Court File and Parties

COURT FILE NO.: 99/13 DATE: 2021 03 05

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Holly Noelle Meszen Applicant Peter Meszen Respondent

BEFORE: Bloom, J.

COUNSEL: J.K. Heersche, for the Applicant Julia Bradley, for the Respondent

COSTS ENDORSEMENT

[1] This is my ruling on the issue of costs arising from the trial in respect of which I delivered reasons for judgment on January 11, 2021. The proceeding spanned a number of years and the trial lasted over 50 days.

[2] The Applicant seeks costs of $510,584.55.

[3] She submits that she was successful on all issues and the amount of costs she seeks is reasonable.

[4] She also relies on a number of offers made by her during the course of the proceeding, including an offer made January 23, 2018 and an offer made at a mid-trial pre-trial conference on November 2, 2018. She submits that those two offers were on favourable terms for the Respondent and were bested by her at trial.

[5] The Applicant also argues that the Respondent acted unreasonably in not adapting his position to the evidence as it unfolded at trial.

[6] The Applicant argues that costs related to the child support claim should be ordered collectible as child support; she asserts that the quantum of those costs is $127,646.13.

[7] She asks that costs be payable forthwith by the Respondent.

[8] The Respondent argues that the costs sought by the Applicant are neither justified nor reasonable. He argues that she is not entitled to any costs for events before trial. Moreover, he contends that, since she made no reasonable offers to settle, she is entitled only to partial indemnity costs.

[9] He argues that I should take into account lack of timely disclosure by the Applicant regarding her family trust.

[10] Further, he asserts that there should be no costs awarded against him in respect of the litigation of the custody and access issue, since he acted appropriately in respect of that matter.

[11] He contests the costs in respect of numerous specific events; and argues that no part of a costs award against him should be made collectible as child support.

[12] I am guided by the principles set out in Beaver v. Hill, 2018 ONCA 840, [2018] O.J. No. 5412 (Ont.C.A.) and FLR 24 addressed by that decision.

[13] The central and predominate issue in the proceeding was the issue of custody and access. The Applicant was entirely successful on that issue.

[14] As I noted at paragraph 91 of my reasons for judgment, the Respondent has not cooperated with counsellors and therapists addressing his relationship with his daughter, thereby prolonging the stress and anxiety caused by the litigation to the parties and his daughter. This conduct on his part was not reasonable.

[15] However, I am not satisfied that the amount of costs sought by the Applicant accords with the principles of proportionality and reasonableness.

[16] I am also not convinced that the Applicant should be denied costs for all pre-trial events.

[17] Accordingly, I award to the Applicant costs in the quantum she has set out as partial indemnity costs, namely $454,968.78 inclusive of fees, disbursements, and applicable taxes. This sum is reasonable and proportional to the behaviour of the parties, including the unreasonable conduct of the Respondent noted above. The sum is also reasonable and proportional having regard to the offers to settle made by the Applicant on January 23, 2018 and November 2, 2018; the Respondent could have ended the litigation by accepting either of those offers and, instead, insisted on litigating the custody and access issue and achieving no better result.

[18] The sum awarded shall be payable to the Applicant by the Respondent within 60 days of release of this endorsement.

[19] I reject the Applicant’s submission that I should attempt to quantify the portion of the costs that related to child support, and then order it collectible as child support. The proceeding and the trial were overwhelmingly centred on the issue of custody and access; in those circumstances I am not prepared to sever off a portion of the costs award and make it collectible on a different basis from the rest of that sum.

Bloom, J.

DATE: March 5, 2021