Ontario Superior Court of Justice

Court File No.: FS-18-92838
Date: 2025-05-23

Between

A.C.
Applicant
J. Lagoudis, for the Applicant

-and-

K.C.
Respondent
Self-Represented

Heard: In Writing

Reasons for Judgment
Alex P. LeMay

Introduction

[1] On March 3, 2025, I heard a motion and cross-motion brought by the parties to address various issues in respect of the parenting time for D.C., the child of the marriage. The parties also sought orders in respect of counseling for D.C.

[2] By way of reasons dated March 24, 2025 (2025 ONSC 1704), I ordered that the parenting time schedule was to resume forthwith. I also ordered that D.C. and the family were to begin Family Systems Therapy as soon as possible. I also provided the parties with a series of ancillary orders.

[3] I am now required to fix the costs of the motion.

Background

[4] The background is detailed in my reasons on the motion. I rely on the facts set out in that decision and will not repeat them here. There are a couple of points that need to be set out, however, as they inform my decision on costs.

[5] The parties attended at a trial before Mandhane J. in 2023, and Her Honour released reasons in November of 2023 (2023 ONSC 6017). At that time, Mandhane J. ordered sole decision-making authority to the Respondent mother and provided a parenting time schedule for the Applicant father. The parenting schedule included substantial overnight parenting time. Mandhane J. also ordered the parties and D.C. to participate in counselling.

[6] Prior to trial, while the parties still had joint decision-making authority, the Respondent unilaterally enrolled D.C. in therapy and did not advise Mandhane J. that she had done so. I detailed my serious concerns with the Respondent’s conduct at paragraphs 92 and 93 of my reasons.

[7] After the trial, the parenting time proceeded as scheduled until March break of 2024. On March Break, there was allegedly an incident while D.C. was in the Applicant’s care. According to the Respondent, since this incident D.C. has refused to return to having overnight parenting time with the Applicant. At the hearing of the motion, the Respondent sought a number of orders that were designed to regularize this new “status quo” as well as an order permitting D.C. to decide, on his own, whether he wanted to have parenting time with the Applicant. D.C. is twelve years old. The Applicant was opposed to those Orders, and sought orders to enforce the Orders of Mandhane J.

[8] In my reasons, I granted most of the relief sought by the Applicant and dismissed the relief sought by the Respondent. I also retained jurisdiction to address any issues that might arise in respect of returning parenting time to the previous schedule.

[9] The parties have each filed costs submissions as well as reply costs submissions. I now turn to their positions.

Positions of the Parties

[10] The Applicant seeks his costs on a substantial indemnity basis in the sum of $41,401.73 inclusive of HST and disbursements. In the alternative, he seeks costs on a partial indemnity basis in the sum of $27,326.13. Substantial indemnity costs are sought on the basis that the Respondent’s conduct was unreasonable and that she acted in bad faith within the meaning of the Family Law Rules.

[11] The Respondent argues that there should be no costs ordered on the basis that her “approach to the litigation was proactive and settlement focused”. She also argues that her position on the motion had merit, there were “factual errors in the record” and that she is of limited means, and therefore she should not face a costs award as a matter of access to justice.

[12] The parties both provided reply positions to the other side’s originating positions. I will deal with those issues in the course of my analysis. I note that, in both cases, the reply submissions oppose what was said in the other side’s originating submissions.

Issues

[13] The parties’ submissions raise the following three issues that need to be resolved:

a) What scale should the costs be assessed on? This raises the question of whether the Respondent engaged in bad faith conduct.

b) The quantum of costs.

c) Whether the Respondent should be entitled to either a reduction or a waiver of costs based on her financial circumstances.

[14] I will deal with each issue in turn. First, I will set out some basic principles that apply to all costs decisions.

Basic Principles

[15] Modern costs awards are designed to foster four general purposes, as set out in Mattina v. Mattina, 2018 ONCA 867 at para. 10:

a) To partially indemnify successful litigants for the costs of the litigation.

b) To encourage settlement.

c) To discourage and sanction inappropriate behaviour by litigants.

d) To ensure that cases are dealt with justly, in accordance with Rule 2(2).

[16] The case-law has also made it clear that costs awards must be reasonable and proportionate. Beaver v. Hill, 2018 ONCA 840.

[17] However, Rule 24(10) also provides that, where a party has acted in bad faith, the Court “shall” decide costs on a full-recovery basis and order them payable forthwith.

[18] Finally, there is a general presumption that the successful party is entitled to costs. To determine which party is successful, the Court generally asks the question “who got what they asked for”. Scipione v. Scipione, 2015 ONSC 5982. In this case, the Applicant obtained most of what he was seeking from the Court. As a result, he is the successful party and presumptively entitled to at least some of his costs.

Issue #1 – Scale of Costs

[19] The first issue is whether the Applicant should be entitled to costs on a full recovery basis because the Respondent engaged in bad faith conduct.

[20] The test for whether a person’s conduct amounts to bad faith is a very high one. There is a detailed discussion of the test for bad faith in Jackson v. Mayerle, 2016 ONSC 1556. In that decision, the Court noted (at paras 56-60):

[56] But 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. (M.); Piskor v. Piskor; Cozzi v. Smith, 2015 ONSC 3626).

[57] In S. (C.) v. S. (M.), supra, Perkins J. defined bad faith as follows [at para. 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.

[58] 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 Peel Region v. F. (K.J.), 2009 ONCJ 252; Biddle v. Biddle; Leonardo v. Meloche; Hendry v. Martins, [2001] O.J. No. 1098, 2001 CarswellOnt 952 (S.C.J.).

[59] 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; M. (F.D.) v. W. (K.O.), 2015 ONCJ 94).

[60] To establish bad faith, the court must find some element of malice or intent to harm (Harrison v. Harrison, 2015 ONSC 2002).

[21] I am of the view that this case rises to the level of bad faith conduct for three reasons:

a) The Respondent’s conduct was designed to achieve the parenting time orders that she wanted, rather than either following Court orders or attempting to achieve a compromise to resolve the matter.

b) The Respondent deliberately withheld information from the Court about D.C.’s therapy.

c) The Respondent has deliberately flouted Court orders.

[22] I start with the Respondent’s conduct in the hearing of the motion before me. In her submissions, the Respondent states that her approach to the litigation was proactive and settlement-focused. I disagree. I start with the Respondent’s assertion, as set out in some of her communications with the Applicant, that she was being reasonable because she was looking for solutions to the problem. When I look at this correspondence, however, I see that the Respondent is attempting to impose her own preferred outcomes on the Applicant. A key part of this is the Respondent’s assertion, maintained to the hearing of the motion that, as she stated in her August 31, 2024 letter, “[D.C.] will be permitted some level of discretion in the event of his concerns about his safety and refusal to attend.”

[23] I explained, at paragraph 65 of my reasons, that the Respondent was “seeking these Orders to further limit D.C.’s parenting time with the Applicant and to provide D.C. with an ‘escape hatch’ to leave the Applicant’s care at any time”. These are not settlement-focused motives. They are attempts to reduce the amount of time that the Applicant spends with D.C. because of the Respondent’s concerns with the Applicant.

[24] On this point, I also note that the Respondent relies on the fact that she served an offer to settle on February 28, 2025. This offer does not assist her in establishing that neither her position or her approach were reasonable. The offer was to have D.C. permitted to return to the Respondent’s care when he was with the Applicant if D.C. had a safety or health concern. This was all part of the Respondent’s approach, which was to reduce the amount of time that the Applicant spends with D.C.

[25] The second major issue showing bad faith on the part of the Respondent is her deliberate failure to provide Mandhane J. with information about D.C.’s therapy. This is, by far, the most concerning part of the Respondent’s conduct for two reasons.

[26] First, the Respondent’s failure to provide this information to the Court or the Applicant in a timely way has had a significant effect on the family and on the course of this motion. If the Respondent had provided the information about counselling at trial, Mandhane J. could have tailored her orders to take account of that fact. Instead, almost a year and a half of time was lost because of the Respondent’s conduct.

[27] Second, in her costs submissions, the Respondent is attempting to evade responsibility for having failed to advise Mandhane J. of the fact that counselling was ongoing. The Respondent argues that “the relevance at trial of [D.C.]’s counselling was misrepresented and that Justice Mandhane’s findings were based on the Applicant Father’s own testimony as clearly noted at paragraph 61.”

[28] This statement does not accurately capture what the Respondent said at trial. Mandhane J. captures the Respondent’s submissions at paragraph 63 of her reasons, where she states: “The mother believes that the child would benefit from ongoing counselling as recommended by the OCL. She says that the Father has never been willing to consent to counselling for the Child.” Given that counselling was ongoing, these representations at trial were, at best, disingenuous. They could be viewed as outright falsehoods. In other words, the Respondent either misrepresented the facts to the Court or deliberately lied to the Court about counselling. This was done in my view at least partly to portray the Applicant in a bad light.

[29] The definition of bad faith specifically includes concealing information from the Court or the other party. In this case, the Respondent concealed very significant information about whether D.C. was engaged in counselling from both the other party and the Court. This is bad faith conduct, and the bulk of the issues in the motion before me involve the fallout from that conduct.

[30] This brings me to the third reason that bad faith should be found in this case, which is the fact that the Respondent has flouted Court orders. As noted in my reasons on the merits, she unilaterally enrolled D.C. in counselling contrary to the directions of Dennison J. that she was not to engage in self-help remedies (see para. 14 of the merits decision). She has also failed to follow the directions in this case in respect of parenting time, preferring to pursue her own approach to parenting time. It is noteworthy that, in 2022, Dennison J. found that the Respondent’s conduct met the elements of contempt, although she did not make a finding of contempt.

[31] While the Respondent has argued that she is acting for D.C.’s safety, I reviewed in my decision on the merits that there were no serious safety concerns in this case. In addition, the Respondent moved quite slowly in respect of addressing these issues from March of 2024 until this motion was heard nearly a year later.

[32] In considering the test for bad faith, there is an element of intent. In this case, I have made findings that the Respondent engaged in all of this conduct because she had a desire to reduce the Applicant’s parenting time with D.C. Over and above concealing information from the Court, the Respondent’s approach to these issues has been to reduce the Applicant’s parenting time in breach of Court orders. She has done this even in the face of Dennison J.’s previous findings that her conduct could have attracted a finding of contempt. This is unreasonable conduct that should not be countenanced by the Court.

[33] For these reasons, I find that the Respondent has engaged in bad faith behaviours and should be required to pay costs on a full recovery basis.

Issue #2 – Quantum of Costs

[34] The Respondent argues that the Applicant’s costs are too high and that they should be reduced. In this respect, she points out that the total amount of time spent on this motion by the Applicant’s counsel was 109 hours, and that it was a three-hour motion.

[35] In this respect, the Respondent directs my attention to the decision in Sepiashvili v. Sepiashvili. In that decision, the Court noted (at para. 21) that, “[w]hen the rules use the term ‘full recovery of costs’, there is an implied qualification that the costs incurred must be reasonable.”

[36] I have no doubt that the costs claimed in this case were actually incurred. However, I am of the view that the quantum that is claimed for full indemnity costs should be reduced for two reasons. First, the general principal of proportionality suggests that, for a three-hour motion, full indemnity costs should be modestly less than the costs claimed by the Applicant in this case.

[37] Second, and a related issue, is that there does appear to be some duplication between the work of counsel, co-counsel and the law clerks. This is also a factor that should result in a modest deduction from the costs owing to the Applicant.

[38] When I consider those two facts, I am of the view that a costs award in the sum of $30,000 inclusive of HST and disbursements on account of the costs of this motion should be paid by the Respondent to the Applicant. This award is subject to the third issue, and I turn to that now.

Issue #3 – What Effect do the Respondent’s Financial and Personal Circumstances Have on the Costs Award?

[39] The Respondent argues that her personal and financial circumstances should prevent the Court from making a costs award against her. I disagree.

[40] I start with the Respondent’s allegation that she had hoped to return to work after the trial, but that the ongoing litigation prevented this. There are two problems with this position. First, this litigation would not have consumed all of, or even most of, the time between the rendering of Mandhane J.’s decision in November of 2023 and the rendering of my decision in March of 2025. Other than the Respondent’s assertion that she is on CPP disability benefits, there is nothing to demonstrate why the Respondent is unable to work.

[41] Then, the Respondent relies on the decision in Wallegham v. Wallegham, 2015 ONSC 8066 for the proposition that “costs would discourage the Respondent Mother’s access to justice in seeking relief or direction from the Court as required out of fear of costs.” The problem with this position is that, in Wallegham, the trial judge specifically speaks of a tempered approach to costs so that parties are not “discouraged from advancing bona fide custody or access claims that are meritorious out of fear of possible deleterious financial consequences.” For the reasons I have set out above and in my decision on the merits, the Respondent’s claims are not meritorious and should not have been advanced.

[42] Finally, there is the Respondent’s claim that her twenty year old daughter from a different marriage is “the invisible victim in this litigation” because the events post-separation have significantly reduced the family resources available to her. There are two problems with this submission:

a) There is no evidence to support that the Respondent’s other child has been disadvantaged by this litigation. I also have no indication as to whether she is pursuing education, receiving support from her father or has any other source of income.

b) Even if there were evidence that the Respondent’s other daughter had been disadvantaged by this litigation, that would still not be a reason to reduce the costs. It is the Respondent’s conduct that has resulted in the costs award here and she should not be permitted to evade that responsibility.

[43] For all of these reasons, I am not persuaded that there should be any reduction in the costs payable by the Respondent on account of her personal circumstances.

[44] While the Respondent has not demonstrated that I should reduce her costs because of her financial circumstances, I am of the view that I should provide her with time to pay the costs award as the amount that I am ordering is quite significant.

Conclusion

[45] For the foregoing reasons, I am ordering the Respondent to pay the Applicant the all-inclusive sum of $30,000 on account of the costs of this motion. Those costs are to be paid within twelve (12) months of today’s date.

[46] Finally, I note that the Applicant’s materials suggest that, at least at the beginning of April, my orders were not being complied with by the Respondent in two respects. First, the Respondent determined that she would not start overnight parenting time immediately, contrary to my orders. I am not sure whether overnight parenting time has started. Second, the Respondent had not yet resolved the issue of which counsellor should be picked.

[47] I remind the parties that I retained jurisdiction over these issues to ensure that parenting time and the therapy that I had ordered were being properly implemented. That jurisdiction remains with me. Should the parties need assistance or directions, I am prepared to convene a hearing to address those issues. I trust that these issues will be addressed promptly.

[48] I remain seized of this matter as described in my March 24, 2025, reasons.

Alex P. LeMay

Released: May 23, 2025