Court File and Parties

COURT FILE NO.: FS-16-16893-01 DATE: 20210308 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

A.C.S. Applicant – and – R.V.F. Respondent

Counsel: Dawn Melville, for the Applicant Georgette Makhoul, for the Respondent

HEARD: June 8, 2020

REASONS FOR COSTS ORDER

carey j.

[1] I have received costs submissions that relate to a motion heard by me on June 3, 2020. Costs submissions dated June 12, 2020 from Mr. F., and from the applicant, Ms. S., dated June 22, 2020 only came to my attention recently. The parties apparently reached a consent order on all but the costs, minutes before my judgment was released. Mr. F. seeks full indemnification costs of $17,400.31. Ms. S. argues that an inability to examine evidence critical to assessing the cost implications here should result in costs being reserved to the trial judge.

Respondent Father’s Position

[2] The respondent’s submissions seek costs for Ms. S.’s non-acquiescence to Mr. F.’s request for access from February 2020 to June 2020. Mr. F. states that Ms. S.’s refusal was “overwhelmingly based on an allegation of sexual abuse against their seven-year-old daughter”. Ms. Makhoul, on behalf of her client, characterizes Ms. S.’s conduct as “vexatious, cruel and in bad faith.” She indicates that police and CAS investigations found no supporting evidence for this allegation. Counsel asserts that her client was never interviewed by police as a result of the allegation. Counsel asserts that “if there was an iota of evidence since October 2019, Mr. F. would have been charged and CAS would have intervened with restrictions. Ms. S.’s actions on the day of the allegation, as well as the next day, are particularly telling.”

[3] The respondent’s costs submissions also allege weaponization of the children and an attempt to alienate the children which requires deterrence by a costs order.

The Applicant Mother

[4] The applicant, on the other hand, says there is no evidence from the police whatsoever in these proceedings. The applicant argues that Mr. F.’s view that if there had been evidence, charges would certainly have been laid, ignores the reality of criminal prosecution. She argues that the resolution was closer to the position of the applicant that supervised access was desirable than to the respondent’s position.

[5] The difficulty for this court is that neither the allegations nor the denials were ever tested in court. I am not be able to make a finding of bad faith, or weaponization of the children or an attempt to alienate the children solely on the submissions of Mr. F.’s counsel. A finding of bad faith has serious costs implementations under Rule 24(8) of the Family Law Rules, O. Reg. 114/99 and must be rooted in evidence.

[6] An offer to settle served on the day of the motion altered the relief sought in the Notice of Motion to have access occur at Mr. F.’s parents’ home in the presence of either of Mr. F.’s parents. The acceptance of that offer is a significant feature of the factual background to the costs request. In my view, it would be contrary to the principles that ground the awarding of costs to award costs where a last-minute amended offer has been accepted. Such a costs award would undermine and discourage settlement negotiations at the last minute.

[7] The acceptance of the offer of supervised access at the home of Mr. F.’s parents neither weakens nor strengthens either party’s position. I take it as a compromise made by both parties after an exhortation by myself that the parties were in the best position to make decisions for the children. Given the history of the matter and its apparent compromised resolution, costs of the resolved motion are reserved to the trial judge.

Original Signed by “Justice T.J. Carey” Thomas J. Carey Justice

Released: March 8, 2021