COURT FILE NO.: FS-17-00089840-0000

DATE: 2021 07 13

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

M.G.

Natacha R. Leite, for the Applicant

Applicant

• and -

A.A.

A.A, Self-Represented, for the Respondent

Respondent

Archana Medhekar, for the Child, Office of the Children’s Lawyer

HEARD: In Writing.

ENDORSEMENT RE: COSTS

FRAGOMENI J.

WARNING

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Introduction

[1] The trial of this matter took place over five days, namely February 16, 17, 18, 19 and March 16, 2021.

[2] The Applicant Mother, M.G., was represented by Natacha R. Leite. The Respondent Father, A.A., was self-represented. Archana Medhekar appeared as the Child’s lawyer from the Office of the Children’s Lawyer (“OCL”).

[3] The issues at trial related to parenting time and parenting decision making. M.G. submits that she was the successful party at trial. M.G. submits further that her Offer to Settle dated January 20, 2021 was more favourable than the order made by the Court after trial.

[4] The orders sought by M.G. are:

1. That A.A. pay to M.G. costs on a full indemnity basis in the amount of $148,019.00.

2. Costs to be paid forthwith and no later than 30 days.

[5] In support of her position, M.G. sets out the following factors:

1. Rule 24(1) of the Family Law Rules creates a presumption of costs in favour of the successful party.

2. Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, stipulates that costs are in the discretion of the Court.

3. Rule 24(12) of the Family Law Rules sets out the factors to be considered in assessing costs.

4. The Court must also consider the following:

• The unreasonable conduct of a successful party.
• Bad faith.
• Offers to Settle.
• Reasonableness of the amounts sought and the principle of proportionality.
• Importance and complexity of the issues.
• Each party’s behaviour.

[6] M.G. submits that A.A. focused his trial testimony and position throughout the lengthy litigation process on blaming the Mother for his strained relationship with the child, instead of focussing on a resolution of how that relationship can be improved.

[7] Following receipt of the OCL Report and Affidavit of the Clinical Investigator, A.A. ignored the concerns raised by the OCL and ignored the child’s feelings, views, and preferences.

[8] At para. 56 of her Costs Submissions, M.G. states:

56. Father’s behaviour has driven this 4 year litigation and caused a 5 day trial. As such, his behaviour, as referenced above, should be considered in determining costs and merits a full indemnity cost award. This is especially the case, since Mother’s offer to settle is more favourable than the orders made by the Court. The Family Law Rules expressly contemplate full recovery costs where a party has behaved unreasonably, in bad faith, or has beat an offer to settle under r. 18(14): Mattina, para. 15 (supra).

Position of the Father – A.A.

[9] A.A. acknowledges in his Costs Submissions that M.G. was the successful party and presumptively entitled to some recovery of her costs as a result, however, he argues that M.G.’s costs are extraordinary and unreasonable in all of the circumstances.

[10] In support of his position, A.A. sets out the following factors:

1. M.G.’s Rule 18 offer should not be factored in. The January 20, 2021 offer put forward by M.G. contained a term for reducing the cost order of Justice LeMay to nil. That term was not severable from the offer. A.A. could not accept that offer. The costs award of LeMay J. was $13,655.55 and A.A. could not agree that it be reduced to nil.

2. A.A. submits that the issues were not complex or at opposite ends of the spectrum as set out by M.G. At para. 12 of his Costs Submissions, A.A. sets out the following:

12. The major issue at this trial was whether, when, and how parenting time should expand. The Applicant’s position was that it should not. My position was that it should take place gradually with the assistance and guidance of the child’s counsellor. The baseline residential arrangements were not diametrically oppositional to one another. I was not seeking orders that J.A. reside wholly with me or on a week about schedule; I was seeking gradual expansions into overnights.

3. A substantial cost award would be financially devastating.

4. A reasonable starting point for full recovery of costs is $50,000.00 ($10,000.00 per day). There is no presumption in favor of full recovery. As such costs in the sum of $25,000.00 would be reasonable in all of the circumstances.

Reply by Mother – M.G.

[11] In her Reply, the Mother submits the following:

• That reference to Justice LeMay’s Cost Endorsement dated February 19, 2021 should be given no weight as the Mother had no opportunity to address it in her testimony. The Endorsement was released after the completion of the trial.
• The statements made by Justice Fowler Byrne at the Settlement Conference are inadmissible.
• The Mother’s attempts to settle this matter short of trial should be given considerable weight.
• Paragraphs 35, 36, 37, and 38 and Schedule J of the Father’s Costs Submissions should be given no weight as none of these statements or positions were raised during the trial.
• The OCL did not change their position from the Settlement Conference to the trial and at no time did the Father raise this issue at trial or cross-examine Mr. Prajapat on that point.
• The Father’s significant reference to Justice LeMay’s Endorsement ignores the fact that a motions judge does not have a complete record and in this case did not have the benefit of the OCL testimony of Mr. Prajapat.

Position of the OCL

[12] The OCL takes no position on the issue of costs. However, counsel for the OCL provided written submissions to the Court to clarify some important aspects of the Father’s Costs Submissions for the record.

[13] Firstly, the OCL denies that its position on behalf of the child taken at the Settlement Conference significantly changed at trial. Further the Father had every opportunity to cross-examine the OCL witness on this issue and did not do so.

[14] The Settlement Conference Brief of the OCL attached to the Father’s Costs Submissions is inadmissible.

[15] In summary, the OCL submits that the Father has raised new arguments post-trial, made incorrect statements and his interpretation of the OCL position does not reflect the true position of the OCL.

Analysis and Conclusion

[16] Rule 24(1) of the Family Law Rules states:

There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. O. Reg. 114/99, r. 24 (1).

[17] The Father acknowledges that the Mother was successful at trial. The issue for the Father relates to quantum.

[18] Rule 24(12) states:

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. O. Reg. 298/18, s. 14.

[19] In Mattina v. Mattina, 2018 ONCA 867, the Court noted the following at paras. 10 – 13:

[10] This court has held that modern family cost rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement, and; (3) to discourage and sanction inappropriate behaviour by litigants: Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, at para. 8; Fong v. Chan (1999), 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330 (C.A.), at para. 22. Rule 2(2) adds a fourth fundamental purpose: to ensure that cases are dealt with justly: Family Law Rules, r. 2(2); E.H. v. O.K., 2018 ONCJ 578, at para. 8; Sambasivam v. Pulendrarajah, 2012 ONCJ 711, at para. 37. And Rule 24(12)[1], which sets out factors relevant to setting the amount of costs, specifically emphasizes “reasonableness and proportionality” in any costs award.

[11] The Family Law Rules are a marked departure from some aspects of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. As such, case law pertaining to costs decided under the Rules of Civil Procedure should be approached with some caution: Frick v. Frick, 2016 ONCA 799, 132 O.R. (3d) 321, at para. 11; E.H. v. O.K., at para. 34.

[12] Rule 24(1) creates a presumption of costs in favour of the successful party of a motion, case, or appeal: Berta v. Berta, 2015 ONCA 918, 128 O.R. (3d) 730, at para. 94. And the presumption that a successful party is entitled to costs applies equally to custody and access cases: Britt v. Britt, [2000] O.J. No. 5981 (S.C.), at para. 9.

[13] Consideration of success is the starting point in determining costs: Sims-Howarth v. Bilcliffe (2000), 2000 CanLII 22584 (ON SC), 6 R.F.L. (5th) 430 (Ont. Sup. Ct.), at para. 1. This presumption does not, however, require that the successful party always be entitled to costs: M.(C.A.) v. M.(D.), at para. 40. An award of costs is subject to: the factors listed in r. 24(12), r. 24(4) pertaining to unreasonable conduct of a successful party, r. 24(8) pertaining to bad faith, r. 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party: Berta v. Berta, at para. 94.

[20] In Berta v. Berta, 2015 ONCA 918, the Court stated the following at para. 94:

[94] Thus, a successful party in a family law case is presumptively entitled to costs. An award of costs, however, is subject to the factors listed in r. 24(11), the directions set out under r. 24(4) (unreasonable conduct), r. 24(8) (bad faith) and r. 18(14) (offers to settle), and the reasonableness of the costs sought by the successful party: M.(A.C.), at paras. 40–43.

[21] In Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579, Armstrong J.A. dealt with the principle of reasonableness in the Court’s consideration and assessment of costs at paras. 26, 37 and 38:

[26] It is important to bear in mind that rule 57.01(3), which established the costs grid, provides:

57.01(3) When the court awards costs, it shall fix them in accordance with subrule (1) and the Tariffs.

Subrule (1) lists a broad range of factors that the court may consider in exercising its discretion to award costs under s. 131 of the [Courts of Justice Act], R.S.O. 1990, c. C.43. The express language of rule 57.01(3) makes it clear that the fixing of costs is not simply a mechanical exercise. In particular, the rule makes clear that the fixing of costs does not begin and end with a calculation of hours times rates. The introduction of a costs grid was not meant to produce that result, but rather to signal that this is one factor in the assessment process, together with the other factors in rule 57.01. Overall, as this court has said, the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant.

[37] The failure to refer, in assessing costs, to the overriding principle of reasonableness, can produce a result that is contrary to the fundamental objective of access to justice. The costs system is incorporated into the [Rules of Civil Procedure], which exist to facilitate access to justice. There are obviously cases where the prospect of an award of costs against the losing party will operate as a reality check for the litigant and assist in discouraging frivolous or unnecessary litigation. However, in my view, the chilling effect of a costs award of the magnitude of the award in this case generally exceeds any fair and reasonable expectation of the parties.

[38] In deciding what is fair and reasonable, as suggested above, the expectation of the parties concerning the quantum of a costs award is a relevant factor. See Toronto (City) v. First Ontario Realty Corp. (2002), 2002 CanLII 49482 (ON SC), 59 O.R. (3d) 568, [2002] O.J. No. 2519 (S.C.J.) at p. 574 O.R. I refrain from attempting to articulate a more detailed or formulaic approach. The notions of fairness and reasonableness are embedded in the common law. Judges have been applying these notions for centuries to the factual matrix of particular cases.

Importance, Complexity and Difficulty

[22] There is no doubt that the issues of parenting time and decision-making authority was of utmost importance to both parties.

[23] I am satisfied that both parties proceeded to trial as they each felt that it was in the child’s best interests to put forward their respective positions at trial.

[24] The trial issues were not complex and with the assistance of the OCL, the main issue at trial was whether the Father’s parenting time should be increased and expanded to include overnight time. The Father’s position was that the Mother had engaged in conduct that alienated the child from the Father, however, the OCL investigation did not find any evidence to support the Father’s allegations of influence and alienation.

Behaviour of the Parties throughout the Litigation

[25] The Mother asserts that the Father perpetuated lengthy litigation with numerous motions and continued thereafter to bring motions for expanded access. The Mother points out that the motions judges did not have the benefit of the OCL report and investigation setting out the views and preferences of the child.

[26] The Father, on the other hand, points to comments made by Justice Bloom and Justice LeMay with respect to the Mother’s behaviour.

[27] At the Motion before him, while Justice Bloom did not order a charge to the parenting schedule sought by the Father, Justice Bloom noted the following:

The Applicant’s conduct has not been exemplary in amicably providing a solution to access issues.

[28] In Reasons for Decision released December 15, 2020, relating to costs of a Motion heard by him, Justice LeMay notes the following at paras. 25, 26, and 27:

[25] Counsel for the Applicant argues that “in withholding access, the Applicant was attempting, however imperfectly, to navigate an unprecedented, uncertain, highly fluid and potentially life-threatening situation in the present pandemic.” I reject that argument.

[26] My reasons for rejecting that argument are as follows:

a) The Applicant has a history of missing access and of not following Court orders for access.

b) I found, as a fact, that the Applicant was attempting to engage in a self-help remedy in this case.

c) The Applicant’s explanations for why the child of the marriage was not participating in access changed during the course of the case.

[27] However, the fact that a party is engaging in a self-help remedy and attempting to avoid Court orders does not rise to the level of bad faith as described in the case-law. Bad faith is a high threshold and, as a result, findings of bad faith are rarely made.

[29] It is evident from the history of this litigation that the parties made serious and significant allegations against each other.

[30] I cannot say, however, that the parties proceeded as they did for any other reason than their respective views of what was in the child’s best interests.

[31] It is not necessary for the purposes of fixing costs of the trial to revisit the motions heard prior to trial. The motions judges had their evidentiary record before them and dealt with the issues based on that evidentiary record.

[32] Further, I agree with the Mother’s submissions that reference to Justice LeMay’s Endorsement received following the trial cannot be relied on by the Father. The Mother had no opportunity to address the Father’s submissions on this point and more importantly the evidentiary record before Justice LeMay was not the evidentiary record produced at trial.

[33] I also note at this time that I agree with the submissions of the OCL. At no time did the Father cross-examine Mr. Prajapat with respect to the Father’s position that the OCL had significantly changed their position. The Father cannot now, following the trial, make such a submission without the OCL witness, having had an opportunity to address it.

[34] I have not taken into account any evidence not introduced at trial as the parties, at this time, have no opportunity to address it.

Offer to Settle

[35] The Mother’s Offer to Settle is set out at Schedule B of her Costs Submissions as follows:

Part 1- Custody

1. The Applicant shall have sole custody of the child, [J.A.] born (Redacted).

2. The parties may make inquiries and be given information by [J.A.]’s teachers, school officials, doctors, dentists, health care providers, summer camp counsellors or others involved with [J.A.]. This Order shall be sufficient authority for all third parties to release any information or documentation to which a parent of a child would otherwise have a right of access. Should Consent from the Applicant be needed, she will sign any necessary Consent form for the release of information as ordered herein.

3. Neither parent shall speak ill or in a derogatory manner about the other parent, nor allow any of their family members to do so in the presence of the child.

Part 2 – Access

4. The Respondent/Father shall have access to [J.A.] every Saturday from 10:30am to 9:00pm. The Respondent shall ensure that [J.A]. attends and/or participates fully in his religious classes as scheduled.

5. The Respondent/Father shall have access to [J.A.] on the following Holidays:

a. Orthodox Easter Sunday from 2:00pm (or after church activities) until 6:00pm. The parties will share this holiday. As such, the Applicant will have care of [J.A.] from 6:00pm onward;

b. Father’s Day from 10:30am to 9:00pm;

c. Summer: up to 3 consecutive days in the month of July and of August, from 10:30am to 9:00pm.

6. The Respondent shall respect [J.A.]’s wishes with respect to access and shall return him home to the Applicant’s residence when requested.

7. The Applicant and [J.A.] may travel to Egypt during the Christmas break. The Respondent’s missed access time shall be made-up upon [J.A.]’s return to Ontario. The Applicant shall provide the Respondent a detailed itinerary with details of dates, flights and address of accommodations, where [J.A.] will be staying while in Egypt, at least 15 days before departure.

8. The Respondent may have telephone access with [J.A.] at any time, keeping in mind [J.A.]’s bed time and schedule. [J.A.] is free to contact and telephone the parties when he wishes. The parties shall support telephone contact between [J.A.] and the other parent.

9. [J.A.] shall continue to attend counselling with Ms. Jacquie Iafrate. The parties shall cooperate and participate in the counselling as recommended by the counsellor.

General Terms

10. The parties will, jointly and on consent, ask the Court to initialize the names of the parties and of the child, and to Order a publication ban of any document in this proceeding.

11. Any Cost orders made by Justice LeMay relating to the motion attendances held on May 27, June 4 and 9, 2020, shall be set at $0.00. There shall be no costs payable by the Applicant for the appearances held on May 27, June 4 and 9, 2020.

12. Part 1 and Part 2 of this Offer to Settle is severable. Any Part, 1 or 2, of this Offer to Settle can be accepted separately. The General terms herein are not severable and must form part of any acceptance of this Offer.

13. The terms of this offer to settle shall be incorporated into a Final Court Order in these proceedings.

14. Each party shall bear their own costs in this matter providing this offer is accepted by January 22, 2021 at 2:00pm. If this offer to settle is accepted after that date, the Respondent shall pay to the Applicant her costs of the motion on a full indemnity basis from the commencement of these proceedings through and until the date of acceptance or a court order.

15. This offer to settle may only be accepted in writing.

16. This offer to settle remains open for acceptance until one minute after the commencement of the Trial unless withdrawn in writing.

[36] At paras. 42 – 46 of her Costs Submissions, the Mother sets out the following regarding her efforts to settle this matter:

42. The starting point in determining success is to consider Rule 18 Offers to Settle, as a successful party is entitled to costs on a full recovery basis, or close to full recovery, from the date of the Offer, when the party obtains a result at least as favourable as its Offer to Settle, or when the other party has acted in bad faith:

Beaver v. Hill, 2018 ONCA 840 at paras. 13, 17.

43. As noted above, Mother’s Offer to Settle is attached herewith as Schedule B. A review of the offer very clearly shows that Mother’s Offer was more favourable than the outcome at trial as Mother continued to Offer an extended parenting time schedule.

44. Of importance to note is that Mother’s Offer to Settle was also severable. Part 1 dealt with Decision making authority (custody), and Part 2 deal with the parenting schedule. Father could have accepted either Parts of the Offer minimizing the duration of the trial and hence minimizing legal fees.

45. The spirit of the offer also shows Mother’s objective was to end litigation so the family can focus on counselling. Focus on repairing the relationship. Father refused to accept the Offer and Mother’s approach.

46. In addition to serving a reasonable Offer, the Mother’s counsel sent emails to Father encouraging settlement. Counsel’s email dated February 3, 2021 reads:

“Hello Considering that we have now received the order from the Court. The trial will proceed on February 16.

That said, we should still try to settle the matter or some of the issues in the best interest of [J.A.].

A.A, you heard what Justice Fowler Byrne had to say today. I am hoping that you will reconsider some of your positions and in particular, your position regarding custody. M.G. remains hopeful that a settlement can be reached. We should focus on finding solutions to the end goal which is for [J.A.] and dad to have a healthy relationship which will lead to [J.A.] wanting overnights[”].

This email is attached herewith as Schedule D. As can be noted, even in the midst of preparing for trial, the Mother truly tried to settle and emphasized a therapeutic approach for the family.

Reasonableness of Amount Claimed for Costs:

[37] The Offer to Settle dated January 20, 2021 was very comprehensive. It is not surprising that the Father did not and could not accept the terms set out by the Mother. The main concern of the Father was to obtain expanded parenting time that included overnight access.

[38] The fact that the Father was unsuccessful at trial does not warrant a full indemnity award of costs.

[39] In Jackson v. Mayerle, 2016 ONSC 1556, the Court set out the following legal principles relating to bad faith at paras. 56 – 58:

56. But Rule 24(8) requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made. S.(C.) v. S.(C.) 2007 CanLII 20279 (ON SC), [2007] O.J. No. 2164; Piskor v. Piskor 2004 CanLII 5023 (ON SC), [2004] O.J. No. 796 (SCJ); Cozzi v. Smith 2015 ONSC 3626 (SCJ).

57. In S.(C) v. S.(C) (supra) Perkins, J. defined bad faith as follows:

In order to come within the meaning of bad faith in subrule 24(8), behaviour must be shown to be carried out with intent to inflict financial or emotional harm on the other party or other persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court. A misguided but genuine intent to achieve the ostensible goal of the activity, without proof of intent to inflict harm, to conceal relevant information or to deceive, saves the activity from being found to be in bad faith. The requisite intent to harm, conceal or deceive does not have to be the person's sole or primary intent, but rather only a significant part of the person's intent. At some point, a party could be found to be acting in bad faith when their litigation conduct has run the costs up so high that they must be taken to know their behaviour is causing the other party major financial harm without justification.

58. 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: Children’s Aid Society of the Region of Peel v. F.(K.J.), 2009 ONCJ 252, [2009] O.J. No. 2348 (OCJ); Biddle v. Biddle, 2005 CanLII 7660 (SCJ); Leonardo v. Meloche, 2003 CanLII 74500 (SCJ); [2003] O.J. No. 1969 (SCJ); Hendry v. Martins, [2001] O.J. No. 1098 (SCJ).

[40] I am not satisfied in all of the circumstances of this trial that the conduct of either party reached the high threshold required to make findings of bad faith.

[41] I will proceed, therefore, to consider whether the amount of costs requested by the Mother meets the test of reasonableness and proportionality.

[42] Firstly, I find and conclude that the Mother’s request for full indemnity costs in the sum of $148,019.00 is excessive and unreasonable and offends the principle of proportionality.

[43] Further, the Court must fix costs in an amount that the unsuccessful party would reasonably expect to incur.

[44] Counsel for the Mother had an hourly rate of $450.00 per hour for a full indemnity basis and $315.00 per hour on a partial indemnity basis. Poroshad Mahdi, a lawyer at her firm, has similar hourly rates. The Articling Student has an hourly rate of $200.00 per hour and $140.00 per hour. The Law Clerks are billed out at $185.00, $165.00, $129,00. and $115.00 per hour respectively.

[45] The Mother’s Bill of Costs sets out the following hours expended by her counsel:

1. Natacha R. Leite – 270.3 hours
2. Poroshad Mahdi – 2.1 hours
3. Nydia Mercado – Law Clerk – 26.4 hours
4. Michelle Ramos – Law Clerk – 4.0 hours
5. Eric Zhao – Articling Student – 25.3 hours

• Total Hours – 328.10 hours

[46] The dockets set out in the Bill of Costs commence January 4, 2021 and go to May 12, 2021 for the lawyers, Law Clerks, and Articling Student.

[47] I am not satisfied that this trial required the service of two lawyers, two Law Clerks and an Articling Student. I am also not satisfied that this trial necessitated the expenditure of 328 hours to properly present the case and cross-examine the Father at trial.

[48] In reviewing the Bill of Costs, I wish to set out some examples of the charges to give context to my ultimate conclusion.

[49] The following charges apply to the five days in Court:

1. Day 1 : 9:15 AM – 4:15 PM = 6.8 hours
2. Day 2 : 9:40 AM – 4:27 PM = 6.8 hours
3. Day 3 : 9:15 AM – 5:27 PM = 8.3 hours
4. Day 4 : 9:25 AM – 4:09 PM = 6.9 hours
5. Day 5 : 9:45 AM – 4:07 PM = 6.6 hours

• Total Trial hours = 35.4 hours

[50] At $450.00 per hour, the total is $15,930.00. At $315.00 per hour, the total is $11,151.00.

[51] In addition to that there would be preparation time for each day, in addition to the preparation time spent leading up to the trial.

[52] The Bill of Costs sets out the following preparation time with respect to working on the file for trial, in part:

1. February 4, 2021 – Commence reviewing file for trial = 4.2 hours
2. February 5, 2021 – Continue to work on file, trial record, review file = 5.2 hours
3. February 6, 2021 – Continue to work on file = 10.3 hours
4. February 7, 2021 – Work on file for trial = 11.3 hours
5. February 9, 2021 – Trial work = 3.1 hours
6. February 9, 2021 – Work on trial/document brief = 9.1 hours
7. February 10, 2021 – Work on trial = 4.1 hours
8. February 10, 2021 – Work on trial = 3.6 hours
9. February 11, 2021 – Continue to work on trial = 2.7 hours / 2.5 hours
10. February 12, 2021 – Work on trial – In-Chief Examination = 7.7 hours/ 2.4 hours
11. February 13, 2021 – Trial work = 9.1 hours
12. February 14, 2021 – Work on trial = 11.6 hours
13. February 15, 2021 – Work on trial – review with client = 7.5 hours

[53] I have not reviewed all the entries but on these examples alone the totals are:

Total hours: 94.4 x 450 = $42,480.00

94.4 x 315 = $29,736.00

[54] I am not satisfied considering the focused issues at the trial and the evidentiary record that compromised the trial that this case warranted 94.4 hours of time working on the trial. Further, I have not set out numerous other entries set out in the Bill of Costs. I only reference these examples.

[55] I have considered the submissions of the parties. I have reviewed the Mother’s Bill of Costs.

[56] In accordance with the principles set out in Boucher, fixing costs is not a mathematical exercise.

[57] Costs must be reasonable and proportionate to the trial issues and the evidentiary record advanced at trial by the parties.

[58] I am prepared to fix costs on a partial indemnity basis. I am not satisfied that the evidentiary record warrants that costs be fixed on a substantial or full indemnity basis.

[59] I am satisfied that costs in the sum of $80,000.00 all-inclusive is reasonable in all of the circumstances.

Order

[60] The Respondent Father, A.A., shall pay to the Applicant Mother, M.G., her costs fixed in the all-inclusive sum of $80,000.00, payable within 30 days.

Fragomeni J.

Released: July 13, 2021

COURT FILE NO.: FS-17-00089840-0000

DATE: 2021 07 13

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

M.G.

Natacha R. Leite, for the Applicant

• and –

A.A.

A.A., Self-Represented, for the Respondent

Archana Medhekar, for the Child, Office of the Children’s Lawyer

REASONS FOR JUDGMENT

Fragomeni J.

Released: July 13, 2021