Court File and Parties

Court File No.: FC-21-48
Date: 2025/05/12
Court: Superior Court of Justice – Ontario

Between:
Laurie Ann Huggins, Applicant
– and –
Thomas Edward Hayhurst and Anne-Marie Carswell, Respondents

Appearances:
Graeme B. Fraser, for the Applicant
Michael Rappaport, for the Respondents

Heard: In writing

Endorsement

Costs Endorsement

[1] This is the costs decision arising from a 3-day trial. Part of the trial was uncontested because one of the Respondents, Thomas Hayhurst, refused to comply with several court orders, and as a result, his pleadings were struck. The trial decision was released on March 12, 2025.

[2] The Applicant, Laurie Ann Huggins, served her costs submissions on Mr. Hayhurst on April 11, 2025, as required. The Respondents did not provide any costs submissions despite having been served with Ms. Huggins’ submissions.

[3] Ms. Huggins seeks costs on a full recovery basis in the amount of $109,651.81.

Background

[4] Ms. Huggins and Mr. Hayhurst were in a twelve-year romantic relationship beginning in May 2007 and ending in February 2019. They maintained separate residences, but Ms. Huggins asserted that Mr. Hayhurst was her common law spouse. Ms. Huggins lived in a home owned by Mr. Hayhurst at 51 Barnet Boulevard. Mr. Hayhurst lived in a separate residence not far from 51 Barnet.

[5] At trial, Ms. Huggins asserted that Mr. Hayhurst was unjustly enriched by the domestic work she did for him in the two residences. In addition, she alleged that Mr. Hayhurst was unjustly enriched by the work she did at his business, Hayhurst Sports and Marine, for which she said she received little to no pay.

[6] The second Respondent, Anne-Marie Carswell, married Mr. Hayhurst after Ms. Huggins and Mr. Hayhurst split up on November 2, 2022. Mr. Hayhurst transferred 51 Barnet to Ms. Carswell for $2.00 in the Fall of 2022. Ms. Carswell registered a charge on 51 Barnet for $200,000 in the Fall of 2022.

[7] Prior to trial, Mr. Hayhurst brought a motion for summary judgment seeking dismissal of the Application. Ms. Huggins brought a cross-motion for disclosure of documents relating to Mr. Hayhurst’s income and the value of his business. Ms. Huggins was successful in defeating Mr. Hayhurst’s motion and in obtaining an order for disclosure. Mr. Hayhurst was also ordered to pay Ms. Huggins $15,944.30 in costs. He refused to comply with these orders.

[8] Mr. Hayhurst then unsuccessfully attempted to appeal the orders to the Divisional Court. He was ordered to pay Ms. Huggins $10,000 for his unsuccessful appeal. He did not comply with that order either.

[9] Ms. Huggins brought a motion in October 2023 to strike Mr. Hayhurst’s pleadings for failing to comply with the previous court orders on costs and disclosure. Hooper J. gave Mr. Hayhurst 45 days to comply with the orders failing which his pleadings would be struck. Mr. Hayhurst once again failed to comply with the orders and his pleadings were therefore struck. Mr. Hayhurst did not comply with the costs order on this motion.

[10] On November 14, 2023, Mr. Hayhurst and Ms. Carswell entered 51 Barnet while Ms. Huggins was out. They changed the locks and barred her entry from the home. They attempted to sell the home notwithstanding an order that had been made by Fraser J. not to sell the property at 51 Barnet or to evict Ms. Huggins until the Application was resolved. It took several judicial interventions and the involvement of the police and sheriff to have Mr. Hayhurst and Ms. Carswell removed from 51 Barnet.

[11] Ms. Huggins then amended her Application to add Ms. Carswell as a party and to claim damages done to her property as a result of the Respondents’ occupation of 51 Barnet. She also sought a restraining order against both Respondents, fearing that they would retaliate if she was successful in the matter.

[12] As a result of the striking of Mr. Hayhurst’s pleadings, the trial proceeded on an uncontested basis on all issues except for the following: (1) damages arising from Mr. Hayhurst and Ms. Carswell’s occupation of 51 Barnet from November 2023 to February 2024; (2) the validity of the conveyance of title and the charge on 51 Barnet; and (3) the restraining order.

The March 2025 Decision

[13] In my March 12, 2025 decision, I made the following determinations:

1. Ms. Huggins and Mr. Hayhurst were spouses within the meaning of the Family Law Act.
2. Ms. Huggins is entitled to a lump sum spousal support payment of $15,353.
3. Mr. Hayhurst was unjustly enriched by Ms. Huggins’ services. The appropriate remedy is a payment for services in the amount of $25,820.25.
4. The Charge and Transfer on 51 Barnet were fraudulent conveyances and were therefore declared null and void.
5. Title to 51 Barnet should not vest in Ms. Huggins, but the award of spousal support was secured by a charge on 51 Barnet.
6. The Respondents were ordered to pay Ms. Huggins $38,500 in damages for theft and damage to her personal property.
7. A time-limited restraining order was issued against Mr. Hayhurst.

Costs Being Sought

[14] Ms. Huggins seeks cost in the amount of $109,651.81 on the basis that she was almost entirely successful at trial and is presumptively entitled to her costs. Specifically, she submits as follows:

• Ms. Huggins made an offer to settle on September 11, 2024, which complied with all the requirements in Rule 24(12) of the Family Law Rules. Mr. Hayhurst did not accept the offer. Ms. Huggins obtained a more favourable result at trial than her offer of September 11, 2024.
• The Respondents made no offer to settle.
• The Respondents’ behaviour and that of their counsel during these proceedings has been unreasonable and contemptuous. It has increased the length, complexity, and cost of the proceedings.
• The issues throughout these proceedings and at trial were very important to Ms. Huggins.
• The Bill of Costs for Ms. Huggins’ counsel is well within the expected amount for a matter like this. The costs are reasonable and proportionate.

Analysis

Entitlement to Costs

[15] Rule 24(1) of the Family Law Rules creates a presumption of costs in favour of the successful party, subject to the factors set out in r. 24.
Beaver v. Hill, 2018 ONCA 840, para 10

[16] While a successful party in a family law case is presumptively entitled to costs, an award of costs is subject to the factors listed in r. 24(11), the directions set out under r. 24(7) (unreasonable conduct), r. 24(10) (bad faith), r. 18(14) (offers to settle), and the reasonableness of the costs sought by the successful party.
M. (A.C.) v. M. (D.), paras 40–43; Berta v. Berta, 2015 ONCA 918, para 94

[17] I find that Ms. Huggins’ conduct in these proceedings was neither unreasonable nor done in bad faith. She made efforts to resolve the matter without litigation and when that failed, she brought the Application in good faith. She offered to settle the litigation but was met with silence. She was forced to incur costs that were well beyond what would normally be incurred for this kind of litigation because of the Respondents’ disrespectful behaviour.

[18] While it is true that Ms. Huggins did not obtain the remedy she sought—an order vesting title in 51 Barnet in her name—she was successful in establishing unjust enrichment. I disagreed with Ms. Huggins that a constructive trust over 51 Barnet was the appropriate remedy, but I did provide Ms. Huggins with monetary compensation and compensatory spousal support as redress for the unjust enrichment. In addition, she was successful in establishing entitlement to compensation for damage to and theft of her personal property. I also ordered a time-limited restraining order against Mr. Hayhurst. As such, Ms. Huggins was the successful party in this litigation.

[19] Ms. Huggins is therefore entitled to her costs.

Quantum of Costs

[20] Subject to the provisions of an Act or the rules of court, costs are in the discretion of the court.
Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131
As has often been said, 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 that cases are dealt with justly under Rule 2(2) of the Family Law Rules.

[21] The touchstone considerations of costs awards are proportionality and reasonableness.
Boucher v. Public Accountants Council (Ontario), paras 28-29, 37
In Boucher v. Public Accountants Council (Ontario), the court held that costs must be fair and reasonable, and consistent with the reasonable expectations of the parties.

[22] Rule 24(11) prescribes the factors which the court should consider in deciding the appropriate quantum of costs.

[23] In considering the quantum of costs, the court should also consider Rule 1(8), which provides that the court may respond to a failure to follow the Rules or abide by an order by making an order for costs, and Rule 2(2), which provides that one of the primary objectives of the Family Law Rules is to ensure that cases are dealt with justly.
Beaver v. Hill, 2018 ONCA 840, para 43

[24] Rule 24(8) authorizes the court to grant “costs on a full recovery basis,” to be paid immediately where a party has acted in bad faith.

Section 24 Factors

Bad Faith and Unreasonable Behaviour

[25] In Chomos v. Hamilton, 2016 ONSC 6232, Justice Pazaratz provided the following useful review of the case law regarding “bad faith” in the assessment of costs:

• 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.); Piskor v. Piskor; and Cozzi v. Smith, 2015 ONSC 3626.
• 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.(K.J.), 2009 ONCJ 252; Biddle v. Biddle; Leonardo v. Meloche; and Hendry v. Martins, [2001] O.J. No. 1098 (ON SC).
• 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, para 9.
• In S.(C.) v. S.(C.), Perkins J. defined bad faith as follows:

In order to come within the meaning of bad faith in sub rule 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.

[26] I find that this is one of those rare cases where the evidence establishes that the Respondents acted in bad faith throughout the proceedings. The basis for this conclusion is as follows:

(i) Mr. Hayhurst was ordered several times to produce financial information. He refused to comply with the orders because he believed he was not Ms. Huggins’ common law spouse and that he owed her nothing. However, once Ms. Huggins commenced litigation on this issue, he was required to comply with the requirements set out in the Family Law Act. He refused to do so.

(ii) When Mr. Hayhurst was unsuccessful in his motion and his appeal to Divisional Court he was ordered to pay costs. He refused to do so. His conduct demonstrates disrespect for court orders.

(iii) In spite of an order from Justice Fraser prohibiting him from selling 51 Barnet or otherwise encumbering it, he fraudulently conveyed the property to Ms. Carswell and she placed a charge on that property. Ms. Carswell admitted that these actions were taken with the express purpose of putting the property beyond Ms. Huggins’ reach in this litigation. Once again, the Respondents demonstrated their deliberate disregard for court orders.

(iv) Mr. Hayhurst stopped making mortgage payments on 51 Barnet so that the bank would take possession of it and Ms. Huggins would be required to vacate the property.

(v) Ms. Huggins was then required to engage the services of another lawyer to assist her in assuming the mortgage on 51 Barnet so that she could remain in her home.

(vi) The Respondents then broke into Ms. Huggins’ home at 51 Barnet and stayed there until they were forced out by the sheriff’s enforcement of a writ of possession. The legal action, including two urgent motions, that had to be taken to enable her to return home increased Ms. Huggins’ legal expenses. I find that the Respondents’ behaviour was clearly intended to intimidate and upset her.

(vii) While occupying Ms. Huggins’ home, the Respondents damaged and stole her property, forcing her to amend her Application to include a request for damages and to add Ms. Carswell as a party.

(viii) The Respondents appeared at Ms. Huggins’ workplace and threatened her. They also engaged in intimidating behaviour at her home. It was clear that they were trying to get Ms. Huggins to stop her legal action.

[27] Accordingly, I find that the Respondents’ conduct in this case demonstrated malice and intent to harm.
Harrison v. Harrison, 2015 ONSC 2002, para 9

Offer to Settle

[28] In spite of the Respondents’ intimidating behaviour, Ms. Huggins remained reasonable in her approach to this litigation. She served an offer on the Respondents that would have ended the litigation if they had agreed to transfer ownership of 51 Barnet to her in exchange for a $50,000 payment from her. It is difficult to assess the value of this offer since there was no evidence about the value of 51 Barnet. However, had the Respondents accepted the offer by September 16, 2024, they would have avoided the costs of this litigation, which is significantly better than what they will achieve once the present order for costs is issued.

The Appropriateness and Reasonableness of the Amounts Claimed

[29] I have reviewed Ms. Huggins’ Bill of Costs carefully. I have verified counsel’s submissions that he has only submitted a Bill of Costs for those parts of the proceedings which were not subject to a previous order for costs. However, there are other aspects of the Bill of Costs with which I take issue. For example, on at least three occasions, counsel for Ms. Huggins has included travel time in his Bill of Costs, although it is unclear from the Bill how much travel time was involved. In Beaver v. Hill, 2018 ONCA 840, para 14, the Court of Appeal disapproved of including travel expenses in the Bill of Costs. In addition, while the hourly rate charged by counsel for Ms. Huggins was fair in light of his extensive family law background, there were some tasks that he performed, such as legal research and uploading documents to Case Center and the family portal, which should have been performed by a lower-rate fee earner.

[30] In addition, I am not inclined to include the costs for preparing for and attending the two settlement conferences because I see no evidence that the judge presiding over those conferences found that there were exceptional circumstances justifying the awarding of costs. Rule 17(18) of the Family Law Rules stipulates that costs are not awarded at a conference unless a party was not prepared, did not serve the required documents, or otherwise contributed to an unproductive conference. In this case, Ms. Huggins’ counsel has not drawn my attention to any behaviour on the part of the Respondents that contributed to unproductive settlement conferences. They may not have resulted in a settlement of the matter, but that does not necessarily mean they were unproductive.

[31] Therefore, I am reducing the Bill of Costs to $89,651.81 to take into account the above-noted considerations.

Proportionality and Reasonableness

[32] When assessing the reasonableness of the amount requested, it is useful to have the losing party’s Bill of Costs because it can provide an indication of what their reasonable expectations for costs might have been. However, I have no evidence of the Respondents’ legal costs because their counsel did not submit a Bill of Costs or costs submissions.

[33] While $89,651.81 may seem like a lot for a three-day trial in which many of the issues were uncontested, that amount also includes the cost to prepare for and argue several motions to have the Respondents removed from Ms. Huggins’ home, additional work with another lawyer to have the mortgage for 51 Barnet transferred to her name and the amendment of pleadings to include the claim for damages. In my view, it could reasonably be expected that the Respondents’ conduct in this case would likely result in cost consequences of at least $89,651.81.

[34] This was an important case for Ms. Huggins. She believed that she was Mr. Hayhurst’s common law spouse and that she was entitled to compensation for the unpaid domestic labour she performed and the work she did for him at his marina. The Respondents bullied her in the hopes that they could convince her to give up the litigation. Ms. Huggins refused to do so, and she ultimately prevailed in the Application. The Respondents’ bad faith efforts to intimidate Ms. Huggins and their disrespect for court orders significantly increased the complexity and cost of litigation. They are to blame for that and must accept the consequences.

[35] Therefore, I find that full recovery costs in the amount of $89,651.81 are reasonable and proportionate in the present case. The Respondents are ordered to pay Ms. Huggins immediately.

Justice K.A. Jensen
Date: May 12, 2025