Unreasonable behaviour and costs pursuant to Duwyn v. Ross, 2023 ONSC 5278
After a ten-day trial that spanned a multitude of contentious issues, a ruling was made on matters including decision-making responsibility, parenting time, child support, and even the child's name. Now, the court must decide who bears the financial burden of the litigation.
The Applicant, in this case, is seeking full recovery of his legal fees and disbursements, totaling $135,057.97, asserting that he should be indemnified entirely as the successful party. He argues that his victory on the core issues of decision-making responsibility and parenting time, along with his reasonable settlement offer, entitles him to one hundred percent of the costs. Additionally, he claims that the Respondent's unreasonable behavior and bad faith actions during the proceedings further support his claim.
On the other hand, the Respondent contends that each party should bear their own costs or, in the alternative, that the Applicant's costs should not exceed $50,000. She argues that the Applicant's success is limited, as he did not secure all the orders he sought. Moreover, she disputes the relevance of the Applicant's settlement offer and maintains that no cost consequences should arise from it. The Respondent asserts that her conduct during the litigation was reasonable and that she did not act in bad faith.
As stated in previous posts, there are multiple factors that influence costs awards. This post focuses on unreasonable behaviour and its impact.
The court began by determining that the Applicant was the successful party in the trial, focusing on the dominant issues of decision-making responsibility and parenting time. While the Applicant did not secure all orders he sought, the court found in his favour on key issues, making him the presumptive recipient of costs.
Regarding the Applicant's settlement offer, the court disagreed with the Respondent's assertion that it should not be considered. It stated that a general assessment of the overall comparability of the offer to the final order was sufficient. The court found that the final judgment was as favourable as the Applicant's offer on critical issues.
Furthermore, the court recognized the Respondent's unreasonable behavior during the litigation. It noted that the Respondent made unfounded allegations of domestic violence and parental misconduct, which complicated the proceedings and protracted the trial. While not concluding that her primary purpose was to harm the Applicant, the court found her behaviour to be unreasonable:
 It is also my opinion that the Applicant is entitled to a cost award in excess of the partial indemnity scale from November 22, 2021 by reason of the Respondent’s unreasonable behaviour during the course of the litigation. While I accept without reservation that the Respondent complied with all temporary orders of this court, provided full disclosure, worked to resolve a variety of issues prior to trial and made efforts to settle the outstanding issues, it also does not escape me that the Respondent left no rock unturned during the litigation to restrict the Applicant’s role in Matthew’s life. Setting aside the Respondent’s refusal to acknowledge that the Applicant loved his son and to cooperate with the Applicant in a joint decision-making arrangement, I found that there was no rational basis for her allegation that the Applicant represented a real threat to kidnap Matthew. Similarly, I find that the Respondent acted unreasonably in advancing ill-founded allegations of domestic violence and parental misconduct. Although I do not find that the primary purpose of these allegations was to inflict harm on the Applicant, they nonetheless were designed to achieve the Respondent’s goal of being granted sole decision-making responsibility and limiting the Applicant’s parenting time at all costs, including unnecessarily complicating the litigation and protracting the time required to complete the trial. Therefore, in my view, the Respondent’s unreasonable behaviour in combination with the Applicant’s Offer attract an award of costs in favour of the Applicant at the higher end of the substantial indemnity scale from November 22, 2021.
In light of these considerations, the court determined that the Applicant should be awarded costs at the higher end of the substantial indemnity scale. After a detailed breakdown of the Applicant's fees, disbursements, and hourly rates, the court awarded him costs in the amount of $90,000.
This case illustrates that the determination of costs in family law is a nuanced and discretionary process. Success on key issues, the content of settlement offers, and behaviour all play significant roles in shaping cost awards.