DATE: May 8, 2025
COURT FILE NO. D199/00
ONTARIO COURT OF JUSTICE
B E T W E E N:
JANET JANSEN
Jonathan Korman, for the APPLICANT
APPLICANT
- and -
DAVID DICECCO
Mercedes Ibghi, acting as agent for the RESPONDENT
RESPONDENT
HEARD: In Chambers
JUSTICE S.B. SHERR
COSTS ENDORSEMENT
Part One – Introduction
1On April 8, 2025, the court delivered written reasons for decision after an uncontested child support trial where the respondent (the father) was given limited rights of participation. See: Jansen v. DiCecco, 2025 ONCJ 189.
2The court fixed the father’s child support arrears at $899,811, payable to the applicant (the mother) forthwith.
3The court found that the mother was the successful party and entitled to her costs. The parties made written costs submissions. The mother seeks costs of $201,390 from the father, to be enforced as an incident of support by the Director of the Family Responsibility Office (the Director).
[4] The father submits that the mother’s claim for costs is excessive. He claims that:
a) She was only partially successful at trial.
b) She delayed and confused the proceeding.
c) He did not act in bad faith, or even act unreasonably.
d) He did not intend to cause harm, conceal information, or deceive the mother or the court.
e) He consistently complied with his child support obligations.
f) He made a good faith effort to resolve the matter and the mother did not.
g) The time claimed by the mother in her bill of costs is excessive and disproportionate.
h) The expenses claimed by the mother in her bill of costs are excessive.
i) The mother did not provide evidence of her expenses claimed.
Part Two – General costs principles
[5] The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 set out that modern costs rules are designed to foster four fundamental purposes:
(1) to partially indemnify successful litigants;
(2) to encourage settlement;
(3) to discourage and sanction inappropriate behaviour by litigants; and
(4) to ensure that cases are dealt with justly under subrule 2(2) (all references in this decision to rules are to the Family Law Rules).
6Costs can be used to sanction behaviour that increases the duration and expense of litigation or is otherwise unreasonable or vexatious. In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice. See: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, para 25.
7Family law litigants are responsible for and accountable for the positions they take in the litigation. See: Heuss v. Surkos, 2004 ONCJ 141.
8Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.
9An award of costs is subject to the factors listed in subrule 24(14), subrule 24(7) pertaining to unreasonable conduct of a successful party, subrule 24(10) pertaining to bad faith, subrule 24(12) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party. See: Berta v. Berta, 2015 ONCA 918, para 94.
Part Three – Success
10Subrule 24(3) sets out a presumption that the successful party is entitled to costs.
11The court found in its reasons for decision that the mother was the successful party at trial.
12Contrary to the father’s submission, the mother was overwhelmingly successful. She asked that the father’s support arrears be fixed at 1.4 million dollars. The father asked that arrears be set at zero. The court fixed support arrears at $899,811.
13The presumption that the mother is entitled to costs was not rebutted.
Part Four – Bad faith
4.1 Legal considerations
14Subrule 24(10) of the rules states that if a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.
15Subrule 24(10) requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made. See: Cozzi v. Smith, 2015 ONSC 3626; Scipione v. Del Sordo, 2015 ONSC 14971.
16There 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. See: S.(C.) v. S. (M.), 2007 ONSC 20279, 38 R.F.L. (6th) 315 (Ont. SCJ).
17Bad 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. See: Scipione, supra.
18Persistent refusal by a party to make accurate financial disclosure and reveal their true income may rise to the level of bad faith. See: DePace v. Michienzi, 2000 ONSC 22460; Kardaras v. Kardaras, 2008 ONCJ 616; Jones v. Hugo, 2012 ONCJ 381.
19In Stevens v. Stevens, 2012 ONSC 15385, affirmed, [2013] O.J. No. 1912 (ON CA), Justice John Harper wrote that deliberate non-disclosure is not merely unreasonable conduct, it is an example of bad faith….One of the most significant contributors to lengthy and costly litigation is untimely and inaccurate disclosure. All too often, one party makes every effort to thrust economic havoc on the other when this game of litigation hide and seek forms a part of their litigation strategy. This cannot be permitted by the court.
20A party who adopts “a catch-me-if-you-can approach to financial disclosure” demonstrates bad faith and breaches rule 13. See: Parry v. Parry, 2020 ONSC 3437.
21In Lewis v. Lynch, 2024 ONCJ 325, this court made a finding of bad faith against the father because he withheld financial disclosure and did not advise the mother of large increases in his income. This court wrote that to change behaviour, courts must make orders that send clear and strong messages to support payors, such as the father, that such conduct will result in significant financial consequences for them. This will not dissuade all dishonest payors. However, increasing the risks for such conduct may dissuade many more of them.
4.2 Analysis
22The court rejects the father’s submission that his non-compliance with court orders and his failure to reveal his actual net worth and income was due to his being self-represented, his lack of legal training and limited understanding of the court and disclosure processes. The father was represented by counsel until the end of 2022. He has been involved in previous family law cases. He runs a successful business. He knew what he was doing and what he wasn’t doing. He was given several chances to comply with financial disclosure orders before his response to motion to change was struck.
[23] The court finds that the father acted in bad faith throughout this case based on the following findings in its reasons for decision:
a) He deliberately misrepresented his assets and income to the mother and the court. He provided false financial statements to the court.
b) He attempted to hide income and assets from the mother.
c) He intimidated the mother from coming to court earlier.
d) Once the mother started the case, he tried to use his financial advantage to dissuade her from continuing with the case.
e) He failed to provide meaningful or honest financial disclosure of his personal and business interests despite multiple court orders. The court found his non-compliance with the orders was intentional and was done with an intent to obscure his real assets and income (par. 46(c) of the reasons for decision). Eventually, his response to motion to change was struck due to his repeated breaches of these court orders.
f) He failed to advise the mother of his significant increases in income.
g) He failed to pay anywhere close to the proper amount of child support.
h) He lived a luxurious lifestyle while impoverishing the mother and his son.
i) He accumulated considerable wealth, to some extent due to his failure to pay adequate child support.
24The court wrote in its reasons for decision that this was one of the most egregious cases of financial deception this court has seen in many years (par. 47) and that the father’s blameworthy conduct was as bad as it gets (par. 84).
25The father’s conduct easily crossed the line from unreasonable behaviour to bad faith.
Part Five – Amount of costs
5.1 Legal considerations
26Subrule 24(14) reads as follows:
24 (14) 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.
27Even where the "full recovery" provisions of the rules are triggered they do not require the court to allow the successful party to demand a blank cheque for their costs. See: Slongo v. Slongo, 2015 ONSC 3327. The court retains a residual discretion to make costs awards which are proportional, fair and reasonable in all the circumstances. See: Jackson v. Mayerle, 2016 ONSC 1556.
28In determining the appropriate quantum, the court should consider the amount that the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation. See: Arthur v. Arthur, 2019 ONSC 938.
5.2 Importance, difficulty and complexity of the case
29This case was important to the parties. It was made unduly complex and difficult due to the father’s attempts to obstruct the mother from discovering his actual assets and income.
5.3 Conduct and the mother’s failure to make an offer to settle
30The mother generally acted reasonably in the case.
31The mother acted unreasonably earlier in this case by delaying the proceeding. She was sometimes unprepared for court attendances. She changed lawyers four times and sought a late amendment to her motion to change. This required several adjournments. The case management judge, Justice Roselyn Zisman addressed this unreasonable conduct by making four costs orders against her.
32The mother did not make an offer to settle. Often, this will be deemed to be unreasonable behaviour. However, the failure to make an offer might be excused when the other side fails to provide meaningful financial disclosure upon which to base a financial offer. There would be a risk that the offer would be for less than the person was entitled to. If the person had made an offer (that was accepted) based on the lower income, without financial disclosure, this could lead to an unjust result. See: Oduwole v. Moses, 2016 OCJ 5636. That is certainly the case here. The mother’s failure to make an offer to settle is not a factor in this costs decision.
33The father made an offer to settle. According to the mother, the father offered to fix the arrears at $20,000. The offer was nowhere close to the amount the court ordered at trial. The offer was premised on false representations by the father about his net worth and income. It was meaningless and is not a factor in this costs analysis.
34The father acted in bad faith throughout this case. He deliberately caused the mother to expend additional legal fees to obtain financial disclosure he should have provided to her. Much of this information came to her in increments which caused increased time and expense for her lawyers to process. Her lawyers had to try and complete a financial puzzle without critical puzzle pieces.
5.4 Hourly rates
35The hourly rate of $290 charged by the mother’s current counsel is reasonable. The hourly rate of $440 charged by the senior counsel her current lawyer consulted with was also reasonable. Her counsel did not include his own time for these consultations.
36The hourly rate of $225 each hour the mother claimed for two law clerks is high. In Ahluwalia v. Ahluwalia, 2022 ONSC 2169, the court stated that $125 per hour was an appropriate rate for a senior law clerk. Also see: Shirley v. Wellington, 2024 ONCJ 128; Thomas v. Charles, 2024 ONCJ 138.
37The mother claimed the hourly rate of $250 for her first lawyer on the case. This is a reasonable rate. She did not set out the hourly rate of her next two lawyers on the case – only the total amounts they charged her. There is no way to assess if their hourly rates were reasonable.
5.5 Prior steps in the case
5.5.1 Legal considerations
38The mother is seeking full recovery costs for all her legal fees in this case.
39Subrule 24(1) sets out that promptly, after dealing with a step in a case, the court shall, in a summary manner, determine who, if anyone, is entitled to costs in relation to that step and set the amount of costs or reserve the decision on costs for determination to a later step in the case.
40Subrule 24(2) sets out that the failure of the court to make a costs order, or reserve costs after a step in a case does not prevent the court from awarding costs in relation to that step at a later step in the case.
41In Laidman v. Pasalic and Laidman, 2020 ONSC 7068, the court set out that the presumption remains that costs should be determined at each stage, and there are good reasons for this. Parties should have an ongoing awareness of the cost consequences of litigation decisions they make. Reserving costs may impede final resolution by needlessly inflating and complicating the list of future issues still to be dealt with. A judge who has just completed a step in a case will usually be in the best position to evaluate all of the relevant costs considerations. Reserving costs to a future event – often to a different judge – can result in later confusion and controversy about what really happened at the earlier step.
42In Cameron v. Cameron, 2018 ONSC 6823, Justice Marvin Kurz found that there is a rebuttable presumption against ordering costs for prior steps in the case if they were not addressed or reserved by the judge hearing the step. He wrote at paragraphs 83 to 86:
[83] In sum, a trial judge has the jurisdiction under R. 24(11) to determine the costs of earlier steps in the proceeding. However, in light of the continued application of R. 24(10), it should be presumed that a judge who does not determine or reserve the costs of a step before her or him does not find that the conduct of the parties during the course of that step merits an award of costs.
[84] That presumed finding should be entitled to deference by subsequent judges. It should be accorded even greater deference when, as here, the previous step was conducted before R. 24(11) was formally amended on April 23, 2018.
[85] If the judge of a step prior to trial does not wish the presumption to apply, I suggest that he or she should say so. The judge can then expressly reserve the costs of the step to a later date, such as the trial. If that occurs, brief reasons would be helpful. I know that many judges are reluctant to award costs of a conference or even reserve them for fear that such a decision may adversely affect the potential for settlement. However, with the increasingly onerous costs of family litigation, it is always salutary for the parties to be reminded at every stage of the proceeding of the potential costs consequences of their litigation.
[86] In light of the presumption, a judge hearing a trial should only grant the costs of a previous step in one of the following circumstances:
a. when they have been reserved to the trial judge; or
b. when, in light of subsequent events, the trial judge is better situated to determine the costs of the prior step than the judge presiding over that step. In that case, the process of determining costs will involve a broad consideration of the prior step within the context of the case as a whole; or
c. in exceptional circumstances.
43This approach has been followed in T.L. v. D.S., 2020 ONCJ 9; Berge v. Soerensen, 2020 ONCJ 265 and in G.P. v. R.P., 2023 ONCJ 437.
44Costs accrued from activity not specifically related to a prior step in a case can be ordered at the end of a case. Activity not requiring judicial intervention is often better dealt with at the end of the case and not by the motions judge. See: Houston v. Houston, 2012 ONSC 233; Walts v. Walts, 2014 ONSC 98; F.S. v. M.B.T., 2023 ONCJ 144. This will include time spent preparing and reviewing pleadings, preparing and reviewing financial statements, obtaining and reviewing financial disclosure, meetings with clients, meetings and discussions with professionals (such as the business valuator in this case) and discussions with opposing counsel.
5.5.2 Analysis
45The court finds there are exceptional circumstances in this case that warrant ordering full recovery costs for most of the prior steps in the case. The father hid his income and assets from the mother and the court. He did so in the hope of avoiding his child support obligations. He maintained at each court appearance that he was earning much less than he was actually earning. He made false representations of his net worth in the financial statements he filed with the court. These misrepresentations and the extent of these misrepresentations did not become fully apparent until the mother was able to obtain records regarding the father from third party sources in the year leading up to the trial. The trial judge is in the best position to assess costs for most of the prior steps in the case.
46There are exceptions to this determination. The court will not revisit costs orders previously made in the case. Four costs orders were made by Justice Zisman against the mother. They arose from wasted court appearances, a failed attempt by her to strike an affidavit, her late amendment of her motion to change and the father’s successful motion to terminate ongoing child support for the parties’ adult son. Justice Zisman was better situated to determine costs at those appearances than the trial judge.
47Justice Zisman also released a costs endorsement on December 14, 2022, related to a motion brought by the father heard on October 31, 2022, and a case conference that had been heard on June 29, 2022. Justice Zisman found the appearance on June 29, 2022 was wasted because the mother was not prepared. She found there was divided success on these appearances and ordered no costs payable by either party. There is no basis, at this time, to go behind her decision. She was better situated to determine those costs.
5.6 The amount of costs and order
48The court recognizes that the mother had to incur significant legal fees to uncover the father’s assets and income and present her case to the court. She had to search court records from Newmarket. She made requests for information under the Freedom of Information Act. She brought third party records motions in this case and followed up with third parties to obtain financial information the father had hidden from her. These additional legal fees were required due to the father’s attempts to deceive her and the court.
49The court reviewed the mother’s bill of costs. The court appreciates that additional work was required by the mother’s current counsel because of the father’s conduct. However, it finds the bill is too high. The bill of costs appears to include secretarial time that should not be included in a claim for costs. Secretarial time should be subsumed in the hourly rate of counsel. See: Altman v. Altman, 2024 ONSC 4553, para 55. There are also a number of entries for work done by persons who are only identified by initials, such as AR, NF, CML and YM. It is unknown if these persons are lawyers, law clerks or administrative assistants.
50The mother’s bill of costs includes time for steps where costs have already been determined. For instance, she claimed time for a motion on October 31, 2022. Justice Zisman already addressed costs for that step in her endorsement dated December 14, 2022. She claimed time for the motion heard on May 16, 2023. Costs were already awarded for that step.
51The mother also sought costs for several adjournment requests she made, as she did not feel ready to proceed. She should not receive costs for these steps.
52The court finds that the time spent by her first counsel is reasonable and proportionate.
53The court cannot assess whether the time spent by the mother’s two other counsel was reasonable and proportionate because there was no breakdown of their legal fees. The court cannot assess what amount of these fees were attributable to steps where Justice Zisman made costs determinations. The mother is not entitled to costs for those steps.
54Further, the court cannot determine whether there was a duplication of time spent by counsel to review the file when it was transferred through four lawyers. The mother is not entitled to costs for duplicate work.
55The court finds that the mother is entitled to recoup some of the costs of her second and third counsel. However, her claim will be discounted due to the lack of detail provided.
56The mother had to incur significant expenses to provide the court with evidence of the father’s assets and income. These included title searches, PPSA searches, Freedom of Information Act requests and obtaining medical reports setting out her physical and mental health challenges. These expenses were reasonable and necessary.
57The mother incurred expenses for a business valuator she retained. The court will partially indemnify the mother for this expense. She did not obtain a report from the valuator and did not call the valuator as a witness at the trial. The court appreciates this was likely an affordability issue. The valuator was able to provide the mother with a detailed list of what financial information was still required from the father that formed the basis of her third-party production motions.
[58] The mother claimed expenses for her own time and personal expenses (such as car rental costs, Ubers, mileage, parking and waiting time to get documents), separate from her legal fees. These costs will not be allowed. It becomes a slippery slope if courts start awarding costs for both a parties’ time and their counsel’s time in a case. It will make costs claims unwieldy, overly complex and very expensive. It would become very difficult to determine costs in the summary manner contemplated by the rules.1 This is contrary to the primary purpose set out in rule 2 to deal with cases justly. In particular, clause 2(3) states that dealing with cases justly includes,
(a) ensuring that the procedure is fair to all parties;
(b) saving expense and time;
(c) dealing with the case in ways that are appropriate to its importance and complexity; and
(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.
59The court recognizes that the mother saved legal fees by doing some of this work herself. This work can be recognized as it enhances her submission that the legal fees she incurred were reasonable and proportionate.
60The mother claimed an expense of $18,088 for interest paid on a home equity line of credit she said she obtained to fund her legal fees. The mother is being compensated in this decision for her legal fees. The court does not award expenses arising out of loans obtained to fund litigation.
61An important purpose of costs is to discourage and sanction unreasonable behaviour by litigants. The father has deliberately hidden his assets and income from the court since 2000, when the first application in this case started. He has acted with impunity for a long time. He became emboldened and felt the mother was powerless to do anything about it. He kept the mother and their child impoverished. It is imperative that courts send the strong message through costs orders that such conduct will result in significant financial consequences.
62The court finds that the father can afford to pay the costs that will be ordered. He should have expected to pay this level of costs if he was unsuccessful. As of November 2020, he owned three properties with considerable equity and had liquid assets of over 1.3 million dollars.
63The court finds that a reasonable and proportionate amount of costs the father should pay to the mother is $100,000, inclusive of fees, disbursements and HST.
Part Six – Enforcement by the Director
64The mother seeks an order that her costs be payable as support and enforced as an incident of support by the Director pursuant to clause 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act.
65This will be ordered. The only issue in this case was child support. The costs are entirely attributable to that issue.
Part Seven - Conclusion
[66] The court orders as follows:
a) The father shall pay the mother’s costs fixed in the amount of $100,000, inclusive of fees, disbursements and HST. This is in addition to the costs previously ordered.
b) The costs are due and payable forthwith.
c) The costs are payable as support and shall be enforced as an incident of support by the Director pursuant to clause 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act.
67The mother’s counsel shall send the draft costs order directly to the trial coordinator’s office for review and signature by the court.
Released: May 8, 2025
Justice Stanley B. Sherr
