NEWMARKET COURT FILE NO.: FC-17-54733-00
DATE: 20221028
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Elya Rachelle Jurrius, Applicant
AND:
Israil Rassuli, Respondent
BEFORE: The Honourable R.T. Bennett
COUNSEL: M.J. Stangarone and J.M. Long, Counsels, for the Applicant
Self-Represented, Respondent
HEARD: In-Writing
COSTS ENDORSEMENT
[1] On the seventh day of the trial, this court rendered an oral decision and invited, the parties, following receipt of the transcript of that oral decision to make submissions with respect to costs.
[2] The applicant mother is seeking costs in the amount of $161,606.69.
[3] The respondent father, who was ably represented by counsel at trial, is now self represented and submits for reasons that will be outlined below, that this court should not make any order with respect to costs or, in the alternative if the court were to render a costs decision, that the court should award costs in the amount of $10,000 to him.
[4] Costs are governed primarily by rule 24 of the Family Law Rules, O. Reg. 114/99, as amended (the Rules). The first step in a court determining costs is to determine who was the successful party.
[5] There are other factors of course to be considered in making a cost decision as outlined in rule 24 and case law. So far as it relates to this case, those factors would include not only who was a successful party, but did the losing party act in bad faith, were offers to settle made and are they relevant to the determination of the issue of costs and, should the court consider the behaviour of a party in this action in its consideration of costs.
[6] There were really three issues that the court needed to determine at trial. Those issues were: to what parenting time should the respondent father be entitled with respect to the child?; what income level should be imputed to the respondent father for purposes of determining child support and related to that what arrears if any of child support should be paid by the respondent father?; and, what prospective child support should be paid by the respondent father?
[7] The court rendered a very detailed oral decision. The parties have received a transcript of that decision prior to serving and filing their costs submissions.
[8] For purposes of this costs decision, the court will “highlight” some of the findings made by this court.
[9] The court wishes to stress that the court’s reasons are set out in its lengthy decision and reference should be made to that decision. The synopsis set out herein is intended to be a synopsis only and the details of the court’s findings and reasons are set out in its oral decision.
[10] The court found that the evidence of the respondent father lacked credibility. While the court took some minor issue with some areas of the evidence given by the applicant mother, by and large, the court found the applicant mother to be very credible.
[11] As set out in detail in its oral decision, the court had major problems with the issue of credibility when it came to the respondent father. The court found that on multiple occasions and with respect to many issues, the respondent father’s evidence was totally lacking in credibility and often contradictory to evidence that he had given elsewhere at the trial or in sworn affidavits with respect to motions that had been brought in this action.
[12] As stated in its oral decision, this court was particularly troubled by the evidence given by the respondent father in relation to a replica gun that he had strapped to the child’s crib while the parties were briefly living together when the child was a newborn.
[13] The court was troubled by the fact that a father would find it appropriate to strap a replica gun to a child’s crib.
[14] However, the court was far more troubled by the fact that in a motion and even more troubling in a reply affidavit filed with respect to the respondent father’s motion, the respondent father had in sworn evidence alleged that the applicant mother had included a photograph of the replica gun strapped to the child’s crib which he alleged was “doctored” or “Photoshopped” (the court’s interpretation of his statement). At trial, under cross-examination, he had admitted that he had in fact strapped this replica gun to the then infant’s crib and that the photograph submitted by the applicant mother in her responding materials to his motion was in fact a valid photograph accurately depicting what he had done.
[15] As set out in this court’s oral reasons, the court was extremely troubled that the respondent father made this allegation in a reply affidavit which meant that the applicant mother had no opportunity to refute the same for purposes of that motion. How much the court who had heard the motion relied on this evidence is unknown but the fact that the respondent father would not only mislead a court but represent that the innocent party was misleading the court is of great concern to this court when it comes to the analysis of whether or not the respondent father acted in bad faith.
[16] The second biggest concern for the court in the respondent father’s testimony was relating to his shaving the child’s head totally bald at a time when the child was 18 months of age. The concerning factor of him doing so, so far as it relates to costs, is that the court found on a balance of probabilities that this was done as a retaliatory measure based on the fact that mediation, which had taken place immediately prior to this incident, had not gone as the respondent father had hoped.
[17] As set out in the court’s oral decision, the respondent father offered contradictory explanations as to why he had shaved the child’s head bald, claiming at one time that the child’s hair was bothering the child and he was fidgeting with it and another time claiming that the child’s hair was growing in unevenly and he shaved it hoping that the child’s hair would then come in more evenly. He acknowledged that he had not consulted the applicant mother who had sole decision-making for the child with respect to him so doing. What the court found very disturbing is that on cross-examination, even when faced with documentary evidence that proved that this shaving occurred immediately following the failed mediation, the respondent would not even admit that which was clearly obvious, in that this incident happened immediately after the failed mediation.
[18] As set out in the oral decision, there were other incidents of behaviour by the respondent father that were concerning to this court.
[19] So far as the trial result is concerned, there is absolutely no doubt that the applicant mother was the totally successful party.
[20] On the issue of parenting time for the respondent father with the child, the court found that with a minor modification from her initial position being the moving of one of the Wednesday evening parenting times to Monday evening as suggested by the court at the conclusion of the trial and ultimately accepted by the applicant, the applicant mother was totally successful on this issue.
[21] On the issue of imputation of income, and the resultant child support payable by the respondent father, while the court did not impute income at the level that the applicant was seeking at trial, as will be seen from an analysis of the offers to settle, the court imputed income and awarded child support to be payable by the respondent father in an amount in excess of that to which the applicant mother was prepared to settle prior to trial.
[22] Therefore, the court finds that the applicant mother was successful on this other major issue as well.
[23] On the issue of changing the child’s name, once again, the applicant mother was successful on that issue in that the court did not grant the relief being sought by the respondent father, that being to change the child’s name.
[24] There was another issue with respect to the statement of live birth and the birth certificate being amended to show the respondent as the father of the child. That issue was ultimately resolved by the parties prior to the court rendering its oral decision. Therefore, it does not factor into the issue of costs.
[25] As a preliminary issue, the court will address the submission made by the respondent father.
[26] He submits that since he is appealing the court’s decision and since he has written to the Regional Senior Justice with respect to the same, he takes the position that the court should “not be allowed to rule on costs”.
[27] The court finds that this argument has absolutely no merit.
[28] There is no stay that has been granted by any court with respect to this court’s decision and therefore the court finds that it has authority and a duty to render a cost decision as set out in this court’s endorsement dated July 4, 2022.
[29] The respondent father submits that the court should find that the applicant mother “didn’t try to settle” and that the respondent was not unreasonable and did not act in bad faith and, further, that in fact the court should find that this ( bad faith) should apply to the applicant given an argument he makes with respect to an agreement that was presented to him prior to the child’s birth and signed by him.
[30] As set out in this court’s oral decision, a great deal of time was spent by both sides with respect to that agreement. The bottom line however is that prior to the trial commencing, both sides acknowledged that the agreement was not a domestic contract within the meaning of the Family Law Act, R.S.O. 1990, c. F.3. The applicant mother through counsel submitted at the outset, that she was not attempting to enforce that agreement. Both sides however gave evidence trying to “bolster their case”. For those reasons, the court finds that the agreement is irrelevant when it comes to the issue of trial costs.
[31] As noted above, the applicant mother is seeking a total of $161,606.69 in costs.
[32] The applicant mother was represented, at trial, by trial counsel who had been retained, according to the bill of costs submitted, on or about April 26, 2022, less than one month prior to trial.
[33] A breakdown as set out in the applicant mother’s bill of costs indicates that trial counsel (including his “Junior” and law clerk) had invoiced a total of $113,444.57 during the approximate one month that trial counsel was involved in this case.
[34] The court has reviewed those records and finds that the time spent appears to be appropriate given the issues at trial and given the attempts at settlement, including that directed by the court after opening statements were made. That settlement effort itself resulted in an entire day which, according to the applicant mother’s materials culminated in a settlement being signed by the applicant mother, her counsel and the respondent father’s then counsel but not by the respondent father given that he allegedly raised an additional issue after he had agreed to the terms of the settlement.
[35] The court finds, as well, that the rate charged by trial counsel and his associate and law clerk is reasonable given the experience and given the quality of the representation provided on behalf of the applicant.
[36] Included in the applicant mother’s bill of costs, is an item of $5,692.38 for “expert’s fees”. The respondent father challenges these fees as he submits that no expert was called at trial. The applicant mother submits that these fees were reasonable given that in his trial schedule endorsement form, the respondent father indicated that he would be calling medical evidence with respect to his motor vehicle accident “injury” and his claim that this injury which occurred five years previous to the trial, precluded him from working basically in any capacity even at the time of trial.
[37] The court notes that the respondent father’s quite able trial counsel submitted in his opening statement that a decision had not yet been made as to whether or not to call medical evidence on behalf of the respondent father.
[38] It was only at the conclusion of the applicant mother’s case that the respondent father presumably gave instructions to his then counsel not to call that evidence. It is important to note that the Respondent’s trial counsel made it very clear that he was not counsel of record but had been retained the weekend before the trial commenced as an agent by the Respondent’s counsels of record.
[39] For more than one year prior to trial, the applicant mother had been represented by counsel who continues to represent her. That counsel was present at trial and presumably continued to assist the applicant mother throughout the trial (as observed by this court). As well, even though that counsel did not conduct a trial, it is reasonable to assume and as is set out in the trial counsel’s bill of costs, that counsel was actively involved in assisting trial counsel with preparation and negotiations leading up to the trial and during the trial.
[40] The applicant mother had previously retained three other counsels for various periods of time since the inception of this action. In round numbers, the total of their three accounts was approximately $6,000 inclusive of HST.
[41] As noted, the respondent father was ably represented by experienced and skilled trial counsel. He was also represented during the trial by an articling student from the firm of the counsel of record. Neither trial counsel nor his previous counsel of record is any longer retained by the respondent father.
[42] The respondent father, in his costs submissions did not include any submissions or documentation as to the fees charged by either the counsel that he had for some period of time prior to the trial itself and who apparently retained trial counsel themselves. The court was advised that the respondent father had not changed counsel but that his “trial counsel” was appearing as agent for his counsel of record who remained and, so far as the court is aware, remain to be his counsel of record given that the court has not been advised of any notice of change of representation nor any motion to have counsel removed from the record.
[43] The bottom line is that the court has no information as to the fees that were charged by the respondent father’s counsel or by trial counsel.
[44] So far as the respondent father’s claim in the alternative that he should be entitled to costs, given that the court has found that the applicant mother was entirely successful at trial, the court finds that she and not the respondent is entitled to costs.
[45] As set out in the Rules, and in case law, the court accepts that a costs award is designed for three purposes namely: to indemnify the successful litigant; to encourage settlement; and, to discourage and sanction inappropriate behaviour.
[46] The court also must consider the proportionality of the costs being claimed and the reasonableness of those costs being claimed.
[47] In addition to finding that the applicant mother was successful at trial, there are two other factors that the court must consider when determining the costs to be awarded in this matter.
[48] The first is, are there any offers to settle that are “rule 18 offers” that would result in the applicant mother being entitled to full indemnity costs following the making of any such offer?
Offers to settle made prior to trial
[49] The applicant mother made a total of nine offers to settle prior to trial.
[50] The applicant mother submits that there were at least two occasions when it appeared that the case had been settled prior to trial.
[51] On January 31, 2022, she submits that the case had been settled at the settlement conference before the Honourable Justice MacPherson. The applicant mother submits that this would have resulted in the respondent father receiving parenting time of five out of 14 overnights (more than he was awarded at trial) and that he apparently resiled from the agreement because of a new issue that he had raised following the consensus, that being the issue of the child’s change of name.
[52] The applicant mother submits that as a result of an all day “mid-trial” conference conducted by Justice MacPherson, the parties had once again come to a consensus and that the applicant mother’s counsel had drafted comprehensive minutes of settlement that were signed by the applicant mother and her counsel and by the respondent father’s trial counsel but not by the respondent father himself. Once again this would have resulted in the respondent father receiving five out of 14 overnights (more than he was awarded at trial) but once again the respondent father resiled according to the applicant mother because he wanted the name “Rassuli” on the child’s lunchbox.
[53] The last written offer to settle made by the applicant mother was made May 17, 2022 (being the first day of trial). As set out in the Rules, this offer to settle because of the late date at which it was made does not “qualify” as a “rule 18” offer to settle.
[54] The applicant mother made an offer to settle May 19, 2020. That offer included supervised parenting time and therefore is not relevant for purposes of costs determination.
[55] The applicant mother made an offer September 22, 2020, which by January 15, 2021 would have resulted in alternate weekend parenting time from Friday evening to Monday morning (being what was awarded by the court at trial).
[56] That offer also provided for parenting time every Wednesday once the child had commenced junior kindergarten (which he had by the time of trial) from after school until 7:00 p.m.. This was virtually identical to what the court awarded at trial. (The court, as noted in its oral decision, awarded evening parenting time on Monday rather than Wednesday during the “off week”. This was as a result of the court making that suggestion to both counsel at the conclusion of the trial in order to address the issue raised by the respondent father that it was not in the best interests of the child to go from Wednesday to Wednesday without seeing the respondent father during the “off week”. As noted by the court, the respondent father had apparently not realized that the submissions that he had made up to the conclusion of the trial, with respect to that issue were not addressed by the order that he was seeking at trial.)
[57] In that September 22, 2020 offer to settle, the applicant offered summer parenting time of two weeks non-consecutive until the child reaches age 7 and then two weeks consecutive thereafter.
[58] That offer did not address the issue of child support but, so far as parenting time is concerned, the offer is virtually identical to the award that was made by the court following trial.
[59] The applicant mother points out that three previous offers that were made being January 29, 2020, January 22, 2021 and January 11, 2022 would have resulted in the respondent father receiving almost identical parenting time to that which was ultimately awarded by the court.
[60] The court notes that in the January 11, 2022, offer made by the applicant mother, the respondent father would have been entitled to parenting time alternate weekends from Friday to Sunday and every Wednesday (evening only) and he also would have been entitled to equal time during the summer school break, Christmas/winter break and March break.
[61] The court granted parenting time to the respondent father on alternate weekends Friday to Monday morning. Therefore, the court’s award is better for the respondent father with respect to alternate weekends, than the offer made by the applicant mother.
[62] However, the offer to settle also resulted in him having alternate week parenting time during the summer which is far in excess of that awarded by the court.
[63] Therefore, on the issue of parenting time, the court finds that the applicant mother’s offer to settle made January 11, 2022, from the respondent father’s perspective, results in him having far more parenting time then he received based on the court’s order.
[64] As well, the January 11, 2022 offer to settle would have resulted in the respondent father paying no child support arrears up to January 31, 2022 and $256 per month thereafter commencing February 1, 2022.
[65] The result at trial was far worse for the respondent father than it would have been if he had accepted the offer so far as it relates to child support.
[66] The court will analyse subsequently how the court finds that these offers impact the issue of its costs award.
[67] The respondent father made a number of offers to settle as well.
[68] His first offer to settle was in the summer of 2018 and relates to parenting time for the child who at that time who was quite young. It did not address the issue of parenting time for the child at his current age.
[69] The respondent father’s March 2, 2020 offer to settle sought three weekends per month and two overnights per week during the “off week” as well as equal time during the summer. As a result of this court’s finding, that offer is not relevant when it comes to costs.
[70] A June 17, 2020, offer to settle made by the respondent father related only to the notice of motion that he had brought. Therefore, that offer is not relevant to the issue of costs at trial.
[71] An October 9, 2020, offer to settle made by the respondent father sought alternate weekends Friday to Monday parenting time as well as every Wednesday overnight and equal time during the summer. As a result of the award made by this court, that offer is not relevant with respect to costs.
[72] The respondent father made an offer to settle May 13, 2022. For the same reasons that this court finds that the applicant mother’s offer to settle of May 17, 2022 was too close to trial to be considered, the court does not consider that offer either for purposes of “rule 18”. In any case, the offer included alternate weekends Friday to Tuesday, every Wednesday overnight and equal time during the summer as well as $13,000 in retroactive child support and $258 per month prospective child support. Given the award made by this court, that offer is not relevant when it comes to costs.
Did the respondent act in bad faith?
[73] Rule 24 (8) provides that “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.”
[74] Other courts have found that in order for a court to find bad faith, it requires behaviour showing that it was carried out with the intent to inflict financial or emotional harm on the other party. Some courts have characterized this as a party claiming to be acting with one purpose when they are really motivated by another purpose. Courts have found that bad faith requires more than simply “bad judgment”.
[75] In the case of Piskor v Piskor 2004 CanLII 5023 (ON SC), [2004] O.J. No. 796 (Ont S.C.J.) the court found that conduct that is intended to deceive or mislead can establish bad faith.
[76] The court notes that a dictionary.com definition of “bad faith” is “a lack of honesty and trust”.
[77] Phil Epstein once said when asked to define “parental alienation”. You know it when you see it. The court finds that this applies in this case. This court has over 40 years experience in family law and feels that it knows bad faith when it sees it.
[78] This court finds that there are two actions by the respondent father that constitute bad faith.
[79] As set out in this court’s oral decision, the court found that in a motion in which the respondent father was seeking parenting time, the respondent father, in a sworn affidavit, misrepresented to the court that the photograph proffered by the applicant mother in her responding materials which depicted a replica gun strapped to the then newborn’s crib, was not a legitimate photograph. In his reply affidavit, he alleged the same and claimed that he had not strapped a replica gun to the child’s crib as was alleged by the applicant mother.
[80] At motions, courts are required to make decisions without having the benefit of viva voce evidence. It is rare in family law cases currently, that courts have any transcript of a cross examination of a party on their affidavit. As was the case here, with respect to this motion brought by the respondent father, the court was relying on sworn affidavits of the parties in order to make a determination that is in the best interests of the child.
[81] This court finds that the fact that a father would find it appropriate to strap a replica gun to a newborn’s crib, in the opinion of this court would be germane to the issue before the court in terms of parenting time for that father with the child. Therefore, the court finds that it would have found that the respondent father acted in bad faith by simply denying at the motion that he had in fact placed a replica gun on the child’s crib as was alleged by the applicant mother.
[82] The court finds however that the respondent father’s maligning the character of the applicant mother by not only denying that he placed the replica gun on the child’s crib (a fact which he ultimately admitted at trial) is clear and conclusive in indicia of the father’s bad faith.
[83] It would have been bad enough if the respondent father had simply denied placing the replica gun on the child’s crib. To allege that the applicant mother had “doctored or Photoshopped” the picture and therefore that she was misrepresenting a germane fact to the court is something that the court finds abhorrent.
[84] In family law cases, all too often parties malign the character of the other party. Courts state virtually on a daily basis that it is not in the child’s best interest for parties to do so.
[85] For the respondent father in this case to represent to a court that a mother has misrepresented a photograph to the court all the while knowing that the photograph is in fact an accurate and not a doctored photograph and that it was he who placed that replica gun on the child’s crib is something that this court cannot be seen to condone or tolerate.
[86] The court does not accept for a single second the respondent father’s “explanation” at trial that he had simply “forgotten” that it was he who had strapped the replica gun to the child’s crib until he received Crown disclosure as a result of charges that had been laid against him which did not specifically relate to this issue.
[87] If this is not evidence of bad faith, then the court finds it extremely difficult to consider a situation which would be considered bad faith.
[88] A large portion of this case was about the parties’ credibility and what is in the best interests of this child.
[89] Given that the court finds that this issue is so germane to the best interests of the child, the court need not go beyond that to find other indicia of bad faith.
[90] The court does however find that the respondent father’s action in completely shaving the then 18-month-old child’s head in what the court found was retaliation for a failed mediation that had taken place immediately prior, is another incident that the court finds would constitute bad faith.
[91] An argument could be made, as was made in the applicant mother’s submissions, that the respondent father resiled or reneged on agreements that he had made in January 2022 and on May 18, 2022 also constitute bad faith. The court however finds that it does not have sufficient evidence to find that the respondent father resiled particularly on the first agreement and therefore does not make a finding that this constitutes bad faith.
[92] As set out in the court’s oral decision, the court found that the respondent did act unreasonably in a number of instances. Certainly, this case could have been settled long before trial given the offers to settle that were made by the applicant mother.
[93] The court has noted that the offers to settle made by the applicant mother particularly on April 17, 2022 and on May 17, 2022 would have resulted in the respondent father receiving more parenting time than he ultimately was awarded by this court.
[94] The offer to settle of May 17, 2022 which would have obviated the necessity of trial was also more favourable to the respondent father than the award made by the court with respect to retroactive and prospective child support. That offer included a provision that the respondent father would not be required to pay any costs notwithstanding the fact that this was on the day that the trial started and that the applicant mother had incurred well over $100,000 in costs up to that point in time.
[95] Given the finding of bad faith, the court finds it is required by rule 24 (8) to find that the applicant is entitled to costs on a full recovery basis and that the respondent father shall pay those costs immediately.
[96] The court wishes to indicate further that even in if the court had not found that the respondent father acted in bad faith, (or if it is found on appeal of that the court is wrong in determining that this constitutes bad faith) the applicant mother’s offers to settle are a significant factor in determining costs in this case.
[97] The applicant mother’s offer to settle made September 22, 2020 so far as it relates to parenting time, is virtually identical to that ordered by the court and on the issue of parenting time, the court finds that this would constitute a “rule 18 offer”. Therefore, the applicant mother, in accordance with rule 18 (14) would be entitled to full recovery of costs from that date so far as it relates to the issue of parenting time.
[98] The award made by this court with respect to the finding of the respondent father’s income and the resultant finding of retroactive and prospect of child support was less favourable to the respondent father than the offer made by the applicant May 17, 2022.
[99] Further, no offer made by the respondent so far as it relates to child support and the imputation of his income was more favourable to him than the award that was made by this court.
[100] For all of the above reasons, even if this court had not found that the respondent father had acted in bad faith, the court would have awarded costs in the amount of $140,000 inclusive of HST to be paid by the respondent father to the applicant mother.
[101] For the reasons set out in this court’s decision, the court does not accept the respondent father’s argument that he has an inability to pay costs.
[102] Further, even if the court were to find such an inability, a litigant cannot use that argument to result in a costs award to be significantly lower than otherwise would have been awarded particularly where the litigant has been found to act in bad faith or even where the litigant has been found to act in an unreasonable manner.
[103] Although not addressed by the applicant mother in her submissions, the court finds that it is appropriate for the court to determine the portion of costs that relate to parenting time and the portion of costs that relate to imputation of income and the resultant finding with respect to child support.
[104] Although the determination is somewhat arbitrary, the court finds that two thirds of the time spent and therefore the costs relate to the issue of parenting and one third of the costs relate to the issue of imputation of income and the resultant determination of child support.
[105] Given the findings made by this court and the finding that the Respondent acted in bad faith, the Respondent shall pay to the Applicant her costs in the amount of $161,606.69 payable forthwith.
[106] The court finds that one third of the costs awarded being one third of $161,606.69, or $53,868.90, relate to child support and therefore should be enforceable by the Family Responsibility Office as child support.
Justice R.T. Bennett
Date: October 28, 2022