Court File and Parties

CITATION: Garstea v. Trifonov, 2017 ONSC 5691

NEWMARKET COURT FILE NO.: FC-17-52634-00

DATE: 2017-09-26

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Olga Garstea, Applicant

AND:

Alexander Trifonov, Respondent

BEFORE: The Honourable Mr. Justice D.A. Jarvis

COUNSEL: S. Steven Sands, Counsel for the Applicant

Jared Teital, Counsel for the Respondent

HEARD: August 2, 2017

Ruling on costs

[1] On August 4, 2017 this Court released its Ruling on motions by both parties involving custody and child support. The parties were unable to resolve the issue of costs afterwards. Each party had delivered a Rule 18 compliant Offer to Settle.

[2] The mother incurred costs of $10,253 inclusive of disbursements and HST whereas the father's costs were $7,172.42 also inclusive of disbursements and HST. The mother argues that since success was divided each party should bear their own costs or, alternatively, only partial recovery costs be awarded. The father submits that he was entirely successful and that he should be awarded costs ranging from $4,302.25 (partial indemnity) to $5,336.34 (substantial indemnity) both inclusive of disbursements and HST.

[3] The mother's Offer did not accord with the Court's disposition of the “settled intent” issue involving the child E.G. nor was it successful on the week II Order made although the mother amended her position when the motions were argued. Her motion and Offer dealt with broader, mostly ancillary, issues to be argued many of which were captured by the parties’ Consent. The father's Offer accorded with the Court's disposition of the “settled intent” issue but was unsuccessful in his claim to a week-about residential schedule.

[4] It is clear that on the principle issues of child support and parenting, success was divided and so it is appropriate that no costs be awarded to either party. It is worth observing though that each party criticized the other's litigation conduct to excuse, and partially deflect, responsibility for their own conduct. The father accused the mother of unilateral behaviour in altering the child V.G.'s apparent residency arrangements, and the mother pointed to a pattern of the father's hostility and abusive conduct. This Court did not address these concerns in its Ruling, and expresses no view about them now except to emphasize that parents will be held to account for their failure and/or refusal to adopt a child-focused solution to their parenting issues, which solution must necessarily involve timely, respectful communication with, and treatment of, the other parent. Neither party in this case can afford protracted litigation about their children's well-being.

Justice D.A. Jarvis

Date: September 26, 2017