COURT FILE NO.: FC-18-1501-00

DATE: 20230202

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Brittany Lee Damphouse Nolan, Applicant

AND:

Shawn Robert Leal, Respondent

BEFORE: The Honourable Mr. Justice J.P.L. McDermot

COUNSEL: Danielle Gendron, for the Applicant

James R. Counter, for the Respondent

HEARD: By written submissions

ENDORSEMENT on costs

[1] The parties to this matter participated in a ten day trial during the May, 2022 sittings. I issued my endorsement on November 29, 2022. The major issue concerned the parenting of the parties’ young child, Christian. Ms. Nolan sought sole decision-making and care of the child. Mr. Leal wanted to share care and decision-making. Evidence during most of the days of the trial concentrated on the parenting issues and secondarily on child support.

[2] Ms. Nolan was granted primary residence of Christian and decision-making. Income was imputed to Mr. Leal who had lost his job and remained unemployed for much of the time leading up to trial.

[3] Equalization of property and post-separation adjustments were also issues although little evidence was led on those topics.

[4] Now it is time to address the costs of these proceedings.

[5] The Applicant, plainly the successful party in this proceeding, requests full recovery costs of $137,432. She relies upon her offers, her unqualified success in this matter as well as the Respondent’s unreasonable or bad faith conduct.

[6] The Respondent says that he acted reasonably throughout. He says that his full recovery costs are $59,459.77 and that the Applicant’s costs are unreasonable. He acknowledges that he was unsuccessful and that costs are payable but asks that costs be assessed on a partial recovery basis.

Result

[7] In the end, for the reasons set out below, I have ordered Mr. Leal to pay costs to Ms. Nolan of $90,000. Any funds left in trust concerning the sale of the family homes shall be paid to Ms. Nolan in partial satisfaction of those costs.

Analysis

[8] Firstly, the court should instruct itself on the purposes of a costs award. In Mattina v. Mattina, 2018 ONCA 867, the Court of Appeal said that modern costs rules in family matters are intended to address four major issues:

(1) to partially indemnify successful litigants;

(2) to encourage settlement;

(3) to discourage and sanction inappropriate behaviour by litigants and;

(4) to ensure that cases are dealt with justly under subrule 2 (2) of the Family Law Rules.

[9] In Beaver v. Hill, 2018 ONCA 840, the court pointed out that costs awards are discretionary, and that the major factors in exercising that discretion are reasonableness and proportionality.

[10] Finally, in addressing the settlement issues, the offers of the parties become important.

[11] These parties are of modest means. Both were young, in their 30s, and they come from middle class families and I am sure that parents and family assisted these parties in paying their legal costs. It is also clear from the endorsements of various judges who case managed the litigation that this matter should not have gone to trial. The court is particularly concerned that the Respondent was warned on several occasions that his claim for shared care and decision-making was ill founded considering the high conflict nature of this matter and the fact that he lived nowhere near the Applicant. This has to be accounted for in awarding costs in this matter.

[12] The Respondent has acknowledged that he was unsuccessful and that costs are payable by him. However, he raises the amount of costs as a major issue, stating that the Applicant’s claim for costs is unreasonable and that the costs should be assessed only on a partial recovery basis. In light of this, r. 24(12) of the Family Law Rules[^1] must be noted:

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.

[13] Based on the submissions, the issues to be considered in this costs award are as follows:

a. What are the effects of the various offers to settle?

b. Was the Respondent guilty of unreasonable or bad faith behaviour?

c. Is the amount of costs claimed by the Applicant reasonable and proportionate?

Offers to Settle

[14] This litigation has gone on for nearly four years, much longer than the parties were married and the parties made numerous offers. Although I have been provided with offers made on an interim basis, I have ignored those for the purposes of this costs award. They are not relevant to the final result other than to show the reasonableness of the positions of the parties and the final offers are sufficient to show that.

[15] Under r. 18(14), if an offer complies with the rule and the offering party achieves a better result at trial, the opposing party should pay full recovery costs from the date of the offer. If the offer does not meet the formalities of the rule, the court may still take the offer into account under r. 18(16).

[16] The offers make it plain that both parties were entrenched early on with their respective positions concerning the parenting of Christian. Throughout, the Applicant took the position that Christian should reside primarily with her and that, subject to consultation, she would have decision-making power concerning Christian. She said that Mr. Leal bullied her and it was impossible for the parties to communicate on the most minor issue. Mr. Leal understood that there was no communication, but he stubbornly clung to his position that Christian’s care should be shared equally between the parties and that decision making should be similarly shared.

[17] According to the Applicant and for costs purposes, the difference between these two positions is that the Respondent’s position was never affirmed by the views of the case management judges involved. Ms. Gendron points out that this was a high conflict matter with the parties residing in different municipalities and that this made shared care impossible. Mr. Leal was told by Justice Wildman at several conferences that shared care was extremely unlikely in view of these factors. To be fair, Mr. Leal was told by the OCL investigator that care of Christian should be shared; however, he continued to hang onto the position that decision-making should be shared notwithstanding the recommendations against this by Daria Pool in her report.

[18] Some of the parties’ offers were severable; many were not and those offers did not comply with r. 18(14) as none of them, on all points, were better than the result at trial. The case law makes it plain that it is important for offers to be severable so that portions can be accepted, avoiding a trial on all of the issues as was the case here. Moreover, the result at trial must be better or equal to all terms of an offer unless it is severable: see Paranavitana v. Nanayakkara, 2010 ONSC 2257, [2010] O.J. No. 1566 (S.C.J.); Rebiere v Rebiere , 2015 ONSC 2129 (S.C.J.) and Scipione v Scipione , 2015 ONSC 5982 (S.C.J.).

[19] A summary of the final offers made by both parties are as follows:

Date of Offer	Offer Made By	Terms of Offer	Severable? Y/N
July 26, 2019	Respondent	• The Applicant and Respondent to have equal shared care of Christian and joint custody. Equalization payment TBA. • Does not comply with r. 18(14) as expires at the Settlement Conference	N
August 7, 2019	Applicant	• The Applicant to have sole custody and decision-making re Christian. The Respondent to have access as per “status quo”. • The Respondent to pay guideline child support • Equalization TBA • Respondent to pay the Applicant post-separation expenses regarding matrimonial home of $3,024.03 • Does not comply with r. 18(4) as part of settlement conference brief.	N
August 27, 2019	Respondent	• The Applicant and Respondent to have equal shared care of Christian and joint custody. Equalization payment of $40,509.12 payable by Applicant to the Respondent. • Does not comply with r. 18(14) as expires at the Settlement Conference	N
October 1, 2019	Applicant	• Offers joint custody along with primary residence to the Applicant. • Two severable options for access to the Respondent, the first being midweek visit and weekend access; the second being two midweek visits and abbreviated bi-weekly access. • Child support TBA; Respondent to pay guideline child support and proportionate share of s. 7 expenses including day care. • No equalization and equal division of post-separation expenses and the funds held in trust respecting the sold real estate.	Y (re access only)
November 12, 2019	Respondent	• The Applicant and Respondent to have equal shared care of Christian and joint custody. • Detailed parenting plan • No support payable in light of shared care • No equalization payment • Expires at commencement of trial.	N
September 15, 2020	Respondent	• The Applicant and Respondent to have equal shared care of Christian and joint custody. • Equalization payment to be made by Applicant to Respondent of $35,536.05 • Does not comply with r. 18(14) as expires at the Settlement Conference (unclear whether supersedes the November 12, 2019 offer which expires at trial)	N
October 1, 2020	Applicant	• Offer to settle property issues only by way of equal division of post-separation expenses regarding the homes and equal division of the net proceeds held in trust. • No expiry date of offer.	N
October 6, 2021	Respondent	• The Applicant and Respondent to have equal shared care of Christian. The parties to have parallel parenting of Christian with the Respondent having decision-making over medical issues and the Applicant having decision-making over education. • Detailed parenting plan • Respondent to pay child support of $706 per month based on income of $76,000 per year. • Equalization payment to be made by Applicant to Respondent of $35,536.05 • Debt to be paid by Applicant to Respondent of $10,611.05. • No expiry date.	Y
October 12, 2021	Applicant	• Shared decision-making concerning Christian with primary residence to the Applicant • Respondent to have weekly midweek overnight access visit plus every second weekend. Holidays on an “as it falls” basis. • Child support payable by the Respondent at $715 per month based upon income of $76,732.00 per year. Equal sharing of s. 7 expenses. • Support arrears set at $5,000 and s. 7 expense arrears set at $3,180.67 payable by Respondent to Applicant. • Does not mention property (covered by Applicant’s offer of October 1, 2020 repeated in accompanying offer on property of same date as this offer).	Y
October 12, 2021	Applicant	• Repeats Applicant’s offer of October 1, 2020 re property only. Offers no equalization and equal splitting of expenses. Essentially severs the property offer from offers on other issues.	N
May 3, 2022	Respondent	• Shared care on a 5-2-2-5 schedule. Parallel parenting with the Respondent making educational decisions and the Applicant making medical decisions after consultation. • Detailed parenting plan • Applicant owes Respondent $5,994.00 for overpayment of child support. • Child support TBA based on set off amount based on income. • Respondent owes $6,405.21 for his share of daycare costs. • Equalization payment to be made by Applicant to Respondent of $28,786.05 • Expires at trial	N
May 5, 2022	Applicant	• Repeats Applicant’s offers of October 1, 2020 and October 12, 2021 re property only. Offers no equalization and equal splitting of expenses. Essentially severs the property offer from offers on other issues.	Y
May 16, 2022	Applicant	• Offers shared decision-making with final say to the Applicant subject to advice from professionals. • Primary residence to the Applicant with parenting time to Respondent weekly Wednesday overnights and bi-weekly weekend parenting time from Friday to Sunday. • Child support payable by Respondent to the Applicant of $792 per month based upon the Respondent’s ability to earn at least $85,000 per year. • Section 7 expenses to be divided equally. • The Respondent to pay $2,000 in retroactive child support and s. 7 expense arrears of $5,576.85. • Expires at commencement of trial but only made the day before trial and therefore does not comply with r. 18(4) which requires an offer to be made 7 days prior to trial.	Y

[20] As noted above, other than the Applicant’s offers to settle property and post-separation expenses, none of the offers are on terms that are all better than or equal to the judgment at trial. The Applicant’s offers came closest to the result at trial and by October 1, 2019, the Applicant had offered, on an ongoing basis, shared decision-making along with primary residence to her. Her offers were close to the trial result on parenting time and the May 16, 2022 offer (made too late under r. 18) offered overnights on Wednesdays notwithstanding the fact that the Respondent lived close to Huntsville; the result at trial was that there would be Wednesday overnights only if the Respondent moved close to the Applicant. The Applicant’s offers were severable which would have allowed portions of the offer to be accepted while taking the remaining issues to trial.

[21] The Applicant’s parenting offers from October 1, 2019 on were therefore better than the result at trial where the Applicant received sole decision-making authority along with primary residence. As that was the major issue at trial, this was a significant concession which should have been an incentive to the Respondent to settle the matter on those terms. This is especially so in light of the fact that the Respondent was warned by Justice Wildman as early as 2019 that it was unlikely that his claim for shared care and decision-making would be successful considering the high conflict nature of the matter and the geographic distance between the parties.

[22] On child support the Applicant’s October 12, 2021 offer was almost spot on concerning the award at trial. Unfortunately, that offer was superseded by the May 16, 2022 offer which was not, offering the Respondent monthly payments of $792 per month rather than the $717 ordered. However, the Respondent’s offers on child support were completely opposite to the result at trial as they were based upon the Respondent’s vain hope of receiving shared care of the child.

[23] On net payments of retroactive child support and s. 7 arrears, neither party’s offers were close to the result. The Applicant claimed over $7,000 in retroactive child support; the Respondent claimed that all that he would pay was a net payment of about $1,000 taking into account his claim for overpayment of child support along with s. 7 arrears acknowledged in his May 3, 2022 offer. The result at trial was that, taking into account s. 7 expenses and an overpayment of child support, the Respondent owed a net payment of $3,535.21 to the Applicant. Neither party’s offers were closer to the result than the other.

[24] On equalization of property, the Respondent’s offers were completely contrary to the result. In his May 3 offer, Mr. Leal demanded a $27,000 equalization payment but failed to prove anything like that at trial. Ms. Nolan offered in separate offers, from 2021 on, that there would be no equalization payment or sharing of post-separation expenses. I ordered a small equalization payment of $2,879.89 payable by the Applicant to the Respondent but this was outstripped by the post-separation expenses to be paid by the Respondent to the Applicant of $4,164.83 leaving a small net payment of $1,374.95 owing to the Applicant. The Respondent should have accepted the Applicant’s offers on equalization and post-separation adjustments made throughout although neither party led a lot of evidence on those issues.

[25] In sum, the Applicant’s offers were generally much closer to the result than were those of the Respondent. Her offers on some topics were not close to the result, but on the major issue of parenting time and decision-making, the Applicant’s offers were much closer to, if not better, than the result. Her offer of October 12, 2021 provided for shared decision making with primary residence to the Applicant, equal to or better than the result at trial on the parenting issues. It was severable which would have allowed the Respondent to accept the parenting offer, thereby saving the parties tens of thousands of dollars in costs. On the minor issue of equalization, acceptance of the Applicant’s offer would have avoided that issue going to trial and the Respondent would have done better had he accepted the offer rather than going to trial. The Applicant’s final offer was not in compliance with r. 18(14) because it was made a day before trial, and it unfortunately had the effect of revoking her offer made on October 12, 2021, which meant that the Applicant had no outstanding offer which complied with r. 18 when the trial commenced.

[26] The Respondent’s offers were far from the result and were contrary to the advice of the court concerning the major claim at trial on the parenting issues.

[27] Because of the Applicant’s late submission of her last offer, there is no offer outstanding which would carry the costs consequences of r. 18(14) into trial. However, I choose to take the Applicant’s offers into account in setting costs under r. 18(16) as they were reasonable efforts to compromise and much closer to the result than were the Respondent’s offers: see Beaver v. Hill, supra. As well, the offers can be considered in determining the issue of whether the Respondent behaved reasonably in the conduct of this litigation.

Unreasonable or Bad Faith Behaviour

[28] Mr. Leal is a stubborn man. As noted above, Justice Wildman told him that his claim for shared care and decision making would inevitably fail under the circumstances. It was clear to me at trial and from her offers that Ms. Nolan was desperate to settle issues in accordance with those recommendations but Mr. Leal held out on the basis of an unreasonable expectation of success, that the result would somehow be different at trial from the advice of the case management judges who attempted to settle the matter. I note that Ms. Nolan offered shared decision making from October 1, 2019 on even though she felt intimidated by Mr. Leal and was obviously fearful of him in her own mind.

[29] And this was a matter that should have settled. Instead, the parties were saddled with the costs of a 10 day trial. There was a warning by Justice Wildman that the trial costs could exceed $50,000 and that has been borne out by both of the costs submissions.

[30] Under r. 24, the court can take into account the reasonableness of a party’s behaviour. Under r. 24(4) a successful party may be ordered to pay costs where his behaviour was unreasonable. Under r. 24(12), the court can take into account “each party’s behaviour” in setting the amount of costs. If a party exhibits bad faith behaviour (as opposed to unreasonable behaviour), the court must award costs on a full recovery basis, payable forthwith: see r. 24(8).

[31] Rule 24(5) offers some assistance in addressing unreasonable behaviour:

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.

[32] In the present case, numerous offers were made by both parties. However, I have concerns about the position taken by the Respondent throughout the litigation. It is not only what settlement conference judges said to Mr. Leal; it also should have been clear that his claims were unreasonable because of the distance that he lived from the Applicant and the child as well as the high conflict nature of the dispute. The OCL social worker confirmed this in her investigation when she recommended that the Applicant have decision-making authority concerning Christian because of Mr. Leal’s behaviour.

[33] It is true that Ms. Pool recommended shared care of the child. But the offers also show unreasonable litigation behaviour of the Respondent in other areas. For example, the Respondent’s last offer on equalization provided that Ms. Nolan pay him an equalization payment of more than $28,000. At trial, he led almost no evidence on equalization; he certainly did not prove that he was entitled to an equalization payment of anything like this amount. He filed two inconsistent net family property statements without much explanation and he did not prove his deductions as he was required to under the Family Law Act.[^2] Although the Applicant also did not lead a lot of evidence on equalization, she also recognized that the equalization and post-separation adjustments were minor in nature and continuously offered an equal division of the net proceeds held in trust. Considering the evidence led at trial (or lack thereof), that was a reasonable offer.

[34] However, the litigation position of the Respondent was only one factor in determining unreasonable behaviour. There were other instances throughout the course of this family law litigation, only some of which can be summed up as follows:

a. The Respondent telephoned the fraud department of the subsidized day care authority to report Ms. Nolan’s income and to deprive her of the day care subsidy which assisted her in paying for Christian’s day care. During this time, Ms. Leal was not paying his share of day care costs; he only offered to do so at trial. I found that, based upon the OFW communications, the motivation for Mr. Leal’s actions was because Ms. Nolan intended to make a claim against him for payment of a proportionate amount of the day care costs.

b. The Respondent did not disclose where he lived to Ms. Nolan. According to the Respondent’s sister, he had moved out of her residence in Keswick as early as 2020; yet he only disclosed that he was living near Huntsville at the disclosure meeting of the OCL several months prior to the trial, two years later.

c. The Respondent decided to leave his employment because of his parenting time with his child. Although he was laid off from his employment, he was not recalled because he made himself unavailable for work on days he was picking up Christian for parenting time. He unreasonably blamed Ms. Nolan for his job loss. As I mentioned in my decision, plenty of working folks have Wednesday evening parenting time and still manage to work at demanding jobs; Mr. Leal decided that he could not and effectively quit his job, remaining unemployed for a lengthy period of time.

d. Mr. Leal admitted to recording every parenting time exchange and then failed to disclose this until his testimony at trial. Both the recording of these exchanges and the failure to disclose those recordings constitute unreasonable behaviour.

e. Mr. Leal failed to provide coherent evidence as to his income or make fulsome disclosure. He filed his bank statements just prior to trial rather than prior to the settlement conference which is when disclosure should be complete. He filed a financial statement which did not show any income whatsoever, but then disclosed during testimony that he was now working for his father without making his actual income clear. There were unexplained deposits disclosed in his bank statements. His income for support purposes was unclear resulting in imputation of income to him.

f. Mr. Leal’s behaviour concerning medical care of the child was concerning. He got angry in the doctor’s office because he perceived that Ms. Nolan had brought her other child to the appointment which he felt interfered with his involvement in the appointment. This incident was reflected in the offers which were consistent in stating that medical appointments would be attended separately. When Christian’s naturopath suggested not providing dairy because of Christian’s painful eczema, Mr. Leal did not comply, continuing for a time to provide the child with milk products because, I suspect, he was not involved in this decision; this may have resulted in at least one serious rash. He then went out and got a separate opinion, again to prove he was “right” and not in the best interests of the child.

[35] This brief summary is not complete; it is a sampling of the Respondent’s behaviour. I have no difficulty in making a finding that the Respondent’s litigation behaviour was unreasonable for costs purposes. His position drove the parties towards the cliff of a ten-day trial that neither could afford and he should bear the costs of that conduct.

[36] Does this behaviour cross the line into bad faith behaviour? That is important because if a court finds bad faith behaviour, the court is obliged to “decide costs on a full recovery basis and shall order the party to pay them immediately”: r. 24(8).

[37] Unreasonable or bad behaviour is not bad faith; the case law confirms that more is required. In Fard v. Fard (2002), 2002 CanLII 61493 (ON SC), 30 R.F.L. (5th) 316 (Ont. S.C.J.), Campbell J. adopted the definition of bad faith from Black’s Law Dictionary (emphasis added by Campbell J.):

generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfil some duty or some contractual obligation not prompted by an honest mistake as to one’s rights or duties but by some interested or sinister motive. Bad faith is not simply bad judgment or negligence but rather it 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.

[38] For bad faith, therefore, motive is important to a finding. Based on this, there were several instances of bad faith behaviour by the Respondent. He certainly telephoned the day care subsidy people out of malice; he was angry because he was being asked to pay a portion of day care costs and set out to harm the Applicant (even though that may have resulted in him paying a greater proportion of day care costs under s. 7 of the Child Support Guidelines). He failed to provide disclosure of his bank accounts until trial, failed to provide his address to his co-parent and failed to confirm that he would pay day care costs until he testified at trial. Keeping those cards close to his chest until trial assisted in driving up the costs of the trial and made settlement difficult if not impossible. It is to be noted that failure to disclose was found by Campbell J. to be bad faith behaviour in Fard.

[39] I therefore find that the unreasonable behaviour of the Respondent included bad faith behaviour. This affects the costs payable, but I note that the majority of the Respondent Father’s bad faith behaviour was concerning the financial issues between the parties. A bad faith finding on one specific issue but not all does not necessarily have a spill-over effect to other issues: see Hunt v. Hunt [2001] O.J. No. 5111 (S.C.J.).

Amount of Costs Payable by the Respondent

[40] The fact that someone has been ordered to pay full recovery costs does not mean that the Applicant gets the costs she requests. The costs claimed must be reasonable and proportionate in accordance with r. 24(12).

[41] The Applicant has sought nearly $140,000 in costs for these proceedings. She has submitted a bill of costs that shows only the total amount of time spent by each counsel and office staff on the trial. It does not break down how the lawyers on the file, three in total, spent their time on the trial and on what issue and during which stage of the proceeding. It is a Bill of Costs that would be submitted on a matter covered by the Rules of Civil Procedure,[^3] but not necessarily on a family law matter, which covered several different issues, some of which have a finding of bad faith behaviour, and at least one of which the Applicant’s offer exceeded the result at trial.

[42] In Nguyen v. Khookrathok, 2017 ONCJ 783, Sherr J. spoke of the need for a fulsome bill of costs in determining the amount of costs in a proceeding. He said that a bill of costs is necessary because of at least three factors:

a. It is difficult to determine what work was done before and after specific offers to settle were made: costs differ according to whether they were incurred before or after an offer.

b. It is difficult to determine the costs attributable to each step in the case which is important where there are costs awards made throughout the case [in this case, the Applicant has deducted a previous costs award of $4,000 made by Casullo J. against the Respondent];

c. It becomes difficult to determine what costs are not attributable to the step for which costs are awarded [not as applicable in this case where the court is addressing the costs of the entire proceeding].

[43] In the present case a fulsome bill of costs is particularly important where there is bad faith behaviour respecting the financial issues between the parties, which would require a different assessment of costs from the other issues. The Applicant bettered her offer to settle on the property issues at trial as well as decision-making and primary residence, but I cannot determine the time spent on those issues since the first offers on those topics were made. As well, three lawyers have worked on this case for the Applicant; it is impossible to determine without a detailed bill of costs whether their efforts and time spent are reasonable and proportionate to the case. In considering costs for a complicated matter or lengthy trial, it is important to have a breakdown of the time spent by counsel by way of the submission of counsel dockets to ensure a reasoned decision on costs.

[44] I do not have that in the present case. I have been provided the hourly rates charged by the three lawyers who worked on the file as well as the total number of hours spent by each of them in the matter. The hourly rates are reasonable for all counsel noted in the Applicant’s bill of costs.

[45] Respecting the costs spent by Ms. Gendron, she says that she has spent more than 260 hours on this case. It goes without saying that she would have easily spent at least 10 hours per day while in trial both attending at court and in preparing for the next day; that would explain 100 hours of the 260 hours. This is supported by the fact that Mr. Counter spent 90 hours on the trial according to his own bill of costs.

[46] This leaves another 160 hours unexplained. If we follow the rule of thumb that the time for trial preparation is equal to the amount spent at trial, that may account for another 100 hours or so.

[47] I am going to find that the 260 hours is reasonable for the time that Ms. Gendron spent on this matter, if only because the bill of costs does not include the hours spent by Ms. Nolan’s former lawyer (in the same firm), Ms. Marchese, who, if the record is correct, sent numerous pieces of correspondence and administered the file for some time leading up to her maternity leave. That being the case, the failure to include her time on the file is to Mr. Leal’s favour and is more than made up by accepting the time that Ms. Gendron says she took.

[48] I also do not make issue with the 15 hours spent on the matter by senior counsel, Joanna Shaw.

[49] I am concerned, however, with the hours submitted by co-counsel on the trial, Ms. Samei. This was a lengthy trial but the issues were not overly complicated. There is nothing in the Applicant’s costs submissions that would justify the use of a co-counsel at this trial and I note that Mr. Counter for the Respondent completed the trial on his own. There were no dockets to show the work that second counsel performed or the necessity of second counsel: see Sepiashvili v. Sepiashvili, 2001 CanLII 25708 (ON SC), [2001] O.J. No. 3843 (S.C.J.). As I stated in Iacobelli v. Iacobelli, 2020 ONSC 6128, the use of a second counsel is only warranted where the matter is “extremely complex.” This matter wasn’t. I therefore disallow the approximately 100 hours that Ms. Samei spent costing $28,433.63, which I do not find to be reasonable.

[50] I make no comment on the staff costs. There would obviously be costs of paralegals and legal assistants in the conduct of this matter especially leading up to trial. There is also no issue with the Applicant’s disbursements which are reasonable.

[51] If I remove Ms. Samei’s time from the file, we are left with total costs of $108,998.47 on a full recovery basis inclusive of disbursements and HST. As noted above, there is no basis for full recovery costs for the entire proceeding: neither party was entirely successful on the basis of the various offers to settle and the Respondent’s bad faith behaviour was mostly concerning the financial issues. As well, I have no dockets to segregate the areas concerning which the Respondent was guilty of bad faith behaviour or to address the one areas where the result at trial was better than the Applicant’s offers being equalization of property and care and decision-making. I decline to award full recovery costs for this proceeding.

[52] Partial recovery costs (fixed at 60% of the full recovery amount) would be about $65,000 but that would be inappropriate and unfair considering Mr. Leal’s unreasonable and bad faith behaviour in this matter and Ms. Leal’s success on the property issues. As well, the court has a wide discretion and may increase or decrease what would ordinarily be an appropriate amount of costs based on the behaviour of the parties and the presence or absence of offers to settle: see Beaver v. Hill, supra.

[53] There shall be an order for costs for these proceedings payable by the Respondent to the Applicant of $90,000 inclusive of disbursements and HST. The remaining funds held in trust to the credit of the Respondent shall be immediately paid to the Applicant in partial reimbursement for these costs. Remaining costs are payable within 60 days. Because child support was a major issue, and because the Respondent’s bad faith behaviour was concerning the support issues, those costs if not paid shall be collectable as support.

MCDERMOT J.

Date: February 2, 2023

[^1]: O. Reg. 114/99

[^2]: R.S.O. 1990, c. F.3

[^3]: R.R.O. 1990, Reg. 194