Court File and Parties

COURT FILE NO.: FS-15-401573 DATE: 20170404 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Debbie Santos Applicant – and – Jean-Philippe Pantelidis Respondent

Self-Represented David Anthony, for the Respondent

McWatt, J.:

COSTS RULING

[1] The applicant has not sent me her costs submissions in spite of being given time to do so.

[2] The respondent was entirely successful at trial and is entitled to his costs.

[3] The applicant has acted in an unreasonable manner throughout these proceedings. Her actions are outlined in my judgment of February 3, 2017, but I will highlight here the most egregious behavior, which calls for her to pay costs of the trial.

[4] First, she was unreasonable by denying or limiting access of the parties’ child to the respondent:

1. In the absence of any third party concerns about their son’s (Nicholas) safety, the applicant refused any but supervised access by the respondent to his child. Even after her own two sisters were recommended as supervisors, the applicant refused to allow any access. She did not provide any alternative suggestion to allow the father to see his son. It was only after the respondent agreed to pay $5,422.00 per month in child and spousal support on May 22, 2015 that the applicant agreed to the respondent having unsupervised access with no restrictions;
2. During the parties’ reconciliation, the respondent agreed to the payment listed above and the applicant let the respondent see his son without restriction. When the reconciliation failed, the applicant again prevented the respondent from seeing Nicholas for the period between August 9, 2015 and October 6, 2015;
3. The applicant withheld access completely between January 9 to March 3, 2015 as well as from August 9, 2015 to October 6, 2015. On numerous other occasions, the applicant withheld access from the respondent for reasons which, at trial, proved to be because she simply wanted to control the respondent’s time with his son and punish him for not staying in their unsustainable relationship.

[5] Second, the applicant’s draft order at trial was unreasonable. Information about the boy from third parties could only be had by the respondent on the applicant’s consent. There would be access only every other weekend when Nicholas commenced school in 2017. The respondent would be responsible for all the driving and pick-ups from the applicant’s condominium. The applicant proposed that she would have every Christmas Day, Good Friday, Easter Sunday, Family Day, Victoria Day, March Break, Canada Day and Thanksgiving. The respondent was limited to 2 weeks holiday with his son in the summer. The respondent was expected to provide 30 days’ notice of any intended vacation and a detailed itinerary of the trip. The applicant was not required to provide notice or any itinerary.

[6] For some unexplained reason, the applicant sought $50,000 costs for the trial.

[7] The applicant was self-represented at trial and cannot be faulted for some of her conduct during the proceedings. Although she was unfocused in her cross-examinations and filed material that was irrelevant to the proceedings, after having been advised as much by Justice Kiteley on the October 26, 2016 Settlement/Trial Management Conference (TMC), I cannot use her unsophisticated handling of the litigation to penalize her on the costs issue. I was able to narrow the issues in the trial, related to any access the respondent might have if he did not gain custody of Nicholas, by going through the respondent’s draft trial order and getting the applicant’s agreement to some of the proposed terms. She did act reasonably by participating in that exercise.

[8] The respondent did act reasonably during the trial. He accommodated the applicant’s witnesses by allowing her to interrupt her own cross-examination to call those witnesses. He cut his witness list from nine to five witnesses for the sake of time saving and adherence to the time limits set out in the TMC. His documents were well prepared and organized. His witnesses were called in an organized and efficient manner.

[9] The respondent made two offers to settle prior to trial. The applicant refused both and did not offer to settle the matter.

[10] An offer on October 18, 2016 provided a more favorable access schedule to the applicant than my final Order of February 3, 2017. All other terms were essentially the same as the Final Order.

[11] In the second Offer to Settle, dated January 2, 2017, the applicant was offered an extra night during the second week of the access schedule. Again, more favorable than the Final Order and the first offer to settle.

[12] The applicant is fully cognizant of the range of costs for conducting this litigation. She asked for $50,000 in costs were she to prevail at the trial. She testified at this trial about her parents spending around $35,000 from January to August, 2015 on her lawyer. They could no longer afford to pay the fees so the applicant represented herself thereafter. Ms. Santos was ordered to pay costs for prior motions: $7,500.00 by Horkins J. on October 1, 2015; $8,040.33 by Kiteley J. November 10, 2015; and $12,899.16 by Horkins J. on January 7, 2016.

CONCLUSION

[13] This trial was necessary due to the applicant’s one-sided demands on custody and access issues. It was necessary because the applicant, at times, completely ignored Court Orders. She withheld access. It was necessary due to the applicant’s claims of assault of her and Nicholas at the hands of the respondent, which I found were baseless.

[14] The respondent’s Bill of Costs is reasonable in the circumstances of this case, which dealt only with the custody and access and not the financial issues. Those issues were severed for a separate proceeding.

[15] Based on the foregoing, the respondent should have his costs on a full-indemnity basis pursuant to Rule 24(8) for Bad Faith. However, because the applicant was self-represented and obviously unadvised about how she should have proceeded, I am prepared to give the respondent costs on substantial indemnity basis pursuant to Rule 24(5) – Unreasonable Behaviour and Rule 24(11) – Factors in Costs.

[16] The applicant shall pay costs to the respondent for the trial in the amount of $41,534.03. Those cost shall be payable forthwith.

McWatt, J.

Released: April 04, 2017