COURT FILE NO.: FS-22-00045214-0000 DATE: 2024 10 07
ONTARIO SUPERIOR COURT OF JUSTICE
B ET W EE N:
IGOR KARPOV Applicant
- and -
ROZA VASILYEVA Respondent
BEFORE: Lemay J.
COUNSEL: Lyna Perelman, for the Applicant (Agent) Josh Cohen, for the Respondent
HEARD: In Writing
Reasons for Judgment
1This has been contentious family law litigation. The litigation commenced after the Respondent absconded with the child of the marriage and came to Canada. The Applicant followed her and obtained an Order from Doi J. directing that the child of the marriage live exclusively with the Applicant and that the Respondent would have supervised access only. These orders were made in 2022, and Doi J. permitted a motion to vary his determinations to be brought eight months after he had made them.
2In early 2024, more than eighteen months after Doi J.’s Order, the Respondent brought a motion to vary the supervised access provisions. She sought unsupervised overnight access. In reasons released in May of this year, I dismissed that request (2024 ONSC 2545). However, I granted the Respondent’s request to have the Office of the Children’s Lawyer (“OCL”) appointed.
3It is now time to fix the costs for the motion before me.
Positions of the Parties
4The Applicant seeks costs on a full recovery basis in the sum of $14,644.80, inclusive of HST and disbursements. He seeks those costs on the basis that he was entirely successful at the hearing of the motion and that he is “presumptively entitled to costs on a full recovery basis pursuant to Rule 24(1) of the Family Law Rules.” The Applicant also seeks costs on a full indemnity basis on the basis of bad faith conduct on the part of the Respondent. Finally, the Applicant notes that the issues were of great substantive significance and complexity.
5The Respondent asserts that there was mixed success on the hearing of the motion, in that I ordered that the OCL become involved in this case and that this was not relief that the Applicant had consented to. She also argues that the Applicant engaged in unreasonable conduct prior to the motion being heard.
Issues
6These submissions identify three issues that I need to resolve in order to dispose of the costs issues:
a) Is the Applicant presumptively entitled to full indemnity costs because he has been entirely successful?
b) Did either party engage in any bad faith conduct, or other conduct that might affect the costs award?
c) What was the level of complexity of the motion?
7I will deal with each issue in turn. Before beginning, however, I should note that neither counsel referred me to any case-law.
Issue #1 - The Scale of Costs
8As noted above, the Applicant argues that, since he was successful in all issues, he is presumptively entitled to full indemnity costs. I reject this argument for two reasons.
9First, in Serra v. Serra, the Court of Appeal identified the goals of modern costs awards as follows:
a) To partially indemnify successful litigants for the costs of litigation;
b) To encourage settlement; and,
c) To discourage and sanction inappropriate conduct by litigants.
10In Beaver v. Hill, 2018 ONCA 840, the Court stated that the touchstone considerations in assessing costs are proportionality and reasonableness. The Court of Appeal goes on to note (at para. 13):
[13] Further, a "close to full recovery" approach is inconsistent with the fact that the Family Law Rules expressly contemplate full recovery in specific circumstances, e.g., bad faith under rule 24(8), or besting an offer to settle under rule 18(14). Consequently, the motion judge erred in principle in adopting a "close to full recovery" approach in fixing the costs of these motions. I would note that such a result also appears inconsistent with her determination that full recovery costs were not appropriate in this case.
11In other words, adopting the Applicant’s submission that his success alone would justify full indemnity costs would be a legal error. I reject this argument.
12Second, in any event the Applicant was not entirely successful in the hearing of the motion. Specifically, he was not entirely successful on the second issue of the involvement of the OCL and the possible appointment of a section 30 assessor. The Applicant says that the OCL was appointed on consent. The Respondent disagrees with this position. My recollection is that I had to rule on the issue, which I did.
13In addition, however, the Applicant was not entirely successful in that I did leave the possibility of seeking a section 30 assessment open if the OCL was not prepared to become involved in this case. I was also, in some respects, critical of the Applicant’s conduct. While the Applicant was successful on most issues, he was not entirely successful on the motion.
14I also note that the Applicant did not direct my attention to an Offer to Settle in this case. Therefore, the only basis on which the Applicant could possibly be entitled to costs on a full indemnity basis is if he can demonstrate bad faith on the part of the Respondent.
Issue #2 - Did Either Party Engage in Bad Faith Conduct?
15Bad faith is a very high standard to meet. It requires the conscious doing of a wrong because of dishonest purpose or moral obliquity. Jackson v. Mayerle 2016 ONSC 1556. I do not see any conduct that would amount to bad faith on the part of either party in this case. However, I do see conduct on the part of both parties that troubles me, and that does justify some adjustments to the costs in this case.
16As I noted at paragraph 19 of my reasons on the merits, the parties will argue over almost anything. They have also each engaged in conduct that concerns me. In particular, each side decided not to provide me with all of the parenting notes. Each side only provided me with the notes that were helpful to their positions.
17This was consistent with the overall concerns I had with this case. I did not change the supervised access because I was concerned about the Respondent’s inability to put the needs of the child first. However, I provided some adjustments to the video access, as I was concerned that the Applicant might be alienating the child of the marriage from the Respondent.
18In short, neither party’s conduct has been exemplary, and I have been critical of both of them. It is not conduct that triggers an award of costs on the basis of bad faith. However, it is conduct that justifies a reduced award of costs to the more successful party.
Issue #3 - The Level of Complexity of the Motion
19Counsel for the Applicant argues that the issues were of great substantive significance and complexity. While the issues were significant, I do not view them as being particularly complex. First, as I noted in my reasons (at paragraph 35), neither party provided me with any case-law. In my view, this was a relatively straightforward factual dispute that simply required the production of a factual summary and the supervised access centre’s notes.
20As a result, I am of the view that this was a relatively straightforward matter, and that the costs should be correspondingly modest.
Conclusion
21There are a couple of other points that should be addressed before I fix the actual number for costs. First, there is the Respondent’s argument that she is unable to pay costs. While I reduced some of the costs associated with the supervised access that she had to pay, I also noted (at paragraph 55 of my reasons) that the Applicant’s “bald allegations” in respect of her financial circumstances were of limited assistance to me in resolving this matter. The same applies to the costs award. I have limited information on the Respondent’s financial circumstances and am not prepared to adjust the quantum of the costs award on this basis. All I am prepared to do is to provide the Respondent with modestly more time to pay the costs award.
22Second, the Respondent raises concerns that the Applicant’s costs bill is inflated. I share those concerns, as I am of the view that this was a relatively straightforward motion. In particular, I note that it took 16 hours, which is two full days of time, to draft the Applicant’s Affidavit in this case. It was a relatively straightforward chronological Affidavit. I am of the view that the time should be reduced. In this respect, I note that the bill of costs from the Respondent’s counsel was approximately half of what the Applicant’s counsel spent.
23In this respect, the Applicant argues that the time that was spent was necessary in part because the Respondent served a long motion and that this matter was thereby made procedurally more complex. I disagree. The confusion over the procedure in this case would have been easily remedied with very little time spent.
24When I take all of these factors into account- the fact that success did not entirely favour either party, the straightforward nature of the motion and the conduct of the parties- I conclude that the Respondent shall pay costs to the Applicant in the sum of $1,500.00 inclusive of HST and disbursements. So ordered.
25Given the Order of Mills J. that provided the Respondent with more time to pay the outstanding costs awards from previous motions, I will provide the Respondent with six (6) months to pay the costs that I have awarded.
LEMAY J. Released: October 7, 2024