Court File and Parties

Court File No.: FS-19-96673-00 Date: 2023-07-11 Superior Court of Justice – Ontario

BETWEEN:

Jacqueline Bartucci, Applicant Paul Portman, Agent for the Applicant

- and -

Prosper Mario Bartucci, Respondent Self-Represented

HEARD: In Writing

Costs Endorsement

LEMAY J.

[1] I heard a lengthy motion in this matter where the parties agreed to have me finally determine the issues of custody and access. Both parties were self-represented. However, the Applicant mother had an agent who represented her both at the hearing of the motion and at other attendances. Reasons were released on June 7th, 2023 (see Bartucci v. Bartucci, 2023 ONSC 3336), and the Applicant mother was almost entirely successful in her positions on the motion.

[2] I invited costs submissions in accordance with a timetable that was set out in my decision. While I received those submissions, the Applicant’s submissions mentioned a “historic offer”, which I understood to be a long-standing offer. The Applicant sought elevated costs in part on the basis that the Applicant had exceeded this “historic offer”. As a result, I provided the Applicant with an opportunity to provide any documentation to support the existence of her offer to settle. I also directed the Applicant to provide her counsel’s bill of costs. I have received the Applicant’s bill of costs. The Applicant mother confirmed, in respect of the “historic” offer to settle that there was no formal offer, but there were opportunities for the Respondent father to agree to supervised access at Brayden. With this information, I can now fix the costs of this matter.

Positions of the Parties

[3] The Applicant mother seeks compensation for the costs incurred by her agent on this motion. She seeks these costs on a full recovery basis, on the grounds that the Respondent father acted in bad faith in his approach to this motion. In the alternative, the Applicant mother seeks her costs on a substantial recovery basis on the grounds that she was more successful than her offer to settle. Finally, in the further alternative, the Applicant mother seeks her costs on a partial recovery basis. The Applicant mother seeks to have any costs awarded enforced through the Family Responsibility Office.

[4] When the Applicant mother filed her bill of costs, it resulted in the discovery of a technical error on the part of her agent. The Applicant mother was originally seeking full indemnity costs in the sum of $25,953.32 inclusive of HST. That amount was reduced to a full indemnity claim of $19,695.28 inclusive of HST. The partial indemnity costs that are sought are $9,847.64 inclusive of HST. The disbursements are $255.79.

[5] The Respondent father argues that he should not have to pay costs as a result of his success on a motion to adjourn this matter before Mirza J. In the alternative, the Respondent father argues that the fact he has lost his job, is suffering from depression and does not own any property are grounds for this Court to decline to award costs to the Applicant mother.

The Legal Framework

[6] The relevant provisions of the Family Law Rules are set out in Rules 18 and 24. A successful party is presumed to be entitled to their costs (Rule 24(1)). Further, if a party acted in “bad faith”, then the Court shall decide costs on a full recovery basis and shall order that party to pay the costs immediately (Rule 24(8)). Finally, Rule 18(14) states that, if a party makes an offer and does better than that offer at the hearing of the trial or the motion, they are entitled to full recovery costs.

[7] More generally, courts have held that modern costs rules are designed to foster three fundamental purposes:

a) To partially indemnify successful litigants for the cost of litigation; b) To encourage settlement; and, c) To discourage and sanction inappropriate behaviour by litigants.

[8] See Serra v. Serra, 2009 ONCA 395, para. 8. In addition, Rule 2(2) adds a fourth fundamental purpose, ensuring that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867.

[9] In fixing the costs, the Court must remember that reasonableness and proportionality are the touchstone considerations. Beaver v. Hill, 2018 ONCA 840, (2018) 143 O.R. (3d) 519. With these principles in mind, I will now address the issues raised by the Applicant.

Issues

[10] The positions of the parties and the principles that I have outlined require me to address four issues, as follows:

a) Did the Respondent father behave in bad faith so as to trigger the consequences of Rule 24(8)? b) If not, did the Applicant mother make the Respondent father an offer to settle that was as favourable or more favourable to the Respondent father than the result that the Applicant mother obtained at trial? c) Should there be a reduction in the costs claimed by the Applicant mother on the basis of the Respondent father’s personal circumstances? d) Is the quantum of costs claimed by the Applicant mother otherwise reasonable? e) Should the costs be recoverable as support under the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 (“the Act”)?

[11] I will deal with each issue in turn.

Issue #1 - Did the Respondent father behave in Bad Faith?

[12] The test for bad faith in family law is set out in a number of decisions. In S.(C.) v. S.(M.), 38 R.F.L. (6th) 315, 2007 CarswellOnt 3485, Perkins J. stated:

In order to come within the meaning of bad faith in subrule 24(8), behaviour must be shown to be carried out with 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. A misguided but genuine intent to achieve the ostensible goal of the activity, without proof of intent to inflict harm, to conceal relevant information or to deceive, saves the activity from being found to be in bad faith. The requisite intent to harm, conceal or deceive does not have to be the person's sole or primary intent, but rather only a significant part of the person's intent. At some point, a party could be found to be acting in bad faith when their litigation conduct has run the costs up so high that they must be taken to know their behaviour is causing the other party major financial harm without justification.

[13] One of the most recent, and most comprehensive, decisions on the subject of bad faith was Jackson v. Mayerle, 2016 ONSC 1556, (2016) 130 O.R. (3d) 683. In that case, Pazaratz J. quoted the passage from S.(C.), above and went on to say (at paras. 58 and 59):

58 Bad faith is not synonymous with bad judgment or negligence. Rather, it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. Bad faith involves intentional duplicity, obstruction or obfuscation: Children's Aid Society of Peel (Region) v. F. (K.J.), 2009 ONCJ 252 (Ont. C.J.), [2009] O.J. No. 2348 (Ont. C.J.); Biddle v. Biddle; Leonardo v. Leonardo; [2003] O.J. No. 1969 (Ont. S.C.J.); Hendry v. Martins, [2001] O.J. No. 1098 (Ont. S.C.J.).

59 There is a difference between bad faith and unreasonable behaviour. The essence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose. It is done knowingly and intentionally. The court can determine that there shall be full indemnity for only the piece of the litigation where bad faith was demonstrated.

[14] The Applicant mother argues that costs should be paid on a full recovery basis for two key reasons:

a) The Respondent father deliberately delayed the hearing of this motion. b) The Respondent father’s threats of violence and of putting the mother in a box six feet under should attract an award of full indemnity costs.

[15] I reject both arguments. On the first argument, the fact that the matter was delayed, even deliberately, does not rise to the level of bad faith. This is particularly true given that the Respondent father was limited to supervised parenting time throughout the time between when the motion was brought and when it was heard. In addition, the Court permitted the Respondent father an adjournment of this matter to seek counsel and to challenge the OCL report. There is no bad faith in this conduct. It may be grounds for additional costs because of the costs associated with the delay, but it does not change the scale of the costs.

[16] This brings me to the threats of violence. Those are serious matters that attract specific consideration under the Divorce Act when the Court is considering issues of parenting time and decision-making authority. However, those threats are generally best dealt with as part of the analysis of the merits rather than as a stand-alone basis for awarding costs on an enhanced scale.

[17] For the foregoing reasons, I decline to award costs on a full recovery basis.

Issue #2 - Is There an Offer to Settle?

[18] The Applicant mother argues that she made a “historic” offer to settle. In this case, I understand “historic” to be a long-standing offer to settle. As I noted above, I asked the Applicant mother to provide specific documentation and information on this offer to settle. What I have received is an indication from counsel that there were a number of occasions where the Respondent father could have agreed to have supervised access at Brayden. There is no indication in the Applicant mother’s materials that there was any opportunity for the Respondent father to move from supervised access to unsupervised access.

[19] In order to determine whether a party has bettered their offer to settle, the Court is required to engage in a general assessment of the offer. See Wilson v. Kovalev, 2016 ONSC 163. As set out in Jackson, supra at para. 47:

47 To trigger full recovery costs a party must do as well or better than all the terms of any offer (or a severable section of an offer). Paranavitana v. Nanayakkara, 2010 ONSC 2257, [2010] O.J. No. 1566 (Ont. S.C.J.); Rebiere v. Rebiere, 2015 ONSC 2129 (Ont. S.C.J.); Scipione v. Del Sordo, 2015 ONSC 5982 (Ont. S.C.J.). The court is not required to examine each term of the offer as compared to the terms of the order and weigh with microscopic precision the equivalence of the terms. What is required is a general assessment of the overall comparability of the offer as contrasted with the order (remaining citations omitted).

[20] In this case, even if I accept that this “historic offer” otherwise meets the requirements of an offer to settle, I am not persuaded that it triggers costs consequences. As I noted above, the Applicant mother’s offer did not provide the Respondent father with a path to unsupervised access. My decision does provide him with that path. It is, therefore, impossible to say that the Applicant mother has been as successful or more successful than her offer.

[21] Having found that the Applicant mother did not do as well as or better than her offer to settle, there is no basis to award costs on anything other than a partial indemnity basis.

Issue #3 - Should There be a Reduction in the Costs as a Result of the Respondent Father’s Circumstances?

[22] The Respondent father has provided a medical note indicating that he lost his job at the end of May 2022, and that he has depression. This note is dated October 19th, 2022. The information in the note is, therefore, not recent. We have no further updates from the Respondent father.

[23] Assuming, without deciding, that the Respondent father has been unable to work since May of 2022, I am still not persuaded that the costs payable by the Respondent father should be reduced in any meaningful way. I reach this conclusion for two reasons. First, the fact that the Respondent father is unemployed does not mean that he is impecunious. Indeed, it is possible that he has considerable assets.

[24] Second, as noted in Vantriet v. Ogutu, 2020 ONSC 50, para. 22:

22 A party's ability to pay costs is a relevant consideration under FLR 24(12) 18. This issue is often raised in custody cases where the impact of a significant costs award against a custodial parent would negatively affect a child's best interests. But inability to pay costs, or impecuniosity, is not a shield from liability: it cannot be used to excuse a party's litigation conduct. The fact is that the mother has caused a multiplicity of proceedings in Nevada and Ontario as a direct consequence of her wrongful behaviour and put the father to significant costs. The children are now residing with him in Nevada.

[25] In this case, the Respondent father claimed that the OCL report was based on false information and delayed this matter. When he was given an extension of time to submit a proper challenge to the OCL report, the Respondent father did not do so. He should not now be able to use impecuniosity to avoid the cost consequences of these delays.

[26] In any event, the costs that are sought are not unreasonable, and I turn to that issue now.

Issue #4 - The Quantum of Costs

[27] The Applicant mother claims partial indemnity costs in the sum of $9,847.64 plus disbursements of $255.79. These are not unreasonable amounts to claim given there were three separate appearances in this case and given the volume and complexity of the Affidavits that were filed on the motion.

[28] In the circumstances, the costs sought by the Applicant mother are reasonable and the Respondent father shall pay those costs.

Issue #5 - Should the Costs be Recoverable by FRO?

[29] In support of her position on this issue, the Respondent mother relies on the decision of Conlan J. in G. (W.) v. G.(K.), 2015 ONSC 6160 as well as the Court of Appeal’s decision in de Somer v. Martin, 2012 ONCA 908. In a trial where there is an issue of spousal and/or child support, the trial judge has a discretion to order all of the costs be treated as support for the purposes of the Act and be enforced as such: Clark v. Clark, 2014 ONCA 175.

[30] The problem in this case is that the issue of support was not before me in any meaningful way. The parties had resolved their financial issues. The only issues that were before me were parenting time and decision-making authority. As a result, support was not one of the issues before me and I do not have discretion to make the costs support for the purposes of the Act. Clark, supra. at para. 74. See also Parmar v. Flora, 2023 ONSC 2327.

[31] The costs order in this case shall be enforced through the normal course. It is not support for the purposes of the Act.

Conclusion

[32] For the foregoing reasons, the Respondent is ordered to pay the Applicant the sum of $10,103.43 inclusive of HST and disbursements on account of this motion. Those costs are to be paid within thirty days and are to be paid to the law firm that has been assisting the Applicant.

[33] As a final matter, I will note that there was no indication that HST was not included on the costs that counsel has claimed. As a result, I have assumed that HST is included and have made my order accordingly.

LEMAY J. Released: July 11, 2023