Costs Endorsement
Court File No.: FC237/20-01
Date: February 27, 2025
Superior Court of Justice – Ontario
Family Court
Re: Monica Cecilia Izquierdo Rubio, Applicant
And: Martin Berendson Leigh, Respondent
Before: Victor Mitrow
Counsel:
- Debora Brubacher, for the Applicant
- Martin Berendson Leigh, self-represented
- Deborah L. Stewart, for the Office of the Children’s Lawyer
Heard: Pursuant to written submissions filed
Introduction
[1] Pursuant to the final order dated November 20, 2024 made at trial, the parties and OCL were given until January 6, 2025 to serve and file their written costs submissions.
[2] The court received written costs submissions only from the applicant, who seeks a costs order against the respondent in the amount of $209,834.78, inclusive of HST; of this amount, the fees component is just under $185,700 and the balance is HST.
[3] The reasons for judgment [Rubio v. Leigh, 2024 ONSC 6215] in this high-conflict case were rendered following a seven-week trial. The most substantive issue was the parenting order regarding the parties’ son, age 11 at the time of trial.
[4] The discussion below takes into account the very recent amendments to the Family Law Rules in relation to costs. [O. Reg. 10/25] After the amendments, the Family Law Rules in relation to costs remain similar to the costs provisions prior to the amendments. Where a regulation is amended, proceedings commenced under a former regulation shall be continued under the amended regulation in conformity with the amended regulation as much as possible; and the procedure established by the amended regulation shall be followed with necessary modifications in proceedings in relation to matters that happened before the amendment. [Legislation Act, 2006, SO 2006, c 21, Sched. F]
[5] For reasons that follow, the respondent is ordered to pay costs to the applicant in the amount of $100,000, inclusive of HST.
The Successful Party
[6] The applicant achieved significant success at trial: she was awarded sole decision-making responsibility for the child; the respondent was given no parenting time with the child except subject to a very controlled process at the request of the applicant or the child, as specified in the final order; the applicant’s requests for a restraining order and an order pursuant to s. 140 of the Courts of Justice Act (vexatious litigant) against the respondent were granted; at the request of the applicant, the respondent was subjected to stringent prohibitions in the parenting order preventing the respondent from using social media to publicize the court case, the applicant, the child, the applicant’s partner, and other members of the maternal family; and the applicant was awarded child support over the objections of the respondent based on income being imputed to the respondent.
[7] Pursuant to r. 24(3) of the Family Law Rules, I find that the applicant is the successful party and that there is a presumption that she is entitled to the costs of the application.
Factors to Be Considered in Dealing with Costs
[8] Rule 24(14) sets out the factors that a court may consider in setting the amount of costs:
(14) In setting the amount of costs in relation to a step in a case, the court may consider,
(a) the reasonableness and proportionality of the following factors, as applicable, as they relate to the importance and complexity of the issues in the step:
(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 conditions set out in subrule (12) or 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.
[9] The reasons for judgment were critical of the respondent’s behaviour and conduct. The applicant submits that the respondent’s behaviour was unreasonable. She refers to the findings made by the court.
[10] The reasons for judgment chronicle many examples of the respondent’s unreasonable behaviour and need not be repeated in detail. Examples of the respondent’s unreasonable behaviour include:
a. The respondent failed to comply with the order for disclosure of documents that the respondent intended to use at trial;
b. The respondent throughout the trial attempted to refer to documents not properly disclosed, causing delay;
c. The respondent’s attempts to introduce documentary evidence were chaotic and caused delays during the trial;
d. The respondent manipulated Case Center by loading documents into Case Center by the thousands without first serving and filing those documents and without waiting for approval from the court that those documents had been accepted as being served and filed with the court;
e. A finding was made that there were occasions when the respondent lied brazenly to the court while in the witness stand (reasons, para. 70);
f. The respondent withheld from the applicant and the OCL, until the beginning of the trial, some information and concerns that he had regarding the translator used by the applicant to translate numerous documents from Spanish to English for use at trial. The respondent had these concerns and information many months prior to the trial starting; and he had been in possession during that time, and in some instances longer, of the translated documents that the applicant wished to rely on. The respondent’s ill-advised strategy not to disclose his concerns and information until trial was designed to surprise the applicant and the OCL in the hope that the applicant would be prevented from using the translated documents as exhibits at trial. The respondent’s alleged concerns about the translator’s qualifications were held to be unfounded after a voir dire, following which the respondent continued, throughout the course of the trial, to complain about the translator’s qualifications and to question the accuracy of the translations;
g. The respondent breached an interim order made by this court prohibiting him from publicizing this case on social media;
h. The respondent had conducted a social media campaign in Peru against the applicant and other members of the maternal family, including making various baseless allegations against the applicant that resulted in a televised broadcast on the national level in Peru, causing the applicant significant embarrassment and emotional distress, including affecting her ability to work as a lawyer in Peru;
i. The respondent targeted the applicant’s oldest three children, now adults (these adult children are the subject child’s half-siblings) with psychologically abusive treatment, including social media postings that significantly affected the adult children and their psychological wellbeing, including resulting in one of the adult children attempting suicide;
j. The extent of the respondent’s family violence perpetrated in Peru is summarized in para. 393 of the reasons for judgment:
[393] The family violence perpetrated by Mr. Berendson in Peru includes harassment, intimidation through social media, physical abuse, death threat directed at Ms. Izquierdo, and family violence directed at Ms. Izquierdo’s now adult children. Mr. Berendson’s campaign of family violence was predatory and it was serial, sustained and prolonged. His behaviour was contumelious. Mr. Berendson weaponized his use of social media to target, threaten, intimidate and harass his intended victims. It is not hyperbole to say that Mr. Berendson destroyed Ms. Izquierdo’s life as she knew it. His physical abuse included breaking Ms. Izquierdo’s finger causing a permanent injury. Mr. Berendson demeaned Ms. Izquierdo by his behaviour. He subjected her to foul language and insults including in the presence of the child and others. Ensuring needless frequent police attendances at her residence, and arranging for local and national news coverage targeting Ms. Izquierdo and her family with baseless allegations, were other methods employed by Mr. Berendson as tools of intimidation and harassment. Much of Mr. Berendson’s behaviour constitutes psychological abuse[;]
k. In Canada, the respondent’s behaviour included the following: the respondent used social media to target the applicant’s service providers; this included targeting the applicant’s trial counsel and another lawyer by perpetrating baseless immigration fraud allegations against them; the respondent used social media to target the child’s school and school principal; the respondent subjected the applicant to needless police welfare checks, which scared the child;
l. The respondent forwarded an email with very concerning content to the Court of Appeal for Ontario. The email included death themes and was suggestive of suicidal ideation. This email prompted communication from the Regional Senior Justice’s Office to counsel for the parties, and resulted in the applicant, her partner and the child staying in a hotel for a number of days, with the child missing school, as part of a safety plan;
m. During the course of the trial, the respondent sent emails to OCL counsel and the OCL’s witness, to scare, threaten, harass, or intimidate OCL counsel and the OCL witness (see reasons for judgment, paras. 199–212);
n. The respondent insisted during the trial that parenting issues were properly within the jurisdiction of the courts in Peru, despite the fact that the Court of Appeal for Ontario, in dismissing the respondent’s appeal from the dismissal of his Hague Convention application, stated that the parenting issues were to be determined in Ontario;
o. The respondent engaged in inappropriate conduct and behaviour throughout the trial that caused unnecessary delays;
p. The respondent’s perpetration of family violence had negative effects on the child, including the child’s observations of how his mother and half-siblings were suffering from the respondent’s conduct; and
q. In relation to the child support issues, the respondent failed to make the requisite full and complete financial disclosure as to his income while in Peru, telling the court that he could not remember his income, said explanation being rejected by the court. The respondent also failed to disclose and value the real estate assets registered in his name in Peru.
[11] The applicant submits also that the respondent has acted in bad faith. That issue is dealt with separately in these reasons.
[12] I do consider the applicant’s behaviour as it relates to her fleeing with the child to Canada, while parenting proceedings were ongoing in Peru, and in contravention of a Peruvian court order.
[13] The reasons for judgment stated the following at paras. 421 and 422:
[421] It is trite law that self-help remedies are not in a child’s best interests and are not to be condoned. Mr. Berendson’s position focuses on Mr. Izquierdo as being a child abductor fleeing with the child to Canada; however, his analysis stops there.
[422] It is beyond the scope of the evidentiary record in this trial for this court to delve into an analysis as to whether Ms. Izquierdo was justified in her belief that the Peruvian courts could not adequately protect her safety and that of the child. This trial is about the parenting order to be made in Ontario. In assessing Ms. Izquierdo’s conduct, context is important. The context in this case is that Ms. Izquierdo was a victim of systemic and prolonged family violence perpetrated by Mr. Berendson.
[14] In considering the applicant’s conduct in determining costs, I consider the context as described above, and also that the respondent’s Hague Convention application was dismissed, as was his appeal from that decision. I take into account also that the applicant’s claim as a Convention refugee was accepted by the Immigration and Refugee Board of Canada (reasons for judgment, para. 14).
[15] The hourly rates for the applicant’s counsel started at $280 and increased to $305. I find those hourly rates to be reasonable.
[16] The issue that surfaces is the time spent. The time docketed by the applicant’s counsel totals a little over 627 hours. It is noted in the reasons for judgment that the length of the trial was significantly longer than estimated; that both parties spent too long in the witness stand; and that limitations had to be placed by the court on the length of each party’s evidence and the time spent by each party in cross-examining others.
[17] While I take into account that substantial portions of the evidence required interpreters and that the applicant is not responsible for the respondent’s conduct that unnecessarily increased the length of the trial, the fact remains that the applicant did contribute to the unnecessary length of the trial.
[18] It is questionable whether the large volume of documentary evidence tendered by the applicant, and the extent of the applicant’s testimony as to events in Peru, exceeded what was necessary. While the facts relating to the issue of family violence that occurred in Peru were germane and important in relation to the parenting issues, I do find that the extent of the applicant’s documentary evidence and the extent of the applicant’s testimony as to events that transpired in Peru, overall, were disproportionate as to what was reasonably required.
[19] I find that the time spent on this case on behalf of the applicant was excessive.
[20] Regarding the balance of the factors, in r. 24(14)(a), that a court may consider, there were no offers to settle, and factors (v) and (vi) dealing, respectively, with expert witnesses and other expenses, are not applicable.
[21] In considering importance and complexity, the issues were important, and this case presented some complexity considering in particular the complicated factual background, including the litigation history in Peru and Ontario.
Bad Faith
[22] In her submissions, the applicant states that she believes that the respondent “acted with a degree of bad faith.” The applicant’s written submissions, at paras. 5 and 6, rely on the following as evidence of bad-faith conduct:
a. The applicant refers to examples “such as lying during trial and lies confirmed via trial evidence”;
b. In support of the foregoing, the applicant refers to the issue of the respondent’s evidence under oath given at a hearing in Peru in 2022, where the respondent stated he did not know the whereabouts of the child and applicant since 2019. The applicant submits that the respondent’s “lie” was exposed during the current trial, because prior to the Peruvian hearing in 2022, the respondent was aware of the whereabouts of the applicant and child, having participated with the applicant in two Hague Convention applications in London, Ontario, and an appeal to the Court of Appeal for Ontario. This matter is dealt with in the reasons for judgment (paras. 73–76);
c. The applicant refers to the respondent failing to disclose his concerns about the translator used by the applicant to translate documents from Spanish to English;
d. The applicant submits that the respondent “sat on this issue for five months” and did not provide notice of same to counsel prior to trial; the applicant characterized this behaviour as being in bad faith as the respondent “intended to conduct a trial by ambush”; and
e. The applicant refers to the respondent’s failure to obey the order requiring service of documents to be used at trial, and the respondent’s attempts during the trial to rely on documents that he had failed to serve and file as ordered.
[23] Bad faith is dealt with in r. 24(10):
(10) 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.
[24] The applicant cites no authorities in relation to her submissions that the respondent acted in bad faith.
[25] There is ample jurisprudence as to the nature of the conduct that is required to meet the bad-faith threshold.
[26] The leading and frequently-cited authority is the decision of Perkins J. in S.(C.) v. S.(M.), where the court addressed the requisites of bad faith conduct at paras. 16 and 17:
[16] The mother in her costs submissions claimed 14 separate heads of “bad faith” on the part of the father in this case. “Bad faith” has been explained as “not simply bad judgment or negligence but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity . . . it contemplates a state of mind affirmatively operating with furtive design or ill will.” See Biddle v. Biddle, at para. [14]. The definition of “bad faith” in The Concise Oxford Dictionary of Current English (5th ed., 1964, ed. by H.W. Fowler and F.G. Fowler) is simply “intent to deceive”. The essence of bad faith is the representation that one’s actions are directed toward a particular goal while one’s secret, actual goal is something else, something that is harmful to other persons affected or at least something they would not willingly have supported or tolerated if they had known. However, not all bad faith involves an intent to deceive. It is rare, but not unknown in family law cases, for bad faith to be overt — an action carried out with an intent to inflict harm on another party or a person affected by the case without an attempt to conceal the intent.
[17] 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.
[27] This case notes that “bad faith” is more than bad judgment or negligence. The behaviour must be carried out with intent to inflict financial or emotional harm, to conceal information or to deceive the other party or the court. The court emphasized the necessity to demonstrate proof of intent to inflict harm, to conceal relevant information, or to deceive, without which the conduct will not meet the threshold for bad faith.
[28] In Jackson v. Mayerle, 2016 ONSC 1566, Pazaratz J. provided a helpful review of the jurisprudence as to bad-faith conduct, including S.(C.) v. S.(M.), supra: see paras. 56–63; full costs indemnity can be awarded only for a piece of the litigation where bad faith is demonstrated (para. 59). The court found in Jackson that the respondent’s conduct in manipulating and also falsifying evidence was bad-faith behaviour.
[29] In a more recent case, in Grujicic and Grujicic v. Trovao, 2023 ONSC 1518, Madsen J. (as she then was) provided a helpful summary of the law relating to bad-faith conduct at para. 23:
The meaning of bad faith has been explored and developed in a number of important decisions drawing on an extensive body of caselaw: see e.g., S.(C.) v. S.(M.) (2007), 38 R.F.L. (6th) 315; Scipione v. Del Sordo, 2015 ONSC 5982, 68 R.F.L. (7th) 66; Jackson v. Mayerle, 2016 ONSC 1556. Several principles have been articulated, including the following:
a. Bad faith requires a “fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made”: Jackson, at para. 56; Scipione, at para. 99.
b. 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: see Scipione, at para. 96.
c. 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.
d. To establish bad faith the court must find some element of malice or intent to harm: see Harrison v. Harrison, 2015 ONSC 2002, at para. 9.
e. In order to constitute bad faith, behaviour must be “shown to be carried out with the 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”: S.(C.) v. S.(M.), at para. 17. See also Harrison, at para. 8.
f. Even where the "full recovery" provisions of the Rules are triggered such as by a finding of bad faith, quantification of costs still requires an overall sense of reasonableness and fairness: see Goryn v. Neisner, 2015 ONCJ 318, at paras. 42-47.
[30] In assessing whether the respondent has engaged in bad-faith conduct, I consider that issue with respect to the bad-faith conduct as identified in the applicant’s submissions.
[31] I concur with the applicant that the respondent engaged in bad-faith conduct when he falsified evidence regarding his alleged lack of knowledge as to the whereabouts of the applicant and the child; however, that matter occupied only a minimal portion of the trial.
[32] The balance of the applicant’s submissions as to bad-faith behaviour relates to the respondent’s failure to disclose his concerns, prior to trial, regarding the applicant’s translator, and the respondent’s failure to comply with an order to serve and file documents that he intended to rely on at trial. I find that those examples lack the requisite intent that must be proven to meet the bad-faith threshold.
[33] Those matters are more reflective of bad judgment or negligence, and those matters have been included in summarizing the respondent’s unreasonable behaviour.
[34] It is important to note, as stated in Hatcher v. Hatcher, 2009 CarswellOnt. 130 (Ont. S.C.J.) at para. 54, “… that all bad-faith conduct is unreasonable, but not all unreasonable conduct reflects bad faith.”
Decision
[35] The applicant’s claim for costs is based on a full recovery basis—it is comprised of all the time docketed by the applicant’s counsel, at the applicable hourly rates, plus HST.
[36] The court must quantify costs in a summary manner: r. 24(1). In doing so, the court may consider the applicable factors listed in r. 24(14)(a) through the lens of “reasonableness and proportionality”.
[37] In relation to reasonableness, the Court of Appeal for Ontario in Davies v. Clarington (Municipality), 2009 ONCA 722, in discussing the principle of reasonableness, stated that, rather than engaging in a purely mathematical exercise, that the costs award should reflect what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful party: para. 52.
[38] In considering proportionality, I do find that the issues in this case required considerable time involvement by the applicant’s counsel. However, I consider that the applicant has some responsibility for the unnecessary length of the trial, and as discussed earlier, I consider also that the time spent was excessive.
[39] The costs order, below, includes a full recovery component for the minimal portion of the trial that relates to the bad-faith conduct.
[40] In setting the amount of costs, r. 24(14)(b) allows the court to consider any other relevant matter. This can include the financial means of the party who is required to pay costs.
[41] The following principles regarding the financial means of a party to pay costs were summarized in Grujicic and Grujicic v. Trovao, 2023 ONSC 1518, at paras. 27–31:
Ability to pay is a relevant consideration under r. 24(12). The financial situation of the parties can be taken into account in setting the amount of costs: see MacDonald v. Magel, at para. 42. Ability to pay goes not to liability for costs but to quantum: see L.C.M. v. C.A.V., at para. 6.
However, “inability to pay costs, or impecuniosity, is not a shield from liability; it cannot be used to excuse a party’s litigation conduct”: Vantriet v. Ogutu, 2020 ONSC 50, at para. 22. Ability to pay alone cannot and should not override other factors in r. 24(12): see Peers v. Poupore, 2008 ONCJ 615, at para. 42.
Ability to pay is less of a mitigating factor when the impecunious party has acted unreasonably or where their claim was illogical or without merit: see Gobin v. Gobin, 2009 ONCJ 278; D.D. and F.D. v. H.G., 2020 ONSC 1919.
Although not specified in r. 24(11) as factors in determining costs, the financial means of the parties, the ability to pay a costs order and the effect of any costs ruling on the parties and the children of the family are also relevant considerations in reaching a determination on the issue of costs: see Fyfe v. Jouppien, 2012 ONSC 97, at para. 11.
Impecuniosity does not grant a litigant the right to unrestricted access to the courts. Such access has to be exercised responsibly and reasonably: see G.S.W. v. C.S., 2018 ONCJ 378.
[42] In the present case, in the absence of any costs submissions from the respondent, I consider the trial evidence that included findings that the respondent withheld from the court what his earnings were while living in Peru, and that the respondent failed to provide financial disclosure as to the value of his real estate assets registered in his name in Peru.
[43] At trial, income was imputed to the respondent at full-time minimum wage. However, given the respondent’s failure to make full financial disclosure and considering the respondent’s significant unreasonable behaviour, this is not a proper case to reduce costs that the respondent should otherwise pay on the basis of any alleged impecuniosity.
[44] I find, considering the foregoing discussion, including the principles of reasonableness and proportionality, that the respondent should pay costs fixed in the amount of $100,000, inclusive of HST.
[45] I assess that the support issue comprised approximately 10 percent of the time relating to this case and, accordingly, the sum of $10,000 should be enforceable by the Director.
Order
[46] I make the following final order:
The respondent shall pay to the applicant, forthwith, costs of the application fixed in the amount of $100,000, inclusive of HST.
In relation to the aforesaid costs order, the sum of $10,000 shall constitute a support order within the meaning of clause (g), in the definition of “support order” in s. 1(1) of the Family Responsibility and Support Arrears Enforcement Act, 1996, and the said amount of $10,000 shall be enforceable by the Director.
Victor Mitrow
Date: February 27, 2025
Endnotes
[1] Rubio v. Leigh, 2024 ONSC 6215 (Ont. S.C.J.)
[2] O. Reg. 10/25, in effect January 22, 2025
[3] Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, ss. 52(3)–(4)
[4] The new r. 24(10) dealing with bad faith is the same as the former r. 24(8).