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GOTTLIEB LAW FIRM

COSTS ENDORSEMENT

HISTORIC
COST AWARD 

Gottlieb Family Law is pleased to announce that our client was awarded $677,610 in costs following one of the longest parenting trials in the history of the Ontario Superior Court of Justice.

 

Read the cost endorsement below.

CITATION:  W.S. v. P.I.A., 2022 ONSC 55

COURT FILE NO.:  FS-16-0223

DATE:  2022 01 04

 

 

SUPERIOR COURT OF JUSTICE – ONTARIO

 

RE: 

W.S., Applicant

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P.I.A., Respondent

 

BEFORE: 

McGee J

COUNSEL:

Gary Gottlieb and Ryan Aalto, for the Applicant

Gary S. Joseph and Alice Parama, for the Respondent

 

C O S T S  E N D O R S E M E N T

 

Summary

[1]        This family law dispute has cost the parents in the  range of 1.7  million dollars, an amount that well exceeds their personal savings and their equity in a jointly owned home.

[2]        Their dispute has principally been a parenting dispute. Much less attention was paid to the financial issues arising from the end of the marriage. Those issues: child support, spousal support and equalization were resolved on the first day of Trial within Minutes of Settlement dated May 10, 2021. The Minutes provide that no  costs are  to be  paid  on  the  settled terms for  retroactive and  ongoing  child support, spousal support, and equalization.

 

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[3]        The  Trial heard over the  following  nine  weeks  was  one  of  the  longest parenting trials  heard in the Superior Court.  In the decision that followed, Mr. S was wholly successful.

[4]        Mr. S was successful because on September 8, 2021 he received a final Order for sole decision making and a progressive parenting schedule that, after a 90-day reset of Ms. A’s parenting time, would ultimately provide their young sons with  a  shared  parenting  schedule  similar  to  what  the  parents  had  previously agreed would start in March of 2021.

[5]        Those parenting terms were more favourable  than the terms of Mr. S’s April 18, 2021 Offer to Settle which provided that Ms. A would have sole decision making and based on her litigation position that  she be permitted to relocate the boys’ residence to Grey County, a parenting schedule for him to care for the boys three weekends a month, which would step up over time.

[6]        Mr. S was also successful on his motion for a finding of contempt, heard concurrently with the Trial.

[7]        Ms.  A  was  not  successful on  any  of her parenting   claims, which evolved over the course of the Trial, starting on its first day when she withdrew her relocation  claim.  Her parenting  actions  after  receipt  of  the  2018  Section  30 Assessment  parenting   recommendations  revealed  that  she  had  never  been content  to  have  sole  decision  making  for  her  sons  and  a  regular  parenting schedule; but rather, that her litigation goal was to remove Mr. S from her and the boys’ life, primarily through their rejection of him.

[8]        In the reasons dated September 8, 2021, I found that Ms. A acted in bad faith  because  she  purported  to  support  the  boys  having  a  full  and  healthy relationship with their father while she intentionally took steps to sever their sons’

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affection, sense of safety and self while with their father. She caused the boys to suffer emotional harm.

[9]        For the reasons that follow, I award the Applicant Father costs on the steps prior to Trial, the finding of contempt, the Trial and disbursements in the combined total of $599,655, plus HST of $77,955 for a total of $677,610. Costs may be set off against the settled terms for retroactive and ongoing net spousal support, and equalization.

The Amount of Costs Claimed

[10]     The Bill of Costs submitted by Mr. S’s litigation team is a summary of the whole of his invoiced dockets, divided into four categories which I set out below:

Fees of the Proceeding up to Trial: $318,9401

Contempt Motion Fees: $74,370

Trial Fees: $416,6902

Disbursements: $19,655

Total Costs: $829,655

Plus HST: $107,855

Total: $937,510

[11]     The fees categories are made up of the total bills of five individuals: two counsels at $500 and $400 per hour respectively, a third and fourth counsel at $400 per hour each and a law clerk at $300 per hour. The total fees of the third and fourth  lawyer, are  each under  $3,000  and  are  incurred  for the same  task:

1.  325,940 less  $7,000 in  costs previously granted to  Mr.  S. Because those Orders  do not separate out the HST, I have treated the whole of the amount as a deduction to the fees of the proceeding claimed up to Trial.

2.  This amount was incorrectly transferred to the totals page in the Applicant’s Bill of Costs as the amount claimed inclusive of HST.

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“review of file and court pleadings for Trial,” a task that is also docketed within the first and second lawyer’s accounts. I have removed the dockets for the third and fourth lawyer as duplicative within the category of Trial fees.

[12]     I am also not prepared to grant a fees recovery for the time of the law clerk for receipt and review of all correspondence, letter and emails, preparation and drafting of pleadings which are administrative or duplicative. Neither will I consider fees for the law clerk’s attendance at Trial 3  absent an explanation in the Costs submissions as to why the cost of a Law Clerk was required in addition to that of two counsels.

[13]     The amount of costs that I will therefore consider in these reasons is:

Fees of the Proceeding up to Trial: $318,9404

Contempt Motion Fees: $74,370

Trial Fees: $371,450

Disbursements: $19,655

Total Costs: $784,415

Plus HST: $101,974

Total: $886,389

 

The Estimated Costs of the Whole of the Proceeding

[14]     The financial costs of the whole of the proceeding, including the support and equalization terms is relevant to these reasons because Ms. A argues that she is of limited means and should pay a lesser amount of costs: no more than $50,000.  The costs of the whole of the proceeding is also relevant because it

3. Solely identified in the Bill of Costs under the category of Trial but described as also including attendances prior to Trial and for the reading of the judgment.

 

4. 325,940 less $7,000 in costs previously granted to Mr. S. Because those Orders do not separate out the HST, I have treated the whole of the amount as a deduction to the fees of the proceeding claimed up to Trial.

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places  into  context  the  extent  of  Ms.  A's  “win  at  all  costs”  approach  to  this litigation. Mr.  S   was not to be just removed as a competitor   for   the children’s time and affection, he was to be expunged from the family.

[15]     The father has calculated the entirety of his legal fees and disbursements,including the costs of the Trial, less the amount for costs already recovered, to be $884,250 inclusive of HST which

I have adjusted to $886,389 as set out above. This amount does not include legal fees paid to his first counsel, or to his criminal law counsel.

[16]     Ms. A has not provided me with a global  amount of her  fees, HST and disbursements  spent  on  this litigation  prior  to  Trial,  but  for  the  HST inclusive accounts from two prior counsels totaling $72,614 and $144,321 respectively, and her Trial counsel team’s account for the period of March 2, 2021 to September 21, 2021 in the amount of $449,663.

[17]     This brings the HST inclusive fees and disbursements presented to me in these  cost submissions to  a  total  of  $1,552,987.  The  parents’  legal  fees  and disbursements might have been even higher absent the savings in travel time and paper copies of documents afforded by the Trial’s virtual format.

[18]     The amount of $1,552,987 is inclusive of the concurrent contempt hearing, but exclusive of the costs of the parenting assessments, supervised access and other expenses previously agreed to be paid jointly. Neither does it include the amounts paid by Ms.  A and her brother Mr.  A for   private investigators. Based on the evidence  heard  during  the Trial, those  additional  expenses would increase the cost of this proceeding to an amount inclusive of HST that is in the range of 1.7 million dollars.

 

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The Father is Entitled to an Award of Costs

[19]     It is not disputed that Mr. S is entitled to an award of costs. At issue in these reasons is the scale of the recovery and a consideration of the factors in calculating the amount of costs.

 

The First Measure of Success: A Comparison of Offers to Settle

[20]     Family law litigants are accountable for the positions they take in litigation. They have an obligation to assess their cases at the outset and to reassess as the case unfolds, see M.B. v. A.F. 2021 ONCJ 45.

[21]     When a party receives a result as favourable or more favourable than a Rule 18(14) Offer to Settle, the Court shall award a full recovery of costs from the date of the Offer unless it decides otherwise.

 

RULE 18: OFFERS TO SETTLE

Costs consequences of failure to accept offer

(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:

1.         If the offer relates to a motion, it is made at least one day before the

motion date.

2.         If the offer relates to a trial or the hearing of a step other than a

motion, it is made at least seven days before the trial or hearing date.

3.         The offer does not expire and is not withdrawn before the hearing

starts.

4.         The offer is not accepted.

5.        The party who made the offer obtains an order that is as favourable as or more favourable than the offer. O. Reg. 114/99, r. 18 (14).

 

[22]     When deciding whether there is reason not to order a full recovery, a Court can  also  consider  whether  a  party  has  behaved  reasonably,  and  specifically,

 

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whether a party has reasonably attempted to resolve the dispute as the evidence evolved, including as it evolved over the course of the Trial.

 

RULE 24: COSTS

Setting costs amounts

(12)  In setting the amount of costs, the court shall consider,

(a)       the  reasonableness  and  proportionality  of  each  of  the  following factors as it relates to the importance and complexity of the issues:

(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 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. O. Reg. 298/18, s. 14.

The Father’s Offers to Settle

[23]     The father served three Offers immediately prior to and during Trial that demonstrated his constant reassessment of a potential resolution. Those Offers were dated April 18, 2021, June 17, 2021 and July 9, 2021. I have reviewed and charted those Offers as well as those made during the course of the proceeding, as they reference the parenting issues.

[24]     Mr. S’s Offer of April 18, 2021 met Ms. A’s demand that she be given sole decision  making  responsibility on  the condition  that that  he  was  kept  informed regarding the boys’ health and education. He proposed three weekends a month as parenting time and two weeks of summer access with a step-up plan

 

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for  increased  summer access in  2021 and a further step-up in 2022. In every respect, Mr. S either met or exceeded this Offer to Settle.

[25]     On June 17, 2021, the father served a further Offer to Settle following a mid-Trial  settlement conference with Justice  Shaw. This Offer proposed split decision making. He would have joint decision making authority over health and education and Ms. A would have decision  making authority over culture, language, religion and extracurricular activities. Further incidents of split decision making, and a shared schedule were also proposed. This Offer also exceeded the result at Trial.

[26]     On July 9, 2021, while the Court reserved judgment, Mr. S made his final Offer  for  summer  parenting  time pending  the release  of  the  trial  decision. The Offer was ignored by Ms. A, and no access was allowed.

[27]      I  find  that  all  of  Mr.  S’s Offers reflected a child  centered, ongoing assessment of the  evidence that was reasonable and proportionate to  the evidence, despite some of the evidence being quite shocking: such as the knife incident with the babysitter and the murderous pictures posted on the wall.

 

Ms. A’s Offers to Settle

[28]     Ms. A’s March 15, 2021 Offer to Settle provided that the Trial would be adjourned,  that  Ms. A would move the children to Grey County and the father would  have  parenting  time  on  alternate  weekends and  for two weeks in the summer with additional March break and shared holidays. Decision making would be shared, with Ms. A making final decisions.

[29]     Ms. A revoked  those terms  four days later  on  March  19, 2021  with an Offer of that date which set out that she would have sole decision making, and that the father could have the boys three weekends a month for 12 weeks to improve

 

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his relationship with them through therapy, at the  conclusion of which parenting would reduce to alternate weekends and holiday time as earlier provided in the March 15th Offer.

[30]     She made a further Offer on April 9, 2021. This Offer does not revoke the March  19,  2021  Offer  but  incorporates  its  parenting  terms  with  non-severable additional parenting terms, support and equalization terms.

[31]     Another  Offer  was  made  on  May  3,  2021.  The  parenting  and  support terms were  complex  and   remained   non-severable   from  the   financial  terms. Ms. A continued  to  propose  that  she  have  sole  decision  making,  with  a  new term at paragraph 6(h) that she was permitted to move at her discretion, to Grey County on set parenting terms.

[32]     An examination of the May 3, 2021  Offer presents two curiosities. First, that Ms. A’s starting litigation position  at Trial  did not include  any  terms for the father’s parenting  time, despite  such terms  being  incorporated  into her  May 3, 2021 Offer to Settle (albeit conditional on acceptance of the financial terms;) and second, that a non-severable term was the ability to move the children to Grey County. Ms. A withdrew  her  relocation claim on  the  first day of Trial, and upon doing so, she could no longer obtain a result more favourable to her because the Order was no longer available to her.

[33]     On  June  10,  2021,  Ms.  A  made  another  Offer  to  Settle. This Offer brought forward almost all of the prior terms for sole decision making, parenting time and  the  discretion to  move the  children  to  Grey County;  but  then  adds at paragraph 15 a provision for the purchase of the father’s half interest in the home.

[34]     This is a further curiosity. The parties executed Minutes of Settlement on May 10, 2021 which provided that the jointly owned home would be sold. The sale created funds from which the father could pay the agreed amounts for an

 

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equalization, retroactive child support and spousal support. The purchase term in the Offer was not severable, creating another term within her Offer which could not be achieved in the final Order because it was no longer available. (Nor could it have been available in any event, as a Court cannot order that one party sell his interest in a jointly owned property to the other owner.)

[35]     Ms. A’s final Offer is dated June 17, 2021. It also followed the mid-Trial settlement conference with Justice Shaw. This Offer continues the previous terms for  Ms. A to  have  sole decision  making  but allows  for medical  decisions to be made jointly by the parents, and when there is no agreement, to be arbitrated. It sets out  an  extensive parenting  time proposal,  but  importantly,  it  then  adds  a brand new section for  a jointly retained therapist, parenting coordinator and counsellor for the children. All the parenting terms, including the continued use of experts, is bundled into Part A of the Offer which could be accepted separately from Part B, which repeats the terms for Ms. A’s purchase of  the  father’s interest in the home.

[36]     Were  Ms.  A’s  parenting  terms  in  Part  A  of  her  June  17,  2021  Offer reasonable in a manner that a full recovery of costs should not be granted, or only granted in part? I find that they were not. By this stage of the proceeding it was clear  that  Ms.  A  used  family therapists  as  litigation  allies,  not  as  sources  of learning and personal growth. As soon as a therapist challenged her approach, the therapist was rejected, usually with a corresponding complaint to his or her regulatory body. In my view, acceptance of Part A of the June 17, 2021 Offer would have  continued  the  four-year  pattern  of  conflict, a  pattern  that  was  only  fully revealed at Trial.

[37]     Moreover, Ms. A’s post-trial conduct of denying any father-son contact speaks for itself.

 

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[38]     I find no basis to not grant a full recovery of Mr. S’s costs from the date of his  April  18,  2021  Offer  to  Settle  and  a  partial  recovery  of  his  costs on  the parenting dispute accrued prior to April 18, 2021.

The Purposes of a Costs Award

[39]     Costs rules are designed to indemnify successful litigants; to encourage settlement; and to discourage and sanction inappropriate litigation behaviour by litigants. Rule 2(2) of the Family Law Rules adds a fourth purpose, to ensure that cases are dealt with justly, see Mattina v. Mattina, 2018 ONCA 867, p. 10.

 

[40]     In high conflict parenting cases, the critical purpose of an award of costs is to curb litigation behaviour by providing a sanction for unreasonable litigation conduct. Unless costs are  consistently and predictably awarded in accordance with the Family Law Rules there is no downside to saying one thing and doing another.

[41]     At the start of the Trial, Ms. A’s position was that she  should  be granted sole decision making responsibility and be permitted to move the boys to Grey County without any plan for the father’s parenting time. She abandoned her claim to move the boys on the first day of Trial, but she continued to propose no parenting terms to the Court. Midway through the Trial, she proposed weekend parenting time; but she then frustrated any overnight time and ultimately, no father-son contact was fostered.

[42]     In   closing   submissions,  Ms.  A’s   counsel assured the Court that despite the failed efforts to re-establish the father’s parenting time during the Trial, his client would protect and promote the boys’ relationship with their father if she were  granted  sole  decision making.  Counsel  argued  that the  resist and  refuse dynamics being observed were wholly the  fault  of  the  father  and  that  only Ms. A could act in the children’s best interests. He presented his client’s proposed final draft Order that she have sole decision making and that the father

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have summer parenting time and, during the school year, alternate weekends and mid-week contact in person or by Zoom, as well as defined holiday and special event parenting.

[43]     In  stark  contrast  to  her  litigation  position,  Ms.  A  then refused  any parenting time while   the decision was under reserve. This  was entirely unreasonable litigation conduct. By the time that the decision was released, make-up time alone would have justified some period of primary care reversal.

 

A Further Consideration of Reasonableness in Parenting Disputes

[44]     As explored above, the father was wholly successful at Trial because he achieved parenting terms more favourable than those in his April 18, 2021 Offer to Settle  in  every  respect:  decision  making,  a  parenting  plan  and  incidentals  of parenting  such  as  choice  of  school  and  name  registration.  As  the  successful litigant, he is presumptively entitled to an award of costs pursuant to Rule 24(1) of the Family Law Rules.

[45]     But in  my view,  the  analysis must go  beyond  a  simple assessment of success.

[46]     In parenting decisions, success alone is not a sufficient basis for an award of costs because the  measure of success belongs to the child. It is the  child’s success that is the object of the proceeding. Orders for decision making, parenting plans and incidentals of parenting are formulated on the child’s best interests, not a parent’s best interests. In this manner, a parent may be successful – may even beat his or Offer to Settle – yet not be awarded costs; or be granted a reduced amount of costs for any number of reasons, such as the prospect of a costs award further  exacerbating  mutual  parental  conflict, hobbling  a  primary  care  parent’s ability to meet the child’s financial needs or reflecting the court disapproval of an unreasonable course of litigation conduct.

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[47]     Here,  Mr.  S  was  not  just successful on  the  terms of  his Offer; he was found to be the parent who best demonstrated a willingness and an ability to foster the  boys’  post separation  physical, emotional and psychological safety, security and well-being. Prior to, and during the Trial he took litigation positions consistent  with  an  earlier parenting   agreement   and he offered   further compromises.

[48]     A successful litigant is a parent who respects a child’s ongoing attachment to his or her other parent while uncoupling from that parent as a former partner.

Finding of Bad Faith

[49]     Rule 24(8) of the Family Law Rules requires the Court to consider if a party has acted in bad faith, and if so, to assess costs on a full recovery basis. The essence of bad faith is that a party claims to be acting with one purpose, when in reality, they are motivated by another purpose, see J.S. v. M.M. 2016 ONSC 3072. Fabricated allegations of physical and sexual abuse of a child and depriving a child of a relationship with a parent is bad faith: O. M. v. S. K 2020 ONSC 4765.

[50]     As earlier set out, it was never reasonable for Ms. A to continually sabotage the boys’ relationship with their father in the face of multiple processes to assess, repair and transform the post separation parenting relationships; processes in which she had agreed to participate and for which she had expressed support.

[51]     A  finding of bad  faith requires more  than a pattern  of sustained unreasonable litigation conduct. Bad faith is devious conduct designed to achieve an improper goal that causes harm to the other party or to the children. The party need not intend to cause the actual harm occasioned, provided that the party acted recklessly or in a manner that should have been known would cause harm without justification, see S.(C.) v S.(M.), 2007 CarswellOnt 3485 (S.C.J.

 

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[52]      The evidence before me during this Trial was replete with actions of bad faith by Ms. A: a surreptitious baptism, a pattern of sabotaging Court Orders, a contemptuous breach of the Order of November 2, 2018, a series of false allegations of physical, sexual and emotional abuse to child protection agencies, and the deliberate and sustained frightening of the boys, particularly the oldest, son that they would reject their father and resist any contact.

[53]     Throughout, Ms. A was represented by able counsel and repeatedly cautioned by the court – as was the father – that litigation conduct had consequences.  She  was  ordered  to  pay  prior  costs awards  for  unreasonable litigation conduct in detailed reasons that set out the basis for an award of costs.

[54]     Nonetheless, and  buoyed by the financial assistance and litigation enthusiasm of her brothers, she took a “win-at-all-costs” approach to the litigation.

[55]     Mr. S is granted a full recovery of his costs of the parenting dispute that arise from Ms. A’s actions of bad faith prior to April 18, 2021, inclusive of the costs for the finding of contempt.

The Amount of Costs

[56]     A full recovery of costs is not necessarily a dollar for dollar recovery of everything  spent  during  a  course  of  litigation.  Costs must  be  reasonable  and proportionate, and within a range that an unsuccessful party should expect to pay. A realistic measurement of what an  unsuccessful party should expect to pay in costs is what she has paid in costs to her own counsel team.

[57]     Ms. A’s total Bill of Costs for the Trial, its preparation and aftermath is not far removed  from  that of  Mr.  S’s  legal  team.  Her  legal  team  consisted of  four lawyers and two law clerks at hourly rates of $725, $606, $260, and $215 for the lawyers, and $230 and $135 (later increased to $215) for the clerks. Her

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final account for fees of the Trial  alone is $397,392 increased by minor disbursements and HST of $52,271 for a total of $449,663.

[58]     Although the hourly rates and time spent by each member of the respective legal  teams  differ  somewhat,  the  amount  of  $397,392  incurred  by   Ms.  A   is closely comparable  to  the  $371,450  in  fees for  the  Trial  that I  am prepared  to consider within this costs decision.

[59]     In  setting the  amount  of costs, a  Court   must  consider  the   factors in

Rule 24(12):

a.    The reasonableness and proportionality of each of the following

factors as it relates to the importance and complexity of the issues:

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

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

vii.  Any other relevant matter.

[60]     I  have  reviewed  Mr.  S’s counsel  team’s  hourly  rates,  the  hours  spent, including  their  time  for legal  research  required  for  the  many evidentiary  rulings sought   by Ms. A;  and considered  what steps were caused by unreasonable litigation conduct, such as Ms. A’s decision to seek to reopen

 

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the Trial and call additional evidence after Mr. S agreed to close his case without the  benefit  of  reply  evidence. That  particular  action  calls for  a  full  recovery  of costs as  it was  not  helpful  to  her  case,  prolonged  the  trial  unnecessarily and added to the conflict.

[61]     I assess costs of the Trial, including its preparation and aftermath in the rounded, full recovery amount of $370,000. Having made the earlier adjustments at paragraph 13 above, and given the considerations set out above, I can find no basis  to  do  otherwise. I accept the  need  for  Mr.  S  to  have  retained  two Trial counsels and I only round down the figure from that claimed because some time was spent in mid-trial settlement conferences; but this time was not statistically significant  given  the  length  and  complexity  of   this   Trial   which   saw   Ms.  A employ a counsel team of four lawyers and a consulting lawyer.

[62]     I assess costs for the finding of contempt in the full recovery amount of $70,000  on a  total bill  claimed of $74,370. Here  I saw  no  duplication  amongst counsel or any other basis pursuant to Rule 24(12) to reduce the costs claimed, but for a modest decrease to cover any potential duplication within the award of $370,000.

[63]     I find that a full recovery of $70,000 is appropriate pursuant to Rule 24(8) because  it  was  an  act  of  bad  faith  to  deliberately  withhold  the  children  from Christmas parenting time with their father through a false complaint to the CAS, and  to then  double  down  and  continue  to  withhold  the  children  after  the  false complaint was cleared by the CAS. This was done in the face of months of active judicial case management and representations by Ms. A that she wanted the boys to  have  a  relationship  with  their  father. It  was  a  deliberate  ploy  to use  a  child protection agency to undercut the authority of the Court, and when that was not successful, to flagrantly breach the Order.

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[64]     I assess a partial recovery of costs and disbursements on the parenting issues prior to service of the April 18, 2021 Offer to Settle, including the withdrawal of the relocation claim on the first day of trial in the rounded amount of $140,000.

[65]     Here, my reasons  are discretionary as I was not  provided with a breakdown of  the  fees incurred  prior  to  the  May  10,  2021  Minutes of  Settlement for  the parenting  issues alone.  While  I  can observe  that  this litigation was  primarily a parenting  dispute,  some of  the  time at  prior  events  must have  addressed  the financial issues for which no costs are payable.

[66]     I must also deduct from the $318,940 the full recovery of the costs granted on the finding of contempt, while at the same time considering the full recovery that I grant on fees arising from other acts of bad faith, such as the surreptitious baptism of A and the false complaints to the CAS.

[67]     In setting the amount of $140,000, I have reviewed the submissions set out at paragraph 37 and 38 of Ms. A’s costs submissions as to events that should not draw an award of costs,  and to the best of my  ability  matched  them to those prior events. I have endeavored  to avoid assessing an amount for  an event for which no costs are appropriate, such as a Settlement Conference, while staying mindful  that  Rule  24(11)  permits  me  to  award  costs for  an  earlier  step  in  the proceeding when appropriate.

[68]     I  assess disbursements  in  the  requested  amount  of  $19,655.  All  were appropriate and necessary to the proceeding.

 

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[69]     The total amount of costs awarded is therefore:

Fees of the Proceeding up to Trial: $140,000

Contempt Motion Fees: $70,000

Trial Fees: $370,000

Disbursements: $19,655

Total Costs: $599,655

Plus HST: $77,955

Total: $677,610

[70]     Costs of  $677,610  are  payable  to  Mr. S  forthwith  and  may  be  set  off against retroactive  and   ongoing   net  spousal   support   and   the  equalization payment. The  balance  shall be  payable  from Ms. A’s one-half share  of the net proceeds of sale of the home.

 

No Basis to Further Reduce the Award of Costs

[71]     I  will  briefly  address  Ms.  A  submission  that  her  assessed  costs  be reduced  to  reflect  her  limited  means.  Context  for  this  submission  was  earlier provided at paragraphs 14 to 18 above. I will not further address her other two proposals for a reduced award: her intention to act in the children’s best interests,and Mr. S’s abusive conduct, given my findings to the contrary.

[72]     At no time did Ms. A conduct herself as a litigant of limited means on the parenting issues. To the contrary, her litigation decisions were funded on a “win at  all  costs” basis  thanks to  a  personal injury  settlement,  her equity in her home  and  her  brothers’  determination  to  “do  whatever  it  takes  to  keep  their nephews safe.”

[73]     Hiring private investigators to report on court ordered access supervisors and arranging for a former counsel to monitor the whole of a nine-week trial are not marks of a client of limited means. Neither is it the action of a litigant of limited

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means  to  incur  a  three-day  voir  dire  in  an  attempt  to  admit  five-year-old surreptitiously  obtained  recordings,  or  a  lengthy  motion  to  obtain  the  other spouse’s personal  counselling  records  while  shielding  production  of  one’s  own counselling records.

[74]     Family law litigants are responsible not only for their litigation positions, but also for the financial consequences to both parties of funding those positions. A former  spouse  who  engages  in  “win  at  all  costs” litigation  chooses  to  be  as answerable for the resulting litigation fees to the other side as for one’s own fees.

[75]     Ms.  A’s litigation  conduct, partially  funded  by  her  brothers  resulted  in recklessly  disproportionate   litigation  costs  to  Mr.  S.   The   case   that  Mr.  S was required to  meet exceeded  any reasonable   inquiry into the parenting plan that best met the children’s interests. Instead, it was an exploration of  the  use of surreptitious   recordings,   assessment   methodology, access  supervision, access supervision note-taking and child protection: all in pursuit of a final Order that Ms. A and  her brothers  continue  to exercise absolute  control  over  Mr. S’s parenting time.

[76]     No further reduction in the amount of costs to be paid is ordered.

No Set Off Against Child Support at This Time

[77]     As  a  final  matter,  I  have  considered  Mr.  S’s request  that  these costs also be set off against child support. I decline to rule on the issue at this time, as I am not satisfied that I have a fulsome set of submissions on this point, or that it will prove necessary given the post separation increase in the equity of the jointly owned matrimonial home.

[78]     Should the costs or portions of the costs ordered herein become unrecoverable by any other means, for example, Ms. A declares bankruptcy

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and the Trustee has insufficient funds from which to satisfy this Order, I may be spoken to through my judicial assistant for a teleconference to schedule a hearing on the question of set off against retroactive or future child support.

Contempt Sentencing

[79]     If the  parties cannot  agree  on  a  disposition on  my finding  of contempt pursuant to Rule 31 of the Family Law Rules, a date may be set through the Trial

 

Coordinator.

McGee J

DATE:        January 4, 2022

 

CITATION:  W.S. v. P.I.A., 2022 ONSC 55

COURT FILE NO.:  FS-16-0223

DATE:  2022 01 04

 

 

 

SUPERIOR COURT OF JUSTICE – ONTARIO

 

RE: W.S., Applicant

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P.I.A., Respondent

 

 

 

 

COSTS ENDORSEMENT

 

 

 

 

McGEE J

 

 

 

DATE:        January 4, 2022

 
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