Carolyn J. Horkins

The self-represented appellant father appealed a trial decision terminating his access to his children.

The trial judge had found that the father's erratic, abusive, and controlling behaviour posed a risk of harm to the children, one of whom has autism.

At trial, the father unsuccessfully sought the judge's recusal and subsequently left the courtroom, refusing to participate.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings and concluding that the trial judge reasonably proceeded in the father's absence after he voluntarily departed.

The mother appealed a final order placing her 12-year-old child in the extended care of the children's aid society with access at the society's discretion.

The mother argued the trial judge misapprehended evidence, provided insufficient reasons, misapplied the law, and erred in relying on a parenting capacity assessment.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding errors in the trial judge's assessment of the mother's mental health and behaviour, which posed a risk to the child.

On consent, the access order was varied to provide the mother with supervised access at least once a week in accordance with the child's wishes.

The parties proceeded to a trial in writing to resolve issues regarding parenting, child support, spousal support, and equalization.

The court ordered the child to attend the father's proposed school and daycare, finding it in the child's best interests.

The court imputed an income of $50,000 to the mother based on her earning capacity in the film industry.

Given the shared parenting arrangement and the parties' respective financial circumstances, the court ordered no child support payable by either party.

The mother's claim for spousal support was dismissed as she failed to prove entitlement.

The father was ordered to pay an equalization payment of $5,034.34.

The court determined costs for previous motions where the applicant mother's motion was dismissed and the respondent father's responding motion was successful.

The father sought full recovery costs due to the mother's unreasonable behaviour and his offer to settle being exceeded.

The court found the mother's conduct unreasonable, including ignoring a separation agreement and proposing unsafe travel for children during COVID-19, but not rising to bad faith.

Considering the father's superior offer to settle and the mother's unreasonable conduct, the court fixed the father's costs at $6,500, inclusive of fees, HST, and disbursements.

The appellant mother appealed a trial judge's order finding her child in need of protection due to parental alienation and false allegations of abuse against the father.

The appeal challenged the trial judge's application of the best interests of the child test under the CYFSA, specifically regarding the weight given to the child's views, consideration of relevant risk factors, delegation of future access decisions to the Children's Aid Society, and the issuance of a no-recording order.

The appellate court dismissed the appeal, upholding the trial judge's findings that the child's views were not independent due to the mother's brainwashing, that the risk of emotional harm to the child if remaining with the mother was overwhelming, and that the discretionary access order and no-recording order were within the court's jurisdiction and in the child's best interests.

The Applicant (wife) proceeded with an undefended trial seeking final orders for custody, child support, spousal support, and equalization of property.

The parties, Lebanese nationals, were married for 30 years and had significant assets in Venezuela and Lebanon.

The Respondent (husband) had left Canada for Lebanon, refused to provide disclosure, and indicated he would not comply with Canadian court orders.

The court imputed an income of $189,444 to the Respondent.

The court granted sole custody of the youngest child to the Applicant, ordered lump sum spousal support ($1,091,699), lump sum child support ($121,788), lump sum s. 7 expenses ($67,000), and an equalization payment ($3,200,543.46), totaling $4,486,518.39 CDN.

The court ordered the Respondent to transfer his share of specific foreign bank accounts to the Applicant to satisfy the debt, citing his bad faith and non-compliance.

Costs of $13,291.63 were awarded to the Applicant due to the Respondent's bad faith.

The applicant mother brought an urgent motion seeking to travel with the parties' three children to Texas for her summer parenting time, despite a separation agreement requiring the children's residence to remain in Toronto.

The respondent father opposed the motion due to the COVID-19 pandemic, the closure of the Canada-US border, and concerns that the mother intended to permanently relocate the children to Texas.

The court dismissed the mother's motion, finding that non-essential travel to a COVID-19 hotspot would recklessly expose the children to risk and was not in their best interests.

The court ordered that the children remain in Canada and adopted the father's proposed summer schedule.

The Applicant wife brought a motion for ex parte relief, including a restraining order on assets.

Despite multiple adjournments and court orders for disclosure, the Respondent husband failed to comply, did not file an Answer, and ceased participation, pursuing proceedings in Lebanon.

The court found the Respondent's conduct to be in bad faith and ordered that the Applicant proceed to an uncontested trial, continued the restraining and disclosure orders, granted temporary spousal support of $4,504 per month, and awarded full recovery costs of $32,154.28 to the Applicant.

The mother appealed a child protection order placing her child in extended society care with no access, following a trial where the child was found to have suffered serious unexplained injuries.

She raised three grounds: ineffective counsel, the trial judge's incorrect application of the "unexplained injury principle" and the application of an outdated legal test for access.

The court dismissed the first two grounds, finding no miscarriage of justice regarding ineffective counsel and affirming the correct application of the unexplained injury principle.

However, the court allowed the third ground, agreeing that the trial judge erred in applying an outdated legal test for access under the Child, Youth and Family Services Act.

Despite this legal error, the appellate court exercised its jurisdiction to decide the access issue itself, concluding that it was not in the child's best interests to order access for the mother, given the history of serious unexplained injuries and the mother's acknowledged risk.

The court issued an addendum to its May 15, 2020 judgment, which had ordered the return of children to Warsaw, Poland, under the Hague Convention.

Due to COVID-19 travel complications, the parties could not agree on a return date.

The father sought return by July 15, 2020, while the mother requested a delay until late August 2020, citing safety concerns and inability to afford airfare.

The court ordered the children's return by July 31, 2020, finding no evidence to justify further delay.

The father offered to pay 50% of the children's economy airfare.

The court also directed the mother to contact the Polish consulate for travel documents and ensure compliance with the return order, with law enforcement authorized to assist.

The applicant sought to expand an ex parte restraining order and obtain disclosure from the respondent, who had allegedly dissipated assets and commenced divorce proceedings in foreign jurisdictions.

The respondent disputed the Ontario court's jurisdiction and sought an adjournment.

The court granted the applicant's requests for disclosure and a stay of foreign proceedings as reasonable and necessary terms for the adjournment, finding that Ontario had jurisdiction under the Divorce Act based on the applicant's evidence.

The respondent father applied for the return of his children to Poland under the Hague Convention, alleging wrongful removal by the applicant mother.

The mother admitted wrongful removal but sought to rely on the grave risk and child's objection exceptions under Article 13(b) and 13(2).

The court found that the mother failed to meet the high threshold for the grave risk exception, noting that her allegations of abuse were not substantiated by Polish courts and her own actions contradicted her claims.

The court also found that the children's objections were not sufficiently mature or independent to trigger the Article 13(2) exception.

Consequently, the court ordered the forthwith return of the children to Poland and denied the mother's request for conditions on their return.

The applicant sought full recovery costs after successfully obtaining an order for spousal support and striking the respondent's Answer due to his long-standing non-compliance with disclosure obligations and court orders.

The court granted full recovery costs of $23,662.73, finding the respondent acted in bad faith and the applicant beat an offer to settle.

The costs were ordered to be enforced as support by the Family Responsibility Office. interesting_citations_summary: > The decision applies the principles of costs under the Family Law Rules, O. Reg. 114/99, particularly rules 24(1), 24(12), 24(8) (bad faith), and 18(14) (beating an offer to settle).

It reiterates that proportionality and reasonableness are "touchstone considerations" for fixing costs, citing *Beaver v. Hill*.

The case provides a strong example of judicial sanction for egregious and willful non-compliance with disclosure obligations and court orders, leading to full recovery costs and enforcement as support, referencing *Wildman v. Wildman*. final_judgement: > The respondent was ordered to pay the applicant costs of the motion on a full recovery basis in the amount of $23,662.73, inclusive of disbursements and HST, payable by May 25, 2020.

These costs are to be enforced as support by the Director, Family Responsibility Office (Ontario).

The applicant may proceed with the uncontested affidavit trial by filing her material via email. winning_degree_applicant: 1 winning_degree_respondent: 5 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2020 decision_number: 3005 file_number: "FS-18-6867" source: "https://www.canlii.org/en/on/onsc/doc/2020/2020onsc3005/2020onsc3005.html" cited_cases: legislation: - title: "Family Law Rules, O. Reg. 114/99" url: "https://www.ontario.ca/laws/regulation/990114" case_law: - title: "Mattina v. Mattina, 2018 ONCA 867" url: "https://www.canlii.org/en/on/onca/doc/2018/2018onca867/2018onca867.html" - title: "Beaver v. Hill, 2018 ONCA 840" url: "https://www.canlii.org/en/on/onca/doc/2018/2018onca840/2018onca840.html" - title: "McCormick v. Fishbayn, 2020 ONSC 351" url: "https://www.canlii.org/en/on/onsc/doc/2020/2020onsc351/2020onsc351.html" - title: "Wildman v. Wildman (2006), 82 O.R. (3d) 401" url: "https://www.canlii.org/en/on/onca/doc/2006/2006canlii33540/2006canlii33540.html" keywords: - Costs - Family Law Rules - Bad faith - Offer to settle - Spousal support - Disclosure obligations - Non-compliance - Full recovery costs - Family Responsibility Office areas_of_law: - Family Law - Civil Procedure --- # Court File and Parties **Court File No.:** FS-18-6867 **Date:** 2020-05-14 **Superior Court of Justice – Ontario** **Re:** Karen Elizabeth McCormick, Applicant **And:** Joseph Randal Fishbayn, Respondent **Before:** C. Horkins J. **Counsel:** Rick Peticca, for the Applicant Joseph Randal Fishbayn, appearing in person **Heard at Toronto:** In Writing --- # Reasons for Costs Decision ## Overview [1] On January 20, 2020, I granted the applicant’s motion.

I ordered that the respondent pay monthly spousal support of $12,314.50, struck the respondent’s Answer and ordered that the applicant could proceed by way of affidavit evidence to an uncontested trial.

If the parties could not agree of costs, I set a timetable for exchange of written submissions. [2] The applicant has filed detailed cost submissions and the respondent has not filed a response, despite ample opportunity to do so.

His failure to file cost submissions is typical of his long standing non-compliant behaviour in this dispute. [3] The applicant seeks costs on a full recovery basis in the amount of $23,662.73 inclusive of disbursements and HST.

She seeks full recovery of costs for two reasons.

First, the respondent has acted in bad faith.

Second, the applicant made an offer that the respondent did not accept, and the result of her motion was more favourable than her offer. ## Legal Framework [4] The [Family Law Rules, O. Reg. 114/99](https://www.ontario.ca/laws/regulation/990114) are designed to foster four fundamental purposes: to indemnify successful litigants for the cost of litigation, to encourage settlements, to discourage and sanction inappropriate behaviour by litigants, and to ensure that cases are dealt with justly: [Mattina v. Mattina, 2018 ONCA 867](/on/onca/2018/867). [5] Pursuant to rule 24(1) there is a presumption that a successful party is entitled to costs.

This presumption is subject to the factors in rule 24(12) that the court “shall consider” in “setting the amount of costs” as follows: (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. [6] As this rule states, proportionality and reasonableness are the “touchstone considerations” to be applied when fixing the amount of costs: [Beaver v. Hill, 2018 ONCA 840 at para. 12](/on/onca/2018/840). [7] Finally, the Family Law Rules expressly contemplate that a party shall receive full recovery costs in specific circumstances: when a party has acted in bad faith - rule 24(8) and when a party has beat an offer to settle - rule 18(14). ## Analysis [8] The applicant was successful on her motion and is entitled to costs.

She is entitled to full recovery costs because the respondent acted in bad faith and she served an offer to settle before her motion that meets the conditions set out in Family Law Rule 18(14). [9] The applicant’s Bill of Costs reveals the extent of the work that was required to prepare the motion material and argue the motion.

The motion was very important to her.

The respondent had intentionally ignored his fundamental obligation to make full disclosure of his income for several years.

He ignored court orders and was not paying spousal support to the applicant.

It is important to the applicant that this conduct be sanctioned and that she receive the spousal support she needs. [10] The time incurred was significant because of the respondent’s conduct.

The applicant was able to obtain some banking records after the respondent finally signed authorizations.

These bank records raised numerous questions and revealed many more documents that were never produced.

The applicant was left trying to piece together, for her motion, the respondent’s financial circumstances and income from his dental practice. [11] The legal work was shared with law clerks and this reduced the fees incurred.

The issues on this motion were of moderate complexity.

In summary, the full recovery amount was reasonable and proportionate to the importance and complexity of the issues. [12] Prior to the motion the applicant served an offer to settle pursuant to Family Law Rule 18.

This offer meets the requirements of rule 18(14) and therefore triggers her right to full recovery of costs from the date of the offer, January 14, 2020. [13] This is a clear case of bad faith.

As a result, the applicant is entitled to full recovery of her costs under rule 24(8).

I rely on my Reasons for Decision ([McCormick v. Fishbayn, 2020 ONSC 351](/on/scj/2020/351)) to support this finding of bad faith.

The respondent’s conduct is reviewed below. [14] The parties separated in December 2012.

In 2014, they started a collaborative law process with counsel.

Since 2014, the respondent has refused to comply with his obligation to make full disclosure.

At para. 17, I stated: [17] In 2014, the parties started a collaborative law process.

Both had counsel.

The Respondent refused to negotiate in good faith.

He would not commit to a financial position and refused to provide disclosure.

As a result, the process dragged on with no resolution.

The Respondent refused to provide even the most basic disclosure.

The Applicant had no choice but to opt out of the collaborative process.

She commenced this application in December 2018. [15] After the application was commenced, the respondent’s non-compliance continued.

He filed an Answer and a financial statement that did not comply with the Family Law Rules.

He attended two case conferences before Justice Stevenson without making proper disclosure.

At para. 22, I stated: [22] At the first case conference on June 21, 2019, Justice Stevenson recorded that equalization and spousal support were the main issues.

She stated that there are “many outstanding disclosure issues … the Applicant seeks significant disclosure today which is reasonable and needs to be provided so that the matter moves forward.” Justice Stevenson made several orders.

The Respondent was ordered to produce all of the disclosure in the Applicant’s Request for Information by August 30, 2019, the Applicant was allowed to bring motions if necessary and a further case conference was scheduled for September 23, 2019. [16] The respondent signed the authorizations allowing the applicant to obtain some disclosure directly from banks where the respondent or his dental practice had accounts.

Even after some bank records were produced, significant disclosure remained outstanding.

The respondent alleged that he could not afford to hire an accountant to complete his income tax returns and yet the bank records revealed that he did have money. [17] A second case conference was held before Justice Stevenson on September 23, 2019.

Justice Stevenson confirmed that the respondent had not complied with the orders she made on June 21, 2019.

As a result, Justice Stevenson stated that the case conference was “a wasted attendance” and nothing was accomplished. [18] When the applicant’s motion was heard, the respondent remained in breach of the June 21 and September 23 orders.

I found that the non-compliance (re disclosure) was “significant” and set out a lengthy list of what the respondent had not produced. [19] At paras. 70-71 of my Reasons for Decision, I explained the basis for striking the respondent’s Answer as follows: [70] There are triggering events that justify this order.

The Respondent has refused to provide disclosure since the start of the collaborative process in 2014.

He has refused to comply with two court orders.

These orders set out a detailed list of what he was required to produce and a deadline for compliance was included.

The Respondent has not paid the cost order. [71] There is no point in issuing yet another order for compliance.

The Respondent has demonstrated that he has no intention of complying with the court orders.

On this motion, the Respondent did not even bother to file a meaningful affidavit.

He has had years to produce his financial disclosure.

His overall approach is to stall the final adjudication of the issues.

I find that he has demonstrated willful non-compliance with his disclosure obligations and the court orders.

Such conduct is egregious and exceptional, and it is appropriate to strike his pleading.

No other remedy will suffice. [20] Apart from some uncharacterized payments that the respondent made to the applicant after separation, he has refused to pay spousal support.

He concedes in his Answer that the applicant is entitled to spousal support and yet refuses to pay support.

As I stated in para. 47 “[t]he Respondent has the ability to pay spousal support and is simply refusing to do so.” [21] The respondent’s conduct rises to the level of bad faith.

It cannot be explained as bad judgment or negligence.

The respondent’s prolonged pattern of conduct had one purpose and that was to conceal his financial circumstances and delay resolution of this dispute, to the detriment of the applicant. [22] In summary, the applicant is entitled to costs from the respondent on a full recovery basis in the amount of $23,662.73 inclusive of disbursements and HST.

The costs shall be enforced as support by the Family Responsibility Office ([Wildman v. Wildman (2006), 82 O.R. (3d) 401 at paras. 54-56](https://www.canlii.org/en/on/onca/doc/2006/2006canlii33540/2006canlii33540.html)). [23] The dispute between the parties has been ongoing since 2014 when they started a collaborative law process.

I have already ordered that the applicant can proceed by way of affidavit evidence to an uncontested trial.

In this COVID 19 crisis the applicant may proceed with this uncontested trial and materials shall be filed by email at FamilyTrialOffice-SCJ-Toronto@ontario.ca. ## Conclusion [24] I make the following orders: 1.

The respondent shall pay the applicant her costs of the motion on a full recovery basis in the amount of $23,662.73 inclusive of disbursements and HST. 2.

The costs are payable no later than May 25, 2020. 3.

The costs shall be enforced as support by the Director, Family Responsibility Office (Ontario). 4.

The applicant may proceed with the uncontested affidavit trial by filing her material at FamilyTrialOffice-SCJ-Toronto@ontario.ca. --- C. Horkins J. Date: May 14, 2020

The respondent father brought an urgent motion to reduce child and spousal support, claiming a 42% income reduction due to the COVID-19 pandemic.

The applicant mother opposed.

The court, after reviewing additional evidence, determined the motion was not urgent.

The judge noted the respondent's controlling share in his company, lack of detailed evidence for alleged rental income loss, and existing savings, emphasizing that he was not in arrears.

The court dismissed the motion, stating that limited judicial resources during the pandemic must be reserved for truly urgent cases and that the motion sought to determine ultimate trial issues.

Costs were awarded to the applicant.

The applicant brought a motion seeking orders for spousal support, striking the respondent's Answer, and permission to proceed to an uncontested trial with affidavit evidence.

The respondent had consistently failed to provide financial disclosure and comply with multiple court orders since the parties' separation in 2012.

The court found the respondent's non-compliance to be exceptional and egregious, accepting the applicant's detailed evidence as fact due to the respondent's inadequate response.

The motion was allowed, with the court imputing income to the respondent for spousal support calculation and striking his Answer, allowing the applicant to proceed to an undefended trial.

The applicant father brought a motion for a custody and access assessment under s. 30 of the Children's Law Reform Act, arguing that the parties' relationship was high conflict and the child was manifesting stress.

The respondent mother opposed the motion.

The court applied the Glick criteria and found that the evidence did not support the need for an assessment, as there was no clinical diagnosis, the child was thriving, and the conflict was typical of parenting disputes.

The motion was dismissed, and the parties were ordered to exchange parenting plans.

The parties separated and the wife, who suffers from severe mental illness, sought to reconcile out of a delusional fear for her child's safety.

The husband agreed to reconcile only if she signed a Marriage Contract waiving all rights to spousal support and equalization.

The husband failed to disclose his purchase of a property and a significant withdrawal from their joint account.

The court found that the husband exploited the wife's vulnerability, that she signed the contract under duress, and that she did not understand its consequences due to the non-disclosure.

The court exercised its discretion under s. 56(4) of the Family Law Act to set aside the Marriage Contract.

The appellant, Richard Smith, appealed an arbitral award that set aside a paragraph of Minutes of Settlement due to his failure to make full disclosure of significant stock option income.

The Arbitrator found that Mr. Smith's disclosure created "information asymmetry" by not clearly presenting the $1.1 million stock option income in his financial statements and affidavits, despite it appearing on attached pay stubs.

The Superior Court dismissed the appeal, affirming the Arbitrator's finding that Mr. Smith did not fulfill his positive duty of full and honest disclosure, as required by Rick v. Brandsema.

The court rejected the appellant's arguments that the Arbitrator made palpable and overriding errors of fact or erred in law by relieving the respondent of her duty to inquire, emphasizing that the onus to inquire only shifts after complete and unambiguous disclosure.

Dina Barrese brought a motion to disqualify Niman Gelgoot & Associates (NGA) from acting as counsel for Dominic Barrese, her former husband.

Dina had contacted NGA twice (in 2016 and 2019) with the intention of retaining them, disclosing sensitive personal and confidential information.

NGA subsequently accepted Dominic as a client.

The court applied the MacDonald Estate v. Martin test, finding that a previous solicitor-client relationship existed between Dina and NGA, leading to an inference that confidential information was imparted.

NGA failed to discharge the difficult burden of proving no relevant information was imparted.

The court emphasized the appearance of impropriety, especially in family law disputes, and granted the disqualification order.

The applicant mother (C.A.) brought a motion to strike the respondent father's (K.G.) motion to change a 2014 final court order.

K.G.'s motion sought to terminate spousal support, reduce child support, change primary residence of children, and set support arrears to zero.

C.A. alleged K.G. had a long-standing pattern of non-compliance with court orders and disclosure obligations, including significant support arrears and failure to maintain life insurance.

The court reviewed K.G.'s history of non-compliance, inconsistent financial disclosure, and evidence from his former spouse (H.W.) which contradicted his financial claims.

Applying Family Law Rule 1(8)(c) and appellate guidance, the court found exceptional circumstances justifying striking K.G.'s motion to change, emphasizing the fundamental duty of financial disclosure and the "real harm" caused by persistent non-compliance.

Alternative remedies were deemed insufficient given K.G.'s repeated failures.