, including the factors set out in Rules 24(12), 24(4), 24(8) and Rule 18(14). This includes considering whether a party acted unreasonably or in bad faith, and whether any offers to settle were made.

[83] The Family Law Rules only expressly contemplate full recovery costs in specific circumstances. For example, where a party has behaved unreasonably, in bad faith or has beat an offer to settle under Rule 18(14).

[84] In considering whether a party has behaved unreasonably, Rule 24(5) provides that the court shall examine:

(a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle; (b) the reasonableness of any offer the party made; and (c) any offer the party withdrew or failed to accept.

[85] I did not exercise my discretion to find the Mother in contempt. In that sense, the Mother was the successful party. However, as I outlined above, I have no doubt that had the Father not brought this motion the Mother would have continued to not comply with the court order. I therefore find that this is one of the unusual cases where the Mother is not entitled to costs.

[86] I find that the Mother acted unreasonably for the reasons outlined in this endorsement. The fact that the Father was required to bring this motion to ensure that the Mother complied with the court order entitles the Father to a cost order under Rule 24(4) and (5) of the Family Law Rules.

[87] I also do not find that the Father failed to consult with the Mother prior to bringing this motion. The Father put the Mother on notice the first week that D.C. did not attend school that he would bring the motion if D.C. did not attend school. The Mother failed to meaningfully respond to his concerns or do anything to ensure D.C.’s timely attendance at school.

[88] Scale is also a relevant factor to consider when determining the issue of costs. I am satisfied that the Mother’s unreasonable behavior warrants an order of costs on more than a partial indemnity scale.

[89] I must also consider the quantum of costs pursuant to Rule 24(12). This Rule requires me to consider the time spent by each party, the legal fees, and the number of lawyers and their rates and any other expenses properly paid. I have reviewed the bill of costs, and the hourly rate charged by counsel is reasonable. So too is the amount of time spent on preparing for attending the motion.

[90] I have also considered the Mother’s ability to pay costs and the effect of the cost order on the children, as I did on the previous cost order made against the Mother. This factor is accorded less weight because the Mother acted unreasonably.

[91] Finally, I have also considered the principles set forth by the Court of Appeal in Boucher v. Public Accountants Counsel for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), which discusses that the overall objective of fixing cost is to fix costs in an amount that is fair and reasonable for an unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant.

[92] In all of the circumstances, I am satisfied that the Mother should pay costs to the Father in the amount of $11,000. The Mother shall have six months to pay the first half of the amount owed and a further six months to pay the remaining money owed.

Dennison J. Released: March 23, 2022