Court File and Parties

COURT FILE NO.: FS-19-000207-0000 DATE: 2024 05 10

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: BELCHIOR MICHELLE (now Michelle Dias), Applicant AND: BELCHIOR RUI, Defendant

BEFORE: LeMay J.

COUNSEL: Both parties Self-Represented

Endorsement Re Costs

[1] The parties separated in August of 2019. They have been engaged in ongoing litigation over child support, equalization and decision-making authority for their youngest child, Caden. A series of motions were brought by the parties over the course of the litigation. The parties were both represented at most of those motions by counsel.

[2] Ultimately, this matter proceeded to trial before me for six days in January of this year. The parties resolved the equalization issue on the first day of trial. What remained for me to determine was child support (including arrears), special adjustments since separation and the decision-making authority for Caden.

[3] I released my reasons on February 23rd, 2024 (2024 ONSC 967). The Applicant was almost entirely successful on the issues that had been raised. I am now required to fix the costs for this trial. As a result, I invited costs submissions as well as reply costs submissions from both parties. I will outline those submissions in the next section.

[4] I also invited submissions from both parties as to whether my calculations had any arithmetical errors in them. I received no submissions from either party in this respect and, as a result, I confirm that the calculations I set out in my original decision are final.

The Submissions

[5] I invited the parties to provide submissions at the same time and then reply to the other side’s submissions after the first round of submissions had been received. The deadline for the first round of submissions was twenty-one days after I released my reasons, which was March 15th, 2024. I duly received submissions from the Applicant, who is a paralegal. These submissions set out the Applicant’s position on costs, which was that she was seeking substantial indemnity (or substantial recovery) costs in the sum of $25,000.00 inclusive of HST and disbursements. These costs were sought on the basis that the Applicant had done better at trial than an offer she had made to the Respondent eighteen months before trial and that the amount she was seeking was proportional.

[6] The Respondent also provided me with material within the deadline I had set. It was not a submission on the issue of costs. Instead, he provided an e-mail stating:

Thank you for your email. It is my truth that the documents attached are not recognized and only when dealt with in the proper venue will this be dealt with. I have provided on two separate occasions and no this being the third time that jurisdiction has not be given [sic].

[7] I then sent out an endorsement on March 19th, 2024. I advised that costs submissions were required and that I would be finalizing the Order in respect of my February 23rd, 2024 reasons. I also advised that it appeared to me that the Respondent was attempting to challenge my jurisdiction to make a decision. I rejected that challenge, as the issue had not been raised before me previously, and advised that I would be continuing with the process of finalizing the costs and other issues this case.

[8] I also advised the Respondent that I was prepared to provide him with a further week, until March 22nd, 2024, to provide any submissions on whether or not he was seeking costs in this case. I also provided him with the same extension to the deadline to challenge any of the arithmetical calculations I had made. Finally, I reminded the Respondent that he had until April 2nd, 2024 to respond to the Applicant’s costs submissions even if he did not provide any submissions of his own.

[9] I received further documentation from the Respondent. It was not costs submissions. Instead, it was a number of documents that included a public servant questionnaire, a notice of copyright infringement, a legal notice and demand and a glossary of terms. All of these documents seem to be documents of the type that might be filed by an “Organized Pseudolegal Commercial Argument (“OPCA”) litigant, as defined by Rooke, A.C.J.K.B. in Meads v. Meads 2012 ABQB 571.

[10] The judicial assistants in Brampton have received subsequent copies of these documents. They appear to arrive in response to any attempts to communicate with the Respondent. I have not received any actual costs submissions, any complaints about the calculations that have been made in my decision. Instead, I have received through Court staff numerous copies of the Respondent’s OPCA materials. In addition, the Respondent has not uploaded any materials to CaseLines.

[11] The decision in Meads sets out in detail the numerous different types of OPCA arguments that have been made in Canada over the year. In this case, it is difficult to figure out precisely which type of OPCA strategies the Respondent is attempting to deploy. He has claimed that, by using his name, I am violating copyright. He has also purported to ask me to complete a public service questionnaire prior to submitting to my jurisdiction. These types of submissions fit with more than one type of OPCA strategy.

[12] In the end, it does not matter which type of OPCA strategy the Respondent is attempting to use. These are not arguments that the Court recognizes. The Respondent is subject to the jurisdiction of the Court and his family law litigation has been heard and decided. Under the Family Law Rules, I have the jurisdiction to fix the costs of the trial that I heard in January of this year. I will now proceed to fix those costs based on the Applicant’s submissions. The Respondent has been given more than one opportunity to be heard on the subject of costs and he has chosen to advance OPCA arguments rather than dealing with the costs issues.

Analysis and Decision

[13] The principles governing costs orders are set out in both the Family Law Rules and the case-law. I have had reference to Rules 18 and 24 of the Rules.

[14] My analysis starts with the purposes of modern-day costs rules. Those are set out in Serra v. Serra 2009 ONCA 2896 at para. 8, as follows:

a) To indemnity successful litigants for the costs of litigation; b) To encourage settlement; and c) To discourage and sanction inappropriate behaviour by litigants.

[15] In my view, the Respondent should pay the Applicant’s costs on a substantial recovery basis for two main reasons. First, and most importantly, the Applicant was more successful than her offer to settle at trial.

[16] In this case, the Applicant made an offer to settle on May 30th, 2022. That offer is detailed and comprehensive. It covers off decision making for the children of the marriage, the financial issues and parenting time as well as the equalization issues. The equalization issues were settled. In terms of the rest of the provisions, the Applicant did better than her offer. In that respect, I note:

a) The Applicant proposed joint decision-making for all of the children, with a carve-out in respect of Caden’s education where she would have sole-decision making authority. She ended up with joint decision making for all of the children except Caden, where she was given sole decision-making authority for all issues. b) The Applicant proposed that, as of May 31st, 2022, the retroactive child support be fixed at $0. The decision I released set the total amount of retroactivity in excess of $60,000, and the amount related to the time period before May 31st, 2022 was in excess of $30,000.00.

[17] I note that the offer addresses spousal support and that there would be an ongoing payment for spousal support as well as some retroactive amounts. When I consider the amount that I awarded for retroactivity for child support as well as the ongoing amounts of child support, it is clear that the Respondent will owe the Applicant more over time than he would have if he had accepted her offer. In those types of circumstances, substantial recovery costs are often awarded.

[18] Second, there is the conduct of the Respondent. In making my findings about this conduct, I am expressly not addressing the OPCA arguments that the Respondent has made. Instead, I will focus on his conduct prior to and during trial. Throughout the course of this litigation the Applicant has made numerous requests for documentation. The Respondent has generally avoided responding to those requests. As noted in Roberts v. Roberts, 2015 ONCA 450, disclosure of financial information is one of the most basic obligations in family law. The Respondent has failed to disclose relevant and necessary documents and has made the litigation of this file more complex because of those disclosure failures. He should bear the expense of that additional complexity.

[19] For these reasons, I have concluded that the Applicant should be entitled to substantial recovery costs. The question then becomes whether the costs being sought by the Applicant are proportional. I am of the view that they are. I reach this conclusion for two reasons. First, the Applicant has provided a detailed Schedule to her costs submissions that outlines in general terms the amount of time that has been spent. The amount of time spent on the various activities is quite modest given the breadth and complexity of the facts in this file and the difficulties that the Applicant faced in obtaining disclosure from the Respondent.

[20] Second, the Respondent was made aware of the amount of costs that the Applicant was seeking, as she has included the detailed Schedule with her costs submissions. The Respondent has neither outlined the amounts he paid his own lawyer nor challenged the amounts that the Applicant has claimed. In those circumstances, I am of the view that the amounts sought by the Applicant are reasonable and proportional and are to be ordered.

[21] As a final note on this point, I would observe that the bulk of the costs incurred by the Applicant relate to the collection of child support and, more particularly, arrears in child support. In those circumstances, I am of the view that the entirety of the $25,000 in costs is enforceable through the Family Responsibility Office.

Other Issues

[22] In my decision of February 23rd, 2024, I directed that the Respondent was to stop keeping Caden home from school during the Respondent’s parenting time. Given the OPCA positions that the Respondent has taken in respect of costs, I am now gravely concerned that my directions in respect of Caden’s schooling may not be being followed by the Respondent.

[23] I retained jurisdiction to address the orders I made in respect of Caden’s schooling for a period of time. I have not heard anything from either party as to the status of Caden’s schooling. Normally, I would assume that meant everything was proceeding in accordance with my orders. However, given the use of OPCA positions by the Respondent, I am of the view that I should make positive inquiries into Caden’s educational status.

[24] To that end, I am directing that the Applicant is to provide to me, within seven (7) calendar days of today’s date, an indication as to how many days or part days Caden has been absent from school since February 23rd, 2024. The Applicant is also requested to obtain confirmation from the Principal of Caden’s school as to the number of days that have been missed.

[25] I should also ensure that it is clear that the draft Order submitted by the Applicant in March was satisfactory and may be issued and entered by the Court Office. The Respondent’s consent to the issuing and entering of that Order is dispensed with.

Conclusion and Costs

[26] For the foregoing reasons, I am ordering as follows:

a) The Respondent shall pay the sum of $25,000.00 inclusive of HST and disbursements to the Applicant on account of the costs of this action. b) The costs described in paragraph (a) are enforceable through the Family Responsibility Office. c) The draft Order submitted by the Applicant concerning the outcome of the trial is to be issued and entered by the Court office if this has not already been done. d) The Respondent’s approval as to form and content of the draft Order from trial and the order flowing from these reasons is dispensed with. e) The Applicant is, within seven calendar days, to advise me as to how many days of school Caden has missed since my February 23rd, 2024 Order. She is to provide confirmation of the number of days missed from the principal as soon as possible. f) The Principal of the school where Caden attends is requested to cooperate in confirming the number of days that Caden has missed school since February 23rd, 2024.

I remain seized to address any issues in respect of Caden’s schooling as described in my February 23rd, 2024 reasons and in my reasons above.

LeMay J. DATE: May 10, 2024