Court File and Parties

Court File No.: CV-24-00001186-0000 Date: September 20, 2024

Superior Court of Justice – Ontario 7755 Hurontario Street, Brampton ON L6W 4T6

Re: GODZISZ, S., plaintiff And: AUGELLO, N., defendant

Before: Justice Mandhane

Counsel: Self-Represented Plaintiff sandragodzisz@hotmail.com COTE, Patrice, for the Defendant pcote@cotelawfirm.ca

Heard: September 19, 2024, by video conference

Endorsement

[1] This is a high conflict matter, with a companion family law matter (FS-13-78154-0001). This endorsement shall be filed with both matters.

[2] The plaintiff/mother filed a motion to change in family court seeking to relocate with the child to New York. The defendant/father is opposing the motion to change in family court.

[3] After filing her motion to change in family court, the Mother launched this action seeking civil damages for intentional infliction of emotional distress and battery; she alleges an ongoing pattern of family violence. The defendant/father served and filed a Motion to Strike. However, prior to that motion being heard, the Plaintiff filed a notice of discontinuance.

[4] The Father now moves for costs on the basis that the Mother’s claim was discontinued: Rule 23.05(1) of the Rules of Civil Procedure. He asks for full indemnity costs pursuant to Rule 57.01(1) of the Rules of Civil Procedure because he says the mother’s claim was improper, vexatious, and unnecessary; and because she should have made any claim for damages in the family law proceeding.

[5] I refuse to find that the Mother’s claim was improper or vexatious on the record before me. If the Mother is ultimately granted leave to amend her pleadings in the family law matter to plead the tort claim, she may ultimately be able to prove the allegations she makes. It would be premature to deem her claim vexatious simply because it was discontinued. There are many reasons that a person who has experienced intimate partner violence might withdraw a claim, even if the substance of the allegations are true.

[6] On the other hand, I agree with the Father that this action was unnecessary because the claim for damages should have been made as part of the motion to change in family court: Ahluwalia v. Ahluwalia, 2023 ONCA 476. Not only would this have been more expedient for both parties, it would also have ensured that a single court deals with all aspects of the case. Having the matter proceed in two separate forums risks an abuse of process because there could be inconsistent factual findings as between them.

[7] The Mother opposes any costs being ordered against her on the basis that: (1) she only discontinued the civil action because the Father threatened her; (2) the Father has weaponized the legal process against her, including through this motion; (3) the costs are inflated; and (3) she is impecunious.

[8] The mother relies on her affidavit to support these claims. Unfortunately, the affidavit is a series of bald assertions without any supporting evidence. It is impossible to say whether or not the father threatened the mother to withdraw this action, or whether he has weaponized the legal process against her. All I know is that the Mother is the one who brought the motion to change in family law, and she is the one who brought the action before this court.

[9] I have reviewed the Bill of Costs and I find it to be reasonable given the complexity involved with reviewing the Statement of Claim and preparing the Motion to Strike.

[10] While the Mother claims to be impecunious, there is no supporting evidence (i.e. bank account balances, etc.) to demonstrate the same. On the other hand, there are always significant financial risks associated with launching a civil claim. It should not be done lightly, especially where there are other proceedings in which the matter can be decided.

[11] This action was duplicative and an abuse of process. It cannot be condoned on that basis alone. I would order that the Mother pay costs in the amount of $4000 within 30 days of this order.

MANDHANE J.