Court File and Parties

Court File No.: FS-22-28382 Date: 2024-03-01 Ontario Superior Court of Justice

Between: Vasyl Ilchuk, Applicant And: Valentyna Volod Ilchuk, Respondent

Before: M. Kraft, J.

Counsel: Alexei Goudimenko, for the Applicant Not present, for the Respondent

Heard: February 28, 2024

Reasons for Judgment

[1] The Applicant (“husband”) and the Respondent (“wife”) were married in Ukraine on August 3, 2002. They separated on March 1, 2020, but continue to live separate and apart in the matrimonial home, located at 93 Millsborough Crescent, Toronto ON.

[2] There are two children of the marriage, both boys, A., age 17; and Al., age 13.

[3] This uncontested trial proceeded in writing, pursuant to the Order of Akazaki, J., dated March 3, 2023.

[4] Since the parties are married, the orders being sought are to be made pursuant to the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.) (“DA”) and the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”).

Issue to be Determined

[5] The issues I need to determine at this uncontested trial are as follows:

a. What parenting orders should be made in relation to the children, including the following:

i. Who should have decision-making responsibility over the major decisions that impact the two children?

ii. Should the children reside primarily with the husband?

iii. What kind of parenting time should the wife have?

b. Should income be imputed to the wife for child support purposes and if so, what is the wife’s child support obligation on an ongoing basis?

c. Should the matrimonial home be listed for sale and sold? If so, should the husband have a right of first refusal to buy-out the wife’s half-interest in the home; If not, what are the terms of the listing and how should the net proceeds of sale be divided between the parties?

d. Should the wife be ordered to pay the husband costs associated with this uncontested trial and these proceedings?

Litigation History

[6] On February 24, 2022, the husband issued the within Application seeking, among other things, a divorce, sole decision-making responsibility with respect to the children; primary residence of the children; child support, both table and s.7 expenses; an order that he purchase the wife’s half-interest in the matrimonial home, or alternatively, that the home be sold with the proceeds to be divided equally by the parties; an order for interim exclusive possession of the matrimonial home; a non-harassment order against the wife; an order for the equalization of the parties’ net family property and costs. The wife was personally served with the husband’s Application and financial statement, sworn on February 24, 2022, on March 8, 2022.

[7] The wife did not file an Answer or Financial Statement within the time prescribed in the Family Law Rules.

[8] On November 23, 2022, the husband attended the first case conference before Steele, J. Justice Steele’s Endorsement (“the Steele Order”) noted that the wife had failed to file responding pleadings, attend the case conference or file a case conference brief, despite being served with the husband’s case conference materials. Steele, J. granted the wife a further four-month opportunity to file responding materials, namely, until February 13, 2023, and adjourned the case conference to March 3, 2023. Steele, J.’s Endorsement further provides that if the wife fails to serve and file her responding materials within the timeline in her order, or fails to appear at the return date of the case conference on March 3, 2023, the court was to grant the husband leave to proceed with an uncontested trial. The wife was also ordered to pay the husband costs in the sum of $2,000, within 30 days. The evidence on record states that the wife did pay these costs to the husband.

[9] The wife breached the Steele Order. She did not file an Answer or Financial Statement by February 13, 2023. Nor did she attend the case conference on March 3, 2023. The Endorsement of Akazaki, J., dated March 3, 2023, sets out that as a result of the wife’s failure to comply with the terms of the Steele Order, she is no longer entitled to any further notice of steps in the case, other than being entitled to be served with court orders when they are made; the husband is entitled to bring a motion without notice to obtain passports for the children; the husband is to set the matter down for an uncontested trial; and the wife is to pay the husband costs of the case conference, fixed in the sum of $2,500. The wife never paid these costs to the husband.

[10] Accordingly, the husband filed a Form 23C, his affidavit for this uncontested trial, sworn on October 2, 2023.

[11] The uncontested trial came before me today in writing.

Issue One: What parenting orders should be made?

[12] The husband seeks sole decision-making responsibility for the parties’ two children, that they continue to reside primarily with him and an order that the wife’s parenting time take place at his sole discretion. A. is currently in Grade 12 and Al. is in Grade 8.

[13] Pursuant to s.16(1) of the DA, the court is only to consider the children’s best interests in making a parenting order or a contact order. In considering the best interest factors, set out in s.16(3) of the DA, the court is to give primary consideration to the children’s physical, emotional and psychological safety, security and well-being: s.16(2).

[14] The best interest factors set out in s.16(3) of the DA include, but are not limited to the following:

a. The child’s needs, given the child’s age and stage of development;

b. The nature and strength of the child’s relationship with each spouse;

c. Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

d. The history of care of the child;

e. The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

f. The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

g. Any family violence and its impact, on among other things,

i. The ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

ii. The appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the children.

[15] The husband deposes that throughout the marriage, the wife displayed escalating aggressive and bullying behaviour toward him, many of which episodes took place in the presence or within the hearing distance of the parties’ children. He describes the wife as directing vulgar and profane language toward him regularly and being physically violent toward him as well.

[16] The husband submits that since the separation, while he and the wife continue to reside in the matrimonial home, separate and apart, with the children, she regularly makes attempts to disparage him in front of the children and involve the children in their adult conflict. The husband explains that he has done his best to shield the children from adult conflict but the wife continues to engage in fights with him and behave inappropriately in front of the children, without regard for their best interests.

[17] Since the separation on March 1, 2020, the husband submits that he has been the children’s primary caregiver, attending to their day-to-day needs, including waking them up, getting them ready for school, preparing their meals, taking them to school and ensuring their homework is done on time. By contrast, the husband describes the wife as showing a pattern of disregard for the children’s interests and needs, including refusing to take the children to doctors when they have needed medical assistance, including when A. required emergency surgery.

[18] In May 2022, the husband contacted the police in an effort to stop the wife from harassing him, being physically violent toward him, and to stop her from posting recorded videos of him without his knowledge or consent on YouTube. No charges were laid by the police.

[19] The husband argues that the wife’s reckless conduct has caused the children emotional damage and, as a result, he seeks an order that he continue to be their primary caregiver and the wife’s parenting time be at his discretion. He also seeks sole decision-making responsibility.

The wife’s parenting time since separation

[20] The husband’s Form 23C does not set out any information about the wife’s parenting time with the children. The only information on the record is that the parties have continued to reside in the matrimonial home since the separation, albeit separate and apart.

The Children’s Current Circumstances

[21] The oldest child, A. is 17 years of age. He is in Grade 12. At his age, an order regarding decision-making or parenting time is not appropriate. There is no information on the record about A.’s plans for post-secondary education for the 2024-2025 academic year.

[22] Al. is currently 13 years of age. He is in Grade 8. There is no information on the record about Al.’s social, emotional, academic or medical needs, other than the fact that the wife has neglected his medical needs, and the husband and paternal grandparents have been meeting his needs. The husband’s sworn Form 35.1 affidavit, dated February 24, 2022 states that the children do not have any special medical, educational, mental health or developmental needs.

[23] At the time the husband swore his Form 35.1 affidavit on February 24, 2022, A. was 15 and in Grade 10 and Al. was 11 and in Grade 6. The children are listed as living with both parents. The husband does list details of the wife’s conduct that he asks the court to consider in determining the children’s best interests as:

a. The wife actively bullies, harasses, and displays aggressive and demeaning behaviour towards [him]. Many of which behaviours have been in the presence and hearing of the children.

b. Also, the wife exhibits threatening and physical abuse towards me that are unpredictable.

c. In addition, the wife verbally abuses me almost on a daily basis and directs vulgar and profane language towards me and the children.

d. The wife creates a toxic living environment in the matrimonial home for the children and I, where I genuinely believe that she is doing so intentionally to force [him] to leave the matrimonial home.

[24] It is not disputed that the children have been in the husband’s primary care since separation and that even though the parties are residing separate and apart in the same matrimonial home, the husband has been the parent to meet all of the children’s needs.

[25] The husband describes the current living circumstances for himself and the children as being difficult. The children have been exposed to conflict by the wife and the wife has made disparaging remarks about the husband to him and in front of the children. No details about the children’s struggles or their difficult circumstances are on record.

Analysis

[26] I find that it is in the children’s best interests for the husband to have sole decision-making responsibility over the major and day-to-day decisions that impact Al. based on the factors set out in s.16(3) of the DA and for the following reasons:

a. The wife appears to have exposed the children to adult conflict since the separation;

b. The wife appears to have made disparaging remarks about the husband in front of the children, without regard for the children’s best interests;

c. The wife appears to have been neglectful of the children’s needs, including addressing emergency medical needs;

d. The husband is the parent involved with the children in terms of their day-to-day needs, from a social-emotional or academic perspective;

e. The wife does not appear willing to support the children’s relationship with the husband given how she denigrates him to the children;

f. The wife chose not to participate in these proceedings or comply with court orders and, as a result, she took no steps to seek any parenting rights in relation to the children; and

g. The husband, while working full-time, remains the only parent who has demonstrated the interest and willingness to ensure that the children are being cared for and is meeting their needs.

[27] I am also persuaded that it is in Al.’s best interests to have parenting time with the wife as per her reasonable requests and at his discretion, given his age. The court has no information about either of the children’s views and preferences, and at their respective ages, this factor is important.

[28] The husband shall be given authority to obtain any government issued documentation for the children without the need for the wife’s consent, such as passports, birth certifications, social insurance numbers, driver’s licence, etc. The husband shall also be authorized to travel with the children without notifying the wife or obtaining her consent in advance.

Issue Two: Should Income be Imputed to the Wife and if so, what is the Wife’s Child Support Obligation?

[29] Pursuant to s.15.1 of the DA, the court may make an order requiring a spouse to pay for child support. In making a child support order, the court shall do so in accordance with the Federal Child Support Guidelines, SOR/97-175 (“CSG”) s.15.1(3) of DA.

[30] The husband seeks ongoing child support for the two children in accordance with the CSG.

[31] The husband deposes that the parties have been equally sharing the cost of the matrimonial home expenses and utilities since separation. They have also been sharing the food expenses equally. Since the parties have continued to reside in the matrimonial home, separate and apart, since separation, neither party has paid the other child support. The husband has not made a claim for retroactive child support.

[32] The husband’s sworn financial statement, filed with his Application is dated February 24, 2022. No updated financial statement was filed by the husband for this uncontested trial, despite the fact that his financial statement is two years stale dated. In his affidavit filed in support of the uncontested trial, he states at paragraph 5, “I rely on my Financial Statement, sworn February 24, 2022 filed in the Court Record. There have not been any substantial material changes in my financial situation since the date of this Financial Statement.”

[33] The husband’s affidavit does not set out what the housing expenses or the food expenses are that the parties share. Nor does his affidavit set out the children’s activities or section 7 expenses.

[34] The budget found in the husband’s sworn financial statement contained “estimated” figures only and lists his 50% share of the mortgage, property taxes and property insurance as amounting to $860.52 a month, or $1,721.04 a month in total. In terms of water, heat, electricity, telephone, cable and internet, the husband’s financial statement lists his 50% share of these expenses as totalling $309 a month, or $618 a month. The husband lists his 50% of the groceries as totalling $676.91 a month, $1,353.82 a month. Using the budget figures in the husband’s sworn financial statement, each party appears to be paying $1,916.43 a month toward the matrimonial home expenses and the children’s activities, broken down as follows:

a. Mortgage, property taxes and property insurance of $860.52 a month;

b. Water, heat, electricity, telephone (land), cable and internet of $309 a month;

c. Food of $676.91 a month; and

d. Childrens’ activities of $70 a month.

[35] Currently, the husband works at Metro Ontario Inc., providing building maintenance. His 2022 Notice of Assessment demonstrates that his Line 15000 income in 2022 was $68,069. His sworn financial statement listed his 2020 income, based on his Notice of Assessment as amounting to $70,776. There is no information about his 2021 income, his 2023 income or the current level of income he is earning in 2024.

[36] The wife was previously employed at Living Arts Kitchen as an administrative assistant. The husband explained that the wife first worked at Living Arts Kitchen as an accountant, full-time, earning $21 an hour. Her position, then changed to an administrative assistant, with the same remuneration of $21 an hour. The husband deposes that the wife worked there from 2019 until 2021, specifically until October 2021.

[37] The wife is currently 43 years of age. According to the husband, she does not have any health issues that would prevent her from working full-time.

[38] The husband seeks an order imputing the wife with income of $21 per hour, for 40 hours a week, 52 weeks a year, amounting to $43,680. He argues that since the wife does not pay tax on that amount, her income should be grossed up by 20% to $52,400 for child support purposes. Based on the CSG, the husband seeks table child support from the wife for two children of the marriage in the monthly sum of $795.88.

The Law on Imputation of Income

[39] When determining whether to impute income to a payor, the court has regard to s.19 of the CSG, which allows the court to impute income to a spouse as it considers appropriate in the circumstances. The circumstances include intentional under-employment or unemployment.

[40] In Drygala v. Pauli (2002), 61 O.R. (3d) 711 (C.A.), at para. 23, Gilles, J.A. set out the questions a court should ask when considering whether a spouse is intentionally under-employed or unemployed:

a. Is the spouse intentionally under-employed or unemployed?

b. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?

c. If no, what income is appropriately imputed in the circumstances?

[41] The court also clarified that “intentional” under-employment or unemployment does not require a specific intent to evade child support obligations. There is no requirement of bad faith: Drygala, at paras. 25-26, 29.

[42] “Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. To meet this legal obligation, a parent must earn what he or she can earn”: Drygala, at para. 32.

[43] In terms of what income is appropriately imputed in the circumstances, the court cannot arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court’s discretion must be grounded in the evidence: Drygala, at para. 33.

[44] The husband has based his argument that income should be imputed to the wife in the same hourly income she was earning in 2021, with a gross up. The argument that the wife’s income should be grossed up would only make sense if the wife were earning cash income. When the wife was employed, presumably, she had a T4 and filed an income tax return. Using an hourly rate of $21 for 40 hours of work each week, this amounts to an annual salary of $43,680.

[45] While the imputation of income is not an exact science, the amount to be imputed as to reference real evidence: Albanez v. Samuda, 2019 ONSC 3610.

[46] In reference to the third question in the analysis, namely what income to impute, the court has “wide discretion”: A.E v. A.E., 2021 CarswellOnt 18880 (S.C.J.), para. 262 (2)(c). The Court considers the evidence, and when selecting a number, “must consider what is reasonable in the circumstances”, looking at, for example, “age, education, experience, skills and health of the parent”: Drygala v. Pauli, supra, paras. 44-45.

[47] When considering income imputation, the person asking to impute income does not need to “point to an available job or jobs that meet his qualifications and set out the remuneration”: McNeil v. Dunne, supra, paras. 71-73. The threshold is not this high, and “evidence of previous earnings alone can be sufficient to establish a rational basis that meets the test”: McNeil v. Dunne, supra, para. 74.

Analysis

[48] Based on the evidence on record, I find that the wife should be imputed with an annual income of $43,680, using the last known income information available for her.

[49] Pursuant to s.3(2) of the CSG, the amount of child support set out in the applicable tables, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought, and the amount, if any, determined under s.7 is presumptive. In other words, there is no discretion in the CSG for the court to order any other amount of child support other than what is set out in the tables, if the children are under the age of majority.

[50] A., however, will be over the age of majority next year. There is nothing on the record as to whether he will be pursuing post-secondary education or working full-time. Pursuant to s.3(2) of the CSG, where a child to whom a child support order relates is the age of majority or over, if the court considers the amount of child support set out in the applicable tables to be inappropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child, the court can order an amount of child support it considers appropriate.

[51] At least until that information is known, the wife is obliged to pay child support for both A. and Al. pursuant to the CSG based on her imputed income of $43,680 in the table amount of $650 a month.

[52] If A. begins to live away from home for post-secondary education, then the table amount of child support may change.

[53] In addition to table child support, the husband seeks an order requiring the wife to pay her proportionate share of the children’s s.7 expenses.

[54] Section 7 of the CSG provides the court with the authority to order a spouse to provide for an amount to cover all or any portion of several expenses, considering the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation. The list of expenses which are categories of s.7 expenses are for uninsured medical/dental expenses and extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs: s.7(1) (b) and (d).

[55] The husband provided no evidence to the court about the children’s current or future expected s.7 expenses, other than the fact that he is paying 50% of children’s activities that total $70 a month. Again, this financial statement is stale-dated and the court has no information about the children current or anticipated future s.7 expenses.

[56] Using the husband’s 2022 income of $68,069 and the wife’s imputed income of $43,680, the parties’ combined incomes amount to $111,749. The husband’s proportionate share of the children’s s.7 expenses would be 61% and the wife’s proportionate share of these expenses would be 39%. An order should follow that the parties should share the children’s current and future legitimate s.7 expenses on the basis of the husband paying 61% and the wife paying 39%, provided the husband obtains the wife’s consent for such expenses, before they are incurred, such consent not to be unreasonably withheld.

[57] In terms of the husband’s 2023 income, he attached a pay stub from Metro Ontario Inc. for the period ending September 21, 2023, showing that his earnings to that date amounted to $58,493.31. It appears that he will have earned closer to $75,000 in 2023. However, without a copy of his T4 from 2023, I am not in a position to know what the husband’s employment income was in 2023. Accordingly, the parties shall exchange annual income information on May 1st of each year, commencing with May 1, 2024 and adjust their proportionate sharing of the children’s s.7 expenses accordingly.

Issue Three: Should the matrimonial home be listed for sale and sold? If so, should the husband have a right of first refusal to buy-out the wife’s half-interest in the home; what are the terms of the listing and how should the net proceeds of sale be divided between the parties?

[58] The husband’s only sworn financial statement lists his net family property at $302,750.

[59] Although an updated financial statement was not prepared, the husband attached a comparison of net family properties statement as Exhibit “E” to his Form 23C. This is based on the details regarding the wife’s financial circumstances as at the date of the parties’ separation, to the best of his knowledge since the wife has not participated in this proceeding and did not file a sworn financial statement.

[60] Based on the husband’s best estimate of the wife’s net family property and his sworn financial statement, he submits that the wife would owe him an equalization payment of $2,850. He is not seeking an equalization of the parties’ net family properties. Instead, he seeks an order that the matrimonial home be listed for sale and sold and that the parties equally share the net proceeds of sale.

[61] The parties jointly own the matrimonial home located at 93 Millsborough Crescent, Toronto ON. The husband’s sworn financial statement lists the fair market value of the matrimonial home at $1,800,000 as at the date of separation.

[62] There is nothing on the record about the current value of the matrimonial home.

[63] Before the home is listed for sale and sold, the husband asks for an order that he be granted a right of first refusal to purchase the wife’s half-interest in the home for a six month period starting from the date this judgment is released. He submits that he needs six months to obtain financing to buy out the wife.

[64] In particular, the husband seeks the following order:

a. That he be granted the first right of refusal to purchase the wife’s half-interest in the parties’ jointly owned matrimonial home for a six-month period. He seeks a six-month period to enable him to obtain financing.

b. If the husband does not choose the option to purchase the wife’s half-interest in the matrimonial home, the husband seeks an option that the parties list the matrimonial home for sale on the following terms:

i. They share and cooperate with choosing a listing agent and choosing a listing price. If the parties cannot agree, he shall have the final choice to choose the listing agent and listing price;

ii. The parties shall accept the first reasonable arm’s-length offer to purchase the matrimonial home. If the wife refuses to accept such an offer, either party can bring a motion before this Court to have the issue addressed; and

iii. Each party shall receive 50% of the net proceeds of sale.

[65] All joint tenants in any land in Ontario may be compelled to make or suffer partition or sale of the land pursuant to s. 3 of the Partition Act, R.S.O. 1990, c.P.4. In other words, either party has a prima facie right to force the other to sell the matrimonial home to enable him/her to access his/her equity in the property, since they own the home as joint tenants.

[66] There is no prima facie right of one joint tenant to have a right of first refusal to purchase the other party’s half-interest in the home. The Court of Appeal has confirmed that the court does not have the authority to grant a spouse the right of first refusal, or the right to purchase the other spouse’s interest in the matrimonial home. In Martin v. Martin, [1992] 8 O.R. (3d) 41, the court explained the rationale for this principle:

A right of first refusal will most often work to discourage other interested buyers. If a spouse is granted a right of first refusal, the effect of it is to remove that spouse from the competitive market for the matrimonial home. The existence of a right of first refusal distorts the market, because it provides a benefit to one party, which eliminates the need for that party to compete with any other interested purchaser. Finally, if the spouse with a right of first refusal is in possession, the existence of the right of first refusal will provide a disincentive to maintaining the property, so as to increase its value and saleability.

[67] See also Buttar v. Buttar, 2013 ONCA 517, at para 64, where it was stated, “This court jealously guarded the rights of joint owners to the best price for jointly-owned property.”

[68] Making an order granting the husband the right to purchase the wife’s interest in the matrimonial home until September 2024 would cause the parties to lose the advantage of a Spring real estate market.

[69] Pursuant to s.23 of the FLA, the court, may on the application of a spouse, authorize the disposition of the matrimonial home if the court finds that the spouse whose consent is required, cannot be found or is not available.

[70] In these circumstances, I am not persuaded that the husband should be granted a six month period with a right of first refusal to purchase the wife’s half-interest in the matrimonial home. The husband has known since he issued this Application that he wanted to purchase the wife’s interest in the home. It was incumbent on him to arrange for financing to do so, prior to when he brought this uncontested trial. He did not do so. Accordingly, the matrimonial home will be listed for sale on the open market. The husband is free to bid on the home just as any other third party purchaser if he so chooses.

Issue Four: Should the wife be ordered to pay the husband’s costs associated with this Uncontested Trial and these proceedings?

[71] In the husband’s Form 23C, he deposes that he seeks partial indemnity costs. The record provides that the husband’s full indemnity costs amounted to $38,203.33 for this uncontested trial and these proceedings in general.

[72] The husband acknowledges that the wife paid the costs ordered by Steele, J. from the wife. The wife did not, however, pay the costs ordered by Akazaki, J. on March 3, 2023, of $2,500.

[73] Attached to the husband’s Form 23C, are seven statements of account from his first lawyer, Roslana Korytko, for the period September 8, 2021 to August 31, 2023 of $31,937.50. The husband’s second lawyer, Alexei Goudimenko, charged him a further $5,765.83 for the period September 1, 2023 to October 2, 2023. Mr. Goudimenko’s fees are set out in the Bill of Costs attached to the husband’s Form 23C as Exhibit “G”.

[74] On a full indemnity basis, therefore, the husband seeks costs of $38,203.33, which reduces the fees by the costs paid by the wife of $2,000.

The Law on Costs

[75] Rule 24(1) of the Family Law Rules, O. Reg. 114/99 (“FLRs”) creates a presumption of costs in favour of the successful party, subject to the factors set out in r. 24: Beaver v. Hill, 2018 ONCA 840, at para. 10.

[76] The husband was successful on the parenting and child support issues. He was partially successful on the sale of the matrimonial home. As such, he is entitled to costs.

[77] Subject to the provisions of an Act or the rules of court, costs are in the discretion of the court, Courts of Justice Act, R.S.O. 1990, c. C.43., s.131. By r. 24(10)(a) of the FLRs, the court is to decide on the costs of a step in the case promptly after dealing with the step, in a summary manner.

[78] 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 Rule 2 (2) of the FLRs: Mattina v. Mattina, 2018 ONCA 867.

[79] While a successful party in a family law case is presumptively entitled to costs, an award of costs is subject to the factors listed in r. 24(11), the directions set out under r. 24(4) (unreasonable conduct), r. 24(8) (bad faith), r. 18(14) (offers to settle), and the reasonableness of the costs sought by the successful party: M. (A.C.) v. M. (D.) (2003), at paras. 40–43; Berta v. Berta, 2015 ONCA 918 at para. 94.

[80] The touchstone considerations of costs awards are proportionality and reasonableness: Beaver v. Hill, at para. 12. In Boucher v. Public Accountants Council (Ontario), at paras. 28-29, 37, the court held that costs must be fair and reasonable, and consistent with the reasonable expectations of the parties.

[81] Rule 24(4) provides that a successful party who has behaved unreasonably may be deprived of all or part of their costs or ordered to pay all or part of the unsuccessful party’s costs.

[82] I find that the wife’s behaviour in this litigation amounted to bad faith as set out in r.24(8).

[83] The FLRs do not explicitly refer to costs on either a partial or substantial indemnity scale. Rule 24(8) refers to “costs on a full recovery basis,” where a party has acted in bad faith. I did not find bad faith in this case. The court has a range of costs awards open to it, from nominal to just short of full recovery.

[84] Costs must always be proportional to what is at stake in the case, and to the unsuccessful party’s reasonable expectation as to what costs he may face if he is unsuccessful. In appropriate circumstances, unreasonable behavior will result in a higher award of costs.

[85] In arriving at a costs figure, I must balance many considerations,

a. The wife’s refusal to abide by court orders;

b. The wife’s refusal to participate in these proceedings;

c. The husband having to proceed with his claims on an uncontested basis, at his sole cost; and

d. The husband is presumptively entitled to recovery for costs by virtue of his success and reasonable behaviour (as a litigant).

[86] Considering the husband’s success, the fact that the wife’s conduct amounts to bad faith, and she should have expected to pay costs if she was unsuccessful on the uncontested trial, the wife shall pay to the husband costs fixed in the sum $20,000, inclusive of all disbursements, and HST to be paid out of her share of the net proceeds of sale from the matrimonial home.

Disposition

[87] This court makes the following final order:

a. Pursuant to s.16(1), 16.1(1) and (4) of the Divorce Act, the applicant shall have sole decision-making responsibility in connection with the major decisions that impact Al., born December 22, 2010;

b. Pursuant to s. 16(6) and 16.1(4) of the Divorce Act, the two children, A., born August 12, 2006 and Al., born December 22, 2010 shall reside primarily with the applicant.

c. Pursuant to s. 16.1(4) and 16.1(5) of the Divorce Act, the applicant shall be permitted to apply and renew all government issued documentation for the children, including but not limited to passports, social insurance numbers, health cards, driver’s licence, birth certificates, without the need for the respondent to consent or sign as a parent.

d. Pursuant to s.16.1(5) of the Divorce Act, the applicant shall be permitted to travel with the children without the need for the respondent’s consent.

e. Pursuant to s.16.5(5), (6) and (7) of the Divorce Act, the respondent shall have reasonable parenting time with the children, subject to the children’s wishes and upon providing the applicant directly with at least 24 hours’ written notice of the days and times of such intended parenting time.

f. Pursuant to s.16.1(5) of the Divorce Act, the respondent shall be permitted to travel with the children, if the applicant consents to same, such consent not to be unreasonable withheld.

g. Pursuant to s. 15.1(1), (3) of the Divorce Act, the respondent shall be imputed with an annual income of $43,680 for child support purposes.

h. Commencing on March 1, 2024, and on the first day of each following month, the respondent shall pay the applicant child support for the two children of the marriage in the table amount of $650 a month, based on her imputed annual income of $43,680 a year.

i. The respondent shall pay the applicant 39% of the children’s s.7 expenses, commencing on March 1, 2024, provided the applicant obtains the respondent’s consent before incurring any s.7 expenses, such expenses not to be unreasonably withheld.

j. Commencing on June 1, 2024, and on the first day of each following June, the parties shall exchange income information as set out in s.21(1) of the CSG, which includes a copy of his/her complete income tax return and notice of assessment; the most recent statement of earnings, indicating the total earnings paid in the year to date, including overtime. In addition to any income information that must be included under paragraphs (c) to (g) of s.21(1), if either party receives income from employment insurance, social assistance, a pension, workers compensation, disability payments or any other source, the most recent statement of income indicating the total amount of income from the applicable source during the current year, or if such a statement is not provided, a letter from the appropriate authority stating the required information;

k. Once the income information is exchanged, the parties shall re-calculate their proportionate responsibility toward the children’s s.7 expenses.

l. If A. attends post-secondary education in Toronto commencing September 2024 and remains living at home, the table child support shall not change. By June 15, 2024, the respondent shall advise the applicant if A. intends to attend a full-time post-secondary educational program commencing in September 2024. If A. intends to live away from home for post-secondary school, then the respondent’s monthly table child support obligation shall change from 2 children to 1 child commencing September 1, 2024.

m. Unless the support order is withdrawn from the Office of the Director of the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.

n. The respondent shall pay the applicant costs of this uncontested trial, fixed in the sum of $20,000, inclusive of HST and Disbursements, from her share of the net proceeds of sale from the sale of the matrimonial home, as set out in (o.) below.

o. Within 20 days from the release of this Endorsement, the parties’ matrimonial home, municipally known as 93 Millsborough Crescent, Toronto ON M9C 5E7, shall be listed for sale and sold on the following terms:

i. The respondent shall put forward three names of listing agents to list the matrimonial home for sale within 5 days of the release of this Endorsement to the applicant.

ii. The applicant shall choose one of three listing agents put forward by the respondent to list the matrimonial home for sale.

iii. If the respondent does not provide the applicant with the names of three listing agents as set out in (i) above, the applicant shall choose a listing agent of his choice.

iv. The parties shall follow the advice of the listing agent in terms of listing price and what is needed to ready the home for sale.

v. The parties shall accept the first reasonable offer to purchase the matrimonial home from an arm’s-length third party, unless the husband is prepared to match the terms of a third-party’s offer in all aspects, including sale price, closing date, and inspection.

vi. Either party may apply to the court on short notice for approval of the acceptance of an offer to purchase.

vii. The parties shall continue to share the household expenses equally until the home is sold. Neither party shall arrange for major expenses, such as major capital repairs to the home without the other party’s prior written consent.

viii. The proceed from the sale of the matrimonial home shall be distributed as follows:

1. The parties shall direct the lawyer on the sale to pay these expenses from the matrimonial home sale proceeds: a. Real estate commission; b. Adjustments for taxes, utilities, municipal fees or levies; c. Amounts required to discharge registered encumbrances; d. Legal fees and disbursements relating to the sale; and e. All other sale adjustments.

2. From the net proceeds, after paying the expenses in (1) above, before distribution between the parties, the parties shall: a. Pay to the applicant the sum of $20,000 as the respondent’s costs associated with this uncontested trial and proceeding;

3. After paying the amounts in (1.) and (2.) above, the remaining proceeds shall be divided equally between the parties.

ix. Until the matrimonial home is sold and both parties continue to reside in the property, the parties shall execute or guarantee any mortgage renewal or mortgage replacement, provided the principal amount secured does not exceed the current amount of the mortgage.

x. The parties shall equally divide their household contents. If they cannot agree on a division, they shall apply to the court to have this issue determined, only after attending a family dispute resolution process, such as mediation.

p. An SDO shall issue.

q. The applicant and respondent who were married at Chernovtsy, Ukraine on August 3, 2022, are hereby divorced and that the divorce shall take effect 31 days after the date of this Order.

Released: March 1, 2024 M. Kraft, J.