Court File and Parties

COURT FILE NO.: FS-17-2144 DATE: 2022 04 19 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Tina Louise Julien, Applicant AND: Andre Christian Julien, Evan Chang

BEFORE: Fitzpatrick J.

COUNSEL: Sean Johnson, for the Applicant Evan Chang, for the Respondent

Costs Endorsement

[1] This was a 12 day family law trial.

[2] Each party now seeks costs.

[3] There were two main issues at trial. One, whether the Respondent had a parental relationship to the Applicant’s biological children, Abraham and Emmanuel with related child support obligation. Two, whether the Applicant was entitled to spousal support with related quantum and term.

[4] The Respondent presented three fundamental positions to the Court at trial. One, that he did not stand in the place of a parent and had no child support obligation. Two, he owed no spousal support obligation to the Applicant. Three, that he was owed repayment of the support he paid prior to trial.

[5] The Court found that the Respondent was a parent to the children and that he was obligated to pay child and spousal support. In other words, the Court rejected all three of the Respondent’s positions.

[6] The Applicant was the successful party here and is presumptively entitled to her costs subject to a finding that she acted unreasonably sufficient for me to deprive her of these costs or to an extent where the Respondent should have his costs despite being wholly unsuccessful at trial.

[7] As noted, the Respondent made voluntary and Court ordered support payments prior to trial. In terms of the credits for payments, the only clear evidence before me was that the Respondent paid $5,770 in uncharacterized support from July, 2018 to September, 2019 then Court ordered child support only of $2,077 monthly until he unilaterally ceased paying at September, 2020.

[8] The Respondent’s cost submissions sought credit for other payments towards the Applicant’s expenses and the value of a vehicle transferred to her against what I ordered as payable in support. I would simply note that there was no clear evidence presented at trial about these other expenses depriving me of any opportunity to consider any credit.

[9] The total amount of credit to the Respondent for support paid prior to trial is $99,934. This amount is allocated totally against the child support of $101,614 that I ordered payable by him leaving a small balance owed. I say this for three simple reasons. One, all of these payments were made with after tax monies so it makes sense to credit these funds against non-taxable support obligations. Two, payments are always prioritized to child support. Three, $24,924 of the total support paid prior to trial was made pursuant to the temporary Order of Justice Gibson dated September 10, 2019, which was directed exclusively for child support.

[10] The Application in this matter was issued in May, 2017, which included a property/equalization claims. I accept that the Applicant withdrew her claim for equalization at a Settlement Conference in December, 2018. That claim was not “dismissed” as suggested by the Respondent in his costs submissions. Equalization certainly was not a factor “close” to the trial in latter 2021 as he also argued. It had been withdrawn three years prior.

[11] I accept that most of the costs incurred in this matter were directed to the trial issues, namely whether the Respondent stood in the place of a parent and whether he had any support obligations. The pleadings primarily addressed parenting and support issues. The motions brought and consent orders obtained before trial addressed support issues. The Respondent brought two motions. One was to add the biological father of the children as a party to the support claims. The second was to vary his ongoing support obligations pending trial. The Applicant brought motions/obtained consent orders seeking disclosure from the Respondent related primarily to the support issue. The Respondent has not produced any report or invoice related to the property/equalization issues.

[12] The Applicant withdrew her equalization claim and the Respondent is entitled to costs flowing from that. I have considered that entitlement in the overall assessment of costs. Given the lack of particulars from the Respondent’s Bill of Costs, I am inclined to accept the Applicant’s submission that the property/equalization claim constituted around 5% of the entire matter.

[13] I have also considered that the Applicant was awarded her costs of the disclosure motion she brought before Justice Gibson on January 28, 2021, which costs were reserved to the trial judge.

[14] I acknowledge that both parties made Offers to Settle. However, none of the Offers made by either party met the terms of what the Court ordered following the trial in this matter.

[15] The real question for me is to determine whether either party acted unreasonably. Each claims the other so acted. I cannot make that finding. Both parties adopted positions that were more or less consistent with the Offers each made.

[16] The Applicant’s Offers generally sought support extended with no fixed term. She did not achieve this result at trial.

[17] The Respondent’s Offers sought to avoid or at least minimize any payments falling well short of what the Court ordered.

[18] I do need to comment on the Respondent’s testimony at this trial. The Respondent’s evidence respecting his relationship with the children was, as I noted in my reasons, “incredible” in the face of overwhelming evidence to the contrary. It defied credulity and increased the costs in this case.

[19] I acknowledge that a litigant is at liberty to take a position and have that tested by evidence at trial. However, there is a difference between a viable position broadly defined and one that is detached from reality.

[20] It would have been entirely reasonable for the Respondent to admit that he had a close, personal relationship with the children but that he did not stand in the place of a parent given the relationship with the Applicant was brief. That position would have been in accord with the available external evidence such as the many pictures and notes demonstrating his closeness with the children and efficiently focussed the determination on the issue of the relationship duration. Instead, he gave evidence of no sentimental relationship in the face of overwhelming contrary evidence thereby extending the time needed to address the issues. Much of this trial was focussed on the issue of the relationship. The medical professionals called by the Applicant were questioned with respect to the Respondent’s relationship with the children as was the representative from Children’s Aid. All of the 3rd party lay witnesses were called on the issue of that relationship.

[21] The Applicant has been successful on all of the primary trial issues and is presumptively entitled to costs. Ultimately, I must determine a costs award that is fair and reasonable with consideration to the factors enumerated at Rule 24 of the Family Law Rules, O. Reg. 114/99, including proportionality. There is no reason why the Applicant should not be awarded costs approaching a substantial indemnity basis. This was a “winner take all” 12 day trial made longer by the Respondent’s incredible denials of any emotional relationship with the children.

[22] The Applicant has submitted a Bill of Costs detailing a claim for substantial indemnity fees totalling $144,425.60 not including HST plus disbursements of $6,292.41 including HST. I have reviewed the Bill of Costs. The time spent is entirely reasonable and proportionate. Counsel for the Applicant relied on the various resources/personnel available at his firm to ensure cost efficiency. As noted above, I would reduce the fees sought by $7,500 to reflect time spent on the withdrawn equalization issue. The Respondent shall forthwith pay the Applicant’s costs which I fix as follows: fees of $135,000.00 plus HST together with disbursements of $6,292.41 inclusive of HST. These costs were incurred almost completely in the pursuit of support and shall be collected through the Family Responsibility Office in the same manner as a support order.

Fitzpatrick J. Date: April 19, 2022