Ontario Superior Court of Justice
Court File No.: FS-22-00000012-0001
Date: 2025-04-14
Parties
Between:
Trina Joy Thornhill (Self-represented), Applicant
-and-
Devon Williams (S. Majic, Agent Counsel for the Respondent), Respondent
Costs Decision on Uncontested Trial
McGee J.
Subject Matter of a Costs Decision
[1] Rule 24 of the Family Law Rules (“the Rules”) provides that costs shall be decided promptly after dealing with a case, in a summary matter. In my February 10, 2025 Reasons for Decision on Uncontested Trial I determined that Mr. Williams was entitled to costs and I invited costs submissions as to the amount to be set. Submissions were limited to eight pages exclusive of a Bill of Costs and any Offers to Settle.
[2] On March 7, 2025 I received nine pages of a Costs Submissions in small font and 440 pages of attachments prepared by Ms. Majic, only a portion of which is relevant to a decision on costs. I must disregard the submissions that seek:
a. imputation of income to Mr. Thornhill “for the purpose of establishing her child and section 7 support obligations” and
b. damages of $200,000 for Ms. Thornhill’s “February 22, 2025 abduction, contravention of court orders jeopardizing of “A”’s and the Respondent’s lives and the Respondent’s employment…and her years of intentional infliction of mental suffering, invasion of privacy and punitive damages.”
[3] No award can be made in the absence of a claim. Neither child support, section 7 expenses, nor damages were plead within this Motion to Change. Nor could damages have been plead within a Motion to Change which is statutorily limited to a variation of parenting and support orders: see Zhou v. Yao, 2024 ONSC 821, at para. 4.
[4] Ms. Majic cites McLean v. Danicic, 95 O.R. (3d) 570, 69 R.F.L. (6th) 367, as authority for the court’s jurisdiction to award damages on a claim even if it is not specifically plead if there were sufficient allegations of facts within the Statement of Claim.
[5] A party seeking a substantive Order must at a minimum, plead the basic elements of a recognized cause of action pursuant to which an entitlement to damages is claimed. Moreover, this is not a Trial on a Statement of Claim. This is a costs decision on a Rule 15 Motion to Change.
Amount of Costs Sought
[6] Mr. Williams seeks costs of this Motion to Change in the full recovery amount of $59,704.75 being fees of $41,701.60, disbursements of $3,339.81 (inclusive of a prior legal account for $1,095) and HST thereon. He represented himself at all court attendances, engaging Ms. Majic to assist with document preparation and filing.
Purposes of a Costs Award
[7] 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 that cases are dealt with justly under subrule 2(2) of the Rules. See: Mattina v. Mattina, 2018 ONCA 867.
Rule 24(1) and (9)
[8] Rule 24(1) provides that a court shall make an award of costs in favour of a successful party. Here, Ms. Thornhill has never participated, has attempted to obstruct the proceedings, and in doing so, has put Mr. Williams to additional and unnecessary costs.
[9] Rule 24(9) states that the court shall award costs against an absent party if she was required to appear at a step in the case but did not do so or was not properly prepared to deal with the issues to be determined. Ms. Thornhill only appeared once in the proceeding, she did not provide relevant evidence and she refused to meet with the OCL or permit “A” access to her legal counsel.
Rule 24(10): Finding of Bad Faith
[10] Rule 24(10) requires a court to decide costs on a full recovery basis, and to order the party to pay them immediately if that party has acted in bad faith. As set out in Rolfe v. Boneo, 2023 ONSC 2269, this is a necessary and appropriate sanction to discourage abuse of the court process.
[11] As summarized by Justice Pazaratz in paras 96 to 99 of Scipione v. Del Sordo, 2015 CarswellOnt 14971:
- 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 the Region of Peel v. F. (I.J.), 2009 ONCJ 252; Biddle v. Biddle; Leonardo v. Meloche; Hendry v. Martins, [2001] O.J. No. 1098 (SCJ).
- 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. Stewart v. McKeown, 2012 ONCJ 644; F.D.M. v. K.O.W., 2015 ONCJ 94.
- To establish bad faith the court must find some element of malice or intent to harm. Harrison v. Harrison, 2015 ONSC 2002.
- Rule 24(8) requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made. S.(C.) v. S.(C.) (supra); Piskor v. Piskor; Cozzi v. Smith, 2015 ONSC 3626.
Filing of Organized Pseudolegal Commercial Arguments Creates a Presumption of Bad Faith
[12] Prior to this proceeding, Ms. William refused to advise the Family Responsibility Office of the death of the parties’ older daughter. She continued to receive table child support for two children until the father took the extraordinary step of filing a Certificate of Death with the FRO. Thereafter, Ms. Williams removed “A” from public view after relocating with the father’s consent or court Order, in breach of the terms of the final Order of August 17, 2017.
[13] Mr. Williams tried to obtain information about “A”, to check on her and to spend time with her after her sister’s death. He and his counsel then became the target of numerous multi-million-dollar suits launched by Ms. Thornhill for “Damages for Trespass” because they had attempted to communicate with her without the express consent of her devised alter ego trust.
[14] The attacks escalated as Mr. Williams’s Motion to Change progressed, and the court sought the assistance of the CAS and the OCL. She issued a “Notice of Trespass” to each of the CAS, the attending Family Service Workers and the OCL counsel. During a wellness check, she would not permit child protection authorities to speak to “A”. She told them that “A” was registered in home schooling when she was not.
[15] Throughout, Ms. Thornhill relied on Organized Pseudolegal Commercial Arguments to attack any person or institution who tried to speak with her. She proclaimed that the parties’ surviving daughter had been placed into a Trust, thus rendering her as property that was shielded from the oversight of the CAS, the OCL, the Court and even the local school board.
[16] Under the guise of the Trust Ms. Thornhill declared a penalty of “$50 billion (USD), payable in gold or silver” should anyone try to contact them without the trust’s express consent.
[17] In analogous circumstances in which a party sent inflamed, but somewhat less sensational communications, Justice Sherr wrote in Kumar v. Nash, 2024 ONCJ 16 at paragraphs 24 to 27:
- Malicious attacks of this nature on justice participants without an evidentiary foundation cannot be condoned by the court. They undermine the integrity of and respect for the administration of justice. Serious costs consequences should follow when a litigant chooses this path.
- Practising family law is challenging work for lawyers. Counsel are expected to have thick skins. However, no lawyer should be subjected to the type of attacks the father has made against the mother's counsel in this case. The father has crossed the line — by a wide margin. The court shares Justice Kristjanson's concern, expressed in E.K.B., that allegations such as these may have a chilling effect on lawyers who seek to provide access to justice for vulnerable litigants.
- It is incumbent upon courts to protect counsel in these circumstances and subrule 24(8) provides the court with a mechanism to do so.
[18] The launching of Organized Pseudolegal Commercial Arguments in a parenting dispute is an extreme example of a malicious attack on justice participants that is designed to undermine the integrity of and respect for the administration of justice. In my view, it is a sufficient basis upon which to create a presumption of bad faith as set out in Rule 24(8) of the Family Law Rules.
[19] Ms. Thornhill was invited to participate at multiple stages in this Motion to Change over the course of a full year. Instead, she chose to unduly complicate and lengthen this proceeding by filing elaborate, non-sensical Organized Pseudolegal Commercial Arguments that treated the parties’ surviving daughter as property; issuing and serving claims for damages against Mr. Williams and his counsel, and Notices of Trespass against any person or agency who sought to assist.
[20] I find that Ms. Thornhill has engaged in bad faith and shall pay a full recovery of costs to Mr. Williams.
Setting the Amount of Costs
[21] A full recovery of costs is not a dollar-for-dollar recovery. The Rules do not require the court to allow the successful party to demand a blank cheque for their costs, see Slongo v. Slongo, 2015 ONSC 3327.
[22] The court retains a residual discretion to make costs awards which are proportional, fair, and reasonable in all the circumstances. M.(C.A.) v. M.(D.); Scipione v. Scipione, 2015 ONSC 5982.
[23] Rule 24(14) reads:
(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.
[24] Here, each of the steps taken by Mr. Williams was reasonable and necessary. Ms. Thornhill provided no opportunity for a reasoned discussion or a child-centred resolution. As set out in my January 10, 2025 Reasons for Decision in removing the OCL following on Ms. Thornhill’s warnings to the appointed counsel: children are not property. The Court is rightly required to recognize the autonomy and agency of children when assessing their best interests.
[25] At the same time, I cannot favourably assess all the time claimed by Ms. Majic or her law clerk that is listed within the Bill of Costs. Some of the time within Ms. Majic’s Bill of Costs is excessive when measured against the task at hand and the limited scope of her retainer. For example, 9.1 hours is charged for preparing costs submissions which only partially speak to an award of costs.
[26] Counsel did not appear in court but for one brief occasion in which I required her presence by videoconference. Her attendance was necessary because Mr. Williams could not assist me in untangling the multiple assertions before me or reconciling certain differences between his oral presentation and the content of the written materials.
[27] In reviewing Mr. William’s Bill of Costs, the factors in Rule 24(14) and the fair, reasonable and proportionate range of costs for an Uncontested Trial of this complexity, calculated as unbundled legal services; I set a full recovery of costs in the amount of $39,550 being $35,000 in fees and disbursement, plus HST.
[28] Costs are payable in 30 days.
M. McGee
Released: April 14, 2025
[1] Previously Rule 24(8)