COURT FILE NO.: FS-08-00007251-0001 DATE: 20230509
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Anna Maria Fiorito, Applicant AND: Jefferson Ross John Wiggins, Respondent
BEFORE: Howard J.
COUNSEL: Luigi DiPierdomenico, for the Applicant [1] Brian Ludmer, for the Respondent
HEARD: Written submissions
COSTS ENDORSEMENT
Overview
[1] In my reasons for judgment released June 30, 2022, [2] I dismissed the applicant mother’s motion to change the final order of Bondy J. dated October 7, 2014 (the “Bondy Order”).
[2] In paras. 168-169 of my reasons, I indicated that my presumptive view on costs was that the respondent father was the more successful party on the motion and is presumptively entitled to his costs, consistent with the provisions of s. 24(1) of the Family Law Rules. [3]
[3] In para. 171 of my endorsement, I fixed a schedule for delivery of the parties’ costs submissions in the event that they were unable to agree on the question of costs.
[4] The parties were unable to agree on the costs of the motion to change hearing.
[5] In substantial compliance with the prescribed schedule, the respondent father delivered his costs submissions dated July 31, 2022, the applicant mother delivered her submissions dated August 29, 2022, and the respondent father delivered his reply submissions dated September 6, 2022.
[6] I have read and considered the submissions received from both parties and their supporting material.
[7] The costs submissions of the respondent father take the position that he should be paid his costs of the motion to change on a full recovery basis relating to the defence of the 2014 settlement and s. 7 expenses issues and on an elevated substantial indemnity basis relating to the 2017 and 2018 support determination issues, in the total amount of $289,334.87 (at least). In fact, it would appear that the total of the respondent father’s costs claim exceeds $303,000. [4]
[8] Although not as clearly discernable as one might have hoped, it appears that the position of the applicant mother is that the applicant should pay the costs of the respondent from November 15, 2017, until August 16, 2018; and thereafter, the respondent should pay the applicant’s costs until the conclusion of the case. [5] That said, the applicant offered no dollar values in respect of these particular submissions. Ultimately, the applicant submitted, that having regard for what she regards to be the relevant offers to settle that were made by the parties, the court “has the discretion … to do … what it thinks best.” [6]
[9] For the reasons that follow, I uphold my presumptive view and find that the respondent father was the successful party on the motion to change hearing and is entitled to his costs of the hearing, which I fix in an amount significantly less than that claimed by the respondent, for the reasons explained below.
Governing Legal Principles
[10] Costs awards in family law matters are governed by section 131 of the Courts of Justice Act [7] and Rules 24 and 18 of the Family Law Rules.
[11] Subsection 131(1) of the Courts of Justice Act confers upon the court a general discretion to determine costs. Rule 24 of the Family Law Rules governs the determination of costs in family law proceedings and provides guidance in the exercise of the court’s discretion by enumerating circumstances and factors that the court may consider when determining costs.
[12] Making an award of costs is inherently an exercise of judicial discretion. Indeed, our Court of Appeal has said that “costs awards are ‘quintessentially discretionary.’” [8] While the provisions of Rule 24 of the Family Law Rules have circumscribed the broad discretion granted to the court by s. 131(1) by the Courts of Justice Act, they have not completely removed the court’s discretion. [9]
[13] The indemnification of the successful party is a paramount objective, but not the only one, to be served by a costs order. [10] Our Court of Appeal has recognized that: “[m]odern costs rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants.” [11]
[14] Consideration of success is the starting point in determining costs. [12] Costs generally follow the event. In other words, a successful party is generally entitled to compensation for her or his legal costs. That principle is expressly reflected in the presumption codified in subrule 24(1) of the Family Law Rules, which provides that: “[t]here is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.”
[15] However, that presumption may be rebutted where it is shown that the successful party has behaved unreasonably. In that regard, subrule 24(4) provides that:
Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs.
[16] In setting the amount of costs to be awarded, the court is directed, by subrule 24(12) of the Family Law Rules, to consider several factors, as follows:
(12) 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.
[17] However, while subrule 24(12) mandates the court to consider the enumerated factors, our Court of Appeal has held that the “Family Law Rules demand flexibility in examining the list of factors” in subrule 24(12). [13]
[18] In fixing the amount of costs to be awarded, the court’s objective is not to reimburse a litigant for every dollar spent on legal fees. Rather, the overriding principles that the court must apply are fairness and reasonableness. As the Ontario Court of Appeal observed in its leading decision in Boucher v. Public Accountants Council (Ontario): “[o]verall, 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.” [14]
[19] The interest in promoting settlement, which, again, is one of the fundamental purposes of costs awards, finds expression in subrules 18(14) to (16) of the Family Law Rules, which address the cost consequences of failing to accept offers to settle, in the following terms:
(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:
- If the offer relates to a motion, it is made at least one day before the motion date.
- If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
- The offer does not expire and is not withdrawn before the hearing starts.
- The offer is not accepted.
- The party who made the offer obtains an order that is as favourable as or more favourable than the offer.
(15) The burden of proving that the order is as favourable as or more favourable than the offer to settle is on the party who claims the benefit of subrule (14).
(16) When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply.
[20] I am guided by these governing principles here.
Analysis
The Successful Party
[21] Although the costs submissions of the applicant mother appeared, at times, to take some issue with the point, I reiterate and confirm the presumptive finding that I made in para. 169 of my reasons that the respondent father was the successful party on the motion to change hearing.
[22] The central issue on the motion to change was whether the applicant mother had satisfied her onus of establishing that the child support and related provisions of the Bondy Order should be set aside and varied on the basis that, inter alia, the order contained a mistake or failed to deal with a matter that ought to have been determined, that she did not understand the nature or consequences of the minutes of settlement that she executed, or that the executed minutes or the Bondy Order were otherwise unenforceable on the contractual grounds of duress, undue influence, unjust enrichment, or unconscionability.
[23] As set out in my reasons for judgment, I found that the applicant mother failed to meet her onus, and I dismissed her claims that the child support provisions of the Bondy Order should be set aside, changed, or varied in any way.
The Factors under Subrule 24(12)
[24] I have considered all of the factors enumerated in subrule 24(12) of the Family Law Rules, not all of which are equally relevant in the instant circumstances (or at all).
The Importance and Complexity of the Issues
[25] Clause 24(12)(a) of the Family Law Rules requires the court to have regard for, inter alia, the importance and complexity of the issues in the proceeding.
[26] The central issue on the motion was the appropriate quantum of child support. That issue was important to both the applicant mother and the respondent father.
[27] In my view, the issues involved on the motion to change were moderately complex. Madam Justice Pomerance, the Local Administrative Judge for Windsor, conducted several case management conferences with the parties’ legal counsel over the course of the instant proceeding. The motion to change hearing required four days of hearing. It was proceeded by two days of questioning by the parties. The materials filed were voluminous. The hearing was conducted by Zoom videoconference hearing.
The Behaviour of Each Party
[28] In settling the amount of costs payable by a party, subclause 24(12)(a)(i) requires the court to consider each party’s behaviour.
[29] Reviewing all the submissions collectively, it appears that both parties accuse the other of unreasonable behaviour. That is consistent with each of these parties’ behaviour in the course of their litigation with each other. As I indicated at the outset in my reasons for judgment on the motion to change, both parties here are very experienced litigants; they have been involved in, inter alia, protracted custody and access litigation for over a decade; they have had at least four trials or trial-type proceedings; they have been to the Court of Appeal for Ontario twice, at least so far; and their issues have made their way to the Supreme Court of Canada at least once. [15]
[30] In paras. 40-116 of my reasons for judgment, I dealt with the merits of the applicant mother’s challenges to the Bondy Order. As I noted, inter alia, that order was made after a comprehensive, two-day, settlement conference that was conducted by Bondy J. on October 6 and 7, 2014, involving the parties, their counsel, and their financial advisors.
[31] As I held in para. 50 of my reasons for judgment, by the end of the first day of the settlement conference, with the assistance of Bondy J., the parties had come to a resolution and “agreed to settle, on a final basis,” all financial issues in the proceeding, including child support, contribution towards s. 7 expenses, spousal support, equitable financial claims, claims as to property, and net family property equalization – with the exception of the valuation of Ms. Fiorito’s business, being Anna Maria Fiorito Physiotherapy Professional Corporation.
[32] The parties then executed minutes of settlement, entitled “Partial Minutes of Settlement – Financial Matters” dated October 6, 2014. Paragraphs 3, 4, and 9 of the partial minutes addressed the issue of the table support payable by Ms. Fiorito to Mr. Wiggins from October 1, 2014, to December 31, 2016, as the three children were residing with Mr. Wiggins at that point, pursuant to the 2011 and 2013 orders of Harper J.
[33] Returning to the bargaining table the next day, and with the assistance of Bondy J., the parties then came to a final resolution of the remaining financial and property issues in dispute in the proceeding, being the valuation of Ms. Fiorito’s business interests in her professional corporation and its resultant impact on the equalization payment.
[34] Again, the parties executed a separate document, also entitled “Partial Minutes of Settlement – Financial Matters” dated October 7, 2014. And Bondy J. wrote his endorsement in the endorsement record: “[f]inal order to go in accordance with minutes of settlement filed.”
[35] The two sets of partial minutes of settlement were then incorporated into one, comprehensive consent order dated October 7, 2014, being the Bondy Order, which was issued and entered in the normal course on November 3, 2014.
[36] More than three years after the parties reached their comprehensive resolution of the financial issues at the settlement conference in October 2014, and more than three years after the making of the Bondy Order, Ms. Fiorito commenced her motion to change, the instant proceeding, in which she sought to vary and re-write certain provisions – and only certain provisions – of the Bondy Order.
[37] There is merit in the respondent father’s submission, as per para. 2 of the Respondent’s Initial Submissions, that the applicant mother pled “every possible basis for challenging a contract [duress, undue influence, unjust enrichment, non est factum, mistake and unconscionability], which had to be responded to in terms of both the applicable law and the facts.”
[38] Ultimately, as I expressly found in para. 115 of my reasons, I held that, “there is no merit to any of Ms. Fiorito’s claims whatsoever.”
[39] Based on my findings in the course of my reasons for judgment delivered on the merits of the motion to change hearing, I find that the applicant mother acted unreasonably in connection with her groundless challenge to the comprehensive settlement reached on October 7, 2014.
[40] This is a primary consideration for me on the question of costs.
The Time Spent by Each Party
[41] Subclause 24(12)(a)(ii) of the Family Law Rules requires the court to consider the time spent by each party.
[42] I have reviewed the time entries set out in the bill of costs dated August 29, 2022, submitted on behalf of the applicant mother, and the bill of costs dated August 2, 2022, and supplemental bill of costs dated August 9, 2022, submitted on behalf of the respondent father.
[43] The applicant’s bill of costs indicates that Mr. DiPierdomenico spent a total of 230.5 hours on the file, and another staff member spent an additional 37.3 hours, for a total of 267.3 hours spent by all timekeepers.
[44] The respondent’s bill of costs indicates that Mr. Ludmer spent a total of 339.5 hours on the file, from November 2017 to August 2022. A variety of other professional and staff members spent an additional 454 hours on the file, for a total of 793.5 hours spent by all timekeepers on the file.
Any Written Offers to Settle
[45] Pursuant to subclause 24(12)(a)(iii), the court is required to consider any written offers to settle, including offers that do not meet the requirements of Rule 18.
[46] Each party served more than one offer to settle the motion to change.
[47] None of the offers triggers the costs consequences contemplated by subrule 18(14) for the reason that, in my view, no party can demonstrate that they made an offer and obtained “an order that is as favourable as or more favourable than the offer,” as required by para. 5 of subrule 18(14).
[48] My reasons for judgment of June 30, 2022, addressed three central issues. The first, and arguably the most important, issue was whether the parties’ fixed child support settlement of October 2014, reflected in the Bondy Order, should be upheld for the period from October 1, 2014, to December 31, 2016. The second issue, which consumed considerable time at the hearing, was what was the income of the applicant mother for child support purposes for 2017 and 2018. And the final issue, which was relatively minor in comparison to the first two issues (and ultimately resulted in a modest financial obligation of some $8,000), was what amount is payable by the applicant mother for special or extraordinary expenses under s. 7 of the Guidelines for the period from 2016 to 2018.
[49] I accept the thrust of Mr. Ludmer’s submissions that the respondent father “beat his offer” on the first issue. However, the same cannot be said in respect of the second issue.
[50] The offer to settle of the respondent father dated January 9, 2018, did not address the applicant mother’s child support obligations for 2017 and 2018. I appreciate Mr. Ludmer’s explanation that the respondent was not in a position to address the issue because they did not have the necessary financial information from the applicant at the time the offer was made. That is fair enough; however, it still cannot be said that the decision of June 2022 provided a result that was as favourable or more favourable than the January 2018 offer, which did not deal with the second issue.
[51] The respondent’s offer to settle dated March 19, 2020, provided, in para. 3 thereof, that the adjudication of the motion to change would “be limited to determining the [applicant mother’s] income for calendar years 2017 and 2018.” Again, it cannot be said that the decision of June 2022 provided a result that was as favourable or more favourable than the March 2020 offer, which, again, did not deal with the second issue.
[52] Moreover, if one actually looks at the positions taken by the parties on the second issue, the ultimate result was closer to the position advanced by the applicant mother. At the hearing, the applicant mother submitted that her total income for child support purposes in calendar year 2017 was $75,063.34, and her total income in 2018 was $48,816.62. [16] The respondent father submitted that the court should impute the same amount of income upon which the Bondy Order was based, i.e., $135,000, for both years. [17] Ultimately, I found that the fair and reasonable amount of income that is appropriately imputed to the applicant mother is $90,000 per annum in each of the calendar years 2017 and 2018. [18]
[53] Comparatively, looking at the question of the applicant’s income for 2017, the $90,000 result is considerably closer to the applicant’s position (a difference of $14,937) than it is to the respondent’s position (a difference of $45,000). For the 2018 year, the respective differences between the parties’ positions and the court’s determination are quite comparable; nonetheless, strictly speaking, the court’s determination was still closer to the position of the applicant (difference of $41,184) than it was to the position of the respondent ($45,000).
[54] Thus, in my view, it clearly cannot be said that the respondent father was the more successful party on the second issue.
[55] Subrule 18(15) provides that the burden of proving that the order received is as favourable or more favourable than the offer to settle rests with the party who claims the benefit of subrule 18(14). In my view, no party has met that burden of proof in this case.
[56] In short, the determination of the costs issue is not driven by the offers to settle.
The Legal Fees
[57] Subclause 24(12)(a)(iv) directs the court to consider any legal fees, including the number of lawyers and their rates.
[58] As referenced above, the respondent father seeks to recover, on a full indemnity basis, the total amount of $256,048.46 (exclusive of HST).
[59] As I have expressed above, the cost consequences of subrule 18(14) have no application here, and there is nothing about the parties’ offers to settle that would warrant recovery on a full indemnity basis. Further, while I am troubled by the position taken by the applicant mother on the first issue and her baseless attempts to undo the 2014 settlement, I do not think that her conduct, overall, warrants a full indemnity recovery.
[60] The materials filed on behalf of the applicant mother and, in particular, the bill of costs of the applicant, would appear to indicate that Mr. DiPierdomenico was content to render an account to his client based on a block fee of $35,000. In para. 25 of the applicant’s submissions, Mr. DiPierdomenico expressed his view that, “[w]hen litigating against a passionate litigant, if a lawyer takes on such assignment, the only reasonable financial term to extend to a client is a block fee. That is to say, if reasonable Offers are not accepted, or reasonably countered, the lawyer lives with the block fee.” [19]
[61] It goes without saying that counsel are entitled to their own opinions about the financial arrangements they choose to make with their own clients. However, that is not to say that those same opinions will necessarily direct the court’s determination of an appropriate cost award. Moreover, with all due respect, the opinion offered by counsel is not one that I share; I do not accept that the “only” reasonable financial arrangement in such circumstances is a block fee. Indeed, it seems to me that, for example, in the hypothetical case where counsel is retained by an overly-zealous and litigation-prone client engaged in a bitter dispute against another party, a financial arrangement based on a predetermined block fee will effectively shift the risk of litigation to the lawyer. Perhaps there are cases where that is appropriate; however, I do not accept that it will always be appropriate or that the “only” reasonable financial arrangement will necessarily mean that counsel must, in effect, underwrite the costs of the parties’ litigation.
[62] In other words, while I do believe it is relevant to consider the reasonable expectations of the parties and, in particular, the amount of costs that an unsuccessful litigant could reasonably expect to pay in such circumstances, I do not regard the $35,000 block fee apparently rendered by counsel for the applicant in this case to be determinative of the consideration of the parties’ reasonable expectations.
[63] Rather, I think it is instructive – for both parties – to consider, again, the outcome of the October 2015 appeal and the treatment of the costs issue by the Court of Appeal on that appeal. By way of background, it will be remembered that the parties conducted a 22-day trial over custody of their three children, culminating in the reasons for judgment of Harper J. released June 27, 2011. [20] Then, in 2013, Harper J. presided over a 23-day review of his 2011 custody and access order, resulting in his decision of June 28, 2013. [21] That was followed by a costs decision in which Harper J. ordered the applicant mother to pay $400,000 in costs to the respondent father for the two proceedings, which, collectively, consumed 45 days. [22]
[64] On appeal, on the issue of the costs of the 2011 and 2013 proceedings, the Court of Appeal reduced the total costs payable for the two proceedings to $200,000, as follows:
The trial judge ordered the mother to pay the father costs in the amount of $400,000 for the 2011 and 2013 proceedings. The mother seeks costs of the appeal on a full indemnity basis in the amount of $207,886, while the father seeks full indemnity costs of $124,440.
The parties enjoyed mixed success on the appeal and, as a consequence, mixed success in respect of the proceedings below. The fairest disposition of the costs of this matter is that the parties bear their own costs of the appeal, and I would reduce the costs payable by the mother to the father under the Costs Order for the proceedings below from $400,000 to $200,000, inclusive of fees, disbursements and taxes. [23]
[65] In short, in respect of two trial-type hearings, collectively consuming some 45 days of hearing, the Court of Appeal fixed costs in the amount of $200,000.
[66] Again, in the instant case, which required less than four full days, the respondent father seeks a total recovery of $256,048.46 (exclusive of HST). That amount is excessive. [24]
[67] As I explained above, in fixing the amount of costs to be awarded, the court’s objective is not to reimburse a litigant for every dollar spent on legal fees. “The fixing of costs is not a bookkeeping exercise.” [25] Rather, in exercising its discretion, a court must produce a result that is fair and reasonable in all the circumstances. [26] The “overriding principle is reasonableness.” [27]
[68] In fixing an amount that is fair, reasonable, and proportionate in the circumstances of the instant case, I also keep in mind what I have found to be the unreasonable conduct of the applicant mother here in her attempt to overturn the 2014 settlement, which attempt was utterly devoid of merit, and which resulted in the parties incurring additional, unnecessary expense.
Any Expert Witness Fees
[69] Subclause 24(12)(a)(v) requires the court to consider any expert witness fees, including the number of experts and their rates.
[70] There were no expert witnesses called at the hearing.
Any Other Expenses Properly Paid or Payable
[71] Subclause 24(12)(a)(vi) directs the court to consider any other expenses paid or payable.
[72] I have reviewed the claimed disbursements as set out in the respondent’s supplemental bill of costs submitted dated August 9, 2022.
[73] The total of all disbursements claimed is $13,931.25, inclusive of applicable HST. I have reviewed all of the amounts claimed, and, with one exception, I find the disbursements to have been properly incurred and expensed, and the amounts claimed are reasonable in the circumstances. Most of the disbursements claimed relate to either third party charges incurred on behalf of consultants (e.g., Mr. Tracey, business valuator, for $711.90, and Mr. Klotz, bankruptcy counsel, for $6,897.52), or travel expenses incurred on behalf of Mr. Ludmer (for counsel’s travel to Windsor for the questioning).
[74] That said, there is a claimed disbursement charge of $3,135 for “Ad Hoc – Secretarial Assistance.” In my view, such expenses are properly considered as part of the lawyer’s overhead expenses and are not properly considered an out-of-pocket expense and not a separate, external, disbursement item. I would disallow that item.
[75] Accordingly, I would fix the total amount of recoverable disbursements at $10,796.26, inclusive of applicable HST.
Any Other Relevant Matter
[76] The court is directed by clause 24(12)(b) to consider any other relevant matter in settling the question of costs. In my view, there is no other relevant factor here.
Summary
[77] In these circumstances, having reviewed the parties’ submissions, including the bill of costs submitted by both parties, and having considered the principles that should guide the court’s exercise of its discretion under s. 131 of the Courts of Justice Act to award costs, the factors enumerated in rule 24(12) of the Family Law Rules, and all other relevant considerations, I find that a fair, reasonable, and proportionate costs award in the circumstances of the instant case would indemnify the respondent father in the amount of $70,000 on account of fees, together with HST of $9,300, plus $10,796.26 in disbursements (inclusive of tax), for a total amount of $89,896.13.
[78] Accordingly, I fix the respondent father’s costs of the motion to change in the total amount of $89,896.13 (inclusive of fees, disbursements, and HST).
Conclusion
[79] For all of these reasons, an order shall issue for the payment by the applicant mother to the respondent father of his costs of the motion to change hearing, fixed in the total amount of $89,896.13 (inclusive of fees, disbursements, and HST).
[80] Further, in my view, as the only issues on the motion to change related to support, the costs of the hearing should be considered to be a “support order” as contemplated by s. 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, 1996 [28], and, as such, the $89,896.13 cost award should be made enforceable as support by the Director, Family Responsibility Office.
[81] Both parties shall bear their own costs of the preparation of their cost submissions.
Original Signed by “Justice J. Paul R. Howard” J. Paul R. Howard Justice Date: May 9, 2023
Footnotes:
[1] At the time of the hearing of underlying proceeding (being the applicant’s motion to change) and at the time of the submission of the applicant’s costs submissions, the applicant was represented by Mr. DiPierdomenico. Sadly, Mr. DiPierdomenico passed away in November 2022, subsequent to the delivery of the parties’ costs submissions. From a review of the court file, I note that the applicant delivered a notice of change of representation in January 2023, indicating that she has decided to act in person in respect of this proceeding. Our Court of Appeal has held that a motion judge is entitled to take judicial notice of what is in the court file: Wallbridge v. Brunning, 2018 ONCA 363, 422 D.L.R. (4th) 305, at para. 18, leave to appeal to S.C.C. refused, , 2019 CarswellOnt 568.
[2] Fiorito v. Wiggins, 2022 ONSC 3920 (S.C.J.) [Reasons for Judgment].
[3] Family Law Rules, O. Reg. 114/99.
[4] In para. 20 of the Respondent’s Costs Submissions dated July 31, 2022 (the “Respondent’s Initial Submissions”), the respondent states that “he claims costs in the fixed amount of $289,334.87,” which amount is said to be inclusive of HST and disbursements. However, page 61 of the respondent’s bill of costs dated August 2, 2022, indicates that the $289,334.87 amount is the total of only the $256,048.56 amount claimed for legal fees and the HST amount of $33,286.31 on those fees. In other words, there is no allowance for the respondent’s disbursements in the $289,334.87 amount. Further, page 3 of the respondent’s supplemental bill of costs dated August 9, 2022, indicates that the respondent is claiming the $289,334.87 amount for fees and HST, together with $13,931.26 for disbursements inclusive of HST, for a total amount claimed of $303,266.13.
[5] Cost Submissions of the Applicant, dated August 29, 2022 (the “Applicant’s Responding Submissions”), at para. 23.
[6] Ibid., at para. 26.
[7] Courts of Justice Act, R.S.O. 1990, c. C.43.
[8] Fielding v. Fielding, 2015 ONCA 901, 129 O.R. (3d) 65, at para. 67, quoting Kerry (Canada) Inc. v. Ontario (Superintendent of Financial Services), 2009 SCC 39, [2009] 2 S.C.R. 678, at para. 126.
[9] M. (C.A.) v. M. (D.) (2003), 67 O.R. (3d) 181, 43 R.F.L. (5th) 149 (C.A.), at para. 40.
[10] Watterson v. Canadian EMU, 2018 ONSC 301 (Div. Ct.), at para. 8.
[11] Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, at para. 8, citing Fong v. Chan (1999), 46 O.R. (3d) 330 (C.A.), at para. 22. See also 1465778 Ontario Inc. v. 1122077 Ontario Ltd. (2006), 82 O.R. (3d) 757 (C.A.), at para. 26.
[12] Davis v. Fell, 2016 ONCJ 84, at para. 28, cited with approval in Talbot v. Talbot, 2016 ONSC 1351, 76 R.F.L. (7th) 370 (S.C.J.), at para. 7, per Templeton J., and Stephens v. Stephens, 2016 ONSC 1393 (S.C.J.), at para. 5, per Raikes J.
[13] M. (C.A.) v. M. (D.), at para. 42, quoting with approval Sims-Howarth v. Bilcliffe, [2000] O.J. No. 330, 6 R.F.L. (5th) 430 (S.C.J.), at para. 4, per Aston J.
[14] Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291, [2004] O.J. No. 2634 (C.A.), at para. 26.
[15] Reasons for Judgment, at paras. 2-5.
[16] Reasons for Judgment, at para. 120.
[17] Ibid.
[18] Ibid., at para. 137.
[19] Applicant’s Responding Submissions, at para. 25.
[20] F.(A.M.) v. W.(J.R.), 2011 ONSC 1868, [2011] O.J. No. 2953, 6 R.F.L. (7th) 282 (S.C.J.).
[21] F.(A.) v. W.(J.), 2013 ONSC 4272, [2013] O.J. No. 3153 (S.C.J.).
[22] F.(A.) v. W.(J.), 2013 ONSC 7770 (S.C.J.).
[23] Fiorito v. Wiggins, 2015 ONCA 729, 69 R.F.L. (7th) 5, at paras. 35-36.
[24] I note the $256,048.46 amount claimed by the respondent father includes $11,713.59 on account of the preparation of the respondent’s costs submissions. I made no order for the recovery of the costs of the cost submissions. Moreover, given my ultimate disposition here, I would not have awarded costs of the cost submissions to the respondent father in any event.
[25] Bondy-Rafael v. Potrebic, 2019 ONCA 1026, 441 D.L.R. (4th) 658, 47 C.P.C. (8th) 245, at para. 64.
[26] Ibid., at para. 7. See also Kuzev v. Roha Sheet Metal Ltd., 2007 CarswellOnt 4338, 227 O.A.C. 3 (Div. Ct.), at para. 6, citing Murano v. Bank of Montreal (1998), 41 O.R. (3d) 222, 163 D.L.R. (4th) 21, 22 C.P.C. (4th) 235 (C.A.) [cited to O.R.], at p. 247 per Morden A.C.J.O., and Zesta Engineering Ltd. v. Cloutier, [2002] O.J. No. 4495, 21 C.C.E.L. (3d) 161 (C.A.), at para. 4, and quoting Moon v. Sher, [2004] O.J. No. 4651, 246 D.L.R. (4th) 440 (C.A.), at para. 30 per Borins J.A.
[27] Davies v. Clarington (Municipality), 2009 ONCA 722, 100 O.R. (3d) 66, 312 D.L.R. (4th), at para. 52.
[28] Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31, s. 1(1)(g). See also de Somer v. Martin, 2012 ONCA 908, 22 R.F.L. (7th) 297, at para. 1.