Court File and Parties

Court File No.: FC-23-1540 Date: 2024/07/08 Superior Court of Justice - Ontario

Re: Jennifer Grove, Applicant And: Fahad Fahad, Respondent

Before: Somji J.

Counsel: Applicant, Self-Represented Caitlin O'Garr / Alyssa Bach, for the Respondent

Heard: In Writing

Costs Endorsement

[1] The Respondent Father (moving party on the motion) seeks full-recovery costs in the amount of $24,767 following his success on an urgent parenting motion to reinstate the parties’ child in school and modify the parenting schedule to ensure the child’s continued attendance at school: Grove v Fahad, 2024 ONSC 2143.

[2] The Applicant mother did not file a reply to the costs submission.

[3] The father is presumptively entitled to costs as the successful party on the motion: r. 24(1) Family Law Rules, O. Reg. 114/99 as am (“FLR”). There was nothing in the father’s conduct that would disentitle him to a costs award. The only issue to be decided is what is a fair and reasonable costs award for this motion.

Issue: What is a fair and reasonable costs award in this case?

[4] Entitlement and quantum of costs is in the discretion of the judge: Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[5] In determining costs, the parties and court must consider that modern costs rules are designed to foster four fundamental purposes: 1) to partially indemnify successful litigants; 2) to encourage settlement; 3) to discourage and sanction inappropriate behaviour by litigants; and 4) to ensure, as per r. 2(2), that cases are dealt with justly: Mattina v Mattina, 2018 ONCA 867 at para 10.

[6] Rule 24(12) requires a judge to consider the following in determining quantum:

(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 r. 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.

[7] The assessment of costs is a not a mechanical exercise and involves more than a review of the lawyer’s docket: Boucher v Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), at para 26.

[8] Proportionality and reasonableness are the “touchstone considerations” in fixing the amount of costs: Beaver v Hill, 2018 ONCA 840.

Conduct of the parties

[9] The court may issue an elevated costs award over and above partial indemnity where one party’s conduct has been unreasonable which includes conduct that is: 1) disrespectful of other participants or the court; 2) unduly complicates the litigation; or 3) increases the costs of litigation: Harper v Smith, 2021 ONSC 3420, at para 3, citing Beaver v Hill, 2018 ONSC 3352 (“Beaver v Hill (ONSC)”), at para 51, rev’d on other grounds, 2018 ONCA 840.

[10] However, if a party’s conduct constitutes bad faith, the court may order costs on a full recovery basis as per r. 24(8).

[11] There is a difference between bad faith and unreasonable conduct. Bad faith is a high threshold. It 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: see: Scipione v Scipione, 2015 ONSC 5982, at para. 96.

[12] In this case, I agree with the father’s counsel that the mother’s unreasonable conduct warrants an elevated costs award, but I do not find her conduct reached the threshold of bad faith to warrant full-recovery costs.

[13] First, the mother was poorly prepared for the motion. She filed voluminous materials which were largely irrelevant to the issues to be decided and poorly organized. She also uploaded a version of her affidavit on Caselines which was different from what she served on the father. However, I must keep in mind that mother was self-represented, and I am not entirely satisfied that her conduct was intended to deliberately mislead counsel and the court or was simply the product of her inability to properly organize herself for these legal proceedings. While I do find the behaviour was disrespectful and certainly complicated the litigation, I am not prepared to find it was maliciously done.

[14] Second, the mother repeatedly delayed a motion that was scheduled for March 21, 2024, after a case conference was held in November 2023. The father agreed to two adjournments, but ultimately, Shelston J ordered the matter to proceed as a peremptory urgent motion on April 11, 2024. During this intervening period, the parties’ child had continued to miss school. These delays increased the cost of litigation. As is evident in the Bill of Costs, counsel was required to respond to copious emails from the mother and to eventually obtain a peremptory order. Counsel argues this is part of a pattern conduct on the mother to wear down the father financially. For example, following my motion decision, the mother brought an urgent motion seeking to re-litigate largely the same issues that were already addressed before me. The request was denied.

Offers to settle

[15] Counsel has not identified any offers to settle that would trigger costs-consequences.

Complexity

[16] The issue on the motion was extremely important as the child had not been attending school for a period of three months while in the mother’s car. As noted at para 26 of my decision, this was not the first time the mother had a history of neglecting the child’s education.

Work performed and rates

[17] The father’s counsel provided a Bill of Costs for preparation and attendance at the motion hearing. The billings are properly restricted to the period of February 26, 2024, to April 11, 2024, when the motion was heard. In part because of the excessive correspondence with the mother, the billings for the motion were unusually high totalling 61 hours. However, counsel has provided a detailed description of the work performed. I find the total hours spent are commensurate with the work that was necessary to communicate with the mother, address the multiple adjournment requests, and prepare for and attend the motion.

[18] Various counsel were involved in the file with experience ranging from 2 to 16 years. The rates charged varied from $165 to $545, the latter for senior counsel who contributed four hours. I found that work was appropriately delegated to junior counsel to minimize costs.

[19] The total cost of the legal fees was $21,918 plus H.S.T. of $2,849 which I find to be reasonable given the number and complexity of issues involved and the time required to advance the matter so that the motion could be heard.

Inability to pay

[20] Finally, I must consider the financial means of the parties, their ability to pay, and the effect of any costs ruling on the parties and children: Fyfe v Jouppien, 2012 ONSC 97, 10 R.F.L. (7th) 371, at para. 11; M.(A.C.) v M (D.) (2003), 67 O.R. (3d) 181 (C.A.), at para. 45.

[21] The mother has not provided any submissions that she is unable to pay a costs award.

[22] The mother would have realized upon reading my decision that there are costs consequences where matters are not resolved and parties proceed to a motion. She would have read in my decision that the father was presumptively entitled to costs and an award was likely pending against her. She proceeded to schedule, nonetheless, another urgent motion.

Conclusion

[23] The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant: Boucher, at para 26.

[24] Having considered the father was the successful party, the mother’s unreasonable conduct, complexity of the motion, the billings and rates, and the mother’s ability to pay, I find that an elevated costs award in the fixed amount of $17,000 is fair and reasonable in this case.

Order

[25] The mother will pay the father costs in the fixed amount of $17,000 within 30 days.

Somji J Date: July 8, 2024