B.F. v. A.N., 2022 ONSC 4134

COURT FILE NO.: FS-18-00003302-0000

DATE: 20220714

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: B.F., Applicant

AND:

A. N, Respondent

B.F. (grandfather) and I.F. (grandmother), Respondents

BEFORE: C. Horkins J.

COUNSEL: Gloria Ichim, for the Applicant

Zahra Taseer, for the Respondent A.N.

B.F. and I.F. grandparents, self-represented

Jane Long, for the Office of the Children’s Lawyer

HEARD at Toronto: In Writing

REASONS FOR COSTS DECISION

overview

1The respondent father, A.N. brought a motion to suspend the maternal grandparents’ visits with the child. He also sought orders restraining them from disseminating and sharing information, including photographs or videos, about the child by email, letter, or any other means and from contacting any professionals involved in caring for the child, including health care professionals, educational professionals, social workers, physiotherapists, or personal support workers. The relief requested was granted (2022 ONSC 3702).

2The child is permanently disabled child because the applicant mother injected the child with insulin in June 2019. After the release of my Reasons for Decision, the applicant mother was found guilty of attempted murder and aggravated assault against the child and attempted murder of the maternal grandmother. She was found not guilty of aggravated assault of the maternal grandmother. The father submits that the not guilty verdict suggests that the maternal grandmother had a role to play in the incident in June 2019.

3As a result of these tragic events, the child suffers from seizures and has permanent brain damage. Before this tragedy, the child was healthy. She is now medically fragile and requires extensive supports and care. The child has significant and costly care needs. The father is solely responsible for all costs for the child. The mother is incarcerated. The maternal grandparents are not contributing to the care of the child.

4At paras. 70-73 and 74 I summarized my findings of fact:

70The evidence clearly shows that the maternal grandparents are not acting in the child’s best interests. They have demonstrated no appreciation for the chaos they are causing those responsible for the child’s care.

71The Court and the Society have given the maternal grandparents every opportunity to act in the child’s best interests and yet they fail to do so. The Society has run out of options and has reached the point where it is “no longer possible” to “insulate” the child “from the risk of emotional harm” during the visits.

72The maternal grandparents have no respect for the father and the professional team of caregivers who devote their expertise and time to ensuring that the child has the best possible care for her complex injuries. Instead of supporting the child’s caregivers, the maternal grandparents seek to undermine the child’s care with their abusive conduct.

73The maternal grandparents have frequently breached the privacy rights of the child by circulating pictures, videos, and the child’s medical records to people who have no right to such information.

75In summary, the maternal grandparents’ behaviour cannot continue pending trial. They have shown that they are uncontrollable. There is a real risk that their concerning behaviour will continue to escalate. The child is entitled to better. Her best interests demand that the father’s motion be allowed.

5The father seeks costs of his motion. He has filed costs submissions and the maternal grandparents have not done so. The deadline for filing submissions was July 7, 2022. The father seeks costs on a partial indemnity basis in the amount of $4339.

legal framework

6The Family Law Rules, O. Reg. 114/99 are designed to foster four fundamental purposes: to indemnify successful litigants for the cost of litigation, to encourage settlements, to discourage and sanction inappropriate behaviour by litigants, and to ensure that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867 (Ont. C.A.).

7Pursuant to rule 24(1) there is a presumption that a successful party is entitled to costs. This presumption is subject to the factors in rule 24(12) that the court "shall consider" in "setting the amount of costs" as follows:

(12) In setting the amount of costs, the court shall consider,

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

(i) each party's behaviour,

(ii) the time spent by each party,

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

(iv) any legal fees, including the number of lawyers and their rates,

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

(vi) any other expenses properly paid or payable; and

(b) any other relevant matter.

8As this rule states, proportionality and reasonableness are the "touchstone considerations" to be applied when fixing the amount of costs: Beaver v. Hill, 2018 ONCA 840 (Ont. C.A.) at para. 12.

9Finally, the Family Law Rules expressly contemplate that a party shall receive full recovery costs in specific circumstances: when a party has acted in bad faith - rule 24(8) and when a party has beat an offer to settle - rule 18(14). No offers to settle were made in this case and bad faith is not alleged.

analysis

10The father was successful and is entitled to costs. His motion was supported by the Children’s Aid Society (“CAS”) and the Office of the Children’s Lawyer (“OCL”).

11At all times the father acted reasonably. He brought his motion after trying to resolve the issues with the help of the CAS. He then tried to resolve the motion at a case conference. Unfortunately, the motion was necessary because the maternal grandparents refused to stop their egregious behaviour that placed the child at risk and interfered with her medical care.

12The maternal grandparents’ unreasonable behaviour that necessitated the father’s motion, is set out in detail in my reasons. The trial in this application is set for September 26, 2022. The unreasonable behaviour was so serious that the father could not wait for the trial to seek the relief that I ordered. The motion was extremely important because the child was at risk. The maternal grandparents ignored previous court warnings about their harmful behaviour. They did not follow the Family Law Rules and file an affidavit in response to the father’s motion.

13The father’s Bill of Costs is very reasonable. Counsel’s billing rate fairly reflects her seniority and the time incurred (13.9 hours) reflects the urgency and moderate complexity of the issues.

14I fix the father’s costs at $4339 inclusive of HST. This amount is reasonable and proportionate to the issues.

conclusion

15I make the following order: The maternal grandparents, B.F and I.F shall pay the respondent father, A.N. $4339 for the costs of his motion. The costs are payable no later than August 15, 2022. If the maternal grandparents fail to pay the costs, their participation at the trial may be restricted by the trial judge.