Court File and Parties

COURT FILE NO.: FS-23-00036801-0000 DATE: 2024 0325 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KRISTOFER TADEUSZ KRALKA Applicant

AND

ASHLEY COURTIS Respondent

BEFORE: VELLA J. COUNSEL: Alexandra Carr and Karen Jia, for the Applicant Faryal Rashid, for the Respondent HEARD IN WRITING: March 22, 2024

Costs Endorsement

[1] The Applicant Father seeks costs on a full indemnity basis in the sum of $15,671.97 as he submits the motion result was overall better than his offers to settle. In the alternative, he claims substantial success warranting costs on a partial indemnity basis in the sum of $9,403.18.

[2] The Respondent Mother submits that in fact she achieved substantial success warranting costs on a partial indemnity basis in the sum of $13,715 (full indemnity is listed as $17,144.08).

[3] This was a parenting motion. At issue were primary residence, a parenting schedule, a therapeutic order requiring the child to attend at therapy with the mother, and whether the paternal grandparents’ dog should be permitted to be on the same premises as the child when he is spending time with the Applicant.

[4] There was also a preliminary issue with respect to the admissibility of surreptitious recordings tendered by the Father. Contrary to the Father’s submission, the Mother only sought to tender her own surreptitious recordings if the court ruled that his recordings were admissible.

[5] I have reviewed the various offers to settle that were exchanged by the parties in an effort to resolve the parenting issues.

[6] Neither party obtained a result that was as good as or better than the motion result.

[7] What I see is that each party drew a line in the sand that prevented resolution of this matter when both parties were generally in agreement, based on the exchanged offers, on a step-up parenting schedule.

[8] The parties could not reach a compromise position on the paternal grandparents’ dog. It was an all or nothing proposition by each with the Father claiming entitlement to have the dog in the child’s presence with no strings attached, and the Mother claiming that the dog should be prohibited from being in the child’s presence under any circumstances. I ruled that the dog may be in the child’s presence but only under adult supervision.

[9] The step-up parenting schedule proposed by each party was in the ballpark of what I ultimately ordered. What is clear is that both parties were close enough that this motion ought to have been settled, but for the dog issue. The parties had some indication of a potential solution through my partial ruling released on August 18, 2023 which addressed the summer holiday time with the Applicant and the dog.

[10] However, a significant factor weighing into costs is the fact that the parties surreptitiously recorded the other. The Father’s video, in particular, was recorded with a view to portraying the Mother in an unflattering manner during the course of a particularly emotional argument (not in the presence of the child) to gain advantage in this litigation. This practice is not in the best interests of their child because it fosters an environment of deceit, inability to trust, and constitutes a significant roadblock to having candid and productive discussions about parenting decisions in the best interests of the child. Furthermore, the admissibility of surreptitious recordings within the context of a written record is also problematic for reasons I have expressed in the Endorsement released November 17, 2023 (and corrected on January 10, 2024).

[11] In expressing this view, I acknowledge that there may be circumstances when a surreptitious recording may be ultimately justified. Such circumstances may be present when there is an act of intimate partner violence which often occurs behind closed doors and is witness-less. This was the purpose of the Mother’s recording and, importantly, it was she who moved to strike the Father’s surreptitious recording. She was not intending to rely on her own surreptitious recording unless the Father’s recording was admitted into evidence.

In my view, the fact that surreptitious recordings were taken and adduced for purposes of this motion, together with the intransigency of both parties regarding the dog, and the fact that there was mixed success with respect to the respective parties’ parenting schedule, warrants an order of no costs.

Justice S. Vella

Date: March 25, 2024