Saldana Contreras v. Bernal, 2026 ONCJ 219

CITATION: Saldana Contreras v. Bernal, 2026 ONCJ 219

DATE: April 14, 2026

COURT FILE NO. D45941/25

ONTARIO COURT OF JUSTICE

B E T W E E N:

NATALIA SALDANA CONTRERAS

APPLICANT

– and –

JAIME GARCIA BERNAL

RESPONDENT

COUNSEL:

THEODORA J. OPREA, for the APPLICANT

THE RESPONDENT, ACTING IN PERSON

HEARD: In Chambers

JUSTICE S.B. SHERR

COSTS ENDORSEMENT

Part One – Introduction

[1] On March 12, 2026, the court delivered written reasons for decision after a focused trial about the respondent’s (the father’s) child support obligations for the parties’ 6-year-old child.

[2] The court ordered the father to pay the applicant (the mother) $36,471 for child support arrears. It permitted him to pay the arrears at $500 each month, starting on April 1, 2026. It imputed his annual income at $79,262 and ordered him to pay the mother child support of $736 each month, starting on April 1, 2026.

[3] The court found that the mother was the successful party at trial and set up timelines for the parties to make written costs submissions.

[4] The mother made written submissions and seeks costs of $10,000. The father did not make costs submissions.

Part Two – General costs principles

[5] The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 set out that modern costs rules are designed to foster four fundamental purposes:

(1) to partially indemnify successful litigants;

(2) to encourage settlement;

(3) to discourage and sanction inappropriate behaviour by litigants and;

(4) to ensure that cases are dealt with justly under subrule 2 (2).

[6] Costs can be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice. See: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, 2003 S.C.C. 71, paragraph 25.

[7] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.

[8] An award of costs is subject to the factors listed in subrule 24 (14), subrule 24 (7) pertaining to unreasonable conduct of a successful party, subrule 24 (10) pertaining to bad faith, subrule 24 (12) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party. See: Berta v. Berta, 2015 ONCA 918, at paragraph 94.

Part Three – Did the father act in bad faith?

3.1 Legal considerations

[9] The mother seeks her full recovery costs pursuant to subrule 24 (10) that states:

Bad faith

24 (10) 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.

[10] Subrule 24 (10) requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made. See: Cozzi v. Smith, 2015 ONSC 3626; Scipione v. Del Sordo, 2015 CarswellOnt 14971 (Ont. SCJ).

[11] There is a difference between bad faith and unreasonable behaviour. The essence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose. It is done knowingly and intentionally. See: S. (C.) v. S. (M.) (2007), 2007 20279 (ON SC), 38 R.F.L. (6th) 315 (Ont. SCJ).

[12] Bad faith is not synonymous with bad judgment or negligence; rather, it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. Bad faith involves intentional duplicity, obstruction or obfuscation. See: Scipione, supra.

[13] Persistent refusal by a party to make accurate financial disclosure and reveal their true income may rise to the level of bad faith. See: DePace v. Michienzi 2000 22460 (ONSC); Kardaras v. Kardaras, 2008 ONCJ 616; Jones v. Hugo, [2012] ONCJ 381; Jansen v. DiCecco, 2025 ONCJ 256.

[14] A party who adopts “a catch-me-if-you-can approach to financial disclosure” demonstrates bad faith and breaches rule 13. See: Parry v. Parry, 2020 ONSC 3437.

[15] In Lewis v. Lynch, 2024 ONCJ 325, this court made a finding of bad faith against the father because he withheld financial disclosure and did not advise the mother of large increases in his income. This court wrote that to change behaviour, courts must make orders that send clear and strong messages to support payors, such as the father, that such conduct will result in significant financial consequences for them. This will not dissuade all dishonest payors. However, increasing the risks for such conduct may dissuade many more of them.

[16] A bad faith finding on some specific issue does not necessarily have a spill-over effect to other issues. See: Hunt v. Hunt [2001] O.J. No. 5111 (SCJ); Kardaras v. Kardaras, 2008 ONCJ 616; R.A.K. v. M.Z., 2024 ONCJ 2.

3.2 Analysis

[17] The court made the following findings of fact about the father in its reasons for decision:

a) He breached multiple court orders to provide financial disclosure. He failed to provide his complete income tax returns with all schedules and attachments for the last three years, his most recent paystub, copies of his credit card statements for the past three years, and a copy of any application made in the last three years for a loan, line of credit, credit card or mortgage. He blamed his previous lawyer for this non-disclosure even though he was ordered to provide it after his lawyer went off the record.

b) He failed to provide an updated financial statement as ordered by the court. He provided no documentary evidence of his 2025 and 2026 income.

c) He failed to provide a trial affidavit, as ordered by the court.

d) He falsely claimed that his mother is the sole owner of his company. Government documentation showed he was also an owner.

e) He falsely claimed he was a mere employee of his company. It became apparent in his cross-examination that he was the person operating this business. His mother is 74 years old and does not speak English.

f) He provided none of his company’s corporate tax returns, notices of assessments or financial statements.

g) He was commingling his finances with his mother’s.

h) He was running his personal expenses through his corporation.

i) He misrepresented his annual income.

j) He told the mother that he would only pay for child support if she performed sexual favours for him.

k) He took advantage of the significant power imbalance between the parties, arising from their age difference and the mother’s precarious immigration status.

[18] The father’s conduct on the child support issues constitutes bad faith. The mother is entitled to full recovery costs on these issues.

[19] The finding of bad faith does not extend to the parenting issues. The father reasonably resolved those issues on October 17, 2025.

Part Four – Amount of costs

[20] Even if full recovery costs are triggered by the rules, the claim must still be reasonable and proportionate. It must also reflect, to some extent, the reasonable expectations of the paying party. See: Tintinalli v. Tutolo, 2022 ONSC 6276.

[21] The Rules do not require the court to allow the successful party to demand a blank cheque for their costs. See: Slongo v Slongo 2015 ONSC 3327 (SCJ). The court retains a residual discretion to make costs awards which are proportional, fair and reasonable in all the circumstances. See: Jackson v. Mayerle, 2016 ONSC 1556.

[22] Subrule 24 (14) reads as follows:

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

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

(i) each party’s behaviour,

(ii) the time spent by each party,

(iii) any written offers to settle including offers that do not meet the requirements of rule 18,

iv) any legal fees, including the number of lawyers and their rates,

v) any expert witness fees, including the number of experts and their rates,

vi) any other expenses properly paid or payable; and

(b) any other relevant matter.

[23] This case was important to the parties. It had some difficulty and complexity, as the father obscured his financial affairs and the mother had to conduct investigations to present evidence proving he was earning far more income than he claimed.

[24] The mother acted reasonably. She made a reasonable offer to settle dated October 17, 2025. It met the technical requirements of subrule 24 (12). It was better than the trial result for the father. The court would have applied the costs consequences set out in subrule 24 (12) if there had been no finding of bad faith.

[25] The rates of $400 per hour claimed by the mother’s lawyer are reasonable for a 2014 call to the bar.

[26] The court reviewed the mother’s bill of costs. It totalled $10,751, inclusive of fees, disbursements and HST.

[27] The mother claimed costs for work done for the October 17, 2025 case conference. Costs were reserved for that appearance. The court won’t order full recovery costs for that attendance since the parties were able to resolve the parenting issues at court. The court will also discount costs for time claimed for drafting the mother’s court materials, as some of that time was attributable to the parenting issues. Otherwise, the time claimed by the mother was reasonable.

[28] The court considered the father’s ability to pay costs. See: MacDonald v. Magel (2003) 2003 18880 (ON CA), 67 O.R. (3d) 181 (Ont. C.A.). Ability to pay will be less of a mitigating factor when the impecunious party has acted unreasonably. See: Gobin v. Gobin, 2009 ONCJ 278; D.D. and F.D. v. H.G., 2020 ONSC 1919. It is even less of a factor when the court has made a finding of bad faith against that party. See: Felix Perez v. Samuel, 2026 ONCJ 53.

[29] In determining the appropriate amount of costs, the court should consider the amount that the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation. See: Arthur v. Arthur, 2019 ONSC 938. The court finds that the father should have reasonably expected to pay the amount of costs that will be ordered if he was unsuccessful.

[30] The court finds that the father can afford to pay the costs that will be ordered.

[31] The father shall pay the mother’s costs of $8,000, disbursements of $175 and HST of $1,062, for a total of $9,237.

Part Five – Conclusion

[32] The court makes the following orders:

a) The father shall pay the mother’s costs fixed at $9,237, inclusive of fees, disbursements and HST.

b) The costs are payable immediately.

Released: April 14, 2026

Justice S.B. Sherr