BRAMPTON COURT FILE NO.: FS-13-76817-00 DATE: 2024 02 21 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

K.K. Applicant

• and - M.M. Respondent

Brian Ludmer, counsel for the Applicant Aida Pasha, counsel for the Respondent

P ETERSEN J.

DECISION ON COSTS

OVERVIEW

Introduction

[1] This Decision pertains to the costs of a family law proceeding that commenced on January 3, 2013, and concluded on September 28, 2022. The parties were each represented by different counsel at different times over the course of the decade of litigation. They were also each self-represented for periods of time. They both incurred significant legal costs.

[2] The proceeding was acrimonious and protracted. There were approximately 40 pre-trial court appearances at conferences and motion hearings. I was not involved in any of the pre-trial steps. I presided over the trial, which commenced on November 30, 2020, and continued for 19 days (including a half-day mid-trial motion) over a period of more than four months. It concluded on April 8, 2021.

[3] I released my Reasons for Judgment on June 1, 2021: K.K. v. M.M., 2021 ONSC 3975, aff’d K.K. v. M.M., 2022 ONCA 72. I remained seized with respect to three outstanding trial issues that required further written submissions, namely: (i) amount of retrospective and prospective spousal support payable by K.K., (ii) s. 7 expenses, and (iii) costs.

[4] I decided the spousal support issues in my Supplemental Reasons for Judgment dated November 15, 2021 (K.K. v. M.M., 2021 ONSC 7522) and Further Supplemental Reasons for Judgment dated November 15, 2021 (unreported), aff’d K.K. v. M.M., 2023 ONCA 823. The remaining s. 7 expense issues were subsequently resolved by way of consent orders in my Endorsement dated September 28, 2022 (unreported).

[5] The only issue I have left to decide is costs.

Parties’ Positions

[6] The Respondent M.M. is seeking her costs for the entire proceeding on a full recovery basis. She requests the following relief from the Court:

i. an Order setting aside all costs Orders against her, totaling $114,265.10; ii. an Order enforcing pre-trial costs Orders against K.K., totaling $56,772.33; iii. an Order for costs payable by K.K. incidental to all the pre-trial steps in the proceeding in the total amount of $179,499.27, broken down as follows: $ 51,458.77 March to June 2013 (counsel: M. Cochrane) $ 48,823.49 June to November 2013 (counsel: C. Mancia) $ 36,055.35 November 2013 to March 2014 (counsel: A. Crossley) $ 7,198.60 June to September 2018 (counsel: H. McCullough) * these amounts are in addition to the $56,772.33 in pre-trial costs already awarded in her favour; and iv. an Order for K.K. to pay her costs in the amount of $35,963.06, for personal expenses incurred in connection with the litigation; and v. an Order for trial-related legal costs payable by K.K. in the amount of $150,827.34 (counsel: Aida Pasha).

[7] K.K. takes the position that the trial judge has no jurisdiction to re-evaluate prior Orders in which costs were awarded by other judges at pre-trial steps in the proceeding.

[8] K.K. further takes the position that M.M. should not now be awarded costs for any pre-trial steps in the proceeding at which she did not already obtain an order for costs. He submits that:

i. The trial judge has no jurisdiction to determine costs for any step where a motion judge or conference judge considered costs and specifically decided not to award them. ii. For pre-trial steps where costs were not assessed, or were specifically reserved to the trial judge, the Court should deny M.M.’s claim because she has not filed adequate materials to support it. iii. K.K. should be awarded his costs for conferences on February 8, 2017, October 4, 2017, and November 30, 2018. iv. The parties should each bear their own costs associated with all other conferences, which were purely procedural. v. K.K. should be awarded his costs with respect to two failed pre-trial motions brought by M.M.

[9] With respect to costs of the trial itself, K.K. acknowledges that the Court’s ultimate trial decision was less favourable to him than to M.M., which triggers a presumption of costs in her favour on at least a partial recovery basis, subject to reasonableness and proportionality. However, he submits that M.M.’s costs should be denied because her costs submissions are “bereft of organization and topical guidance.” In the alternative, K.K. argues that full recovery costs are not appropriate in the circumstances, and that M.M. should be denied at least some of her costs because of divided success on the issues and because of unreasonable litigation behaviour.

[10] Finally, K.K. seeks orders for costs payable by M.M. in the amount of $5,595.76 (counsel: McDonald & Partners) in connection with written submissions on the issue of spousal support and in the amount of $10,627.66 (counsel: Brian Ludmer) in connection with the resolution of the outstanding s.7 expense issues. These costs arise out of the trial and will be addressed as such.

M.M.’S ENTITLEMENT TO COSTS

M.M. was the Successful Party at Trial

[11] A successful party is presumptively entitled to their costs. Where success in a case is divided, the court may apportion costs as appropriate. The determination of whether success was divided, or of which party succeeded overall, does not simply involve adding up the number of issues and running a mathematical tally of which party won more of them. Rather, it requires a contextual analysis that takes into consideration the importance of the issues that were litigated and the amount of time and expense that was devoted to the issues: Family Law Rules, O. Reg. 114/99, r. 24(1) and 24(6); Brennan v. Brennan, 2002 CarswellOnt 4152 (S.C.J.), at para. 3; Jackson v Mayerle, 2016 ONSC 1556, at para. 66; Thompson v. Drummond, 2018 ONSC 4762, at para. 12; and DeSantis v. Hood, 2021 ONSC 5496, at para. 39.

[12] In this case, M.M. was successful at trial on all the major issues in dispute, including the imputation of significant income to K.K., M.M.’s entitlement to spousal support, the appropriate amount and duration of spousal support, and numerous parenting issues (i.e., whether K.K. engaged in family violence; whether either spouse engaged in parental alienation; determination of the children’s principal residence; allocation of parental decision-making authority; and parenting time). These were the issues that consumed the bulk of the trial. There was some mixed success on s.7 expenses, as well as the imputation of income to M.M., but those were peripheral issues.

[13] M.M. was unsuccessful on her motion, at the commencement of the trial, to set aside an earlier Order striking her equalization claim. She was also unsuccessful on a mid-trial motion for immediate variation of a temporary parenting Order. Both of those motions consumed relatively little time and the evidence adduced during the mid-trial motion was deemed to be evidence in the trial, so it did not lengthen the trial. When viewed in context, these were minor issues that did not consume many resources or much court time.

[14] In the circumstances, it would not be accurate to characterize the outcome of the trial as “divided success.” The Respondent was overwhelmingly successful and is presumptively entitled to her costs.

M.M.’s Conduct Was Not Unreasonable

[15] The court may deprive a successful litigant of their costs or order them to pay the unsuccessful party’s costs if they have “behaved unreasonably during a case”: r. 24(6). K.K. argues that M.M. conducted herself unreasonably in that she:

i. failed to make timely financial disclosure and to produce financial statements, resulting in the dismissal of her equalization claim; ii. made an unsuccessful request to add a last-minute witness to her trial list; iii. requested judicial interviews of the parties’ children even though there was a Voice of the Child Report; iv. made a failed attempt to file an affidavit sworn by the parties’ daughter in the context of the mid-trial motion; v. attempted unsuccessfully to introduce evidence for an impermissible hearsay purpose; vi. gave testimony that was inconsistent with prior statements she made to medical practitioners; and vii. sought to introduce opinion evidence from health care practitioners during a post-trial parenting review without producing the practitioners’ clinical files, then renewed her request to adduce that evidence after the court ruled against her.

[16] I will address each of these 7 criticisms of M.M.’s conduct in turn.

[17] First, it is not accurate to state that M.M. “failed to make timely financial disclosure and to produce financial statements.” She complied with her financial disclosure obligations in the early stages of the proceeding, but in June 2019 and October 2019, as the case management judge was attempting to ready the file for trial, M.M. failed to comply with court-imposed deadlines to update her sworn Financial Statement. Her equalization claim was struck by the case management judge as a result.

[18] As set out in paragraphs 568-596 of my Reasons for Judgment, M.M. was preoccupied with parenting concerns throughout 2019. At that time, the children were in K.K.’s exclusive care. She had reason to fear for their safety, based on allegations of physical abuse made by their daughter, V.K. Moreover, K.K. was preventing her from seeing the children and was interfering with her ability to communicate with them, despite a November 30, 2018 Temporary Order granting her regular parenting time. She was emotionally distraught about the children being withheld from her for an extended period and she simply could not focus on the financial issues in the litigation. She was not represented by counsel at that time. In the circumstances, her failure to update her Financial Statement by the court-imposed deadlines does not constitute unreasonable conduct of the sort that should attract a costs sanction. Moreover, she was already sanctioned with the striking of her equalization claim.

[19] Second, as set out in paragraphs 18-22 of my Reasons for Judgment, I denied M.M.’s request to add her family physician to her witness list at the commencement of the trial. I did so because she had not given notice to K.K. of her intention to call Dr. Gobrial as a witness, and she had not disclosed the doctor’s clinical notes. K.K. submits that this shows “last-minute brinksmanship and perhaps attempts to take advantage of the fact that [he], though a doctor, was self-represented at trial.” I agree that M.M.’s last-minute request to add a witness to her trial list was unreasonable, but there is no evidence that the late timing of the request was done intentionally to exploit K.K.’s vulnerability as a self-represented litigant. It is more likely that M.M. simply did not turn her mind to the need to call Dr. Gobrial as a witness until the late stages of trial preparation. His evidence would have been about her health and employability, which were relevant to K.K.’s request to have income imputed to her based on intentional underemployment. That was just one of a multitude of issues to be tried and it was certainly not M.M.’s priority.

[20] In the absence of evidence of malice (i.e., evidence of intent to take advantage of K.K.’s status as a self-represented litigant), M.M.’s late request to add Dr. Gobrial to her witness list did not constitute unreasonable conduct of the nature that should attract cost consequences. It did not lengthen the trial by more than a few minutes, did not consume litigation resources, and did not result in any increased costs to the parties.

[21] Third, in paragraphs 160-166 of my Reasons for Judgment, I explained why I rejected M.M.’s request for judicial interviews of the parties’ two children. Although I did not grant the request, it was not unreasonable, given that the Ontario Children’s Lawyer had interviewed the children a year prior, and circumstances had changed in the interim.

[22] Fourth, at paragraphs 167-172 of my Reasons for Judgment, I explained why I refused to accept an affidavit sworn by the parties’ eldest child, V.K., in the context of M.M.’s emergency mid-trial motion for an immediate variation of a temporary parenting Order. Although M.M.’s attempt to adduce evidence from V.K. was unsuccessful, it was not an unreasonable request in the circumstances. V.K. was the only witness who could provide first-hand evidence relevant to the issues in dispute. M.M. was therefore facing a difficult evidentiary dilemma.

[23] Fifth, both parties sought to rely on extensive hearsay evidence during the trial, much of which I ruled to be inadmissible. At paragraph 23 of my Reasons for Judgment, I commented that K.K. was unrepresented during the first half of the trial and may not have appreciated the hearsay nature of the evidence proffered or his opportunity to object to it, even though I had explained his right to make objections at the outset of the trial. I made that comment in recognition of the fact that K.K. was unlikely to have knowledge of the rules of evidence. I meant to explain why I had exercised my gate-keeping role during the trial to exclude evidence that was not properly admissible, even when K.K. did not raise any objection to its admissibility. I did not mean to suggest that M.M. was deliberately trying to take advantage of the fact that K.K. was unrepresented. I have no reason to believe that M.M. was engaging in that kind of “brinksmanship,” as K.K. alleges in his costs submissions.

[24] In family law litigation, both represented and unrepresented parties often attempt to adduce evidence of second-hand information for its truth. In pre-trial motions for temporary orders, such hearsay evidence is admissible pursuant to r. 14(19), provided that the deponent identifies the source of the information and swears that they believe the information to be true. Unfortunately, the prolific practice of adducing hearsay evidence at motions hearings sometimes overflows into family law trial proceedings. In this case, M.M. attempted to tender letters and affidavits from friends, family members, and social workers who were not being called as witnesses (see paragraphs 89-91 of my Reasons for Judgment). The affidavits had been prepared and filed in connection with pre-trial motions. M.M.’s counsel ought to have known that such evidence would not be admissible at trial unless it satisfied the twin criteria of the principled exception to the rule against hearsay evidence or was covered by another exception to the rule against hearsay evidence. However, M.M.’s failed attempt to introduce this evidence is not the type of unreasonable conduct that should attract cost consequences. Had M.M., for example, persisted in her effort to adduce hearsay evidence despite my ruling, that would have constituted unreasonable litigation conduct that wastes court time and unnecessarily increases litigation costs. Moreover, the inadmissible letters constituted only a fraction of the record upon which M.M. was seeking to rely. She did not burden K.K. and waste the court’s time with voluminous documentary hearsay evidence.

[25] Sixth, the fact that M.M. made a few prior inconsistent statements (paragraph 55 of my Reasons for Judgment) is hardly a basis upon which to find that she conducted herself unreasonably. In a case like this, which spanned almost two decades from the date of marriage to the date of trial, it would be surprising if a party did not make any prior inconsistent statements. The passage of time tends to erode the reliability of most people’s evidence. Trial judges must routinely evaluate and assess the impact, if any, of prior inconsistent statements on the trustworthiness of a party’s testimony. The extent of any inconsistency, its central or peripheral importance, and the explanations proffered are all relevant factors. Absent a finding that the party fabricated deliberate falsehoods, intentionally concealed relevant facts, or otherwise consciously misled the court, credibility findings arising from prior inconsistent statements have no bearing on costs. In any event, I found M.M. to be credible.

[26] Finally, M.M.’s conduct during the post-trial parenting review has no bearing on my determination of costs of this proceeding. I already decided costs of the parenting review in my Endorsement dated July 11, 2023.

[27] It is noteworthy that M.M. made a reasonable comprehensive offer to settle the litigation without cost consequences mid-trial. This is a relevant factor that militates against finding her conduct to be unreasonable: r. 24(5). I should note that there were no settlement offers in this case that would trigger costs consequences pursuant to r. 18(14).

[28] For all the above reasons, I conclude that M.M.’s conduct was not unreasonable. There is therefore no basis upon which to deprive her of her costs under r. 24(6).

SCALE OF COSTS

Rule 24(8)

[29] The presumption of costs in favour of a successful litigant does not automatically support a presumptive “full recovery” approach, nor even “close to full recovery” approach to costs in family law matters: Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519, at paras. 10-11. Proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs. Rule 24(12) sets out a list of factors that the court must consider. The trial judge generally has considerable discretion. However, r. 24(8) expressly mandates an order for costs on a full recovery basis in certain circumstances: “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” (emphasis added).

[30] M.M. submits that she is entitled to full recovery of her costs because K.K. acted in bad faith throughout this legal proceeding, including throughout the trial. The onus is on M.M. to establish K.K.’s bad faith.

Definition of Bad Faith

[31] Proof of bad faith requires meeting a high threshold of egregious behaviour. It also requires proof of malice or intent to harm.

[32] There is a difference between bad faith and unreasonable litigation behaviour. Even seriously unreasonable behaviour will not amount to bad faith unless it is carried out with the intent to inflict financial or emotional harm on the other party, to conceal information relevant to the issues, or to deceive the other party or the court. A finding of bad faith is therefore rarely made: S.(C.) v. S.(M.), at paras. 17, 20, aff’d 2010 ONCA 196; Harrison v. Harrison, 2015 ONSC 2002; Chomos v. Hamilton, 2016 ONSC 6232, at paras. 43, 46-47 and 49; Cozzi v. Smith, 2015 ONSC 3626, at para. 28; Craig v. Craig, 2021 ONSC 5761, at para. 35; and Scalia v. Scalia, 2015 ONCA 492, at para. 68.

K.K. Acted in Bad Faith

[33] K.K. did not comply with his financial disclosure obligations. Prior to trial, he made minimal disclosure with respect to his personal income and no disclosure regarding the income generated by his four corporations. I ordered him to make complete disclosure at the outset of the trial. He then provided substantial disclosure pursuant to my Order (mid-trial), but there remained significant gaps in the documentation that he produced. He intentionally concealed his true income from the court and from M.M. (paragraphs 815-850 of my Reasons for Judgment). That constitutes unreasonable litigation conduct, but it does not, on its own, amount to bad faith.

[34] There is, however, abundant evidence that K.K. engaged in other conduct that satisfies the high threshold of bad faith. My Reasons for Judgment outline many actions taken by K.K. that I found were designed to inflict emotional, psychological, and financial harm on M.M., were harmful to the parties’ children, or were taken to deceive the court.

[35] I made the following findings in my Reasons for Judgment:

i. When M.M. left the matrimonial home and moved into a women’s shelter with the children, K.K. attended at a medical clinic where he used to practice and signed a patient authorization form on M.M.’s behalf without her consent. He did so to requisition her confidential medical records from a hospital without her consent, with the intent of using the records to gain a strategic advantage in family law proceedings. His actions resulted in complaints against him to the Information and Privacy Commissioner and the College of Physicians and Surgeons, as well as criminal charges against him for forgery and theft (paragraphs 443-449). ii. K.K. then tried three times to obtain an ex parte order from the Ontario Court of Justice for sole custody of the parties’ children, and for police to apprehend the children and bring them into his care. His motions were denied because he did not serve notice of the motions on M.M. Rather than serving M.M., he commenced this proceeding before the Superior Court of Justice by bringing yet another emergency ex parte motion for sole custody. He succeeded in obtaining a temporary order on this fourth attempt (i.e., his first attempt in Superior Court) because he obtained and filed M.M.’s confidential hospital records without her consent (paragraphs 450-460, 463). iii. At the outset of this proceeding, K.K. filed a sworn Form 35.1 Affidavit in which he falsely stated that there had been no prior custody or access cases involving the children, having just recently made three failed attempts to obtain ex parte interim custody orders in the Ontario Court of Justice. iv. In his sworn Form 35.1 Affidavit, he also concealed the fact that he was facing criminal charges in connection with his alleged forgery of signatures on M.M.’s patient authorization form, and for allegedly assaulting M.M. and their daughter V.K. (paragraphs 461-462). v. During the trial, K.K. knowingly tendered a fraudulent hospital record purporting to document an attempted suicide by M.M. during a visit to India. His counsel ambushed M.M. with the document during her cross-examination. K.K. then lied to the court about why it had not previously been disclosed to M.M. (paragraphs 285-316). I found that the inauthentic hospital record was either created by K.K. or created by someone else upon his direction. He was aware that the document was fraudulent when he tendered it. He attempted to adduce it as evidence in a deliberate effort to mislead the court and to inflict further psychological harm on M.M. vi. K.K. manipulated third parties, including numerous doctors, several CAS workers, some police officers, and some judges of this court, into believing that M.M. was mentally unstable, all in an effort to exert control over her and to gain advantage in this litigation (paragraph 762). vii. Throughout the proceeding, K.K. lied repeatedly to Children Aid Society workers about matters relevant to the children’s welfare and the family law proceeding (e.g., paragraphs 430-431, 456, 458, 480). He later sought to rely on the CAS records in the court proceeding. viii. In December 2017, K.K. intentionally misrepresented to the case management judge that he had no intention of traveling to India with the children. In fact, he was actively planning such a trip, despite a May 2017 court order prohibiting him from doing so. He was stopped with the children at the airport by police who were alerted by M.M. (paragraphs 523-531). ix. K.K. ignored and breached court Orders to surrender V.K.’s Indian passport, to obtain a Canadian passport for V.K., and to take steps to cancel a fake Indian birth certificate issued in the name of the parties’ son J.K., who was born in Canada (paragraphs 524, 650). x. Between November 2018 and January 2020, K.K. repeatedly and flagrantly breached a series of court Orders granting M.M. parenting time with the children (paragraphs 539, 544-546, 592-593, 598-600, 605-607, 643-648). His non-compliant behaviour was only corrected when a new case management judge threatened to fine him $2,500 weekly unless he let the children see their mother. xi. K.K. actively coached the children not to participate in scheduled parenting time with their mother, and recruited his nannies to attend scheduled exchanges so that they could serve as witnesses to the children’s ostensible reluctance to see their mother (paragraphs 550-567). xii. K.K. interfered with court-ordered therapy sessions for the children by refusing to pay the counsellors’ fees and/or failing to transport the children to their sessions (paragraphs 597, 604-606). xiii. K.K. twice (in January 2020 and January 2021) obtained an adjournment of the trial under false pretenses. He misrepresented symptoms of illness and misled the court in order to delay the completion of the trial and ensure that the children, or at least the younger child, J.K., remained in his exclusive care (paragraphs 638-642, 686-695). xiv. K.K. not only breached pre-trial court orders, he also flaunted orders that I made mid-trial. For example, he violated an order for M.M. to have parenting time with the children over the holiday break in December 2020 (paragraphs 682-685). He also circumvented an order that I made for electronic monitoring of J.K.’s internet usage in March 2021. His flagrant disregard for court orders during the trial demonstrate a shocking degree of disrespect for the court’s authority (paragraphs 701-706).

[36] Based on the above findings, there is no question that K.K. acted in bad faith. He deliberately concealed relevant evidence from the court and knowingly presented fabricated evidence to the court. He did so as part of a campaign against M.M., intending to cause her emotional and financial distress. He was engaged in a longstanding pattern of relentless psychological abuse directed at M.M., and he misused the court processes to advance his personal agenda.

[37] K.K. prevented M.M. from seeing and communicating with the children for extended periods of months and years, despite court orders granting her parenting time. He did so initially under the guise of protecting the children from her, then (as the children aged) under the pretext of adhering to their views and preferences, which he manipulated. Deliberate disobedience of court orders can amount to bad faith when it is intended to achieve an ulterior motive: Fatahi-Ghandehari v. Wilson, 2018 ONSC 669, at para. 39; Cameron v. Cameron, 2018 ONSC 6823, at para. 45. In this case, K.K. withheld the children from M.M. while dragging out the litigation in an effort to so deeply undermine the children’s bond with their mother that the rupture would become irreparable. He frustrated and disregarded countless court orders in a transparent effort to wear M.M. down, undermine her faith in the justice system and cause her to give up. In so doing, he recklessly, if not deliberately, inflicted ruinous financial harm on her, as well as psychological harm.

[38] Where the court concludes that a party has acted in bad faith, r. 24(8) directs the court to order costs against that party on a full recovery basis, payable immediately. The court may, however, determine that there will be full indemnity for only a portion of the litigation where bad faith was demonstrated. Stewart v. McKeown, 2012 ONCJ 644, at para. 26; Chomos v. Hamilton, at para. 46; and Snelgrove v. Kelly, 2017 ONSC 4625, at para. 37. In this case, K.K.’s bad faith impacted every issue in the trial. M.M. should therefore receive full indemnification of her reasonable costs associated with the entire trial. As set out in more detail below, I have also concluded that she should receive full indemnification of some of her pre-trial costs as well, because K.K.’s bad faith infected the entire decade-long proceeding.

AMOUNT OF TRIAL COSTS

[39] The Family Law Rules neither require nor permit the Court to allow a party to demand a blank cheque for their costs simply because the other party acted in bad faith. Even though costs must be awarded on a full recovery basis pursuant to r. 24(8), the Court retains a residual discretion and must make a costs award that is proportional, fair, and reasonable in all the circumstances: Jackson v. Mayerle, 2016 ONSC 1556, at para. 91; Thompson v. Drummond, 2018 ONSC 4762, at para. 16; and Goldstein v. Walsh, 2019 ONSC 3174, at para. 16.

[40] Consequently, an order for costs to be paid on a full recovery basis does not necessarily mean complete indemnification of the full amount that a lawyer billed to their client. It means full recovery in the context of the litigation and having considered all the factors listed under r. 24(12), subject to any adjustments that the Court considers appropriate based on the principles of reasonableness and proportionality: Piskor v. Piskor, at para. 14; Snelgrove v. Kelly, at para. 44.

[41] M.M. is seeking reimbursement of her trial counsel’s (Ms. Pasha’s) legal fees and disbursements, totalling $150,827, inclusive of HST. She is also seeking indemnification for her own time spent preparing for and attending the trial, which is not properly part of a costs claim where, as in this case, a litigant is represented by counsel. No costs will be awarded for M.M.’s trial preparation or attendance at trial. (Later in these reasons, I award M.M. costs for periods of time when she was self-represented prior to trial.)

[42] As a starting point, r. 24(12) requires the Court to consider the time devoted by counsel, the number of lawyers (or other legal professionals) who worked on the file, their years of call and experience, and their hourly rates. Counsel must furnish sufficient information to the Court, in the form of a Bill of Costs, to enable this task to be meaningfully performed. Counsel must also furnish sufficient information to allow the Court to confirm that all the cost items claimed relate to the proceeding in question: Snelgrove v. Kelly, at para. 35; Thompson v. Drummond, at paras. 30-31.

[43] This analysis should, however, be undertaken in a global fashion. The Court is not required to embark upon a painstaking, line-by-line analysis of Bills of Costs and second guess every hour and item claimed, unless there are clear concerns about excessive claims and overreaching: Docherty v. Catherwood, 2016 ONSC 2140, at para. 50; Snelgrove v. Kelly, at para. 35. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding: Thompson v. Drummond, at para. 25.

[44] In this case, no dockets were submitted by Ms. Pasha. Her Bill of Costs breaks down her fees for services into the following general categories of work during specific time periods: (i) trial assignment court, request for disclosure and mediation efforts (July 23, 2020 to October 28, 2020); (ii) trial preparation and attendance at court (November 11, 2020 to December 31, 2020); (iii) mid-trial motion preparation and attendance at court (January 4, 2021 to February 5, 2021; (iv) trial preparation and attendance at court (March and April 2021); (v) submissions preparation for spousal support and s.7 issues; and (vi) post-trial work, communications and drafting orders. Under each category, Ms. Pasha’s global hours of work are listed, without a breakdown of the specific services provided or time spent on each service — apart from citing the number of days and hours that she attended court within each block of time. Her year of call and hourly rate are provided, as well as the hourly rate at which she bills her law clerk’s time. Both of those rates are reasonable.

[45] K.K. submits that Ms. Pasha’s Bill of Costs is “so overwhelmingly bereft of the requisite detail” that M.M. should be denied her costs. He argues that a more detailed Bill of Costs is required in order for him to obtain the necessary data to respond adequately to M.M.’s claim. He further submits that the “block fees” requested do not allow the court to fulfil its supervisory mandate. In support of this submission, he relies on the decisions in Alves v. Londron, 2017 ONCJ 318, at paras. 47-50, and Benson v. Benson, at paras. 12-14.

[46] I disagree with K.K.’s assertion that the lack of particularity in M.M.’s costs submissions and Ms. Pasha’s Bill of Costs is fatal to M.M.’s costs claim. Although it would be preferable for Ms. Pasha’s Bill of Costs to include more detail, such as a breakdown of the specific tasks she delegated to her clerk, and the amount of time devoted to particular activities (e.g. researching law, meeting with client, preparing submissions), the material submitted is sufficient for K.K. to respond to the claim (which he did in detail) and for the court to perform its assessment role.

[47] Ms. Pasha was not M.M.’s counsel from the beginning of the proceeding. She did not provide services such as drafting, serving, and filing pleadings, which should be itemized in a Bill of Costs so that the court can assess whether the time devoted to each task is reasonable. The bulk of Ms. Pasha’s work on the file relates to trial preparation and attendance at trial, which the Court does not need to have broken down into itemized tasks, such as preparation for cross-examination of a specific witness, or review of a specific document to be adduced as evidence. I note that K.K. submitted a Bill of Costs from his own trial counsel, Bhupinder Nagra, that is similarly (with a few exceptions) generic in terms of hours allocated to “prepare for trial” and “attend trial.” This is acceptable.

[48] I am aware of what the trial entailed. I am familiar with the complexity of the issues adjudicated, the evidence marshalled by both parties, and the nature and volume of documentation involved. Based on that knowledge, I have been provided with sufficient information in Ms. Pasha’s Bill of Costs to ascertain whether the hours she devoted to the trial are reasonable and proportional in the circumstances.

[49] Ms. Pasha billed for a total of 63 hours of preparation for the first 10 days of trial, and 36 hours of preparation for the last 9 days of trial, plus an average of 7 hours/day for attendance at trial. For the mid-trial motion, she billed 19.1 hours of preparation and 3.5 hours for attendance at the virtual hearing. She billed an additional 20 hours for written submissions on spousal support and s.7 issues at the conclusion of the trial. Given the nature and importance of the issues litigated (including family violence, parental alienation, entitlement to spousal support, retroactive support, and income imputation), and the late financial disclosure provided by K.K. during the trial, the amount of time dedicated to the work is reasonable and proportional.

[50] A useful benchmark for determining whether costs claimed are fair, reasonable, and proportional is to consider the amount of time and legal fees that the other party has incurred in the matter: Smith Estate v. Rotstein, 2011 ONCA 491, 106 OR (3d) 161; Durbin v. Medina, 2012 ONSC 640; Snelgrove v. Kelly, at para. 41; Thompson v. Drummond, at para. 32. In this case, K.K. was self-represented during the first half of the trial. He retained Ms. Nagra to represent him for the mid-trial motion and during the second half of the trial. He then retained Vivian Merklinger to make submissions on his behalf with respect to the ongoing spousal support issues. Finally, he retained Mr. Ludmer to make submissions with respect to the outstanding s.7 issues and costs.

[51] K.K. did not submit a Bill of Costs from Ms. Nagra for the mid-trial motion. He did, however, submit Bills of Costs from Ms. Nagra for the second half of the trial ($43,858), and from Ms. Merklinger ($5,596) and Mr. Ludmer ($10,628). Ms. Nagra billed for 42 hours of trial preparation for the last 9 days of trial, and she billed for between 5 and 8 hours daily for each attendance at trial. The time spent by K.K.’s own lawyer is therefore comparable to the time spent by M.M.’s counsel during the second half of the trial. At full indemnity rates, there is a difference of only $1,600 between Ms. Nagra’s bill and Ms. Pasha’s bill for the latter part of the trial.

[52] Ms. Merklinger’s firm billed K.K. for 15.4 hours of work (13.9 of which were allocated to her), and Mr. Ludmer’s firm billed K.K. for 25 hours of work (10.7 of which were allocated to him). The time spent and amounts billed by K.K.’s lawyers on these outstanding trial issues far exceed the time devoted (20 hours) and amounts billed by M.M.’s counsel.

[53] K.K. therefore ought reasonably to have expected to pay costs in the amount claimed by M.M. in the event that he was not successful at trial.

[54] K.K. submits that some of the 20 hours of post-trial time covered by Ms. Pasha’s block fee may have been properly the subject matter of work in preparation of a parenting review that I conducted early in 2023, costs for which have already been assessed. He argues that M.M. should be denied those costs because insufficient information was provided in the Bill of Costs to verify that the time claimed relates to this proceeding, rather than the parenting review. I disagree. The Bill of Costs expressly states that the fees billed pertain to the spousal support and s.7 issues. I have no reason to question the accuracy of that representation made by Ms. Pasha. (I note, incidentally, that K.K. requested an order for $3,000 in costs payable by M.M. in connection with a pre-hearing conference conducted on September 12, 2022. That conference related to the parenting review, for which costs have already been assessed and ordered.)

[55] K.K. is not entitled to costs associated with the mid-trial motion for an immediate change in the children’s primary residence. The fact that M.M. was not successful in that motion does not disentitle her to costs. She was ultimately successful on all the parenting issues based, in part, on the affidavit material she submitted in support of the mid-trial motion. K.K.’s unreasonable conduct, including his flagrant violation of a mid-trial Order, is what prompted the motion. He ought therefore to be denied his costs incidental to the motion. Given the affidavit material prepared and submitted by M.M., and the nature of the issues adjudicated, the 19 hours spent by Ms. Pasha preparing for the motion hearing were reasonable and commensurate with the importance and complexity of those issues.

[56] Ms. Pasha’s Bill of Costs includes fees for approximately 27 hours of pre-trial work relating to “trial assignment court, requests for disclosure, and mediation efforts.” More detail in the Bill of Costs would have been preferable, but in the circumstances, I am not concerned that the time devoted to these pre-trial legal services is excessive. The evidence in the trial record establishes that K.K. was reluctant to produce any relevant financial information, and M.M.’s lawyer therefore had to write repeated requests for disclosure. The record also establishes that mediation was going to be attempted, but negotiations broke down because K.K. insisted that the parties retain his close friend and business associate as their mediator, which was a grossly unreasonable position for him to take. For these reasons, M.M. should be indemnified for these costs.

[57] My only concern about the time billed by Ms. Pasha is the 20 hours of post-trial work that she did in connection with drafting and obtaining court Orders and communicating with opposing counsel. I reviewed and approved the draft Orders, so I am aware that it was not a straightforward process to get them issued and entered, but without more detailed dockets itemizing how her time was spent, I am not satisfied that 20 hours is reasonable and proportional to the task. I will therefore reduce Ms. Pasha’s fees by 12 hours (i.e., $4,800) accordingly.

[58] I do not share K.K.’s concern that Ms. Pasha’s Bill of Costs is so bereft of detail that it is impossible to determine whether it covers time spent working on pre-trial motions and conferences for which costs have already been adjudicated, or time spent working on post-trial motions that were ultimately heard by Justice Trimble, and for which costs were awarded to K.K. in the amount of $17,240. It is clear from the headings in the Bill of Costs, from M.M.’s written costs submissions, and from the appended summary of costs associated with pre-trial and post-trial motions, that Ms. Pasha’s Bill of Costs pertains only to trial issues. Costs related to the post-trial proceeding before Justice Trimble are addressed separately in her submissions.

[59] Finally, the disbursements charged by Ms. Pasha, in the total amount of $5,374 (inclusive of HST) are reasonable. The disbursements relate primarily to photocopy costs, at a time prior to when the court’s filing system became electronic. The documentary exhibits at trial were voluminous. These expenses were necessary and proportional to the issues in dispute.

[60] I therefore order K.K. to pay M.M.’s reasonable trial costs on a full recovery basis, in the amount of $146,027 ($150,827 - $4,800), inclusive of fees, disbursements and HST.

PRE-TRIAL COSTS

[61] M.M. also seeks her costs on a full recovery basis for all the pre-trial steps in the proceeding, including: (i) steps where costs were explicitly reserved to the trial judge, (ii) steps where no costs order was made, (iii) steps where M.M. was ordered to pay K.K.’s costs, and (iv) steps where an order of “no costs” was made.

[62] K.K. submits that M.M. should not be awarded costs for any pre-trial steps at which she did not already obtain an order for costs. He seeks an Order for M.M. to pay his costs of some of the pre-trial steps in the proceeding. He argues that I have no jurisdiction as the trial judge to vary previous costs Orders.

Rule 24(11)

[63] Rule 24 of the Family Law Rules provides as follows:

(10) Promptly after dealing with a step in a case, the court shall, in a summary manner, (a) determine who, if anyone, is entitled to costs in relation to that step and set the amount of any costs; or (b) expressly reserve the decision on costs for determination at a later state in the case.

(11) The failure of the court to act under subrule (10) in relation to a step in a case does not prevent the court from awarding costs in relation to the step at a later stage in the case.

[64] Pursuant to r. 24(11), a trial judge is not precluded from awarding costs for an earlier step in a proceeding at which no costs order was made. However, several of the pre-trial steps in this proceeding pre-date the enactment of r. 24(11) on July 1, 2018. Under the previous Rules, the Court of Appeal for Ontario had found that parties were required to claim costs for a particular step in a proceeding during the course of that step or forego the ability to recover those costs later in the proceeding: Islam v. Rahman, 2007 ONCA 622; 228 O.A.C. 371. However, the Court of Appeal did not apply this principle uniformly: Cassidy v. McNeil, 2010 ONCA 218, 99 O.R. (3d) 81; Bortnikov v. Rakitova, 2016 ONCA 427, 350 O.A.C. 123. Confusion in the jurisprudence resulted, which likely prompted the clarification provided by the introduction of r. 24(11).

[65] Although r. 24(11) expressly permits a trial judge to award costs for previous steps in the proceeding, it is generally best for judges to decide costs of each step as they occur. The rule change in 2018 “should not be seen as an open invitation to counsel to ask a judge to review the conduct of the opposing party at previous conferences or hearings before a different judge”: Saunders v. Vargas, 2018 ONSC 4531, at para. 23. The introduction of r. 24(11) simply “clarifies that the court ultimately retains the discretion to go back in time and award costs in regard to previous steps if it is satisfied that it is fair and just to do so having regard for particular dynamics of the case, the purposes of costs awards and the objectives of the Family Law Rules”: Thompson v. Drummond, at para.11.

[66] The retroactive application of r. 24(11) to steps in proceedings that pre-date July 1, 2018 was addressed at length by Justice Kurz in Cameron v. Cameron, at paras. 53-86. I will not recite his detailed reasons, but I adopt them. In short, I have discretion to award costs of previous steps in the proceeding, including steps that pre-date July 1, 2018, but I should only exercise that discretion in one of the following circumstances:

i. when they have been reserved to the trial judge; or ii. 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; or iii. in exceptional circumstances.

Where Costs Were Reserved

[67] Both parties seek their costs incidental to pre-trial steps in the proceeding at which the motion judge or conference judge specifically reserved costs to the trial judge. This occurred on four occasions.

[68] First, costs were reserved by Justice Van Melle on August 22, 2018 and August 30, 2018, in connection with M.M.’s failed motion for an order that Dr. Goldstein no longer be permitted to counsel the children and for an order transferring custody of the children to her. K.K. submits that he should be entitled to his costs incidental to this step in the proceeding because he was the successful party. He submitted a Bill of Costs from one of his former lawyers, Dale Streiman, in the total amount of $14,587.

[69] Although M.M.’s motion for interim relief was dismissed when it was brought in 2018, it is clear from the Endorsement that Justice Van Melle believed the matter would soon be proceeding to trial, where the issues could be addressed in greater detail and with the benefit of a full trial record. Justice Van Melle was aware that M.M.’s complaint about Dr. Goldstein’s professional conduct had been validated by the College of Physicians and Surgeons, but it was only later that Dr. Goldstein was required to give undertakings to the Discipline Committee of the CPSO that included a promise to terminate any ongoing physician-patient relationships in which parental alienation is at issue. He also gave an undertaking not to provide expert opinions in court proceedings involving allegations of parental alienation. That evidence was before me at trial. Justice Van Melle’s decision on the motion presumably would have been different had that evidence been available to her.

[70] Moreover, Justice Van Melle did not have the benefit of the full trial record, which established that it was K.K. (not M.M.) who had engaged in concerted parental alienation. At the conclusion of the trial, parental decision-making authority was granted to M.M. exclusively and the children’s principal residence was transferred to her home. She was therefore ultimately successful on the two issues raised in her August 2018 motion.

[71] In the circumstances of this case, K.K.’s interim success on the motion in August 2018 does not warrant an order of costs in his favour. The presumption of costs in favour of a successful litigant may be rebutted; indemnification of successful litigants is just one of four purposes served by modern costs rules. The rules also seek to encourage settlement, to discourage and sanction inappropriate behaviour, and to ensure that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867, at para. 10; Cameron v. Cameron, at paras. 10-11. Given K.K.’s bad faith conduct, which infused every step of the proceeding from the earliest filing of his ex parte emergency motion through to the final resolution of all the trial issues, K.K. should not be awarded costs incidental to any step in the proceeding in which he did not previously obtain an order for costs. Furthermore, his egregious litigation conduct should be sanctioned under r. 24(8) with an award of costs against him on a full recovery basis in connection with this pre-trial motion. This order shall be made not only to discourage bad faith conduct by litigants in other cases, but also to ensure that justice is done in this proceeding.

[72] M.M. submitted a detailed invoice from her former counsel, Helen McCullough, in connection with the August 2018 motion, in the total amount of $7,092 (inclusive of fees, disbursements and HST). The work included not only preparation of affidavit material, but also drafting a factum, as well as a court appearance to argue the motion. The lawyer’s hourly rate is reasonable. The amount of fees billed is reasonable and proportional. I note that the total bill is less than half the amount billed by K.K.’s lawyer for the same step in the proceeding. K.K. ought therefore to have reasonably expected to pay at least this amount in the event that his bad faith conduct was found to render him liable for full indemnity costs. I therefore order K.K. to pay M.M. costs in the amount of $7,092 for the August 2018 motion.

[73] The second pre-trial step at which costs were reserved to the trial judge was at a motion heard by Justice Van Melle on May 13, 2019. One issue was resolved with a consent order, and there was divided success on other issues. Parts of the motion were adjourned to a later date. M.M. was ultimately successful on the adjourned issues, but Justice Van Melle explicitly ordered no costs for the later appearance on October 28, 2019. She did not deal with the costs relating to the hearing on May 13, 2019.

[74] Given K.K.’s bad faith throughout the proceeding, M.M. should be awarded her costs incidental to the motion hearing on May 13, 2019. These costs will be calculated on a full recovery basis pursuant to r. 24(8).

[75] M.M. was self-represented in 2019. The law on costs claimed by self-represented litigants is set out in Izyuk v. Bilousov, 2011 ONSC 7476, at paras. 35-44; Browne v. Cerasa, 2018 ONSC 2242, at para. 31; and P.I. v. R.O., 2022 ONCJ 184, at paras. 8-10. I am satisfied by M.M.’s credible trial testimony that she devoted significant time, energy, effort, and resources to do the litigation work ordinarily performed by a lawyer during the periods when she was self-represented. In the circumstances, I have decided to make a discretionary award of costs incidental to the May 13, 2019 motion to compensate her for her own time. She is not, however, entitled to costs calculated on the same basis as a litigant who is represented by counsel.

[76] In assessing costs, courts have fixed hourly rates for self-represented litigants that range from $100 to $200: P.I. v. R.O., at para. 10. In this case, I find that $125/hour is a fair rate that K.K. could reasonably have expected to pay in connection with pre-trial steps in the proceeding in the event that he was ultimately found liable for costs because of his bad faith conduct. M.M. will be compensated at that rate for her time spent preparing for and attending the May 13, 2019 motion hearing.

[77] Self-represented litigants should not be awarded costs for court appearances where their attendance would have been required even if they had been represented by counsel. However, M.M. would not have been required to attend the motion hearing in May 2019 but for the fact that she was unrepresented. I find that 10 hours is a reasonable and proportional amount of time for M.M. to devote to the issues. I therefore order K.K. to pay her costs in the amount of $1,250 (10 hrs x $125).

[78] The third pre-trial step at which costs were reserved to the trial judge was an emergency motion brought by M.M. on March 31, 2020. M.M. was seeking make-up parenting time and an assurance that she would continue to have parenting time with the children during the COVID lockdown. In his Endorsement dated April 6, 2020, Justice Ricchetti dismissed the motion and remarked that the parties should have been able to resolve their disputes without resort to the court, particularly during the lockdown period when court resources were especially scarce. He expressed the view that both parties had acted unreasonably, but noted that “without a trial, it is impossible to ascertain which party is more blameworthy.”

[79] At trial, it became abundantly clear that K.K. was the blameworthy party in this proceeding. It also became clear, with the benefit of a full trial record, that K.K. had used the COVID pandemic as a pretext to prevent the children from spending time with M.M. It was one of many situations that he exploited to alienate the children from their mother. M.M.’s resort to the court seemed intemperate to the motion judge at the time, but her reasons for bringing the emergency motion are now evident and are justifiable with the benefit of hindsight post-trial. For these reasons, and because of K.K.’s bad faith conduct throughout the litigation, M.M. is entitled to her costs, on a full recovery basis, for the pre-trial motion decided on April 6, 2020.

[80] M.M. was self-represented in March 2020. Her emergency motion was heard in writing due to the temporary suspension of court operations as a result of the COVID pandemic. It is apparent from Justice Ricchetti’s April 6, 2020 Endorsement that a significant amount of correspondence was adduced as evidence by the parties. In the circumstances, I find that 8 hours is a reasonable and proportional amount of time for M.M. to devote to the issues, and I therefore order K.K. to pay her costs in the amount of $1,000 (8 hrs x $125).

[81] The final pre-trial step at which costs were reserved was very early in the proceeding, after a case supervision conference on July 3, 2014. During the conference, M.M. proposed that Betty Stockley be approved by the case management judge to provide her with court-ordered parental alienation therapy. Justice Van Melle reserved on her decision so that she could meet with Ms. Stockley. She also reserved on the issue of costs. She subsequently made an Order dated October 9, 2014, approving Ms. Stockley as the therapist for M.M. She did not, however, deal with the reserved costs.

[82] In the circumstances, M.M. was the successful party and she conducted herself reasonably. She is therefore entitled to her costs associated with the July 3, 2014 conference. She was self-represented at the time. I find that 4 hours is a reasonable and proportional amount of time for M.M. to allocate to this step in the proceeding. I therefore order K.K. to pay M.M.’s costs in the amount of $500 (4 hrs x $125).

Where No Order for Costs was Made

[83] There were six pre-trial steps in the proceeding at which no costs were assessed, ordered, or reserved. In the ordinary course, I would decline to make any costs orders with respect to these steps, particularly since this file was supervised by a case management judge who made costs orders at numerous other steps in the proceeding. That judge would normally be better placed to decide and assess costs in relation to the case supervision conferences over which she presided. However, this is an exceptional case in which the significance and reasonableness of some of the parties’ actions only became clear after the trial at which I presided.

[84] Prior to the appointment of a case management judge in this proceeding, the parties appeared before several different motion judges, including Price J. In his August 13, 2013 pre-trial costs ruling, Justice Price found that K.K. had engaged in bad faith of “a clear and extreme nature” (K.K. v. M.K., 2013 ONSC 5265, at paras. 59-60), including using his credentials as a physician to support an unwarranted allegation that M.M. suffers from bi-polar disorder, falsely alleging that M.M. had abducted the children, and failing to disclose material evidence to the court in obtaining an ex parte order for seizure of the children from their mother’s care. Despite these findings, it was not apparent to the subsequently appointed case management judge that K.K. was continuing to engage in elaborate deception throughout the proceeding. The evidence at trial established that K.K. continued to mislead the case management judge and the court-appointed assessor, Dr. Goldstein, with respect to M.M.’s purported mental instability and her alleged parental alienation. He disclosed M.M.’s confidential medical records to Dr. Goldstein without M.M.’s consent, contrary to Justice Edwards’s court Order dated May 10, 2013. He did so knowing that the medical records inaccurately portrayed M.M.’s mental health in a negative light based on false information that he supplied to the health care providers. He also violated the May 10, 2013 court Order by using Dr. Zalan’s October 2011 clinical notes in a criminal proceeding in April 2014 (paragraph 307 of my Reasons for Judgment). He deliberately lied to the case management judge about his plans to remove the children from the country, contrary to a prior order by the same judge. His dishonesty and deceit were finally exposed during the trial before me. I am therefore well situated to determine costs of prior steps in the proceeding. I can evaluate both the significance and reasonableness of prior steps in the context of the whole proceeding, and I can do so having regard to the abusive dynamics of the parties’ relationship, which were established at trial.

[85] In a case based on false and misleading evidence from the outset, the costs of conferences may be determined as part of the costs of the action at the conclusion of the trial, when the extent and impact of a party’s bad faith can be properly measured. “Bad faith allegations shape and may distort the outcome of case, settlement and trial management conferences, reduce the prospect of negotiated settlement or compromise, and lengthen the trial”: Goldstein v. Walsh, at para. 29. When that happens, it is difficult, if not impossible, for the conference or motion judge to correctly assess the merits of each parties’ position at an interim stage of the proceeding. That is precisely what happened in this case. With the benefit of the full trial record, I am therefore comfortable assessing costs for pre-trial court appearances at which no order for costs was made.

[86] The parties attended case supervision conferences on February 8, 2017, October 4, 2017, and December 13, 2017. M.M.’s parenting time was discussed at the first two of these conferences and K.K.’s plans to travel to India with the children were discussed at the latter conference. The case management judge’s Endorsements were silent as to costs for each of these appearances. K.K. seeks his costs (in an unspecified amount) for the first two appearances and submits that the parties should each bear their own costs for the December 13, 2017 appearance.

[87] K.K. submits that he is entitled to his costs incidental to the first two 2017 case supervision conferences because the case management judge refused to expand M.M.’s parenting time during those conferences. The judge’s Endorsements explain that an expansion of parenting time was denied because M.M. was not acknowledging and dealing with her role in alienating the children from their father. Given the subsequent findings made by me with the benefit of a complete trial record, this is hardly grounds upon which to order costs in K.K.’s favour. I found that M.M. did not, at any time, alienate the children from their father. Rather, she was the victim of the father’s alienation tactics and smear campaign. Given these findings and K.K.’s bad faith, she should be awarded her costs on a full recovery basis for these court attendances.

[88] The December 13, 2017 conference was requested by M.M. because she learned that K.K. was making plans to travel to India with the children, despite a court order prohibiting him from doing so. Based on representations made by J. Phipps Williams, K.K.’s counsel at the time, the case management judge found that “no such plan exists.” She commented in her Endorsement that the issue should have been resolved between counsel. However, it was subsequently discovered that K.K. intentionally misled his own lawyer and the court with respect to his international travel plans, thereby vindicating M.M.’s decision to request an emergency conference with the case management judge. In the circumstances, he should pay the costs incidental to that case supervision conference on a full recovery basis.

[89] Both M.M. and K.K. were represented by lawyers throughout 2017, but neither of them submitted a Bill of Costs from their former counsel covering the relevant period. M.M.’s counsel was then Helen McCullough. M.M. submitted a Bill of Costs and an interim invoice from Ms. McCullough dated September 4, 2018, which details work performed and fees billed between June 14, 2018 and September 4, 2018. The invoice shows that a prior interim invoice was issued on June 13, 2018 in the amount of $6,713 and that the total balance outstanding on Ms. McCullough’s account effective June 13, 2018 was $22,557. Clearly, M.M. was billed for the work that Ms. McCullough did in connection with the case supervision conferences in 2017. However, the amount she was billed is unknown. Ms. McCullough’s hourly rate at the time was $200, which I find to be reasonable.

[90] Because of M.M.’s failure to provide invoices for the work performed by Ms. McCullough in 2017, I am constrained in my ability to assess her costs for the above-noted case supervision conferences. However, I do not accept K.K.’s submission that she should be denied any costs due to the lack of documentation of her former lawyer’s fees. I note that K.K. is seeking an order for M.M. to pay his costs of two of the case supervision conferences, and he has not filed a Bill of Costs from his then counsel setting out their fees.

[91] The lack of documentation of fees is regrettable, but given the length and complexity of the proceeding, and the frequency with which both parties changed counsel, it is not surprising that they did not retain all the relevant invoices. On a conservative estimate, I find that 5 hours per conference is a reasonable amount of time for M.M.’s lawyer to have devoted to each case supervision conference, including preparation and attendance at the conferences. I therefore order K.K. to pay M.M.’s costs incidental to these three court appearances on a full recovery basis in the amount of $3,000 (15 hours x $200), plus HST, for a total of $3,390. This amount is likely lower than the actual fees billed by Ms. McCullough, but it would be neither fair nor reasonable for me to award M.M. a higher amount of costs without a Bill of Costs setting out the specific work performed by her lawyer.

[92] There were two court appearances in 2018 at which no costs were assessed, ordered, or reserved. Both were case supervision conferences with the case management judge. K.K. submits that the parties should each bear their own costs in connection with these steps in the proceeding. I disagree. As explained below, M.M. was largely successful at both steps and is presumptively entitled to her costs. Moreover, fairness dictates that K.K.’s bad faith throughout the proceeding must attract costs sanctions.

[93] The parties attended a case supervision conference on November 30, 2018. M.M. was then self-represented, and K.K. was represented by J. Schmidt. M.M. succeeded in obtaining a court order for increased parenting time, including regular overnights, as well as an order for the children to be in her care for one week during the upcoming Christmas holiday. (This parenting time did not take place because K.K. violated these orders.)

[94] As the successful party, M.M. is entitled to her costs incidental to this step in the proceeding. Given K.K.’s bad faith, her costs will be assessed on a full recovery basis, using the hourly rate of $125 that I have set for work she performed while self-represented. I find that 10 hours is a reasonable and proportional amount of time for M.M. to devote to the issues addressed at this conference, and I therefore order K.K. to pay her costs in the amount of $1,250 (10 hrs x $125).

[95] The other case supervision conference was held on December 17, 2018. M.M. was unrepresented. K.K. was represented by F.H. Streiman. Several issues were discussed. M.M. was successful in obtaining an order for make-up parenting time because K.K. had violated the court’s November 30, 2018 order. She also succeeded in obtaining an order for regular daily telephone calls with the children whenever they were in K.K.’s care. (Neither the make-up parenting time nor the daily phone calls occurred because K.K. flaunted these court orders.)

[96] As the successful party, M.M. is presumptively entitled to her costs incidental to this step in the proceeding. Given K.K.’s bad faith, her costs will be assessed on a full recovery basis, using the hourly rate of $125 that I have set for work she performed while self-represented. I find that 10 hours is a reasonable and proportional amount of time for M.M. to devote to the issues addressed at this conference, and I therefore order K.K. to pay her costs in the amount of $1,250 (10 hrs x $125).

[97] Finally, on January 6, 2020, the parties attended a pre-trial conference before Justice Daley. K.K. requested an adjournment of the trial on medical grounds, claiming that he had recently been diagnosed with thyroid cancer. He submitted a doctor’s note and diagnostic report to the court without providing a copy to M.M. M.M. expressed suspicion that the medical documents may be forged, but Justice Daley accepted them and granted the adjournment. Justice Daley’s Endorsement is silent with respect to costs. K.K. takes the position that the parties should each bear their own costs of this appearance.

[98] At trial, M.M. proved that this adjournment was requested under false pretenses (paragraphs 638-642 of my Reasons for Judgment). K.K. deliberately misled the court in order to delay the trial at a time when the children were residing with him and not having regular access to their mother (in contravention of Justice Van Melle’s November 30, 2018 Order). He taunted M.M. with a bragging text (“You fool. All the reports are fake.”) after the adjournment was granted, flaunting the fact that he had once again successfully deceived the court. K.K.’s conduct in this regard was disgraceful and epitomized bad faith.

[99] Given’s K.K.’s bad faith conduct, M.M. is entitled to her costs incidental to this step in the proceeding, as well as her costs thrown away for having prepared for a trial that was adjourned at the last minute and did not proceed until 11 months later. These costs shall be payable on a full recovery basis, using the hourly rate of $125 that I have set for work she performed while self-represented. I find that 30 hours is a reasonable and proportional amount of time and I therefore order K.K. to pay her costs in the amount of $3,750 (30 hrs x $125).

Where M.M. was Ordered to Pay K.K.’s Costs

[100] M.M. is seeking an order to set aside costs in the total sum of $114,265 that were awarded against her during the course of the litigation. This amount includes costs of $17,240 ordered by Justice Trimble on October 28, 2021. I am not seized with respect to the latter costs, which relate to a Motion to Change initiated by M.M. and a Motion for Contempt initiated by K.K after I issued a Final Order at trial. I therefore make no order with respect to those costs.

[101] I am only dealing with costs incidental to pre-trial steps in the proceeding, and to post-trial steps that pertain to the outstanding trial issues of spousal support and s.7 expenses. The following costs orders were made pre-trial:

i. On August 8, 2013, Justice Edwards ordered M.M. to pay K.K.’s costs in the amount of $45,000, all inclusive, to be set off against any costs awarded by Justice Price. ii. On August 13, 2013, Justice Price ordered K.K. to pay M.M.’s costs in the amount of $46,772, all inclusive. iii. On April 4, 2014, Justice Van Melle ordered M.M. to pay K.K.’s costs in the amount of $30,000 plus $33,000 in disbursements, both amounts inclusive of HST. These disbursements represented one-half of the costs of Dr. Goldstein’s assessment and 100% of the doctor’s fee for testifying at a motion hearing. These costs were to be paid as an offset against M.M.’s spousal support in the amount of $1,000 per month. iv. On December 12, 2014, Justice Van Melle ordered that the amount of $1,000 would no longer be withheld from monthly spousal support as payment of costs owed by M.M. v. On January 22, 2015, Justice Van Melle ordered M.M. to pay K.K. costs in the amount of $5,000, all inclusive. vi. On December 21, 2017, Justice Van Melle ordered K.K. to pay M.M.’s costs in the amount of $5,000, all inclusive, to be set off against costs owed by M.M. to K.K. vii. On February 6, 2020, Justice Ricchetti ordered M.M. to pay K.K.’s costs in the amount of $500, all inclusive.

[102] M.M. is asking the court to “set aside” all the costs orders against her. She is also asking the court to order K.K. to pay her costs incidental to those pre-trial steps in the proceeding. She is therefore effectively seeking to “change” the costs orders: Gray v. Gray, 2017 ONCA 100, at paras. 20-31.

[103] The court’s authority to change an Order is restricted to the circumstances enumerated in r. 25(19), namely where:

i. the order was obtained by fraud; ii. the order contains a mistake; iii. the order needs to be changed to deal with a matter that was before the court that that it did not decide; iv. the order was made without notice; or v. the order was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.

[104] M.M. is not arguing that the prior costs orders contain mistakes or oversights, or that they were obtained without notice or with inadequate notice. The basis upon which she seeks to have the earlier costs orders set aside is K.K.’s bad faith. Bad faith is not an enumerated circumstance under which orders may be changed pursuant to r. 25(19).

[105] K.K. succeeded in pre-trial motions because he concealed relevant information from the court and made deliberate misrepresentations to the court. An argument could therefore be advanced that he procured Orders for costs incidental to those steps in the proceeding by fraud. However, M.M. has not advanced that argument. To obtain a change to the previous costs Orders, M.M. must prove fraud on a balance of probabilities. Proof of fraud requires more than mere proof of deception or bad faith: Boivin v. Smith, 2010 ONCJ 411, at paras. 60-62.

[106] M.M. has not established that the pre-trial costs Orders were obtained by fraud. I therefore do not have authority to change them and order costs in her favour.

[107] However, the Court has jurisdiction, on its own initiative, to stay any proceeding on such terms as it considers just: Courts of Justice Act, R.S.O. 1990, c.C.43, s. 106. This power to stay a “proceeding” has been interpreted to include the power to stay execution of a final judgment in a family law proceeding: Buttarazzi v. Buttarazzi at paras. 52-55; Peerenboom v. Peerenboom, 2020 ONCA 240, at paras. 30-32. I conclude that I therefore have authority to stay costs Orders in this proceeding.

[108] I invited the parties to make written submissions with respect to whether execution of the pre-trial costs Orders against M.M. should be stayed. Not surprisingly, M.M. submits that I should grant a stay, whereas K.K. submits that I should not exercise my discretion to do so in the circumstances of this case.

[109] The court’s authority to stay execution of an Order in a family law proceeding must be exercised sparingly and only in the clearest of cases. A stay of execution may only be granted in rare circumstances where the conduct of the judgment creditor is oppressive or vexatious or an abuse of process, and where the stay would not cause them an injustice: Peerenboom, at para. 34.

[110] With respect to a stay of the enforcement of costs Orders, a successful litigant should not be deprived of the benefit of such Orders unless the interests of justice require they be withheld. A stay of costs Orders is therefore rarely granted, even on an interim basis: Yormak v. Yormak, 2015 ONSC 2180, at para. 12; Fluney v. Fluney, 2010 ONSC 4813, at paras. 7 and 13; and Nhau v. Obahiagbon, 2020 ONSC 2765, at para. 3.

[111] K.K. submits that, in order to evaluate whether any pre-trial costs Orders should be permanently stayed, I require all the evidence adduced during the prior proceeding, submissions made outlining the parties’ positions at the time, and any offers to settle, so that I can conduct what is in effect an appeal of prior costs decisions that were not, in fact, appealed. He asserts that this cannot be done fairly in a way that meets the standard of adjudications based on the record before me. He argues that M.M.’s submissions are just that, “mere assertions” that lack evidentiary rigour.

[112] I disagree that the analysis to be undertaken is effectively an appellate review of the costs Orders at issue. The focus of my inquiry is not on whether the motion judge or conference judge who issued the Orders erred in law or made a palpable and overriding error of fact based on the record before them. Rather, in evaluating a request for a stay of the disputed costs Orders, I must determine whether it would be oppressive, vexatious, or an abuse of process to permit K.K. to enforce the Orders today, and whether it would cause an injustice to him to grant a stay, based on the totality of the circumstances in the case and the evidence before me.

[113] I am of the view that it would be oppressive to permit K.K. to enforce the pre-trial costs Orders against M.M. This case involves exceptional circumstances of extreme bad faith by K.K., which resulted in protracted litigation with ruinous financial consequences to M.M. K.K.’s bad faith actions were not limited to specific issues and were not restricted to the conduct of the trial. It infected the entire litigation proceeding. He waged a litigation war against M.M. His conduct must not be rewarded with the execution of costs Orders in his favour. Granting a stay of the Orders will not cause an injustice to K.K. On the contrary, the interests of justice require that payment of those costs be withheld.

[114] I therefore order a stay of the enforcement of the following costs Orders against M.M.: Justice Edwards’s Order dated August 8, 2013 ($45,000); Justice Van Melle’s Orders dated April 4, 2014 ($63,000) and January 22, 2015 ($5,000); and Justice Ricchetti’s Order dated February 6, 2020 ($500). Payment of any outstanding amounts pursuant to these Orders is no longer required.

[115] The costs Order of Justice Price dated August 13, 2013 and the costs Order of Justice Van Melle dated December 21, 2017 remain in effect, except that enforcement of the set off ordered by Justice Van Melle is stayed. K.K. must therefore pay M.M.’s costs in the amounts of $46,772 and $5,000, all inclusive, pursuant to these Orders. These amounts will not bear interest from the dates that the Orders were made because there were previously set offs ordered by the court, which would have rendered timely payment of these costs by K.K. unnecessary. Enforcement of those set offs are now stayed, along with all costs Orders against M.M.

Where An Order of “No Costs” Was Made

[116] There were four pre-trial motions heard by the case management judge in 2016. After deciding each motion, Justice Van Melle considered and made an order for “no costs” (Endorsements dated March 16, 2016, April 22, 2016, September 27, 2016, December 9, 2016). Absent proof that these Orders were obtained by fraud, the court has no jurisdiction to set them aside or to grant M.M.’s request for costs incidental to these steps in the proceeding: r. 25(19).

Pre-Trial Costs Not Associated with Any Court Appearances

[117] The detailed invoices and Bills of Costs submitted by M.M. (from various counsel) show that she incurred costs prior to the trial that were not incidental to any motions, conferences, or other court appearances. These costs include fees that her former lawyers billed for drafting and filing her Answer to K.K.’s Application; completing intake forms for the Office of the Children’s Lawyer; completing intake forms for various supervised access centres; reviewing reports from the access centres; communicating via telephone with the court-appointed assessor (Dr. Goldstein) and various court-appointed counsellors and therapists for the children and for M.M.; communicating with the Family Responsibility Office about enforcement of support orders and statements of arrears; arranging through the CAS for parenting time for M.M. while the children were in K.K.’s exclusive care; corresponding with opposing counsel about the children’s identification documents; communicating with opposing counsel to request financial disclosure from K.K.; dealing with opposing counsel about K.K.’s objection to V.K.’s referral to BOOST; drafting consents and authorizations and meeting with M.M. to execute them; reviewing medical records requested by K.K. and ordered to be produced; communicating with M.M. and opposing counsel about K.K.’s unauthorized disclosure of M.M.’s medical records to Dr. Goldstein; communicating with the Peel Crown’s office and with opposing counsel regarding the status of criminal charges against K.K.; corresponding with opposing counsel about a Bank of India account and safety deposit box; obtaining the children’s school records; and drafting client reporting letters.

[118] M.M. was also billed for disbursements that did not pertain to motions or conferences (e.g., process server and court fees for filing M.M.’s Answer, courier fees to pick up and return K.K.’s disclosure brief). A portion of the in-house disbursements billed for photocopies, faxes, and postage would also not be attributable to motions or conferences.

[119] M.M. is entitled to her costs on a full recovery basis for these legal fees and disbursements, which are not captured by any other pre-trial costs orders. I have carefully reviewed the detailed invoices from her former counsel to identify relevant costs that do not overlap with any costs already awarded for pre-trial motions and conferences. Based on my review, I conclude that a total amount of $20,000, all inclusive, is fair and reasonable to cover the cost of pre-trial work that was performed by various counsel between 2013 and 2019, independent of any specific “steps” (i.e., motions or conferences) in the proceeding.

Specific Disbursements

[120] M.M. is seeking an order for reimbursement of disbursements that she paid directly.

[121] She produced a receipt from Dr. Goldstein dated March 25, 2014, which shows that she paid $8,475 towards his fees. Dr. Goldstein was appointed by the court (pursuant to s. 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12) to conduct an assessment of the children’s needs and of the abilities of the parties to meet those needs. The order for a s. 30 assessment was initially made by Justice Edwards on May 10, 2013. That Temporary Order states that the parties shall share the costs of the assessment equally on an interim basis, and that “[t]he final allocation of costs of the assessment… shall be determined as part of the final financial determinations between the parties.”

[122] As noted above, Justice Van Melle issued a subsequent Temporary Order on April 4, 2014, requiring M.M. to pay K.K. $33,000 in disbursements, representing a portion of Dr. Goldstein’s fees. I have stayed enforcement of that costs Order, so M.M. is not required to make any further contribution to Dr. Goldstein’s fees.

[123] The question remains whether I now have authority to order K.K. to reimburse M.M. for the $8,475 in fees that she paid directly to Dr. Goldstein. I find that I do, pursuant to the Order of Justice Edwards that specifically reserved final allocation of Dr. Goldstein’s fees to the end of the trial (or final determination of the issues through settlement). I further find that making such an order serves the fundamental purpose of the Family Law Rules, namely, to ensure that cases are dealt with justly. The interests of justice require that the requested order be made in this case.

[124] M.M. also seeks reimbursement of disbursements paid for psychological testing and report writing performed by Dr. Rex Collins at the behest of Dr. Goldstein. This testing was directly related to the litigation and was only required because K.K. raised an issue about M.M.’s mental health and alleged inability to parent the children, knowing full well that she was mentally stable and capable. In the circumstances, K.K. should be required to pay these costs, in the total amount of $6,256.

[125] Similarly, M.M. incurred significant fees for counselling and report writing by Betty Stockley. The counselling was ordered by the court as part of the family law proceeding. Compliance with the order was a pre-condition to M.M. having any parenting time with the children. At trial, it became apparent that the case management judge made the counselling order because she was misled by K.K.’s dishonesty and deception. In the circumstances, K.K. should be required to pay these costs, in the total amount of $11,201.

[126] M.M. also seeks reimbursement of disbursements totalling $2,850, which were incurred between June and September 2021. Those disbursements relate to the post-trial proceeding before Justice Trimble in 2021 and/or the post-trial parenting review that I conducted in 2023, for which costs have already been assessed and ordered. Her claim for a costs order to cover these disbursements is therefore denied.

Enforcement by the Family Responsibility Office

[127] M.M. seeks an order to enforce the costs orders against K.K. Only costs pertaining to child support, s.7 expenses, and spousal support proceedings may be enforced by the Family Responsibility Office.

[128] I have reviewed all the pre-trial Endorsements and Orders in this case. Some of them pertain to interim child support and spousal support motions. I have reviewed all the invoices from M.M.’s various counsel to ascertain the amount of reasonable fees incurred for work relating to child support and spousal support issues, including efforts to obtain financial disclosure of K.K.’s income.

[129] A significant portion of the trial was devoted to retrospective and prospective child support and spousal support issues, including complex income imputation issues that resulted from K.K.’s inadequate financial disclosure. Section 7 issues were also contested and litigated at trial.

[130] I have concluded that $90,000 represents a reasonable amount of the total costs incurred by M.M. that relate to the child support, s. 7 expenses, and spousal support issues. I will therefore make an order for that portion of the total costs to be enforced by the Family Responsibility Office.

CONCLUSION

[131] In summary, I have concluded that M.M. is entitled to her trial-related costs (Ms. Pasha’s fees and disbursements) on a full recovery basis in the amount of $146,027, all inclusive.

[132] M.M. is also entitled to some pre-trial costs on a full recovery basis in the amount of $65,414, broken down as follows:

Date	Amount	Description
July 3, 2014	$ 500	Case supervision conference (self-represented)
February 8, 2017 October 4, 2017 December 13, 2017	$ 3,390	Case supervision conferences (counsel H. McCullough)
August 22, 2018 August 30, 2018	$ 7,092	Motion (counsel H. McCullough)
November 30, 2018	$ 1,250	Case supervision conference (self-represented)
December 17, 2018	$ 1,250	Case supervision conference (self-represented)
May 13, 2019	$ 1,250	Motion (self-represented)
January 6, 2020	$ 3,750	Pre-trial conference (self-represented)
April 6, 2020	$ 1,000	Motion (self-represented)
	$20,000	Pre-trial costs not incidental to any court appearances (various counsel)
	$ 8,475	Disbursement: Dr. Goldstein’s fees
	$ 6,256	Disbursement: Rex Collins’s fees
	$11,201	Disbursement: Betty Stockley’s fees

ORDERS

[133] For the above reasons, I make these Orders:

i. Enforcement of the following Orders against M. M. are hereby stayed: * Justice Edwards’s costs Order dated August 8, 2013, * Justice Van Melle’s costs Order dated April 4, 2014; * Justice Van Melle’s costs Order dated January 22, 2015; * The set off ordered by Justice Van Melle in her costs Order dated December 21, 2017; and * Justice Ricchetti’s costs Order dated February 6, 2020. ii. K.K. shall pay M.M.’s costs of the within proceeding in the total amount of $211,441, inclusive of fees, disbursements and HST. These costs are in addition to the $51,772 in costs that K.K. was previously ordered to pay M.M. by Justice Price ($46,772) and Justice Van Mell ($5,000). iii. All costs owing by K.K. shall be paid to M.M. immediately. Any outstanding amounts shall be subject to post-judgment interest at the rates prescribed pursuant to the Courts of Justice Act, calculated from the day after the date of this decision. iv. K.K. cannot take any further steps in this proceeding until the costs are paid in full. v. The Family Responsibility Office shall be responsible for enforcement of $90,000 of the costs, which relate to M.M.’s claims for retrospective and prospective child support, spousal support, and s.7 expenses. A support deduction order shall issue.

Petersen J. Released: February 21, 2024