[CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): M.A.B. v. M.G.C., 2023 ONSC 3748

COURT FILE NO.: FC 1728/17

DATE: June 26, 2023

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

M.A.B.

Applicant

– and –

M.G.C.

Respondent

COUNSEL:

Ben Fortino, for the Applicant

The Respondent, self-represented

REASONS FOR JUDGMENT ON COSTS

The Honourable Madam Justice Deborah L. Chappel

PART 1: INTRODUCTION

[1] These are my Reasons for Judgment on the issue of costs in relation to this Motion to Change Final Order proceeding, which the Respondent (hereinafter referred to as "the mother") commenced on February 10, 2020. There are four general components to the costs analysis, as follows:

1. First, I must determine costs in connection with the Motion to Change Final Order in general, including the 28 day trial that I presided over which spanned from October 2021 until September 2022. I released my Reasons for Judgement on December 22, 2022.

2. Second, it is necessary to address costs in connection with a motion that the Applicant (hereinafter referred to as "the father") brought on March 20, 2020, soon after the commencement of the Motion to Change Final Order.

3. Third, I must address costs in regard to a motion that the father brought mid-trial, on June 29, 2022, seeking an order requiring the mother to arrange for and undergo a psychiatric assessment at her own cost.

4. Finally, I must decide the question of costs in regard to a motion that the mother brought on March 10, 2023, following the release of my Reasons for Judgment and my final order dated December 22, 2022.

[2] The mother seeks costs from the father on a full recovery basis in the amount of $36,745.11, inclusive of disbursements. The father seeks costs against the mother on a full recovery basis in the amount of $176,969.77, inclusive of disbursements and HST. For the reasons that follow, I conclude that the father is entitled to costs from the mother, and that the sum of $138,157.00 inclusive of disbursements and HST is a reasonable, proportionate and just costs award. I am ordering that the mother pay the father a lump sum of $50,000.00 towards this costs award by no later than December 29, 2023, and that the balance be paid by way of set-off against any arrears of child support owed by the father to the mother for the child J.M.C., born in May 2017, and the father's ongoing child support obligation payable to the mother for J.M.C. pursuant to the Tables under the Child Support Guidelines (Ontario) commencing August 1, 2023. I am directing that if there is any balance owing pursuant to this costs award when J.M.C.'s support entitlement ends, the mother shall pay the father that balance in full by no later than 6 months after the entitlement terminates.

PART 2: BACKGROUND

[3] The mother commenced this Motion to Change Final Order on February 14, 2020, seeking to vary the parenting terms of the final order of Lafrenière J. dated May 30, 2019. Pursuant to that order, the mother was granted sole decision-making responsibility and primary residence respecting J.M.C., and the father was granted unsupervised parenting time with the child on a gradually increasing basis though three phases, culminating in an alternate weekend schedule as follows commencing in mid January 2020:

1. For the first weekend, on Saturday from 10:00 a.m. until 8:00 p.m., and on Sunday from 2:00 p.m. until 8:00 p.m.

2. For the next weekend two weeks later, from Saturday at 10:00 a.m. until Sunday at 10:30 a.m.

[4] The parties were to review the father's parenting time on or before May 31, 2020, with a view to expanding it to full alternate weekends until Sunday evening. The May 30, 2019 order also required the father to pay the mother child support for J.M.C. in the amount of $467.00 per month based on his 2017 income of $50,677.91.

[5] In her Motion to Change Final Order, the mother requested that the father's parenting time be in her sole discretion, and that it be supervised at a professional supervised parenting centre. In his Response to Motion to Change Final Order dated March 4, 2020, the father requested a dismissal of the mother's request for supervision of his parenting time with J.M.C., an order for sole decision-making responsibility respecting J.M.C. and an order granting him parenting time that would maximize his time with J.M.C. in accordance with the child's best interests. He also requested that his child support obligation in relation to J.M.C. be retroactively reduced effective July 1, 2019 to accord with his actual income levels.

[6] On March 20, 2020, soon after the commencement of the Motion to Change Final Order, the father filed a motion seeking an order finding the mother in contempt of the parenting time terms of the May 30, 2019 order, directing the mother to immediately comply with those terms and requesting make-up parenting time for all visits that he had missed. He also requested an order that parenting exchanges occur at a supervised parenting center or alternatively, that the mother arrange for a third party to carry out parenting exchanges on her behalf. I will refer to this motion as "the March 2020 motion" in these Reasons for Judgment. Brown J. decided on April 1, 2020 that the portions of the father's motion requesting a finding of contempt, make-up parenting time and supervised parenting time exchanges should be adjourned sine die. However, on April 3, 2020, she heard the father's claim for an immediate reinstatement of the parenting time terms of the May 30, 2019 order. On that date, Brown J. made a temporary temporary without prejudice order granting the father parenting time with J.M.C. on alternate weekends, from 10:00 a.m. until 8:00 p.m. on Saturday and from 2:00 p.m. until 8:00 p.m. on Sunday. This was the schedule set out in phase 2 of the parenting time framework established by the May 30, 2019 order. With respect to costs of the March 2020 motion, Brown J. directed on April 3, 2020 and again on September 4, 2020 that since she had only dealt with portions of the motion on a temporary temporary without prejudice basis, the issue of costs should be addressed by the judge who ultimately disposed of the motion. The balance of the March 2020 motion proceeded before me as part of the trial of the Motion to Change Final Order. Accordingly, costs in relation to the motion have not been addressed to date.

[7] By the commencement of the trial before me, the relief requested by the parties in the Motion to Change Final Order had shifted. I outlined in detail the relief requested by the parties in my Reasons for Judgment dated December 22, 2022. In regard to the March 2020 motion, counsel for the father indicated that the father was withdrawing his claim for make-up parenting time, and that he would accept a declaration that the mother had violated the parenting time terms of the May 30, 2019 order as an alternative to a contempt finding against her.

[8] The father brought a mid-trial motion for an order requiring the mother to undergo a psychiatric assessment ("the assessment motion"). He pursued this relief after receiving my mid-trial endorsement dated May 18, 2022, in which I ordered that either party could bring a motion for an order requiring the other to undergo a mental health assessment.

[9] I released my Reasons for Judgment respecting the Motion to Change Final Order, the March 2020 motion and the assessment motion on December 22, 2022. On the Motion to Change Final Order, I ordered that the mother retain sole decision-making responsibility and primary residence of J.M.C, and I granted the father weekend parenting time according to a gradually increasing schedule, culminating in alternate weekend parenting time from Friday after school until Monday morning drop-off at school. I also granted the father equal parenting time with the mother during holidays and special occasions. As I discuss in further detail below, I made several additional orders aimed at resolving the problems and dysfunctional dynamics that had led to interruptions and the eventual cessation of the father's parenting time with J.M.C. I dismissed the father's claim for a retroactive reduction of child support and increased his child support obligation effective July 1, 2021. On the assessment motion, I directed that the mother undergo a mental health assessment by a psychiatrist who has specialized knowledge in both adult mental health assessment and child maltreatment. In addition, I ordered the mother to forthwith retain the services of a qualified therapist to provide her with individual counselling and parenting coaching services for a period of at least 8 months, with the possibility of an extension of this period to be addressed at a later date as part of the court's monitoring of this case. With respect to the March 2020 motion, I granted the father leave to withdraw his request for a contempt finding against the mother, but I issued a declaration that the mother had breached the parenting time terms of the May 30, 2019 order on several occasions by withholding J.M.C. from the father without justification and failing to arrange for make-up parenting time.

[10] There were two speak-to appearances in this matter following the release of my Reasons for Judgment, on January 27, 2023 and March 3, 2023. At the appearance on March 7, 2023, the parties advised me that there was another joint police/Catholic Children's Aid Society ("the Society") investigation underway as a result of the mother's allegation that J.M.C. had disclosed having been hit by the father during his visit on February 25, 2023. The father stated that the Society had directed that his parenting time could continue during the investigation, provided that a family member approved by the Society was present, but the mother claimed that the Society had not given the parties any clear direction on this issue. Because of the uncertainty as to the Society's position regarding the father's parenting time, I called upon Society counsel Ms. Anis to appear in court. She confirmed that the agency supported a continuation of the father's parenting time pending the outcome of the investigation, provided that it was supervised at all times by an approved family member, that the Applicant and approved supervisors did not discuss the current investigation with J.M.C. and that the supervisors advised the Society forthwith if they had any concerns respecting the parenting time. Ms. Anis relayed that the paternal aunt V.B. and her husband D.F. had been approved as supervisors, and that the Society worker was in the process of determining whether the paternal grandmother and the father's partner could also be approved. The father confirmed in court that he would abide by this proposed safety plan pending the outcome of the investigation, but it appeared that the Respondent did not agree to this plan. I directed that if she objected to the father's parenting time proceeding with the Society's safety plan in effect, she would have to bring an urgent motion forthwith to seek a temporary suspension of his parenting time.

[11] The mother proceeded to serve and file a motion dated March 8, 2023, to suspend the father's parenting time pending the outcome of the Society and police investigation, and for an order that I recuse myself from hearing the motion on the basis of a reasonable apprehension of bias. I refer to this motion as "the March 2023 motion" in these Reasons for Judgment on Costs. I heard and dismissed this motion on March 10, 2023, and I ordered that costs in connection with the motion would be addressed at the same time as costs in relation to the Motion to Change Final Order and the March 2020 motion.

PART 3: POSITIONS OF THE PARTIES

I. THE APPLICANT FATHER'S POSITION

[12] The father submits that he is entitled to costs from the mother on a full recovery basis in relation to the Motion to Change Final Order, the March 2020 motion, the assessment motion and the March 2023 motion. He filed a Bill of Costs detailing costs in the amount of $181,455.88, inclusive of disbursements and HST. However, during the costs hearing before me on May 23, 2023, it was determined that there was an error in the Bill of Costs which, when corrected, reduced the total amount of fees to $153,972.50. Inclusive of disbursements and HST, the correct total full recovery amount claimed is $176,969.77.

[13] Dealing first with the Motion to Change, the father acknowledges that the Respondent was overall the successful party on the child support issues, but he claims that the vast majority of the time and money spent related to the parenting issues. His position is that he was overwhelmingly more successful than the mother with respect to the parenting issues. He notes that he did not pursue his claim for sole decision-making, and that he served a severable Offer to Settle just prior to trial, dated October 19, 2021, in which he agreed to the mother retaining sole decision-making responsibility, provided that she followed the directions of third party professionals involved with the child and that she notified him of any major decisions at least 10 days in advance. Accordingly, he states that the mother cannot claim to be the more successful party on the question of decision-making. Furthermore, he notes that the December 22, 2022 order requires the mother to engage in active consultation with him about significant decisions respecting J.M.C., which she was not required to do pursuant to the May 30, 2019 order. He submits that he was therefore overall the more successful party on the issue of consultation.

[14] With respect to parenting time, the father states that the mother requested a very restrictive parenting time regime that involved a 3 month period of supervision, followed by a gradual increase in parenting time progressing to a maximum of alternate Saturdays for 5 hours. She also requested that any parenting time be ultimately in her discretion, which would include the right to revert back to completely supervised parenting time. He submits that in light of the mother's history of making false allegations against him and interfering with his parenting time, the mother's position would have inevitably resulted in him having very limited supervised parenting time on a long-term basis. He notes that he requested an order providing for his parenting time to progress to full alternate weekends from Friday afternoon until Monday morning over a four week period. He opposed an order that any of his visits be supervised, but indicated that he did not object to the first few visits being in the presence of a neutral third party to support the child and to protect himself from any further abuse allegations. The father was awarded parenting time commencing with 4 daytime Saturday visits to occur in the presence of a third party professional, and then progressing gradually to full alternate weekend parenting time from Friday to Monday morning. Although I ordered a more gradual progression to the alternate weekend schedule requested by the father, counsel for the father emphasized that this decision was based on the concerns about the mother's alienation of the child from the father, the child's need for a gradual approach due to the alienation and the need to protect the father from further false allegations of abuse. The father also submits that he was granted much more parenting time during holiday periods and on special occasions than he enjoyed under the May 30, 2019 order. Accordingly, his position is that he was overall the more successful party on the parenting time issues.

[15] The father asserts that he was successful on issues relating to parenting exchanges. The mother requested that the exchanges occur inside the lobby of the police station, and that only she and the father carry out the exchanges. The father successfully opposed these terms. Finally, he states that he was successful in obtaining several terms in the parenting order aimed at ensuring that the mother does not engage in any further alienating and other harmful behaviour towards J.M.C., and in requiring the mother to engage in counselling to address the concerns regarding her conduct towards him and the child.

[16] In regard to the March 2020 motion, the father claims that he was overall the more successful party. He acknowledges that he did not pursue the claim for contempt at trial, but emphasizes that he was successful in obtaining alternative relief in the form of a declaration that the mother breached the parenting time terms of the May 30, 2019 order. In addition, he asserts that although he did not succeed in obtaining a complete reinstatement of his parenting time as provided for in the May 30, 2019 order, he was successful in having his time reinstated at least in accordance with phase 2 of that order. He acknowledges that he withdrew his claim for make-up parenting time. However, he states that pursuing this relief became impossible from a practical standpoint because of the amount of parenting time that he lost due to the mother's numerous allegations against him, and his ultimate decision to stop his parenting time altogether in March 2021 out of concern that J.M.C. was suffering harm from being repeatedly interviewed and examined by various professionals.

[17] The father argues that he was entirely successful on the assessment motion, as the court made an order requiring the mother to undergo a mental health assessment. He acknowledges that the order was later changed to provide that the assessment was to be undertaken by a psychologist rather than a psychiatrist, based on the recommendations of the Child Advocacy and Assessment Program team ("CAAP"). However, he asserts that this change does not alter his overall success in requiring the mother to obtain an assessment of her mental health functioning at her own cost.

[18] Finally, the father highlights that he was entirely successful in obtaining a dismissal of the March 2023 motion that the mother brought to have me recuse myself from hearing the motion and to suspend his parenting time.

[19] With respect to the appropriate quantum of costs, the father submits that the costs set out in his Bill of Costs are proportionate, reasonable and fair. He states that full recovery costs are warranted based on the extent of his success and the mother's highly unreasonable conduct since May 2019, which he states amounted to bad faith. On the issue of bad faith, he relies on the findings and conclusions that I reached at trial regarding the mother's frequent breaches of the parenting time terms of the May 30, 2019 order, her constant unfounded allegations that he and his family members abused and neglected J.M.C., her alienation of the child from him and his family, her constant photographing of the child in an attempt to document her concerns, her active efforts to use various community professionals to support her efforts to undermine his relationship with J.M.C. and her unfounded complaints against any professionals who did not support her in those efforts. In addition, he relies on my findings that the mother engaged in numerous inappropriate tactics at trial in an attempt to advance her narrative and her goal of seriously limiting the father's role in J.M.C.'s life. By contrast, the father submits that he acted reasonably and with a focus on J.M.C.'s best interests at all times. Finally, the father highlights that he served the mother with a severable Offer to Settle on October 19, 2021, the day before the commencement of the trial, and that the outcome of the trial on many points was as or more favourable to him than the terms of that Offer to Settle.

[20] Counsel for the father acknowledges that the costs award that he requests is significant having regard for the mother's income and her overall modest financial circumstances and means. However, he notes that she owns a home, and that her Financial Statements filed at Trial indicate that she has sufficient equity in the home to pay the costs award if necessary. He acknowledges that having to realize upon her equity in the home would have a negative impact on her on J.M.C., but he emphasizes that the cost of these proceedings has also had a serious impact on him and his new family members. He is agreeable to an order setting off any costs awarded in his favour against any child support arrears that he owes to the mother as well as his ongoing child support payable to the mother, as a means of avoiding the necessity of the mother selling her home to satisfy a costs award.

II. THE RESPONDENT MOTHER'S POSITION

[21] The mother opposes the father's request for costs and requests an order requiring him to pay her costs in the amount of $36,745.11. Of this amount, the sum of $24,245.11 represents the fees that she paid to her former counsel to assist her with the Motion to Change Final Order and the father's March 2020 motion for the period from February to September 2020. She requests the balance of $12,500.00 on account of her own work and expenses.

[22] With respect to entitlement to costs, the mother claims that she was overall the more successful party on the Motion to Change Final Order and the father's March 2020 motion. Dealing first with the Motion to Change Final Order, she notes that the father asked for sole decision-making responsibility in his Response to Motion to Change, and that she succeeded in retaining sole decision-making responsibility respecting J.M.C. In regard to parenting time, her view is that she was more successful than the father, since the order required his initial visits to be in the presence of a third party professional and provided for a much more gradual progression than the father requested. She argues that she was partially successful with respect to parenting exchange terms, since she asked for an order that any third parties present at the exchanges remain in the vehicle. The mother also asserts that she was overall more successful than the father in addressing the admissibility of Dr. Burke Baird's report at trial. Finally, she emphasizes that she was entirely successful in opposing the father's request for a retroactive reduction of child support, and that she was in fact able to secure an increase in child support at trial.

[23] Turning to the March 2020 motion, the mother argues that she was overall the more successful party, since the father did not pursue the contempt claim and the alternative relief of a declaration that she breached the order was a much less serious order. In addition, she notes that the father did not pursue his claim for make-up parenting time, and that he was not successful in obtaining a complete reinstatement of his parenting time as ordered on May 30, 2019.

[24] The mother claims that the father was only partially successful on the assessment motion, since he obtained an order for a psychiatric assessment, but this was later changed to provide for a psychological assessment. Finally, she acknowledges that she did not succeed on any issues in relation to her March 2023 motion. However, she submits that she should not be required to pay significant costs, since she had insufficient time to prepare her materials and she felt that she did not have a fair right of reply, since time did not permit for her to serve and file a reply affidavit.

[25] The mother suggests that the father acted in bad faith, and that this supports her claim for a full recovery costs award. She claims that he was not truthful at trial, that he did not answer questions in a straightforward manner, that his counsel did not give her witnesses copies of documents that he cross examined them on, and that he pursued parenting time despite the fact that he had chosen not to see the child since March 2021. She also argued that the father demonstrated bad faith by not producing the necessary financial information in support of his claims to retroactively reduce child support in a timely manner.

[26] In regard to the father's claim for costs, she submits that the quantum which he seeks is exorbitant. She questions why he retained a senior lawyer to represent him and argues that the rates charged were too high. She also stresses that she is financially unable to pay the costs that the father has requested, and that such an award will undermine her ability to provide for J.M.C.'s basic needs and may require her to declare bankruptcy. She states that this would have an extremely negative impact on J.M.C., given that she continues to be his primary caregiver.

PART 4: THE LAW RESPECTING COSTS

I. GENERAL PRINCIPLES AND PURPOSES OF COSTS AWARDS

[27] Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended, provides that subject to the provisions of an Act or Rules of Court, costs are in the discretion of the court, which may determine by whom and to what extent the costs shall be paid. This section must be read in conjunction with Rules 24 and 18 of the Family Law Rules, O. Reg. 114/99, as am. ("the Rules"), which set out numerous principles to guide the court in the exercise of its discretion in the Family Law context.

[28] The modern rules respecting costs aim to foster the following four fundamental purposes:

1. To partially indemnify successful litigants for the cost of litigation;

2. To encourage settlement;

3. To discourage and sanction inappropriate behaviour by litigants; and

4. To ensure that cases are dealt with justly, in accordance with the primary objective of the Rules set out in Rule 2(2).

(Ryan v. McGregor (1926), 1925 460 (ON CA), 58 O.L.R. 213 (Ont. C.A.), at p. 216; British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371 (S.C.C.); Fong v. Chan, 1999 2052 (ON CA), 1999 CarswellOnt 3955, 181 D.L.R. (4th) 614, 46 O.R. (3d) 330 (C.A.); Serra v. Serra, 2009 ONCA 395 (C.A.); Mattina v. Mattina, 2018 ONCA 867 (C.A.)).

[29] With respect to the third objective, the Supreme Court of Canada emphasized in Okanagan Indian Band that costs awards are a means of sanctioning parties who refuse to initiate or participate in concerted settlement efforts, or who engage in behaviour that increases the duration and expense of litigation or that is otherwise unreasonable or vexatious (at paras. 25-26; see also Firuz v. Said, 2022 ONCJ 17 (O.C.J.), at para. 4).

[30] While these four objectives provide a general framework for the analysis of costs, the courts must also ensure that the law of costs does not become an impediment to the pursuit of justice. Accordingly, in seeking to advance these purposes, the court should also consider the importance of not unduly deterring potential litigants from pursuing legitimate claims for fear of overly burdensome costs consequences (Cassidy v. Cassidy, 2011 CarswellOnt 1541 (S.C.J.); Climans v. Latner, 2020 ONCA 554 (C.A), at para. 90).

[31] In addressing the issue of costs, the court must also be guided by the primary objective of the Rules as set out in Rule 2(2), which is to enable the court to deal with cases justly (Mattina, at para. 10).

[32] The Court of Appeal has highlighted the discretionary nature of costs awards and the importance of considering all relevant factors based on the unique facts of each case (Andrews v. Andrews (1980), 1980 1913 (ON CA), 32 O.R. (2d) 29 (C.A.)). It has emphasized that although court rules respecting costs have circumscribed the broad discretion which section 131 of the Courts of Justice Act grants the court in regard to costs, they have not completely negated this discretion (M.(C.A.) v. M.(D.), 2003 18880 (ON CA), [2003] O.J. No. 3707, 67 O.R. (3d) 181, 2003 CarswellOnt 3606 (C.A.); Fielding v. Fielding, 2015 ONCA 901 (C.A.)).

[33] The determination of costs is a two-stage process. First, the court must decide whether any party is liable for costs. If costs liability is established, the court must then determine the appropriate amount of the costs award. Rule 24(10) of the Rules establishes the general principle that the court shall promptly after dealing with a step in the case determine in a summary manner who, if anyone, is entitled to costs in relation to that step and set the amount of any costs, or alternatively shall expressly reserve the decision on costs for determination at a later stage in the case. However, Rule 24(11) provides that the court's failure to act pursuant to Rule 24(10) in relation to a step in the case does not prevent a judge from awarding costs in relation to the step at a later stage in the case.

II. STAGE 1: DETERMINING LIABILITY FOR COSTS

A. Success in the Proceeding

[34] Rule 24 of the Rules sets out several factors relevant to the preliminary issue of liability for costs. Rule 24(1) establishes a presumption that a successful party to a motion, enforcement, case or appeal is entitled to costs. Consideration of each party's level of success is therefore the starting point in determining costs (Sims-Howarth v. Bilcliffe, 2000 ONSC 22584 (S.C.J.); White v. White, 2022 ONCJ 45 (O.C.J.), at para. 6). The presumption set out in Rule 24(1) may be rebutted having regard for all relevant considerations and the operation of other Rules, as discussed below.

[35] Rule 24(1) must be considered along with Rule 24(6), which provides that where success in a step in a case is divided, the court may exercise its discretion to order and apportion costs as appropriate. The determination of whether success was truly "divided" does not simply involve adding up the number of issues and running a mathematical tally of which party won more of them (Brennan v. Brennan, 2002 CarswellOnt 4152 (S.C.J.)). Rather, it requires a global and contextual analysis that takes into consideration the importance and complexity of the issues that were litigated and the amount of time and expense that were devoted to those issues (Jackson v. Mayerle, 2016 ONSC 1556 (S.C.J.), at para. 66; Slongo v. Slongo, 2017 ONCA 687 (C.A.), at para. 3; Vanleer v. Young, 2020 ONCA 459 (C.A.), at para. 46; Habibi v. Aarabi, 2022 ONSC 240 (S.C.J.), at para. 30).

[36] In assessing the success of each party, the court must consider the positions that they took in their pleadings and the specific relief that they pursued at the hearing if it was different (Lazare v. Heitner, 2018 ONSC 4861 (S.C.J.), at para. 16; Kyriacou v. Zikos, 2022 ONSC 401 (S.C.J.), at para. 6; Todor v. Todor, 2021 ONSC 3463 (S.C.J.), at para 17; White, at para. 7). Positions taken in offers to settle may also be relevant in determining a party's overall success (Johanns v. Fulford, 2010 ONCJ 756 (O.C.J.), at para. 13; Todor, at para. 17; S.W.S. v. R.S., 2022 ONCJ 11 (O.C.J.), at para. 10; Habibi, at para. 32). However, the primary focus of the success analysis pursuant to Rules 24(1) and (6) is what each party actually sought in the litigation, rather than in Offers to Settle. As McGee J. stated in Lazare, failing to make this the main focus encourages "all in, or all out litigation; or in other words, the all too familiar "accept my terms or I'll fight you on everything" (at para. 16).

[37] Where the court concludes that success was in fact divided, it may decline to order costs, may award costs to the party who was more successful overall, or may grant costs to the party who was successful on the primary issues, subject to appropriate adjustments having regard for the lack of success on secondary issues and any other factors relating to the litigation history of the case (Gomez-Pound v. Pound, [2009] O.J. No. 4161 (O.C.J.); Boland v. Boland, [2012] O.J. No. 1830, 2012 ONCJ 239 (O.C.J.); Beaver v. Hill, 2018 ONCA 840 (C.A.); Habibi, at para. 30). As I elaborate upon below, the question of whether each party has acted reasonably or unreasonably is a major factor in determining both liability for costs and the appropriate amount of a costs award. Determining costs where each party has had success in some areas is a highly discretionary undertaking that requires a careful comparative analysis of the number of issues, the success of each party on each issue, the significance and complexity of the issues, the amount of time that the issues required during the course of the litigation, as well as the reasonableness of the parties in relation to each issue. As McGee J. held in J.Y. v. L.F.-T., 2017 ONSC 6039 (S.C.J.), at para. 11, cited also in Habibi, at para. 30:

11 Divided success requires a comparative analysis. Almost all family cases have multiple issues. Not all issues are equally important, time-consuming or expensive to determine. A useful set of tests can be found in Jackson v. Mayerle, 2016 ONSC 1556 (S.C.J.), which drew forward the comprehensive survey of divided success within Scipione v. Del Sordo, 2015 CarswellOnt 14971 (S.C.J.):

a) How many issues were there?

b) How did the issues compare in terms of importance, complexity and time expended?

c) Was either party predominantly successful on more of the issues?

d) Was either party more responsible for unnecessary legal costs?

12 "Divided success" does not necessarily mean "equal success". And "some success" may not be enough to impact on costs.

[38] In cases involving parenting issues, the measure of success in the litigation must be assessed from the child's perspective, since the child's success is the object of the proceeding (S. v. A., 2022 ONSC 55 (S.C.J.), at para 46. Accordingly, assessing overall success in the case requires the court to consider which party best demonstrated an ability and willingness to foster the child's overall safety, security and well-being (S. v. A., at para. 46).

B. Liability for Costs Relating to Conferences

[39] Where a party requests costs in relation to case conferences, settlement conferences, and trial management/scheduling conferences at the conclusion of trial, the court must also consider Rules 17(18) and 17(18.1) of the Family Law Rules. Rule 17(18) creates a presumption against liability for costs respecting a conference, unless the party against whom costs is requested was not prepared, did not serve the required documents, did not make any required disclosure, otherwise contributed to the conference being unproductive, or otherwise did not follow the Rules. However, where any of those conditions are satisfied, the court is required to order costs in connection with the conference:

Costs

17(18) Costs shall not be awarded at a conference unless a party to the conference was not prepared, did not serve the required documents, did not make any required disclosure, otherwise contributed to the conference being unproductive or otherwise did not follow these rules, in which case the judge shall, despite subrule 24 (10),

(a) order the party to pay the costs of the conference immediately;

(b) decide the amount of the costs; and

(c) give any directions that are needed. O. Reg. 114/99, r. 17 (18); O. Reg. 235/16, s. 3; O. Reg. 298/18, s. 12 (4); O. Reg. 535/18, s. 5 (4).

[40] Rule 17(18.1) provides that subrule 18 does not prevent the court from ordering costs in relation to the conference at a later stage in the case if costs are not awarded at the conference. However, it does not alter the basic presumption set out in subrule 18 against costs being ordered unless the specific conditions referred to in that subsection are satisfied. Accordingly, if costs are requested in relation to conferences at the conclusion of trial, it may be necessary to adduce evidence in support of the request since the trial judge would otherwise have no evidentiary basis upon which to determine if the conditions set out in subrule 18 have been met.

C. The Reasonableness of the Parties' Positions and Their Litigation Conduct

[41] The reasonableness of the parties' positions, arguments and conduct in the litigation are also relevant to the issue of liability for costs. One of the most important functions of costs is to ensure that litigants conduct themselves in a manner that upholds the integrity of our justice system as a whole. Costs awards are one of the few means of ensuring that litigation is not utilized as a tool to harass parties, that the case is conducted in an organized and responsible manner and that the resources of the justice system are not unduly drained by clearly unreasonable claims. As Spence J. stated in Heuss v. Surkos 2004 ONCJ 141 (O.C.J.), at para. 20:

Parties to litigation must understand that court proceedings are expensive, time-consuming and stressful for all concerned. They are not designed to give individual litigants a forum for carrying on in whatever manner they may choose, oblivious to the impact of that conduct on the other side and, perhaps most importantly for the purposes of this case, oblivious to the mounting costs of the litigation. Matrimonial litigation is an occasion for sober consideration and thoughtfulness rather than intemperate behaviour.

[42] Rule 24(4) underscores the importance of reasonableness in determining liability for costs by stipulating that notwithstanding the presumption in Rule 24(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."

[43] Rule 24(5) sets out factors that the court must examine when deciding whether a party has acted reasonably or unreasonably, as follows:

Decision on Reasonableness

24(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

a) the party's behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

b) the reasonableness of any offer the party made; and

c) any offer the party withdrew or failed to accept.

[44] The list of factors set out in Rule 24(5) is not exhaustive in assessing whether a party has behaved reasonably. The reasonableness of the parties' positions throughout the proceeding is another important consideration in the determination of costs. As McGee J. noted in S. v. A., at para. 20, "[f]amily law litigants are accountable for the positions they take in litigation. They have an obligation to assess their cases at the outset and to reassess as the case unfolds, see M.B. v. A.F., 2021 ONCJ 45."

[45] In considering the reasonableness of the parties' conduct, the judge deciding costs should also address their mind to whether they have complied with court orders and the Rules during the proceeding. Rules 1(8)(a) and 1(8.1) provide that if a person fails to obey an order in a case or a related case or with the Rules, the court may deal with the failure by making an order for costs.

D. Absent or Unprepared Party: Rule 24(7)

[46] Rule 24(7) must also be considered in determining the preliminary question of liability for costs. It creates a presumption that a party will be held liable for costs if they do not appear at a step in the case, or they are not properly prepared to deal with the issues at that step or otherwise contribute to the step being unproductive, unless the court orders otherwise in the interests of justice:

Absent or Unprepared Party

24(7) If a party does not appear at a step in the case, or appears but is not properly prepared to deal with the issues at that step or otherwise contributes to that step being unproductive, the court shall award costs against the party unless the court orders otherwise in the interests of justice.

E. Bad Faith and Liability for Costs

[47] A finding that a party has acted in bad faith will result in liability for costs as against the offending party, regardless of that party's success. Rule 24(8) provides that if a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately. The Rules do not define the phrase "bad faith." However, the case-law provides guidance respecting the type of behaviour that falls within the scope of Rule 24(8). The notion of bad faith is distinct from unreasonable behaviour, and it is not simply poor judgment or negligence; it involves evidence of intentional duplicity, obstruction or obfuscation (Scipione v. Del Sordo, 2015 ONSC 5982 (S.C.J.), at para. 96). As the court noted in Hendry v. Martins [2001] O.J. No. 1098, 2001 CarswellOnt 952 (S.C.J.), at para. 4, citing Black's Law Dictionary, 6^th^ ed. (St. Paul, Minn: West Publishing Co., 1990), bad faith implies "the conscious doing of a wrong because of dishonest purpose or moral obliquity; it is different from the negative idea of negligence in that it contemplates a state of mind affirmatively operating with furtive design or ill will." In S.(C.) v. S.(M.), 2010 ONCA 196 (C.A.), the Ontario Court of Appeal upheld the costs award of the trial judge, Perkins J., and his finding that the father's conduct amounted to bad faith justifying a full recovery costs award. Perkins J. described the concept of bad faith in that case as follows (S.(C.) v. S. (M.), 2007 20279 (ON SC), [2007] O.J. No. 2164, 2007 CarswellOnt 3485 (S.C.J.), at para. 17):

In order to come within the meaning of bad faith in rule 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... 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.

[48] The Ontario Court of Appeal confirmed in Scalia v. Scalia, 2015 ONCA 492 (C.A.), at para. 68 that a finding of bad faith within the meaning of Rule 24(8) requires evidence of significant wrongdoing, dishonest purpose or moral iniquity.

[49] Bad faith can be established by evidence that the party intentionally failed to fulfill an agreement in order to achieve an ulterior motive, or intentionally breached a court order with a view to achieving an improper purpose (Biddle v. Biddle, 2005 7660 (ON SC), 2005 CarswellOnt 1053, [2005] O.J. No. 1056 (S.C.J.), at para. 15; Scipione, at para. 100). It can be made out by evidence that the party has made unsubstantiated allegations of abuse by the other party, has made significant false representations to the court relevant to the best interests of a child, or has engaged in conduct aimed at alienating a child or otherwise undermining their relationship with the other party without justification (Fazuludeen v. Abdulrazack, 2020 ONSC 3394 (S.C.J.)).

F. The Importance of Offers to Settle in Determining Liability for Costs

[50] An important consideration in determining both liability and the quantum of costs is whether any party has served or accepted an Offer to Settle. As indicated above, Rule 24(5) specifically requires that in assessing whether parties have behaved reasonably or unreasonably, the court must consider whether they have made Offers to Settle, the reasonableness of any such Offers, and any Offers that they withdrew or failed to accept. In addition, Rule 18 establishes costs consequences for failing to accept an Offer to Settle that complies with the specific requirements of that Rule. Rule 18(1) defines "Offer" as "an offer to settle one or more claims in a case, motion, appeal or enforcement, and includes a counter-offer." Rule 18(4) stipulates that an Offer to Settle shall be signed personally by the party making it and also by the party's lawyer, if any. Rule 18(14) sets out the costs consequences of failing to accept an Offer to Settle that meets the criteria of Rule 18, as follows:

Costs Consequences of Failure to Accept Offer

18(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:

1. If the offer relates to a motion, it is made at least one day before the motion date.

2. 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.

3. The offer does not expire and is not withdrawn before the hearing starts.

4. The offer is not accepted.

5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer.

[51] The onus of proving that the costs consequences outlined in Rule 18(14) are triggered lies on the party seeking to rely on the Rule (Neilipovitz v. Neilipovitz, 2014 ONSC 4849 (S.C.J.), at para. 5). In order for these costs consequences to come into play, the Offer to Settle must be signed by the party making the Offer and their lawyer (Rule 18(4)). Failure to comply with this requirement may result in the Offer not being a valid formal Offer to Settle that attracts the consequences outlined in Rule 18(14) (Riss v. Greenhough, 2003 CarswellOnt 1450 (S.C.J.); Jakubowski v. Kopacz-Jakubowski, 2008 CarswellOnt 2149 (S.C.J.)).

[52] The costs consequences set out in Rule 18(14) do not automatically apply when the requirements set out in the Rule are satisfied. The Rule simply establishes a rebuttable presumption regarding costs, and the court ultimately maintains the discretion to determine whether the costs consequences are appropriate based on all of the circumstances of the case (M.(C.A.), at para. 43). With respect to the requirement that the order obtained be as or more favourable than the Offer to Settle, the court is not required to examine each term of the Offer as compared to the terms of the order and weigh with microscopic precision the equivalence of the terms. Rather, what is required is a general assessment of the overall comparability of the Offer to Settle as contrasted with the order that was ultimately made (Sepiashvili v. Sepiashvili, 2001 25708 (ON SC), 2001 CarswellOnt 3459 (S.C.J.), additional reasons to 2001 CarswellOnt 3316 (S.C.J.); Jackson, at para. 47; Arthur v. Arthur, 2019 ONSC 938 (S.C.J.), at para. 21).

[53] The costs consequences set out in Rule 18(14) are not limited to Offers to Settle that address all issues in the proceeding on a global basis. Rather, if a party makes a severable Offer, and the conditions set out in Rule 18(14) subsections (1) to (5) are met in relation to one or more issues, the court may order full recovery costs in relation to those issues from the date the Offer to Settle was served. Wildman J. highlighted this benefit of severable Offers to Settle in regard to costs in Paranavitana v. Nanayakkara, 2010 CarswellOnt 2298 (S.C.J.), where she noted as follows at para. 13:

13. .... Severable offers are an underused tool that can confer considerable settlement and cost advantages. Because of the full recovery provisions of Rule 18(14), they can provide much more flexibility to the court to award full recovery for at least a portion of the overall costs, if the party is successful on only some of the issues.

[54] Rule 18(16) directs that in exercising its discretion over costs, the court may also take into consideration any written Offer to Settle, the date it was made and its terms, even if the conditions and presumptive consequences set out in Rule 18(14) do not apply. The court may in the exercise of its discretion compare portions of any Offer to Settle dealing with discrete issues to the terms of the order that was made.

[55] A party's failure to serve an Offer to Settle is also a relevant factor in determining both liability for costs and the appropriate amount of a costs award (M.(J.V.) v. P.(F.D.), 2011 CarswellOnt 13510 (O.C.J.), at para. 5; Menchella v. Menchella, 2013 ONSC 367 (S.C.J.), at paras. 19-21). As Zisman J. stated in Potter v. DaSilva, 2014 ONCJ 443 (O.C.J.), at para. 22:

Offers to settle play an integral role in saving time and expense by promoting settlements, focusing parties and often narrowing the issues in dispute. Offers to settle are therefore important in any consideration of the issue of costs. In my view, it is unreasonable behaviour for a party not to make an offer to settle.

[56] Notwithstanding the foregoing principles, the absence of an Offer to Settle should not be used against a party in determining liability for costs if the situation is one where it is unrealistic to expect Offers to Settle to be made. For instance, this factor should not play a material role in determining liability or the appropriate quantum of costs if there was no realistic way of compromising on the central issue(s) in dispute (Beaver, at para. 15).

G. Financial Means of the Parties

[57] Although not specified in Rules 24 and 18 as factors in deciding costs, the financial means of the parties, their ability to pay costs and the effect of any costs ruling on the parties and any children are also relevant to the adjudication of both liability for costs and the appropriate amount of a costs award (Murray v. Murray (2005), 2005 46626 (ON CA), 79 O.R. (3d) 147, [2005] O.J. No. 5379 (C.A.); Tauber v. Tauber, 2000 5747 (ON CA), [2000] O.J. No. 2133; additional reasons at 2000 22280 (ON CA), [2000] O.J. No. 3355 (C.A.); Cassidy v. McNeil, 2010 ONCA 218 (C.A.); M.(C.A.), at para. 42; Clark v. Clark, 2014 ONCA 175 (C.A.)). In most cases, a party's limited financial means will be relevant to the appropriate quantum of costs and how payment should be carried out, rather than to the question of liability for costs (Snih v. Snih, 2007 CarswellOnt 3549 (S.C.J.), at paras. 7-13; Izyuk v. Bilousov, 2011 ONSC 7476 (S.C.J.), at para. 51). However, the court may decline to order costs against an unsuccessful party if it is clear the party would be unable to pay the costs, and the practical effect of a costs order would be to destroy any chance that the party may have to achieve or maintain financial self-sufficiency (Murray, at para. 10).

[58] The financial means of a primary care parent may be particularly relevant in deciding both costs liability and quantum if an award would indirectly impact a child in a negative fashion. As the Ontario Court of Appeal stated in M.(C.A.), at para. 42, "[i]n fixing costs, the courts cannot ignore the best interests of the child and thus cannot ignore the impact of a costs award against a custodial parent that would seriously affect the interests of the child."

[59] Notwithstanding the foregoing principles, concern about a party's inability to pay is but one factor to consider in the overall costs analysis. It must be weighed against the fundamental objectives of costs awards of indemnifying successful litigants for the cost of litigation, encouraging settlement and sanctioning unreasonable behaviour by litigants (Peers v. Poupore, 2008 ONCJ 615 (O.C.J.); J.Y. v. L.F.-T., at para. 40). As McGee J. emphasized in in J.Y. v. L.F.-T., "those who can least afford litigation should be the most motivated to pursue settlement." The Ontario Court of Appeal has confirmed that while the court should consider a parent's ability to pay costs in Family Law cases, this factor should not be viewed as an absolute shield against any liability, especially where the party has acted unreasonably (M.(C.A.)). If parties could expect immunity from a costs award based on their limited financial means, they would feel free to pursue litigation without any fear or financial reprisal, and this would be contrary to the objectives of costs and the Rules (Culp v. Culp, 2019 ONSC 7051 (S.C.J.)).

III. STAGE 2: DETERMINING THE APPROPRIATE AMOUNT OF COSTS

A. General Principles, Rules 24(12)(12.1) and (12.2), and Rule 2 of the [Family Law Rules](https://www.canlii.org/en/on/laws/regu/o-reg-114-99/latest/o-reg-114-99.html)

[60] Once liability for costs has been established, the court must determine the appropriate amount of costs. As the preceding discussion indicates, many of the factors relevant to costs liability are also integral to the quantification of costs. The Ontario Court of Appeal has established the following general principles to guide the courts in assessing the appropriate amount of costs awards:

1. Ultimately, costs decisions should reflect what the court considers to be a fair and reasonable amount that the unsuccessful party should pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant.

2. Costs need to be proportional to the issues and amounts in question and the outcome of the case.

3. Amounts actually incurred by the successful litigant are not determinative.

4. In assessing what is fair and reasonable, the expectation of the parties concerning the amount of a costs award is a relevant consideration.

(See Serra; Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), 2002 CarswellOnt 4020 (C.A.); Boucher v. Public Accountants Council (Ontario), 2004 14579 (ON CA), [2004] O.J. No. 2634, 2004 CarswellOnt 2521 (C.A.); Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC, 2005 1042 (ON CA), 2005 CarswellOnt 189 (C.A.); Selznick v. Selznick, 2013 ONCA 35 (C.A); Beaver).

[61] In addition to these general principles, Rule 24(12) of the Rules prescribes factors which the court must consider in deciding the appropriate quantum of costs, as follows:

Setting Costs Amounts

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

[62] Rule 24(12.1) stipulates that any claim for costs respecting fees or expenses shall be supported by documentation satisfactory to the court. Furthermore, Rule 24(12.2) directs that a party who opposes a claim for costs relating to fees or expenses shall provide documentation showing the party's own fees and expenses to the court and to the other party.

[63] In deciding the appropriate amount of costs, the court should also consider Rule 2(2), which provides that one of the primary objectives of the Rules is to ensure that cases are dealt with justly. Rule 2(4) is also relevant to the costs analysis. It stipulates that the court must apply the Rules to promote the primary objective set out in Rule 2(2), and that parties and their lawyers are required to help the court to do so. Rule 2(3) sets out ways in which cases are dealt with justly, as follows:

Dealing with Cases Justly

24(3) Dealing with a case justly includes,

a) ensuring that the procedure is fair to all parties;

b) saving expense and time;

c) dealing with the case in ways that are appropriate to its importance and complexity; and

d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

[64] If a party and their counsel do not comply with their obligation under Rule 2(4) to assist the court to deal with the case justly, this may be considered in the quantification of costs (Mooney v. Fast, 2013 CarswellOnt 15659 (O.C.J.)).

B. Reasonableness and Proportionality: the Touchstone Considerations

[65] Rule 24(12) and the case-law respecting costs establish that reasonableness and proportionality are "the touchstone considerations to be applied in fixing the amount of costs" (Beaver, at para. 12). The specific factors set out in Rule 24(12)(a)(i) to (vi) and any other relevant matter that the court considers pursuant to Rule 24(12)(b) must be assessed against these two fundamental guiding principles, taking into consideration the importance and complexity of the issues involved.

[66] Dealing first with reasonableness, in deciding upon a fair and reasonable amount of costs, the court should consider the amount that the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation (Lupien v. Carmichael, 2017 ONSC 2929 (S.C.J.), at para. 9; Darling v. Booth, 2017 ONSC 6261 (S.C.J.) at para. 12). Polowin J. commented on the general principles respecting the quantification of a reasonable costs award in Sommerard v. I.B.M. Canada Ltd., 2005 40140 (ON CA), [2005] O.J. No. 4733 (S.C.J.) as follows, at paras. 53-59:

The fixing of costs is not a mechanical exercise of calculating hours times hourly rates. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding. In doing so, I must stand back from the fee produced by the raw calculation of hours spent times hourly rate and assess the reasonableness of the counsel fee from the perspective of the reasonable expectation of the losing party.

[67] The principle of proportionality must always remain an over-arching consideration in determining an appropriate amount of costs (Beaver, at para. 12). In Hryniak v. Mauldin, [2014] 1 S.C.R. 87, 2014 SCC 7 (S.C.C.), the Supreme Court of Canada recognized that timeliness, affordability and proportionality are essential components of a legal system that ensures true access to justice. In the context of the costs analysis, proportionality requires the court to ensure that expenses claimed make sense having regard for the importance and complexity of the issues that were litigated. If the case was complicated and involved novel or important issues, the principle of proportionality may support a higher award (L.(J.K.) v. S.(N.C.), 2009 CarswellOnt 1017 (S.C.J.), at para. 34; Goodwin v. Goodwin, 2011 ONSC 2402 (S.C.J.), at para. 35). By contrast, a high costs award may be inappropriate if the case does not involve any complex legal issues and should have been fairly straightforward.

C. Full Recovery Costs

[68] There is no provision in the Rules or presumption in the case-law favouring a general approach of awarding full or close to full recovery costs in Family Law litigation (Beaver, at paras. 9-11). However, as discussed in further detail below, Rule 24(8) directs that costs be ordered on a "full recovery" basis if a party has acted in bad faith, and as discussed above, Rule 18(14) creates a presumption in favour of full recovery costs from the date of service of an Offer to Settle that satisfies the requirements of the Rule. These provisions raise the question of what is meant by the phrase "full recovery costs."

[69] The notion of "full recovery costs" under the Rules is distinct from the actual total costs that a lawyer or legal team has charged the party. The principles of reasonableness and proportionality come into play when the court decides to grant a full recovery award. In M.(C.A.), the Ontario Court of Appeal emphasized that in awarding full recovery costs under the Family Law Rules, the trial judge must ensure that the costs sought by the successful party are reasonable having regard for the issues involved in the case (at para. 43). Accordingly, the phrase "full recovery costs" means the total reasonable and proportional amount that a court determines the party should have appropriately spent in dealing with the case (Jackson, at para. 91; Arthur v. Arthur, 2019 ONSC 938 (S.C.J.), at para. 40).

[70] The Rules do not refer to the "scales" or "ranges" for costs awards that are referred to in the Ontario Rules of Civil Procedure and the civil law costs case-law, namely "partial indemnity costs," "substantial indemnity costs," "solicitor and client costs" and "full indemnity" costs. The phrase "full recovery costs" that is used in the Rules is legally distinct from those terms. In Sims-Howarth, Aston J. held that the scales of costs that apply in the civil context do not extend to Family Law cases. In his words, "[h]aving determined that one party is liable to pay costs, the court must fix the amount at some figure between a nominal sum and full recovery" (at para. 4). The Rules demand flexibility in examining the list of factors in Rule 24(12) without any assumptions about categories of costs. The Ontario Court of Appeal supported this approach in M.(C.A.) and Beaver (see also Costa v. Perkins, 2012 ONSC 3165 (Div. Ct.); Vasilodimitrakis v. Homme, 2020 ONSC 4414 (Div. Ct.), at paras. 42-43).

[71] While the costs terms and scales that apply in the general civil context do not form part of the formal costs framework set out in the Rules and do not bind judges deciding costs in Family Law cases, courts may nonetheless as part of their discretionary authority consider those scales in carrying out the costs analysis. For instance, in Climans, the Ontario Court of Appeal concluded that an award of costs on a "partial indemnity basis" was warranted and concluded that "the usual approach of treating partial indemnity costs as 60% of full indemnity costs" was appropriate in that case (at para. 108).

D. The Bill of Costs

[72] It flows from the principles discussed above that in deciding costs, the court must as a starting point carefully review the specifics of the Bill of Costs to assess whether the items claimed are proper, reasonable and proportionate (Donnelly v. Donnelly, 2004 CarswellOnt 2076 (S.C.J.), at para. 16; Snelgrove v. Kelly, 2017 ONSC 4625 (S.C.J.), at para. 35; Beaver). The court must as part of this process consider whether the hours spent and fees charged can be reasonably justified having regard for the importance and complexity of the issues involved in the proceeding (Jackson; Snelgrove, at para. 35; Beaver). The assessment of the party's Bill of Costs to determine the reasonableness and proportionality of the items claimed should be undertaken in a global fashion. The court is not required to embark upon a painstaking, line-by-line analysis of Bills of Costs and second-guess every hour and item docketed, unless there are clear concerns about excessive claims and overreaching (Docherty v. Catherwood, 2016 ONSC 2140 (S.C.J.), at para. 50; Snelgrove, at para. 35; Arthur, at para. 29). The goal of this exercise is to identify a reasonable and proportionate full recovery amount from which the balance of the quantification analysis can then be carried out. The court should then consider any other factors relevant to the costs analysis to reach an overall fair, just and proportionate award. The Ontario Court of Appeal has emphasized that the principles of reasonableness and proportionality must inform the costs analysis both at the initial stage in reviewing the Bill of Costs and once again at the conclusion of the quantification process after considering all relevant factors, as a "final check" for assessing whether the award being considered is fair and just having regard for the purposes of costs awards (Beaver).

[73] A useful point of reference for determining whether costs claimed by a party are fair, reasonable and proportional is to consider the time that the other party has spent and the amount they have paid for their own legal fees and disbursements in the matter (Smith Estate v. Rotstein, 2011 ONCA 491 (C.A.); Scipione, at para. 126). Failure by the other party to produce documentation respecting their own fees and expenses incurred, as required by Rule 24(12.2) of the Family Law Rules, is a factor that the court may properly consider in addressing arguments that costs claimed are too high, and it may entitle the court to draw an adverse inference (Smith Estate, at para. 50; Scipione at para. 126; 206637 Ontario Inc. (c.o.b. Balkan Construction) v. Catan Canada Inc., 2013 ONSC 5448 (S.C.J.), at para. 7). On the other hand, a significant discrepancy in the amount of fees that the parties have incurred may prompt the court to embark upon a more detailed scrutiny of the costs claimed to ensure that the amount meets the overall objectives of a costs order (Jackson, at para. 99).

E. Degree of Success in the Case

[74] The degree of a party's success in the case is a critical factor in determining the appropriate quantum of costs. As discussed in the context of liability for costs, if one party was indeed the most successful overall, the court may nonetheless make adjustments to the costs award to take into account the other party's success on issues in the proceeding (Beaver; A.A. v. Z.G., 2020 ONCA 192 (C.A.), at para. 28). The nature and extent of the adjustments in carrying out the quantification analysis will be a matter of discretion and will depend in part on the nature, importance and complexity of the issues on which the party was successful and unsuccessful (Eastern Power Ltd. v. Ontario Electricity Financial Corp., 2012 ONCA 36 (C.A.), at para. 18). The court should adopt a broad and flexible approach in making such adjustments. It is not appropriate to engage in a detailed costs analysis respecting each separate issue and then tally up an ultimate "costs score-sheet." The Ontario Court of Appeal cautioned against adopting this type of approach to formulating a costs order, which it referred to as a "distributive costs award," in Oakville Storage and Forwarders Ltd. v. Canadian National Railway, 1991 CarswellOnt 440 (C.A.).

F. Bad Faith and General Conduct of the Parties

[75] As previously noted in the discussion respecting costs liability, Rule 24(8) is relevant to both liability and the appropriate quantification of costs. It provides that where a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order that the party pay them immediately. The court can determine that there has been bad faith in relation to one or more portions of the litigation and order full recovery costs on that basis in relation to those portions of the case (Scipione, at para. 97). Once the full recovery analysis is complete with respect to those issues, the court should assess costs in relation to the other issues by considering the overall circumstances of the case in light of the factors outlined in Rule 24(12), and it should use the discretion permitted by that section to reach a correct overall result (Hunt v. Hunt, 2001 CarswellOnt 4548 (S.C.J.), at para. 13; Snelgrove, at para. 32).

[76] While the Rules outline certain circumstances in which full recovery costs are considered appropriate, the court is not limited to ordering a full recovery award or a close to full recovery amount in those specified situations (Sims-Howarth, at para. 11; Sordi v. Sordi, 2011 ONCA 665 (C.A.), at para. 21; Keresturi v. Keresturi, 2017 ONCA 162 (C.A.), at para. 12). The determination of whether an award of elevated or full recovery costs is appropriate is ultimately a matter of judicial discretion having regard for the particular circumstances of the case (Keresturi, at para. 12). The overall behaviour and reasonableness of the parties is an important factor in exercising this discretion. In assessing the parties' conduct, the court should consider Rule 24(5), referred to above, which sets out factors that the court must examine when deciding whether a party has acted reasonably or unreasonably. In Climans, at para. 90, the Ontario Court of Appeal emphasized that an unsuccessful party should not incur heightened costs consequences if their conduct and the legal position that they advanced were reasonable (see also Hunt v. TD Securities Inc. (2003), 2003 3649 (ON CA), 66 O.R. (3d) 481 (C.A.), at para. 153; Foulis v. Robinson (1978), 1978 1307 (ON CA), 21 O.R. (2d) 769 (C.A.), at p. 77). This principle is based on the fundamental tenet of our legal system that litigants are entitled to require opposing parties to prove their claims (Climans, at para. 90; see also Richardson v. Richardson, 2019 ONCA 983 (C.A.), at para. 56). By contrast, unreasonable conduct and legal positions may attract an award for elevated or full recovery costs. In carrying out the costs analysis, the court should consider whether the parties and their counsel behaved in ways that saved time and expense for the parties and minimized strain on the court's resources (Cornwall v. Jevons, 2015 ONCJ 772 (O.C.J.), at para. 1). As Campbell J. highlighted in Parsons v. Parsons, 2002 CarswellOnt 2536 (S.C.J.), at para. 14:

...While the court recognizes that costs orders may "fan the fires", I interpret the rules as recognizing that there must be consequences for unreasonableness.

There is an element of behaviour modification to a costs order in that it encourages a change in attitude from a "litigate with impunity" mindset.

[77] Evidence that a party engaged in litigation conduct that was disrespectful of the other participants or the court, that unduly complicated the proceedings, that needlessly increased the cost of the litigation or that was otherwise inappropriate may lead to increased costs consequences (Parsons, at para. 14). Similarly, a high or full recovery costs award may be justified where a party persists in advancing unreasonable claims or arguments (Lawrence v. Lawrence, 2017 ONCJ 431 (O.C.J.), at paras. 58-60; Westendorp v. Westendorp, 2000 CarswellOnt 2047 (S.C.J.), at para. 4; Ojo v. Ojo, 2005 CarswellOnt 1239 (S.C.J.), at para 16).

G. Offers to Settle

[78] As discussed above, a party who serves an Offer to Settle which meets the requirements of Rule 18(14) is presumptively entitled to full recovery costs from the date the Offer was served. Rule 18(16) clarifies that the court may consider as a favourable factor in quantifying costs any Offer to Settle, even if the Offer does not meet the formal requirements of Rule 18(14). Rule 24 also highlights the importance of Offers to Settle in determining the appropriate amount of costs. Rules 24(5)(b) and (c) require the court to consider the reasonableness of any Offers to Settle that a party made, withdrew or failed to accept in deciding costs. Rule 24(12)(a)(iii) directs the court to consider any written Offers to Settle in fixing the amount of costs, including those that do not meet the requirements of Rule 18. However, in quantifying costs, the court should be cautious about relying too heavily on an Offer to Settle that does not meet the requirements of Rule 18(16) (Beaver, at para. 16). In addition, the failure of an Offer to Settle to contain a true element of compromise is a factor to be considered in assessing the weight that should be accorded to the Offer in the costs analysis (Beaver, at para. 16).

[79] As previously noted, a party's failure to serve an Offer to Settle may also be viewed as an adverse factor in determining the quantum of costs (M.(J.V.) v. P.(F.D.), at para. 5). This is so even if the party was the successful litigant (Smith v. Smith, 2007 CarswellOnt 1538 (S.C.J.)).

H. Financial Means of the Parties

[80] I have noted above that the financial means of the parties is a relevant factor in the quantification of a costs award. Costs orders must take into consideration the reasonable prospects of a party being able to pay and the impact of an award on the ability of the party to meet their basic needs and those of any children in their care. This factor is properly considered at the end of the costs analysis, and it must be balanced against the interests of the party who is entitled to costs and their ability to shoulder the financial consequences of the litigation (H.P. v. W.P., 2008 ONCJ 615 (O.C.J.), at para. 45). The court may in the exercise of its overriding discretion reduce the quantum of costs that a party would otherwise have to pay on the basis of their financial condition, and may order a payment plan that relieves the potential hardship of an award (Beaver at para. 18 ; S.(S.T.) v. E.(B.), 2016 ONSC 2142 (S.C.J.); Remillard v. Le, 2016 ONSC 3116 (S.C.J)). The party seeking to rely on this factor to reduce their costs liability should adduce some evidence in support of their position (Levin v. Levin, 2020 ONCA 675 (C.A.), at para. 3). However, the discretion to adjust a costs awards based on a party's financial circumstances does not apply in reverse; the Ontario Court of Appeal has held that it is not appropriate to increase the amount of costs that a party may otherwise have to pay based solely on that party's significant financial resources and ability to pay (Beaver, at para. 18). In other words, the financial ability of a party to pay a costs award that the hearing judge has determined to be fair, reasonable and proportionate is relevant, but it is not a basis for artificially boosting that quantum.

[81] A litigant's limited financial means is often given less weight in fixing the amount of costs than the court's determination regarding overall success in the litigation (Gobin v. Gobin, 2009 CarswellOnt 3452 (O.C.J.), at para. 24; Mooney, at para. 45). Ability to pay alone cannot override the other factors set out in Rule 24(12) (Peers, at para. 42). A party's constrained financial means will also typically be allocated less weight in quantifying costs if the court finds that the party acted unreasonably (Gobin, at para. 24). As Curtis J. stated in Mooney, it must be made clear to Family Law litigants that "the right to a day in court is tempered by the requirement that the parties take a clear-headed look at their case before insisting on their day in court."

IV. STRUCTURING THE COSTS AWARD: RELEVANT CONSIDERATIONS AND SETTING COSTS OFF AGAINST CHILD SUPPORT

[82] If the court concludes that a significant costs award is appropriate in a Family Law case involving individuals of limited or modest means, it must give careful consideration to how the costs should be paid and the appropriate time-frame for payment. The determination of these issues is a highly discretionary exercise that requires the court to carefully weigh the objectives of costs awards, the factors relevant to the assessment of costs, the impact of the costs award on the liable party and any child in their care, the interest of the other party in obtaining redress for their costs in a timely manner, and the impact of delaying payment of the costs on that party. The ultimate goal in crafting an appropriate payment plan is to achieve a fair and just result that balances the rights and interests of all parties in a manner that respects the objectives of costs, so as to safeguard the integrity and efficiency of the administration of justice.

[83] The father requests an order directing that any costs award in his favour against the mother be paid by way of a set-off against any arrears of child support that he owes her for J.M.C. and against the ongoing monthly child support that he is required to pay her. A right of set-off may rise in three circumstances: by agreement of the parties, by operation of statute (legal set-off) or in equity (M.P.A.N. v. J.N., 2018 ONCJ 769 (O.C.J.), at para. 271, per Finlayson J.; Telford v. Holt, 1987 18 (SCC), [1987] 2 S.C.R. 193 (S.C.C.), at paras. 23-38). The Superior Court of Justice has the authority to grant equitable relief by virtue of section 96(3) of the Courts of Justice Act. Section 111 of the Courts of Justice Act establishes a statutory basis for ordering a set-off of debts as between parties, as follows:

Set off

111 (1) In an action for payment of a debt, the defendant may, by way of defence, claim the right to set off against the plaintiff's claim a debt owed by the plaintiff to the defendant.

Same

(2) Mutual debts may be set off against each other even if they are of a different nature.

Judgment for defendant

(3) Where, on a defence of set off, a larger sum is found to be due from the plaintiff to the defendant than is found to be due from the defendant to the plaintiff, the defendant is entitled to judgment for the balance. R.S.O. 1990, c. C.43, s. 111.

[84] In order to make out a claim for legal set-off pursuant to section 111 of the Courts of Justice Act, the proceeding in issue must be one for payment of a debt, the responding party must have a claim to set-off a debt owing to them by the Plaintiff or Applicant, and those debts may be set-off against each other, regardless of whether they are of a different nature (M.P.A.N., at para. 273). In M.B. v. A.F., 2021 ONCJ 45 (O.C.J.), Finlayson J. concluded that a costs order is a "debt" within the meaning of section 111 of the Courts of Justice Act, and that child support arrears owed to a recipient parent are likewise a debt owed to the recipient within the meaning of section 111. Accordingly, he held that a costs award in favour of the payor parent can be set-off against child support arrears owed to a support recipient pursuant to section 111 of the Courts of Justice Act. The case-law is less clear as to whether a costs award can be set off against an ongoing child support obligation pursuant to section 111, since child support is considered to be the right of the child. However, Spence J. did order such a set-off in the case of Peers, noting that the imposition of a blanket prohibition against such set-off orders would in some cases "give a support recipient licence to litigate and act as unreasonably as he or she saw fit, possibly with complete impunity" (at para. 61).

[85] The power of a Superior Court judge to order set-off in equity is more flexible than the authority set out in section 111 of the Courts of Justice Act, in that the claims between the parties do not necessarily have to fall within the definition of "debts" and there need not be mutual cross-obligations of debts (M.P.A.N., at para. 275; Pierce v. Canada Trustco Mortgage Co., 2005 15706 (ON CA), 2005 CarswellOnt 1876 (C.A.), at paras. 38-40). The Ontario Court of Appeal has held that costs awards in favour of a child support payor against the support recipient may be set-off against arrears of child support owed by the payor (Burisch v. Gosal, 2007 CarswellOnt 5227 (C.A.)) and also against ongoing child support payable to the recipient (Regos v. Santos, 2015 ONCA 540 (C.A.)). The court noted in Regos that a set-off of costs against ongoing child support is unusual, but that it may be appropriate if it does not cause undue economic consequences for the child and is found to be overall in the child's best interests (at para. 13).

[86] The determination of whether it is appropriate to set off costs against child support arrears or an ongoing child support obligation is ultimately a matter of judicial discretion that involves a careful consideration of the facts of each case, and a delicate balancing the interests of the parties involved, the best interests of any children in the support recipient's care, all of the objectives of costs awards and the importance of ensuring that costs awards are in fact paid. This latter consideration must remain central to the analysis, since crafting a costs order that is doomed to be breached from the start erodes the legitimate expectation of litigants and the public that court orders will be respected, sends an inappropriate message to unreasonable litigants that they may litigate with impunity without financial consequences, and undermines the administration of justice as a whole.

[87] Where the party owing costs has a modest income, the court should consider whether they have assets that they can realize upon before ordering a set-off against child support, as this gives appropriate weight to the interest of the party entitled to costs in receiving payment in a timely manner. However, where the only such asset is the home where the recipient and a child are residing, this may tip the balance in favour of ordering a set-off against child support if the sale of the home would be contrary to the child's best interests. Another relevant consideration in crafting an appropriate structure for the costs award in these circumstances is whether the party owing costs has a positive or negative history of compliance with court orders. If they have a concerning history of non-compliance with orders, this may be another factor that supports a set-off against child support, as this may be the only realistic means by which the costs will be paid.

PART 5: ANALYSIS

I. COSTS IN RELATION TO THE MOTION TO CHANGE FINAL ORDER, THE MARCH 2020 MOTION AND THE ASSESSMENT MOTION

A. Entitlement to Costs

[88] For the purposes of the costs analysis, I am considering the question of costs in relation to the March 2020 motion and the assessment motion in conjunction with costs respecting the general Motion to Change Final Order proceeding. There are three reasons for this approach. First, the parties did not provide clear breakdowns on their respective Bills of Costs reflecting the amount of time spent on these three different aspects of the proceeding. Second, the March 2020 motion included the contempt claim, which was ultimately heard at the same time as the trial of the Motion to Change Final Order, and the other claims in that motion were addressed at trial on a final basis. Third, the father's assessment motion was advanced as a motion further to my mid-trial endorsement dated May 18, 2022, and his request for the assessment was part and parcel of the relief that he requested at trial. I am addressing the question of costs in relation to the mother's March 2023 motion separately, as that motion was brought almost 3 months after the release of my Reasons for Judgment in the trial.

[89] For the purposes of this part of the costs analysis, the main issues that I addressed at trial were as follows:

1. Decision-making responsibility, consultation and information sharing rights respecting J.M.C.;

2. Regular parenting time;

3. Parenting time during holiday periods and special occasions;

4. Make-up time for missed visits;

5. Travel and relocation terms;

6. Appropriate terms respecting parenting exchanges;

7. Appropriate terms regarding the parties' communications and interactions with each other and J.M.C.;

8. Whether the mother should be required to participate in services to address parenting-related concerns;

9. Whether any orders should be made to protect the child from inappropriate behaviour by the mother;

10. Whether the mother should be required to undergo and pay for an assessment respecting her mental health;

11. Whether a retroactive reduction of child support should be ordered effective from July 2019; and

12. Whether there should be an adjustment of child support on an ongoing basis.

[90] The starting point for determining entitlement to costs is to assess the overall success of the parties in regard to the issues in the litigation. For the reasons outlined below, I conclude that the Applicant was overall the more successful party with respect to all of the issues set out above except for items 11 and 12 relating to child support. The child support issues were significant and important, and therefore success in the case was divided. However, as I highlighted above in my discussion of the law respecting costs, divided success is not necessarily equal success, and this case clearly illustrates this point. I conclude that the vast majority of the time and expense devoted to this case both prior to and at trial related to the parenting issues listed as items 1 to 10 above. Neither of the parties provided a detailed breakdown in their Bills of Costs respecting the amount of time and expense incurred on the various issues set out above, but it is essential for the purposes of the costs analysis in this case to establish a rough estimate of how much time and expense would have reasonably been devoted to the parenting issues as opposed to the support issues. Having carefully considered the evidence respecting the history of the litigation and the amount of trial time that was devoted to the various issues, I conclude that a reasonable estimate of the allocation of time and expense respecting the matters listed above is 15% on account of the child support issues and 85% for all of the other issues relating to parenting.

[91] I turn to my conclusions regarding the success of the parties on each of the issues enumerated above. With respect to decision-making responsibility, consultation and information sharing, the May 30, 2019 order granted the mother sole decision-making responsibility but did not require her to consult with the father or provide information to him about J.M.C., with the exception of notifying him in the event of a medical emergency. In addition, the order did not grant the father the right to consult with and obtain information from third parties respecting J.M.C. without the mother's consent. The mother sought to maintain the status quo on these issues. She also requested a variation of paragraph 7 of the May 30, 2019 order to provide that she would no longer be required to advise the father of medical emergencies respecting J.M.C., and that he would not be entitled to attend and consult with medical professionals in the event of any such emergencies. In his Response to Motion to Change, the father asked for an order granting him sole custody (now decision-making) of J.M.C. However, the father never actively pursued this claim. It is clear that his main focus throughout these proceedings was to stabilize his parenting time with J.M.C. Significantly, he served the mother with an Offer to Settle dated October 19, 2021, which remained open for acceptance until one minute after the commencement of the trial. This offer included a severable offer at paragraph 1 that the mother retain sole decision-making responsibility, provided that she adhere to the recommendations and directions of any third party professionals involved with the child, and that she notify the father of any major decisions at least 10 days' in advance, or for time sensitive issues, as soon a possible. The father confirmed his position on these issues at the outset of trial, in paragraph 3 of the proposed draft order that he submitted to the court.

[92] At trial, I ordered that the Respondent shall maintain sole decision-making responsibility respecting J.M.C. However, I granted the father the right to make medical decisions respecting J.M.C. in urgent situations when the time for obtaining the mother's consent could place the child at risk of suffering harm. I also declined the mother's request to vary paragraph 7 of the May 30, 2019 to eliminate the father's rights to be informed of and attend to the child in emergency medical situations. In addition, I made a detailed order requiring the parties to take several steps before the mother makes significant decisions respecting J.M.C.'s wellbeing, including in relation to health, education, culture, religion, spirituality and significant extra-curricular activities. These steps include the mother informing the father in writing of any decision that needs to be made, explaining her position and the reasons for it, seeking the father's views and input, taking into consideration the father's position and the recommendations of any third party professionals involved with J.M.C. and finally, advising the father in writing of her decision and the reasons for it. I also ordered that the mother cannot enroll the child in extracurricular activities occurring during the father's parenting time without his advance written consent, that she must advise the father of important events, appointments and functions involving J.M.C. and that both parties are entitled to attend same.

[93] With respect to information sharing and consultation rights with third parties, I concluded based on my concerns regarding the mother's alienating behaviour and her clear attempts to undermine the father's role in J.M.C.'s life that the father required many more protections in these areas. Accordingly, I granted the father numerous additional rights and protections as a parent that he did not enjoy under the terms of the May 30, 2019 order. For example, the order requires the mother to upload any important documents respecting J.M.C. into OurFamilyWizard so that the father can access them, and to provide the father with the names and contact information of any professionals involved with the child currently and on an ongoing basis. Additionally, the mother must now ensure that the Applicant is named as J.M.C.'s father and first emergency contact on any forms respecting the child, and she must include the father's contact information on such forms. I also granted the father the right to consult with and obtain information and records about J.M.C. from any professionals involved with him without the mother's consent. Based on all of these outcomes, the father was clearly overall much more successful than the mother in regard to the issues of decision-making, consultation and information sharing rights. He is now in a far better position in these areas than he was in under the terms of the May 30, 2019 order.

[94] On the issue of communications between the parties, the mother requested an order requiring the father to communicate with her about the child's activities, his eating schedule and whether he hurts himself during his parenting time periods. I made such an order. However, I also made orders directing the mother to refrain from providing unnecessary and repetitive directions and instructions to the father in her communications with him, as I found that she had done so on a regular basis in the parties' communication book. Accordingly, the outcome of trial with respect to communications was neutral in terms of the parties' overall success.

[95] Turning to the issue of primary residence of J.M.C. and regular parenting time, the mother requested in her Motion to Change Final order that she retain primary residence and that the father's parenting time be limited to supervised visits at a supervision agency, with her having the ultimate discretion to decide whether or not parenting time occurred. At trial, she requested an order that the father's parenting time commence with alternate Saturdays for two hours at a supervision agency for three months, that it then progress to alternate Saturdays for two hours unsupervised for six months, and that it finally progress to alternate Saturdays unsupervised for 6 hours. However, she also asked that this progression of parenting time be at her complete discretion, including the discretion to revert to completely supervised visits. At trial, I found based on the mother's history of consistently making unfounded allegations of abuse and neglect by the father and his family members that her proposal would have resulted in the father never progressing beyond very limited supervised daytime visits. In his Response to Motion to Change, the father requested reasonable and generous parenting time that would maximize his time with J.M.C. At trial, he advised that he consented to J.M.C. remaining in the mother's primary care, and he requested an order for parenting time starting with alternate weekends unsupervised on Saturday and Sunday for six hours each day for a period of four weeks, and then progressing to alternate weekends from Friday pick-up at school until Monday drop-off at school. This was also the regular parenting time that the father offered in his Offer to Settle dated October 19, 2021. Significantly, counsel for the father indicated in his Closing Submissions that the father would not oppose an order directing that his first few visits occur in the presence of a neutral third party professional to support J.M.C., since the child had not seen him for more than 18 months.

[96] The father was much more successful than the mother with respect to the question of regular parenting time. I ordered that his regular parenting time progress through 5 phases, commencing with visits in the presence of a third party professional every Saturday for four hours, for 4 consecutive weeks. The amount of time provided for in phase 1 was significantly greater than the time that the mother proposed for her phase 1, and the duration was much shorter than the mother's proposed phase 1 duration period. The mother argued that she had success in that I ordered supervision of the parenting time in phase 1. However, I specifically noted in my Reasons for Judgment that the presence of the third party professional was not required due to any concerns about the father's parenting. Rather, I emphasized that it was to support the child in resuming his visits with the father, which had ended due to the mother's constant barrage of unsubstantiated abuse and neglect allegations, and to protect the father and his family members from further allegations by the mother while the father/son relationship was being re-established. The December 22, 2022 order provided for the father's parenting to gradually increase over a period of 3 months following the end of stage one to alternate weekends from Friday pick-up at school until Monday drop-off at school. This final stage was precisely the final stage that the father proposed. Although the progression that I ordered toward this final arrangement was more gradual and longer in duration than the father requested, I emphasized in my Reasons for Judgment that this gradual approach was necessary due to the mother's alienating behaviour and her concerted efforts to undermine the father's relationship with J.M.C. through various means. Having regard for these findings, it is disingenuous of the mother to rely on the gradual progression that I ordered as evidence of success on her part in support of her claim for costs.

[97] Focussing next on the question of parenting time during holidays and special occasions, the May 30, 2019 order granted the father very limited parenting time on either December 25^th^ or December 26^th^ each year, for 6 hours. He was also granted parenting time with J.M.C. on the child's birthday for 3 hours. At trial, the mother requested that the father's right to parenting time on J.M.C.'s birthday be terminated, even if it fell on the father's regular time with the child in which case the father would be entitled to a two hour make-up visit on another agreed upon date. She also asked that the father's parenting time be cancelled if it falls on the Saturday of Mother's Day weekend, and that the father's parenting time be switched from Saturday to Sunday on the Father's Day weekend. With respect to Christmas, she asked that the father's parenting time be reduced from 6 to 4 hours on either December 24^th^ or December 25^th^, but that this be at her complete discretion as to whether the visit occurs or not. In his Offer to Settle dated October 19, 2021 and at trial, the father sought an order granting him parenting time with J.M.C. on an alternating year basis for the child's March Break and for Easter weekend. He also requested additional time with J.M.C. on P.A. days that fall on his weekends, as well as summer parenting time for two non-consecutive weeks each summer, with one week in July and one in August. The father was once again by far the successful party in this area. I granted him equal parenting time with J.M.C. during each March Break, for Easter and Thanksgiving weekend, and for the December holiday school break each year. I also granted him parenting time every Father's Day weekend from Friday after school until Monday drop-off at school. Finally, I extended his parenting time by a day in the event that there is either a P.A. day or a public holiday on the Friday or Monday of his regular weekend parenting time. Although the precise manner in which I structured his parenting time during holidays and special occasions differed from the specifics of the father's proposal, the father's overall success was in obtaining equal time on these occasions, which represented a major win for him.

[98] With respect to make-up parenting time for missed visits, the May 30, 2019 order stipulated that the father was entitled to make-up time if he did not have a visit for any reason, including cancellation by either party. The mother sought an order terminating this term altogether, which would result in the father having no right to make-up time even if she cancelled visits. The father requested that there be no variation to his right to make-up time. The father was overall the more successful party on this issue as well. I found at trial that the mother had cancelled many of the father's visits without just cause, and I ordered that she was not permitted to cancel visits on the basis that the child was suffering from minor childhood illnesses. I also directed that any cancellations based on J.M.C.'s alleged illness must be supported by medical documentation to be provided to the father within two days of the cancelled parenting time. Furthermore, I ordered that if the mother cancels the father's parenting time for any reason, including illness, she must offer the father full and complete make-up time within 3 weeks of the missed time, on a weekend unless otherwise agreed upon in writing by both parties. This latter term was included because the make-up time that the mother had provided for cancelled visits since May 2019 had often been offered far too long after the missed visits.

[99] At trial, the mother requested an order removing paragraph 11 of the May 30, 2019 order, which precluded her from changing J.M.C.'s residence from outside of the City of Hamilton without the father's consent or a court order. I declined to grant this broad relief, and instead ordered that she could change the child's residence without the father's consent provided that the proposed move results in the distance between the parties' respective residences at the time of the move being the same or shorter than prior to the move. Again, this outcome represented a success for the father, as it protects him from any move that would result in greater travel time for the purposes of exercising his parenting time. Both parties requested an order granting them the right to travel internationally with J.M.C. without the other's consent. Neither of them was successful on this issue, as I ordered that they both require consent from each other in order to travel with J.M.C. outside of Canada.

[100] In my Reasons for Judgment, I discussed at length the history of conflict between the parties and their family members at the time of parenting exchanges. At trial, the mother asked for an order that all exchanges occur inside the lobby of a local police station, and that only the parties may carry out the exchanges. The father opposed these requests. With respect to the location of exchanges, his position was that they occur at the child's school wherever possible, and at a neutral location if J.M.C. is not in school for any reason. The father was entirely successful on the issues relating to parenting exchanges. I ordered that exchanges could be carried out either by the parties or any other individuals of their choice, and that they occur either at J.M.C.'s school if the child is in school, or otherwise at McKinnon Park in Caledonia, which is approximately half way between the parties' residences. I also made very detailed orders respecting these exchanges to ensure that there is no contact between either the parties or any other individuals in attendance, and that no conflict occurs in the presence of the child.

[101] The father requested orders prohibiting the mother from engaging in several types of behaviour that she had demonstrated throughout the history of this case which had caused harm to J.M.C. and had undermined the child's relationship with the father. He was successful with respect to these requests. My December 22, 2022 order included terms prohibiting the Respondent from making negative statements about the father and his family members within earshot of J.M.C., and from engaging in behaviour that could cause the child to fear for his safety and wellbeing while in the father's care. The order also prohibited the mother from taking photographs and recordings of J.M.C. for the purpose of documenting alleged marks, injuries neglect or any form of alleged maltreatment of the child, and from documenting statements from J.M.C. regarding his parenting time with the father. I also made an order as requested by the father requiring the mother to make J.M.C. available for interviews with professionals without the mother present in the event of any further police or child protection investigations prompted by allegations by the mother of abuse or neglect of the child.

[102] The father also requested an order requiring the mother to undergo a psychiatric assessment and to engage in individual counselling services to assist in addressing and resolving her history of making unsubstantiated abuse and neglect allegations against him and his family members and alienating him from J.M.C. The mother opposed the request that she submit to an assessment, but she indicated that she would participate in parenting coordination services as she felt that the parenting problems between the parties were largely attributable to the father's behaviour and abusive behaviour. The father was entirely successful on these issues. I concluded that the mother's history of making unsubstantiated allegations of abuse and neglect of J.M.C. against the father and his family members, and her inability to accept the conclusions and guidance of professionals who had investigated these allegations, raised concerns that there may be clinical reasons for the mother's behaviour in relation to the father and her inability to support his relationship with J.M.C. In order to address these concerns, I ordered that the mother arrange for and undergo a psychiatric assessment at her own cost, and that she produce the psychiatric assessment report to the father and the court to assist in determining whether any additional terms should be included in the parenting order. The mother submits that the father was not successful on the assessment motion, because I subsequently varied my order to direct that the assessment be carried out by a psychologist. This variation does not impact the overall success of the father on the assessment motion. Neither the father nor I appreciated that a psychologist would be better suited to address the issues of concern that I had identified as supporting the order, and the amendment was based on further insight that we received from the CAAP team on this issue following the release of my Reasons for Judgment. In regard to other services, I concluded in my Reasons for Judgment that the mother was primarily responsible for the parenting difficulties that had developed between the parties since the May 30, 2019 order, and that parenting coordination would not be an effective means of resolving the problems. I accepted the father's position that the mother should be required to participate in counselling on her own, and I made an order directing that she participate both in individual counselling and parenting coaching services to assist and guide her in managing parenting issues with the father.

[103] The mother submits that she was overall the successful party in ensuring that the opinion evidence of Dr. Burke Baird was admitted as evidence at trial. Her position on this issue confuses the issue of success on issues at trial with success on arguments at trial respecting admissibility of evidence. However, the significant amount of time and expense required for the voir dire at trial to address the admissibility of opinion evidence from Dr. Baird is relevant to the issue of quantum of costs. In any event, I disagree with the mother that she was more successful than the father on the voir dire. I concluded that Dr. Baird could give opinion on certain issues, but I did not permit him to give opinion evidence regarding the most important issue that the mother sought to establish through his evidence, namely the presence of concerns respecting the father's care and interactions with J.M.C. Furthermore, the evidence of Dr. Baird did not support the mother's case at the end of the day, as I found that the factual underpinnings of his evidence which the mother had relayed to him were not credible or substantiated on the evidence. Accordingly, the time and expense required for the voir dire and for Dr. Baird's evidence are in fact considerations that support the father's claim for costs rather than the mother's case.

[104] Turning to the father's March 2020 motion, I conclude that the father was overall by far the more successful party. To reiterate, the issues in this motion were the father's claims for a contempt finding against the mother, an immediate reinstatement of his parenting time, an order that parenting exchanges occur at a supervised parenting centre, make-up parenting time and such further and other relief as the court deemed just. In addressing the question of overall success on this motion, it is important to recall the context in which this motion was initiated. The Motion to Change Final Order was issued on February 14, 2020, and the father served and filed his Response to Motion to Change and the March 2020 motion on March 10, 2020. The World Health Organization declared the onset of the COVID-19 pandemic the very next day, on March 11, 2020. On March 15, 2020, the Chief Justice of the Superior Court of Justice issued an emergency Notice to the Profession suspending the court's regular operations effective March 17, 2020, with the exception of the most urgent and pressing cases. As a result of these developments, the only Family Law matters that were permitted to proceed were those involving extremely urgent issues relating to the safety of children or parties, essential medical decisions respecting children and issues relating to the wrongful removal or retention of children. Family Law proceedings were occurring only by telephone at the time, since zoom hearings had not yet been initiated. The March 2020 motion was triaged by Lafrenière J. in chambers on March 20, 2020, only 3 days after the suspension of the court's regular operations, and it passed the initial preliminary triage stage. It came before Brown J. in chambers for further consideration on April 1, 2020. At that point, Brown J. concluded that the father's requests for a finding of contempt, make-up parenting time and an order for parenting exchanges to occur at a supervised parenting centre did not meet the stringent test of urgency that had been established by the Notice to the Profession issued 5 days after the service and filing of his materials. Brown J. only permitted the request for a reinstatement of the father's parenting time to proceed to a hearing, and she adjourned the other issues sine die. As indicated above, on April 3, 2020, Brown J. dealt with the father's request for a resumption of his parenting time with J.M.C. and made a temporary temporary without prejudice order granting him parenting time on alternate weekends, from 10:00 a.m. until 8:00 p.m. on Saturday and from 2:00 p.m. until 8:00 p.m. on Sunday. This was the arrangement set out in phase 2 of the parenting time terms of the May 30, 2019 order. The mother opposed a reinstatement of the father's parenting time at the hearing of the motion, based on her allegations of neglect and abuse by the father and his family members and concerns related to the COVID-19 pandemic. Brown J. specifically noted in her Reasons for Judgment dated April 30, 2020 that in normal times, the father's contempt motion would have been set for a viva voce hearing, but that "these are far from normal times and such a hearing might not be possible for many months" (at para. 36).

[105] Ultimately, the father did not pursue a finding of contempt at trial, and instead relied on his request in the March 2020 motion for "such further and other relief as this Honourable Court may deem just" to request a declaration that the mother had breached the parenting time terms of the May 30, 2019 order. I concluded at trial that the father would not have succeeded on the request for a contempt finding, because the parenting time terms of the May 30, 2019 order had been superseded by Brown J.'s temporary temporary without prejudice order of April 3, 2020. The important point in considering overall success on the contempt claim and the father's request for make-up parenting time is that the father was legally frustrated from advancing those claims at the same time as his claim for a reinstatement of his parenting time because of the extraordinary and unprecedented events that unravelled beginning the day after he served and filed his motion materials and the unanticipated emergency Notice to the Profession dated March 15, 2020. Once Brown J. made the temporary temporary without prejudice order, his contempt motion essentially became moot. The father was successful at trial in obtaining his alternative request for a declaration that the mother breached the parenting time terms of the May 30, 2019 order on many occasions from June 16, 2019 until April 5, 2020.

[106] The father also abandoned his claim in the March 2020 motion for make-up parenting time with J.M.C. I concluded at trial that it was logistically infeasible to order make-up time for missed visits, since the father had missed so many visits due to the mother's repeated unsubstantiated allegations of abuse and neglect by him and his family members and her other concerted efforts to interfere with the father's parenting time and relationship with J.M.C. The father eventually stopped his visits with J.M.C. in March 2021 because of his serious concerns that J.M.C. was suffering emotional harm from being subjected to repeated interviews and physical examinations by professionals. I found at trial that this was an appropriate and child-focussed decision based on the destructive impact of the mother's behaviour in connection with his visits on J.M.C.

[107] Taking into account the considerations set out above, the father's failure to obtain a contempt finding, an order for make-up parenting time and an order for supervised parenting exchanges should not be given any significant weight in the overall assessment of success on the motion. The father was reasonable in requesting a declaration of breach as an alternative remedy to a contempt finding and he was completely successful in that regard. He was also the successful party on the other remaining issue which was the reinstatement of his parenting time. Although he did not obtain a complete reinstatement of his time as set out in the May 30, 2019 order, this was due to the mother's many allegations of neglect and abuse in her affidavit materials, which I eventually found at trial to be unsubstantiated.

[108] Based on the father's overall success on the parenting issues in the Motion to Change Final order, the March 2020 motion and the assessment motion, he is presumptively entitled to costs in relation to those issues. There are no considerations in this case that displace this presumption. There is no evidence that the father acted in bad faith in advancing his claims respecting these matters, and I am satisfied that he acted reasonably both in regard to the positions that he took and his conduct in the litigation. I do not accept the mother's arguments that he lied at trial, that he did not answer questions in a straightforward manner or that his counsel acted inappropriately with her witnesses. The father was responsible in not pursuing his original claims for sole decision-making responsibility, make-up parenting time or a contempt finding. He streamlined the trial by focussing on the issues in relation respecting which he had a reasonable prospect of success. He did not engage in any strategies or tactics that unnecessarily prolonged or complicated the proceedings. On the contrary, his counsel made numerous efforts and concessions at trial to simplify the proceedings and facilitate the admission of material and relevant evidence, including the admission of occurrence and child protection records. By contrast, the mother took an unreasonable position respecting the parenting time issues which I found would have resulted in a serious marginalization of the father's relationship with J.M.C. in short order. As I discuss in further detail below, she engaged in numerous inappropriate tactics at trial which necessitated repeated intervention on my part and which unnecessarily prolonged the trial.

[109] Turning to the child support issues, the mother was clearly the successful party on all issues. I dismissed the father's claims for a retroactive reduction of his child support obligation and a change in the proportionate sharing of section 7 expenses, and I ordered an increase in the Table amount payable by him to the mother effective July 1, 2021. The mother is therefore presumptively entitled to costs in relation to those issues. As I discuss in further detail below, I find that she demonstrated bad faith and was highly unreasonable in relation to the other claims discussed above, and this is relevant to the quantum of costs in relation to those claims. However, there are in my view no considerations that negate her entitlement to costs on the child support issues. She took reasonable positions and she was organized in responding to the father's claims. She did not engage in any inappropriate behaviour that unduly prolonged or complicated the trial of these issues. In fact, the evidence of both parties on the child support issues proceeded in a reasonably efficient and straight-forward manner.

B. Quantum of Costs

[110] I turn next to the issue of quantum of costs in relation to the Motion to Change Final Order, the March 2020 motion and the assessment motion. Having carefully considered and weighed the factors relevant to the amount of costs, I have determined for the reasons fleshed out below that the father is entitled to a reasonable and proportionate full recovery amount in relation to the parenting issues, which encompass all of the issues discussed above apart from the child support claims. As I have stated, I estimate that the parenting-related issues consumed approximately 85% of the time and expense associated with these proceedings. My decision to grant a full recovery award in relation to these issues is based on my conclusion that the mother demonstrated bad faith in regard to the parenting-related matters. I note that even if her conduct had not met the very high threshold for establishing bad faith, her behaviour in respect of these issues from the time they arose and throughout these court proceedings was nonetheless so pernicious and unreasonable that it justifies significant sanction by the court through a full recovery costs award. My decision in favour of reasonable and proportionate full recovery costs is also supported by the terms of the father's severable Offer to Settle respecting the parenting issues dated October 19, 2021.

[111] My conclusion regarding the mother's bad faith and extreme unreasonableness in regard to the parenting issues is based on numerous findings of fact that I made at trial respecting her conduct from the time the parenting issues arose and throughout the court proceedings. By way of summary, these include the following:

1. I reviewed in detail the history of parenting concerns prior to the May 30, 2019 order, which had not been previously considered by the court since that order was made on consent. I found that there was a clear pattern prior to May 2019 of the mother making repeated allegations to child protection and other professionals of neglect, inadequate supervision and maltreatment of J.M.C. while in the father's care, which had either not been substantiated or had not given rise to any concerns about the child's safety and well-being. There was also a clear pattern of the mother withholding J.M.C. from the father without reasonable justification, and of her rejecting the conclusions and recommendations of third party professionals when they did not support her perspective on situations involving J.M.C. and the father.

2. I concluded that these patterns unfortunately persisted unabated commencing almost immediately after the May 30, 2019 order was made. The mother continued to make repeated allegations to various community professionals of inadequate supervision, neglect and maltreatment of J.M.C. by the father and his family members, including serious claims of physical and sexual abuse. I reviewed the evidence respecting these claims in detail in my Reasons for Judgment and found that they were not substantiated on the evidence.

3. I determined that the mother actively sought out the support of community professionals in an attempt to co-opt them into bolstering her allegations against the father and his family members and her narrative of events, including her family physician Dr. Grieci and other physicians within Dr. Grieci's office, child protection workers, emergency hospital physicians and staff, Dr. Baird and other members of the Child Advocacy and Assessment Program and the police. As a result of her actions, there were several child protection interventions and two full-blown joint child protection/police investigations following the May 30, 2019 order, neither of which resulted in any charges being laid or any verification of child protection concerns other than J.M.C.'s exposure to adult conflict.

4. I found that the mother generally flatly rejected any opinions and conclusions of professionals respecting her allegations against the father and his extended family if they did not conform with her own opinion. She was closed-minded in response to the feedback from professionals that the concerns which she raised were likely attributable to causes other than abuse or neglect of J.M.C. by the father and his family members. Instead, she steadfastly maintained a concerning "tunnel vision" perspective that J.M.C. has been abused or neglected while in his father's care. At trial, I observed that she often became agitated, angry and aggressive in her questioning of professional witnesses when they provided evidence that did not support her claims of abuse and neglect by the father and his family, even when they were her own witnesses.

5. In addition, I concluded that the mother regularly raised concerns with third parties that had been previously raised and fully investigated by child protection professionals. Her failure to accept the findings of professionals resulted in a never-ending cycle and layering of more and more allegations which resulted in new investigations becoming increasingly complicated