Ontario Superior Court of Justice

Court File No.: FS-24-00107954-0000
Date: 2025-05-22

Parties

Between:
S.M.
(Represented by Serena Lein and Aleksandra Malinkowska, for the Applicant)
Applicant

- and -

N.E.
(Self-Represented)
Respondent

Heard: In Writing

Reasons for Judgment
Alex P. LeMay

Introduction

[1] I have been managing this matter for some time. There was a considerable period of time where the Respondent was not participating in this litigation and was ignoring Court orders. As a result, I issued a series of orders providing the Applicant with sole decision-making authority for the child of the marriage, R.S., as well as possession of the matrimonial home. In addition, given the Respondent’s non-participation, an undefended trial took place before me over various dates since May of last year.

[2] For reasons set out at 2025 ONSC 1723, I determined that the Respondent’s request to have the Order for an undefended trial set aside should be dismissed. I granted much of the relief that the Applicant sought as part of the undefended trial. Finally, I dismissed the Respondent’s motion to reverse possession of the matrimonial home and give her sole decision-making authority over R.S. It is now time to fix the costs for the undefended trial and for other steps in the proceeding.

Background

[3] I have set out the procedural history of this case in detail in my reasons of March 24th, 2025 (2025 ONSC 1723). I do not intend to repeat them here. There are a couple of points that should be specifically addressed to provide context to these costs reasons, however.

[4] The parties separated on October 17th, 2023. Between that time and July of 2024, the Applicant saw the child of the marriage on one occasion. As a result, he came before me in May of 2024, seeking an order for parenting time. That order was granted.

[5] The Respondent ignored the Court’s order until the police were involved in the matter in July of 2024. In the meantime, I had made a number of other orders that had been ignored by the Respondent. Ultimately, it took both a specific Court order and the intervention of the Peel Regional Police to get the Respondent to comply with the Court’s orders. In order to minimize the disruption to R.S., I ordered possession of the matrimonial home to the Applicant. Finally, I provided the Respondent with numerous warnings that I was about to provide a direction for an undefended trial. I ultimately provided that direction on June 20th, 2024.

[6] In the various endorsements that I provided to the parties, I split out some costs on the May 16th, 2024 appearance. Some of those costs I awarded, while the remainder were left to the undefended trial to consider. I must now consider those costs as part of this decision.

[7] There were then a number of appearances on this matter. These appearances addressed parenting time and the undefended trial. The Respondent began to participate in this matter in September of 2024. As early as October of 2024, the Respondent sought to bring a motion to set aside the Order for an undefended trial. On one occasion in October of 2024, the Respondent was represented by counsel. She has been self-represented at the remaining appearances.

[8] The Respondent has also repeatedly sought orders from me giving her sole decision-making authority for R.S. as well as sole possession of the matrimonial home. Those Orders have all been dismissed.

[9] In my reasons released on March 24th, 2025, I invited the parties to provide me with costs submissions on a timetable. I also specifically pointed to the possibility that the Applicant might seek costs on a full recovery basis because of the potential claim that the Respondent acted in bad faith.

[10] I duly received costs submissions from the Applicant. He is seeking costs on a full recovery basis because of the Respondent’s conduct. The Respondent has not provided any submissions on costs at all. As a result, when I convened a hearing on further case management issues on April 28th, 2025, at that appearance, I asked the Respondent if she was planning to provide costs submissions. She advised that she was relying on her October, 2024 submissions. I reviewed all of the Respondent’s submissions in preparing my March 24th, 2025, reasons and did not see anything about costs in them, save and except that the Respondent seemed to be claiming that her failure to participate in the hearings I scheduled was a misunderstanding, in part because the times for hearings, especially on June 20th, 2024, conflicted with the drop-off times for R.S.

[11] Therefore, I gave the Respondent until May 2nd, 2025 to file any additional submissions. I have not received anything and nothing has been uploaded to CaseLines. As a result, I will decide the costs issues based on what I have before me.

Positions of the Parties

[12] The Applicant argues that he should be entitled to his full recovery costs on the basis that he was the successful party, he made offers to settle and the Respondent’s conduct was unreasonable and she acted in bad faith. The Applicant seeks costs in the sum of $50,286.92 inclusive of HST and disbursements for the proceedings to date.

[13] I am assuming that the Respondent is arguing that she has not behaved in bad faith. I am also assuming that the Respondent is arguing that the quantum of costs should be reduced from the $50,286.92 that is claimed. I will analyze the costs claims with those arguments in mind.

Issues

[14] The submissions raise the following two 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.

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

Basic Principles

[16] 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).

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

[18] 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.

[19] 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 virtually all 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

[20] 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.

[21] 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 [page699] 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).

[22] I am of the view that this case meets the definition of bad faith for two reasons.

[23] First, the Respondent engaged in self-help remedies. From the date of separation through to the date when I imposed a change in parenting time and decision-making authority on the Respondent, the Respondent refused to either engage in the Court process or follow the Court’s orders until she was compelled to do so by the intervention of the PRP. She then has spent Court time since then attempting to unwind the orders the Court made because of her unwillingness to adhere to Court Orders. This is conduct that should attract the sanction of the Court.

[24] Court orders must be followed. The Respondent did not merely miss an order. As I stated in my decision on the merits, the Respondent deliberately ignored my Orders, and has not provided any good explanation for doing so.

[25] Second, in the time period between October of 2023 and June of 2024, the Respondent kept R.S. from seeing the Applicant except on one occasion. As described in her March 12th, 2024, e-mail, she was not prepared to agree on the parenting issues until the financial issues were resolved to her satisfaction (see paragraph 85 of the merits reasons).

[26] The Respondent’s approach is the epitome of bad faith. The Respondent was preventing the Applicant from seeing his son at least in part so that she could extract a favourable resolution to the financial issues out of the Applicant. This is conduct that the Court should condemn in the strongest possible terms. One of the ways to condemn that conduct is to impose a full recovery costs order on the Respondent.

Issue #2 – The Quantum of Costs

[27] I start with the observation that $50,000 seems like a lot of costs for an undefended trial. However, on closer examination, $50,000 is within the reasonable range for the work that has been done in this matter. Some context is necessary to explain this conclusion.

[28] My decision on the merits and on the undefended trial is lengthy and sets out a complicated procedural history. There were a significant number of appearances in this matter, both in-person and by ZOOM. By my count, it is nine appearances. These appearances would have consumed a significant amount of time and resulted in the Applicant incurring significant costs.

[29] Then, there was the fact that the Respondent regularly made submissions to try and get me to change the orders on the parenting schedule, the decision-making authority and the possession of the matrimonial home. Reviewing and responding to these submissions consumed considerable time for both the Court and for the Applicant’s counsel.

[30] Finally, there is the evidence on the undefended trial itself. It would have taken some time to collect and organize, and it would have had to be revised in order to address the shifting positions of the Respondent. The Applicant would also have been put to the time, trouble and expense of responding to the Respondent’s arguments on whether the order for the undefended trial should be set aside. This would also have consumed time and expense.

[31] On all of these issues, I should note that the Applicant has behaved quite reasonably throughout this process. Two examples of his reasonableness will suffice. First, on parenting time, he has been willing to expand the parenting time for the Respondent in spite of her failure to adhere to Court orders, her aggressive approach to wanting to re-assume control over decision-making for the child and her repeated attempts to have me reverse my decision on the exclusive possession of the matrimonial home.

[32] Second, the parties have some non-communication orders that prevent them from interacting directly with each other. As a result, when we moved from supervised parenting time to unsupervised parenting time, I directed the Respondent to provide a third-party who could assist with the transfers. She did not complete this task, but the Applicant stepped in and helped organize things.

[33] Finally, I note that the Applicant’s counsel has, on a number of recent appearances, been the junior counsel. This is an appropriate use of counsel and has been a step that has kept the Applicant’s costs down.

[34] That being said, I am of the view that there is some duplication in the time that has been spent. While that is a natural result of work being done by more than one lawyer, it is not something that the other side should be obliged to pay for. As a result, the Respondent should be entitled to some modest deduction in the total costs that she is required to pay.

[35] As a result, I fix the costs for all of the other steps to this point in the sum of $45,000 inclusive of disbursements and HST.

Conclusion

[36] For the foregoing reasons, the Respondent is to pay the Applicant the sum of $45,000 inclusive of HST and disbursements on account of the costs of this action to this point. This includes the costs for the undefended trial and the other appearances that have taken place in this time period. Those costs are to be paid from the Respondent’s portion of the matrimonial home when it is finally disposed of.

[37] I retain jurisdiction in this matter as described in my May 2nd, 2025, endorsement.

Released: May 22, 2025