Court File and Parties

OSHAWA COURT FILE NO.: FC-20-584-00 DATE: 20240806 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: S.S. Applicant Mother – and – R.A. Respondent Father

Counsel: Michael J. Stangarone and Julia McArthur, for the Applicant Mother On his own behalf

HEARD: IN WRITING

JUSTICE ALEX FINLAYSON

A. Overview

[1] The Court heard a trial over the course of 19 days and over three different trial sittings, in 2023. The Court released its Judgment on May 21, 2024.

[2] At ¶ 603(nnnn) – (tttt) of the Judgment, the Court invited costs submissions in writing, as well as limited additional affidavit evidence about how the parenting schedule ordered might be adjusted to account for the division of religious holidays. The Court also indicated that the parties could advise in their submissions, if the parenting schedule it ordered needed to be altered in a minor way, should the child’s therapy not occur on Wednesdays. And it indicated that if either party was of the view that the Court had made a mathematical or inputting error in its own support calculations, that could be brought to the Court’s attention too.

[3] This is my Judgment respecting the outstanding issues of costs, and the division of the religious holidays. As I explain, nothing further is required respecting the other matters identified in the previous paragraph.

B. Preliminary Issues

[4] There are two preliminary issues.

[5] First, at ¶ 603(nnnn) – (tttt) of the Judgment, the Court imposed a schedule and page limits for the exchange of the submissions. The mother and the father each filed his and her costs submissions as directed. The mother filed an affidavit about the division of the religious holidays as permitted. The father opted not to file further evidence about the religious holidays.

[6] The mother then filed her Reply submissions on August 2, 2024, as permitted. The same day, the father objected to these submissions by email to the filing office, because the mother attached two excerpts from prior Settlement Conference Briefs containing prior proposals to settle. The father says that these documents violate the page limits that the Court imposed, and more particularly the mother should have filed these Offers with her main submissions. He says that he is prejudiced, because he cannot respond. While the father has made this particular objection, he did not make a different objection, that could have had more force.

[7] The mother is entitled to reply, but some of the Reply is problematic for different reasons. One the one hand, at ¶ 10, the father very specifically said that the “ONLY” Offer to Settle that the mother referenced in her submission was served AFTER the trial had already begun. The father used capital letters, bold, italics and underlining to emphasize his point. A first read of this particular statement might have led the Court to infer (in a misleading way), that the mother had not made efforts to settle until the start of the trial. The mother’s Reply submissions and the attachments thereto challenge this assertion.

[8] However the attachments (and the description of them in ¶ 6 of the submissions) are not Rule 18 Offers. There is some divided case law about what the Court can or cannot do with this information. Filing them may have violated the confidentiality provisions of settlement conferences: see Entwistle v. MacArthur.

[9] So even if the mother is entitled to indicate that she made proposals at settlement conferences, to correct the record, this in the end has little value in the analysis.

[10] I have directed the filing office to accept the mother’s Reply submissions. However out of an abundance of caution, I make it clear that I am relying on portions of the submissions only, in particular ¶ 1-5, and 7.

[11] I only rely on the following excerpts of paragraph 6, without reference to the attachments:

The Mother’s Offer to Settle was served at 10:19am on the day the trial began and was open for acceptance until the conclusion of the evidence. The mother also made offers to settle in her settlement conference briefs……

None of the Father’s offers to settle came close to what was ordered at this trial including his offer of May 9, 2023, which was not what the Mother was seeking at trial contrary to the Father’s comments. The father served the offer to settle at Tab A to his brief to the Mother personally on January 10, 2023. The father did not serve a non-severable offer on January 10, 2023….

[12] The balance of ¶ 6 and the attachments thereto are struck.

[13] Regardless, I find this most recent dispute is largely misplaced. The objected to portions of the Reply submissions do not impact the analysis. The Court’s decision about costs does not turn on either party’s offers, or the lack thereof. The fact that the father made one additional Rule 18 Offer than the mother, also relatively close to the start of the trial, which the mother did not accept, and that came nowhere close to the result ordered, does not place him in any better light than it does the mother, in some kind of assessment of who was better motivated to settle.

[14] Second, the father in his written submissions dated July 22, 2024, has listed a number of issues that he says are “unresolved”: see ¶7-9. In view of what he wrote, it is important to reiterate at the outset of this ruling, that other than completing the divorce (see ¶ 603(xxxx)) and perhaps some further step to deal with the preservation Order (tied to the father paying the amounts he owes the mother (see ¶ 603(uuuu) –(wwww)), the only outstanding issues are costs, and whether there should be a further order dividing religious holidays.

[15] That is because neither side asked for a schedule adjustment because of the child’s therapy. And while the father said at ¶ 9 of his written submissions, that he believes that the Court has made a mistake in its support calculations, he intends to address this as part of an appeal. These were the only two other items about which the Court invited additional submissions, and neither side acted on them.

C. The Parties’ Positions Regarding Costs

[16] The mother seeks costs of $282,356.87, based on her success, the fact that the father was “unquestionably unsuccessful at this trial”, and the father’s unreasonable and bad faith conduct.

[17] Most of the costs claimed by the mother, were charged by the mother’s current counsel, beginning at the outset of 2023. This was just under 5 months before the trial began. Most of the costs charged by the mother’s counsel pertain to the trial, or in preparation for it.

[18] However that being said, there are also charges embedded in the total claim, relating to other steps taken by Mr. Stangarone’s firm too, for example to prepare for two conferences that occurred in the late winter or spring of 2023. And there is also a more modest inclusion of some prior costs, incurred by the mother’s former counsel, for work done in 2020 and 2022.

[19] The father seeks costs in a similar amount of $260,231.17 “for the full litigation starting from June of 2020”. He says he was represented by two different firms in the past, but could not afford “protracted litigation” and so he had to switch to being self-represented. He claims a “self-represented litigant’s rate” of $350.00 per hour for the work that he did, to which the mother objects as being too high. In addition to claiming this rate, he also continued to consult with lawyers on a limited scope basis, including during this trial.

[20] The basis upon which the father says he is entitled to costs is not specifically explained. He seems to base his claim on Offers to Settle that he says he made, on the fact that he has launched an appeal, on an allegation that the mother engaged in bad faith behaviour, and perhaps on the fact that there are allegedly unresolved issues.

D. The Parties’ Positions Respecting Religious Holidays

[21] At the beginning of this trial, the father proposed certain terms about religious holidays. As I indicated in the Judgment, the father changed his position by the end of the trial. He did not ask the Court to order the division of any religious holidays at all any longer, although this was also in tandem with saying that the mother should have no parenting time at all, either. I found that the father changed his position, not because he did not care about the religious holidays, but because he thought he would get all of the religious holidays by default, in view of his changed position about parenting time.

[22] Despite my disapproval of that approach, I still made provision for the parties to file additional limited evidence on the point, in the child’s best interests. Despite allowing him yet another opportunity to make a submission about an issue that I thought was important to him and the child, the father chose not to file additional evidence. Perhaps he expects the Ontario Court of Appeal to deal with the issue. Consequently, I am left only with the mother’s proposal in the end.

[23] Although at the end of the trial she proposed that religious holidays should just fall where they fall on the regular schedule, in her supplementary affidavit of June 21, 2024, the mother proposed some sharing of Eid al-Fitr and Eid al-Adha. She continues to say that she wants to limit the number of changes to the parenting schedule.

E. Analysis Respecting Religious Holidays

[24] I will address this issue first.

[25] In the absence of any further submissions from the father, I substantially adopt the mother’s revised position set out in her affidavit of June 21, 2024. I agree with the mother that there should be limited changes to the regular parenting schedule to account for this, for the reasons already set out at ¶ 488 and 489 of the Judgment. I would have been prepared to consider other important holidays, but no one (particularly the father) argued for that in the end.

[26] However the only changes that I would make to the mother’s revised proposal, is respecting the exchanges that will occur both before and after the holiday. I find they should take place at 4 PM (or 6 PM if there is therapy on a Wednesday evening and the exchange before or after the holiday occurs on a Wednesday). I make these changes to remain consistent with the times for the other parenting exchanges, in the Court’s Judgment.

F. Analysis Respecting Costs

(1) Offers to Settle

[27] Both parties served Offers to Settle in this case. In addition to the above dispute about the Reply submissions, there is also a disagreement about the number of Rule 18 Offers that the father served.

[28] I find that he served two, not three. His written submissions are inaccurate in this regard too, in that he says otherwise. But even if he served three, it does not matter. I find that the requirements of rule 18(14) of the Family Law Rules are not met respecting either’s Offers.

(i) The Mother’s Offer to Settle dated May 19, 2023

[29] The mother’s Offer to Settle is dated May 19, 2023. In her Reply submissions, she admits that she served it on the morning that this trial began. The father correctly points out that rule 18(14)(2.) requires that a Rule 18 Offer must be made at least 7 days before the trial date.

[30] Quite apart from that, while the mother came close to her Offer, she did not necessarily achieve a result that was as favourable or more favourable than the Offer in all respects. For example, while the mother was given residual sole decision making, the Court also mapped out a number of specific decisions. The decision-making terms in the Court’s Judgment were more thorough than what is set out in the mother’s Offer. The Court did not order a 2-2-5 schedule immediately, which is what her offer provides. Once again here, there are other terms, too. The mother beat her Offer respecting child support, but not spousal support or the equalization payment. Finally, the mother’s Offer to Settle, had it not been made too late, was non-severable.

[31] Therefore rule 18(14) is not engaged, having regards not just to the timing of this Offer, but to the substance of its terms as well.

(ii) The Father’s Offers to Settle

[32] The father says he served three Offers to Settle. The first one is dated January 10, 2023, and is attached at Tab A of his written submissions. The second one is said to be dated January 10, 2023, and is said to be attached at Tab B of his written submissions. The third one is said to be dated May 8, 2023, is said to have been served on May 9, 2023, and is said to be attached at Tab C of his written submissions.

[33] The father says that he made the first Offer of January 10, 2023, hoping to have narrowed the issues for trial, but the mother’s counsel “did not cooperate”. He says the same thing about the second Offer of January 10, 2023, but this time he decided to make it “entirely severable”. He says his third Offer of May 8, 2023, served on May 9, 2023, was made after he realized, from a review of the mother’s Opening Trial Statement, that many of the Orders she was seeking at trial were similar to the Offer he had served on January 10, 2023. The father then says that the mother “wasted the court’s time by not accepting the terms which were the same as the terms she was seeking”.

[34] The mother admits that the first Offer of January 10, 2023 and the last Offer of May 9, 2023 were made, but not the second, severable one, of January 10, 2023.

[35] In regards to that first Offer of January 10, 2023 (the non-severable one), the Court did not order sole decision-making to the father, primary residence to the father, terms about the child’s attendances at an Islamic Center, the parenting schedule he proposed, the holiday schedule he proposed, some of the communication terms that he proposed, the child and spousal support terms that he proposed, the equalization amount he proposed, or the retroactive amount proposed. This Offer does not attract the costs consequences of rule 18(14). It would also not cause the Court to find, that the mother was unreasonable in not accepting it.

[36] In regards to the other Offers, it was not initially clear to me that the father actually supplied the correct copy of the second, severable Offer to Settle of January 10, 2023, that he said he made. Tab B to his written submissions consists of a cover page that says “Offer to Settle, May 9, 2023”. The Offer itself is undated (as is the one he provided at Tab C), and the two look similar.

[37] I also did not understand why the father claimed to have served two different Offers to Settle on the very same day (i.e. January 10, 2023), one of which is severable and the other of which is non-severable. Then, towards the end of ¶ 6 of her Reply submissions, the mother pointed out that the father “did not serve a non-severable offer on January 10, 2023.”

[38] I find this is more likely than not, yet another misleading statement by the father. In any event, even if I were to assume that the cover page for Tab B was a formatting error, and what is attached at Tab B, was actually a second January 10, 2023, severable Offer, this does not assist the father in the costs analysis.

[39] To the extent that the Court may have ordered a term here or there that was similar to a severable term here or there in this Offer, it cannot be said that this Offer would have averted, or even reduced the length and complexity of this trial, and therefore costs. It is patently clear that the main issues would have still been litigated.

[40] And the Court did not Order any of the major items that the father was proposing in this Offer. The Court did not order “joint decision-making” while at the same time empowering the father to make final decisions in the event of a dispute. The Court did not order the parenting time schedule that the father proposed. The Court did not order the support terms proposed by the father for 2020, 2021 and 2022, which included the mother paying child support to the father. The Court did not direct another settlement conference for 2023 support or equalization, which would have had the effect of keeping this lawsuit alive and ongoing.

[41] What was allegedly proposed by the father in the Offer at Tab B would not have been acceptable to the mother. What the Court ordered was not a result that was “as favourable or more favourable” than the alleged Offer either, irrespective of its severability. These comments equally apply respecting the similar undated Offer at Tab C, which the mother admits in her Reply Submissions, was made on May 9, 2023.

(2) The Court’s Assessment of Success

[42] There is no question that the mother was substantially successful. She is presumptively entitled to her costs: see Rule 24(1) of the Family Law Rules. There can be no serious debate that the issues that consumed the greatest amount of trial time, were the parenting issues (see Jackson v. Mayerle, 2016 ONSC 1556 ¶ 66) (although the mother achieved success respecting the financial issues too; these consumed less time).

[43] When I compare the positions taken by the parties to the outcome ordered, it is very clear that the mother achieved substantial success on all of the parenting issues. I agree with the mother’s Reply submissions that the father was “unquestionably unsuccessful”.

[44] For example, the mother is the person who will be making final decisions about this child, except where certain items are carved out. Even in regards to the latter, a number of the specific decisions that the Court ordered also aligned with the mother’s positions, such as the choice of the family doctor, or her ability to participate in all aspects of the child’s life, for instance at school, at medical appointments, and in therapy. The Court increased the mother’s parenting time significantly, and immediately. The Court also refused to order a number of the restrictive terms that the father sought, which were geared at marginalizing and removing the mother’s role in the child’s life.

[45] In regards to the financial issues, the Court did not impute an income to the mother as the father asked, nor did it accept the father’s position about his own reduced income. The father’s position at the end of trial was that spousal support would end essentially immediately; that is not what the Court ordered. Although the Court ordered a review in several years as opposed to indefinite support sought by the mother, it still increased the amount of support that the father had previously agreed to pay on an interim basis, significantly.

[46] The result respecting equalization is the same; it came much closer to the mother’s position than the father’s. The Court rejected the father’s arguments to reduce his net family property, either because he owed a loan to family, or because of a beneficial ownership interest relating to the matrimonial home.

(3) The Assessment of Success and the Father’s Appeal to the Ontario Court of Appeal

[47] In his written submissions, the father has chosen to address success by advising the Court that he has launched an appeal to the Ontario Court of Appeal. The father says that if the “trial judge wishes to make a decision on costs on the basis of the Applicant being the successful party, then he must either do that after the Appeal is decided on or ensure there is provisions to revisits costs after the appeal.”

[48] I agree with the mother’s Reply submissions that this Court decides costs. The fact that the father has chosen to launch an appeal does not impact my analysis. If the father ends up pursuing his appeal and the Ontario Court of Appeal determines that this Court made a reversible error(s), it is empowered to determine how that impacts the costs ordered.

(4) The “Unresolved Issues”

[49] As set out above, the father also says that there are a number of “unresolved issues”. He asserts that the Court “tolerat[ed]/reward[ed]” the mother’s “poor non-child focused conduct”, and he says has made the situation worse.

[50] In regards to the alleged unresolved issues that the father lists, the Court has either already addressed these in the Judgment, or the father is complaining about alleged post-trial events. Incredibly at the same time as he advises the Court that he thinks it made a number of errors, the father also asks the Court for “guidance” about these unresolved issues.

[51] I did not invite new evidence on a variety of matters. What the father has supplied the Court with, is unsworn. The mother has objected to the father raising these issues in her Reply submissions. She has also provided a brief reply, if necessary at ¶ 4, also in unsworn form.

[52] I repeat that the only outstanding issues are those being addressed in this ruling. If the father is of the view that the Court erred, he can pursue his appeal. If he seeks guidance about other issues, he should consult with one of the counsel to which he had access during this proceeding.

(5) Bad Faith

[53] Pursuant to rule 24(8), 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 mother asks for a finding under rule 24(8). I agree with the mother that a finding should be made.

[54] Bad faith conduct requires substantially more than a finding of unreasonable behaviour. There must be “egregious or morally wrongful behaviour”. It implies “the conscious doing of a wrong because of dishonest purpose of moral obliquity… it contemplates a state of mind affirmatively operating with furtive design or ill will”: see Iacobelli v. Iacobelli, 2020 ONSC 6128 ¶ 25 , 26.

[55] And there is also an aspect of the conduct in this case, that involved the father complaining and making serious allegations against various professionals. In Kenora-Rainy River Districts Child and Family Services v. P.N.R. & K.R., 2023 ONSC 7117, this Court sitting, on appeal from a decision of the Ontario Court of Justice, ordered substantial indemnity costs after serious allegations had been levelled against professionals and against the administration of justice, that had no basis in fact.

[56] A number of the Court’s findings in the Trial Judgment support the mother’s argument, that a finding of bad faith should be made. But I do so on both grounds. I do not propose to repeat all of the Court’s findings from the Judgment. Some highlights respecting the father’s treatment of the mother include:

(a) At ¶ 9 of the Judgment, I found that the father used the trial process to expand upon prior allegations about the mother’s character. I found the father disparaged and humiliated the mother throughout this trial. Specific details of what the father did in this regard, can be found at ¶ 421 of the Judgment;

(b) At ¶ 18 of the Judgment, I found that by the end of the trial, the father stopped short of asking the Court for the outright eradication of the mother from the child’s life, forever. While this extreme position was taken at the end of the trial, this was not really new; the behaviour leading up to this change in position had been happening throughout the trial, and prior to it;

(c) In fact, the Judgment is replete with examples of the father interfering with the mother’s relationship with the child over years’ long periods of time. This started almost immediately after the separation; it continued throughout the trial; it was still happening by the end of the trial, and it even continued post-trial, for example, with regards to the post-trial therapy issue that was brought to my attention on a 14B Motion while I had the Judgment under reserve;

(d) Additionally (although relatedly), I found that the father took the mother’s private journal entries without her consent. He tried to use them during the investigations and assessments that had occurred prior to trial. He also tried to use them during the trial itself. The mother was understandably upset by this;

(e) To make matters even worse, I found these documents had negligible probative value. And particularly egregiously, at ¶ 317, 333, and 334 of the Judgment, I also found that the mother had used her journals as a therapy tool, and the father’s taking of the journals interfered with her therapy;

(f) At ¶ 422 of the Judgment, I found that the father even went so far as to go to a Justice of the Peace during the prior proceedings, in an attempt to have the mother forcibly hospitalized. He took the journals with him, to use as a weapon to bolster that request. Not only was the father then disingenuous when he testified during the trial about what he had done and why he had done it, but this was not his first blatant attempt to insert himself into the mother’s health care, with the journals, to obtain strategic advantage in this case. For example, he had also given the journals to the OCL. Had the father been successful on this trip to see the Justice of the Peace, the mother’s liberty could have been at stake, at least for the time that she might have been hospitalized;

(g) Additionally (but also relatedly) I found that the father spread misinformation to various professionals about the mother’s prior drug use, mental health issues, and mental health issues on the part of other family members. He accused the mother of abusive behaviour too, that he did not prove;

(h) I found that the father engaged in acts of family violence towards the mother. Findings about this were grounded on some of the above examples. The Court’s findings of family violence are explained in more detail in the Judgment;

(i) I found that the father came into this trial, in breach of financial orders. He did this even though the mother was exposed to a situation of financial dependency and uncertainty, as a result of the marriage. The father sought permission from the mother (but not the Court) mid-trial to take an international trip, while not paying the interim order for her support, or costs; and

(j) To the extent that I have not already done so, I found these behaviours were undertaken with the intent of causing harm to the mother, and to damage her relationship with the child.

[57] In regards to the child:

(a) At ¶ 251 of the Judgment, I found that the father was prepared to use the child as leverage against the mother. I found that he subtly messaged to this child that the mother was mentally ill, and indeed that she was dangerous. He even recorded himself doing this;

(b) Just one of several examples of that kind of behaviour, followed the swimming pool incident of the summer of 2023. I found that the father behaved strategically, taking the opportunity to withhold the child, without the legal basis to have done so. I found that he lied to the mother (and to the Court for that matter) about the child’s alleged unwillingness to attend a visit with her, when he was in fact out of town with the child (i.e. the Windsor trip);

(c) I found that the father and his sister had subjected the child (who suffers from anxiety) to their questioning. The father also subjected the child to video-taping. He even admitted an awareness of the law and policy that discourages this, but he opted to do so anyway;

(d) At ¶ 425 of the Judgment, I found that the father co-opted the child, then age 7, to scream and yell horrible, abusive messages at his mother, on September 25, 2023. He did so after this Court’s Order for the resumption of parenting time, after the trial resumed, following the events of the summer of 2023;

(e) After this Court’s Order of September 25, 2023 and the screaming incident, the father then sat the child down for the video interview on October 29, 2023. He did so to ‘set the record straight’. He used the child to correct factual assertions that had been made during the trial, that he did not agree with. At ¶ 302 of the Judgment, I found that the father breached an earlier Order by talking to the child about this case. Worse, at ¶ 425, I found that the father’s actions amounted to psychological abuse; and

(f) Likewise, I found the father engaged in acts of family violence towards the child.

[58] In regards to others who have been involved in this case:

(a) I found that the father engaged in problematic conduct towards the OCL. A summary of those findings in particular, is contained at ¶ 252 to 255, and 270 of the Judgment. This includes that the father engaged in conspiracy theories. He did not just, in a cavalier fashion, waste the time and resources of the OCL (such as by demanding that the OCL re-produce its files (which triggered the OCL to bring a motion to quash a summons, and in the end, it took Ms. Bush 6 hours to re-produce the file)s); he also accused several professionals with the OCL of having manipulated documents in favour of the mother, or he speculated that they did this, which he did not then prove. He was given multiple chances by the Court to prove what he was alleging, including an opportunity during closing submissions to very specifically tell the Court what he felt he had proven; and

(b) It was not just several persons within the OCL that the father complained about. In fact at ¶ 268 of the Judgment, I found that the father made a number of complaints about other professionals, too. The Court was so concerned about the nature of the allegations and the number of attacks that the father had launched, that at ¶ 277, I felt compelled to make specific findings that neither OCL clinician, nor a supervisor with the OCL had engaged in an underhanded behaviour or acted unethically, nor did they mislead the Court. The Court also made a finding that opposing counsel (Mr. Stangarone and Ms. McArthur) behaved appropriately and professionally. [^1] Their professional integrity was on the line.

[59] These are just some examples. There are more examples of the father’s reprehensible behaviour in the trial Judgment. For instance, there are 16 examples listed at ¶ 405 of the Judgment (where the Court summarizes its finding that the father is an “unfriendly parent”), although some of those examples probably overlap with what I have set out above.

[60] While any one of these various actions may or may not amount to bad faith behaviour on their own, taken as a whole, I find they certainly do. And in regards to the professionals involved in this case, it seemed far too easy for the father to pursue conspiracy theories and launch attacks. This kind of thing can cause a chilling effect on professionals’ willingness to engage in cases of this nature, to do the good work that they do to assist families. And that harms the administration of justice. As was the case in Kenora-Rainy River Districts Child and Family Services v. P.N.R. & K.R., this kind of conduct warrants the Court’s disapproval too, in addition to sanctioning the father for his bad faith behaviour directed at the mother and the child.

[61] In conclusion, I find that the record amply supports the finding sought by the mother, that the father engaged in bad faith behaviour. I find that he engaged in a pattern of behaviour, over more than three years from the time of separation continuing throughout the trial, designed to cause harm to the mother, harm to the mother’s relationship with the child, harm to the child’s relationship with his mother, and harm to the professional reputation of others involved in this case.

[62] I do not find, as the father argues at paragraph 5 of his submissions, that the mother engaged in bad faith behaviour. I did not in the Judgment, and I do not now, make the findings about the mother, that the father lists in paragraphs 5(a)(i) and (ii) of his written submissions.

(6) Quantum of Costs

[63] The mother asks for all of her full costs. She does so in part, although not exclusively, as a result of this finding of bad faith. I nevertheless note two things when considering this request.

[64] First, a finding of bad faith may pertain to some issues, but not all of them. However I am not prepared here, to try to parse out the father’s behaviour and to attach it to different issues or points in time in the case, and consequently to different costs claimed. As already indicated, the father’s bad behaviour was pervasive throughout.

[65] Second, even where a finding of bad faith is made, that does not necessarily mean that all of the costs claimed will be ordered. Costs must still be reasonable and proportionate to the issues: see Beaver v. Hill, 2018 ONCA 840 ¶ 19 , 20; see also Iacobelli v. Iacobelli ¶ 30.

[66] In this regard, rule 24(12) directs the Court when setting the amount of costs, to consider the reasonableness and proportionality of a number of factors as they relate to the importance and complexity of the issues.

[67] I accept that the issues were important to the parties. They were also important to this child.

[68] The case was not particularly complex, legally. However other aspects of the case rendered it more complex, and in my view unnecessarily.

[69] First, there were the positions taken by the father, prior to trial and during it. He insisted on his day in Court, and he got 19 of them.

[70] Second, there was the approach the father took to the evidence over the course of that 19 day period. For example, in the Judgment, there are a number of evidentiary rulings that the Court had to make, about the child’s hearsay statements, allegations of abuse, various recordings, and the mother’s journals, among others.

[71] The Court’s findings at ¶ 267 to 278 of the Judgment about credibility, are also applicable when I consider complexity in relation to the evidence. I found that the father was prepared to twist and distort the truth when it suited his purposes, such as claiming that documents supported his version of events, and that wasn’t always so. I found that the father ascribed words to professionals that they didn’t always say. I found that the father testified in an overly detailed fashion about trivial or irrelevant matters, and often in a non-specific manner about important manner. I found that he fabricated evidence.

[72] And the allegations he made about professionals were challenging to follow, and required careful attention to be paid. Even when I consider the costs submissions, careful attention has to be paid to the words put on the pages of the submissions.

[73] The persons whom the father intended to call as witnesses sometimes shifted as the evidence unfolded.

[74] In the end, at ¶ 272 of the Judgment, I found that the trial took an inordinate amount of time. What I explain above, is just part of the reason why.

[75] In the process, the father sometimes cited the fact that he was representing himself as an excuse; yet he was given accommodations. As ¶ 7 of the mother’s Reply submissions correctly state, the father prepared massive trial briefs (containing thousands of pages), [^2] which often contained improper evidence (including his own commentary on documents), much of which he chose not to rely on. The father did not always have evidence readily available and was given several opportunities by the Court to find examples of what he was referring to at a later time. I made findings about this conduct already, in the Judgment. To this I add that the Court also gave the father case law to aid him on a voir dire.

[76] The mother had no choice but to respond to these multitude of approaches that the father took. She had to approach the trial in the manner required to ensure that the evidence and the law required were put before the Court to support her position. That required a great deal of effort, and meticulous attention to detail, which the mother’s counsel provided. And that comes, consequently, with a great degree of costs incurred.

[77] And notably, as the mother’s Reply submissions also point out at ¶1, the father has not really challenged the quantum of the mother’s claim for costs. His opposition focuses more on entitlement, especially since he says he is appealing. And he himself claims costs in a similar amount as that claimed by the mother.

[78] Still, even in the absence of specific complaints about specific entries on the mother’s Bills of Costs, I will still address the mother’s Bill of Costs in a couple of respects. In particular, I wish to address the fact that the mother’s Bill includes some work of two other junior counsel in Mr. Stangarone’s firm, and of Mr. Stangarone’s law clerk, the fact that the mother had two lawyers with her throughout the trial, and the fact that the mother claims some costs incurred by her former counsel from 2020 and 2022.

[79] In regards to the former, I find that work was delegated to others, like junior counsel or the law clerk, where appropriate, to take advantage of lower hourly rates.

[80] In regards to the presence of two counsel for the trial, I note that McDermot J. dealt with this issue in Iacobelli v. Iacobelli ¶ 45-52. There, McDermot J. found that while second counsel increased the efficiency of the trial, the costs charged for second counsel were not warranted. However one key difference between this case before me, and the circumstances in Iacobelli v. Iacobelli, was the length of the trial. As I have just indicated, this case, while not particularly legally complex, was almost four times longer than the trial before McDermot J. It was incredibly document intensive, and an enormous amount of attention to detail was required.

[81] I am entirely certain that Ms. McArthur provided valuable assistance to her co-counsel and to the mother, in terms of document management and trial management, among other things. Therefore, I do not propose to discount Ms. McArthur’s charges completely as McDermot J. did respecting co-counsel in Iacobelli v. Iacobelli, because of these key differences.

[82] A particular number for Ms. McArthur’s trial attendance (as opposed to her other work outside of the Court but in connection with this case) is not readily apparent on the Bill, unless the Court were to engage in the cumbersome task of extracting the charges from the Bill. I intend to do this more high level. I intend to reduce the Bill by about $35,000.00, which is more or less 50% of the total amounts charged for Ms. McArthur. In so doing, I also take into account that some of the mother’s counsel’s charges for the first part of 2023, prior to trial, pertain to pre-trial matters, like the two final conferences before Fryer J.

[83] In regards to the latter, and to the Bills from the mother’s former counsel, these charges are minor in comparison to the other charges of Mr. Stangarone’s firm. While I appreciate that the Court can order costs for prior events, the written submissions do not in much detail explain why the Court should order these amounts (other than because of the finding of bad faith).

[84] Therefore, in the circumstances, I find that a fair and reasonable and proportional amount of costs, is $240,000.00 (rounded), inclusive of HST and disbursements.

[85] Finally, although I have found bad faith behaviour, I would have also found the father engaged in unreasonable behaviour, when it came to calculating the quantum of costs: see rule 24(12)(a)(i). I would have been prepared to make a significant costs award, even if the behaviour described above, was not bad faith.

G. Orders

[86] There shall be an additional Order for the division of religious holidays, in accordance with paragraph 5(a.) and (b.) of the mother’s affidavit sworn June 21, 2024. However the exchange times shall be at 4 PM (or 6 PM if there is therapy on a Wednesday evening and the exchange before or after the holiday occurs on a Wednesday). The language of the last sentences in paragraphs 5(a.) and (b.) shall be amended to make provision for exchanges at therapy too, if applicable.

[87] The father shall pay costs to the mother in the amount of $240,000.00, inclusive of HST and disbursements. Costs shall be paid forthwith.

[88] No further orders are required respecting preservation as asked by the mother. The Court’s Orders in ¶ 603(uuuu) – 603(wwww) of the Judgment continue to apply.

Justice Alex Finlayson Released: August 6, 2024

[^1]: Both of whom had been subjected to allegations of inappropriate behaviour during the trial. [^2]: The mother also prepared voluminous briefs.