Court File and Parties

Court File No.: FS-21-102-0000 Date: 2024 10 16 Ontario Superior Court of Justice

Between: MILA PHENIX, Applicant Counsel: Paul Cooper, for the Applicant

- and -

KALLOL CHAKRABORTY, Respondent Counsel: Self-Represented

Trial: October 24-31, 2023 Final Submissions: May 27, 2024

Motion to Change Trial: Reasons for Decision on Final Parenting Issue and Trial Costs Submission Timelines

McSweeney J.

[1] This is my final decision following the Applicant mother, Ms. Phenix’s motion to change trial.

[2] Issues previously decided:

a. Ms. Phenix’s request to change the Final Order to dispense with the Respondent father, Mr. Chakraborty’s consent to change the children’s last name was dismissed for reasons given orally following conclusion of evidence at trial.

b. Ms. Phenix’s request for imputation of income to Mr. Chakraborty for child support purposes was granted - see Phenix v. Chakraborty, 2024 ONSC 80.

c. Parenting issues: the Court’s decision on primary residence, decision-making and related matters was rendered on November 1, 2023. Paragraphs [9] to [58] of that decision are reproduced further below.

[3] The issue of the children’s parenting time with their father was adjourned to permit the Court to request appointment of Office of the Children’s Lawyer (“OCL”) counsel for the children.

[4] There was no independent evidence of the children’s views and preferences in this high conflict trial.

[5] In view of their ages, the Court’s final decision about what parenting time and contact with Mr. Chakraborty is in their best interests was adjourned to permit the OCL to provide representation to the children so that final submissions on this issue would include their views and preferences.

[6] Counsel Christine Torry was assigned by the OCL to represent the children. My interim endorsements of December 13, 2023 and March 8, 2024 describe that process.

[7] Both of the parties, and OCL counsel for the children, filed written submissions on the remaining issue of the children’s parenting time with their father. The Court heard their final argument on May 27, 2024.

[8] Ms. Torry unfortunately passed away on October 2, 2024. In these circumstances parties are directed to send correspondence on this file to the OCL Legal Director of Personal Rights, Ms. K. Kavassalis, at katherine.kavassalis@ontario.ca.

[9] This decision is in five parts:

i. The parenting findings and orders made November 1, 2023

ii. Summary of the parties’ and OCL counsel’s submissions on the parenting time issue

iii. Law and Analysis

iv. Decision and Final Order

v. Directions re cost submissions for remaining issues

PART 1 – NOVEMBER 1, 2023 PARENTING FINDINGS AND ORDERS:

[10] The paragraphs in my decision of November 1, 2023 containing my findings and orders regarding parenting are excerpted below:

9. Appclose order: The court orders on a final basis after hearing parties’ submissions on same that Applicant and Respondent shall within 5 days sign up for and communicate using free app “Appclose”. They will communicate in a professional courteous manner only with respect to child related issues.

10. No contact order: The court orders on a final basis after hearing parties’ submissions that neither Applicant nor Respondent will attend within 100m of the other’s residence, place of work, or any place the other party may reasonably be expected to be, without the other party’s prior written consent or agreement.

Brief background:

11. The parties separated 8 years ago this month, November 2015. Father pleaded guilty to threatening death of mother and children in the home at time of separation, when children were 7 and 6 years old.

12. The parties’ Final order of June 12, 2018 gave mother sole custody and decision-making, with provision for supervised access for children with father, and reconciliation assistance to be arranged by father.

13. The children are now 15.5 (daughter) and 14 (son) years old. To respect their privacy I will refer to them as “daughter” and “son”.

14. The children have not seen their father in person for 8 years. On this motion to change, Applicant mother asks that the children’s parenting time with father now be in the discretion of children given their ages and maturity.

15. Responding on motion to change, father seeks joint decision-making and unsupervised parenting time with the children, to be enforced by police.

16. The children are described as both being intelligent, articulate and mature for their age. I am satisfied that they have the capacity to instruct counsel, and that for the reasons set out further below, it is appropriate that they be represented at that time in discussions with both parents/counsel prior to the return of this matter before me.

Position of parties:

17. Father asks the court to label the children as victims of “parental alienation” by mother over the past 8 years.

18. Mother asks the court to find the opposite, that they are “realistically estranged” from father as consequence of his own conduct. Mother indicates that she encourages the children to re-establish contact with their father and to forgive him, but they do not want to do so.

Findings/analysis:

19. There is no “quick fix” in this circumstance.

20. Each parent blames the other for the dynamic that has led to this unfortunate impasse. The evidence supports a conclusion that each parent is correct – yes, the other parent does bears some responsibility for the current stalemate between father and children. However, both parents are much quicker to highlight the other’s shortcomings than to demonstrate insight into their own behavioural contributions to the impasse.

21. Both parents love their children. Both are very clear that the other parent cannot be trusted to follow court orders. The evidence establishes that each parent has, at various times, taken steps to schedule, and to frustrate, court-ordered parenting time or to fail to take steps needed to move forward in a timely way.

22. For Mother’s part, the most significant step she took to derail the children’s resumption of parenting time in the Final order was her removal of the children to British Columbia for 20 months between 2018 and summer 2020, without notice to their father. I find that this step precluded her good-faith participation in the reunification process ordered by the Court during those years.

23. On father’s part, his behaviours that have stalled or derailed efforts to move toward more time with the children include his failures: to apologize to them meaningfully, and without reservation, for threatening to kill them and their mother; his repeated focus on mother’s shortcomings; and his lack of insight into the connection between telling the children that their memories are not accurate, or what they say is not true, and the maintenance of the children’s refusal to see him.

24. On mother’s further part, her encouragement to the children that they should “forgive” their father, is accompanied by her own asserted refusal to do so; this could undermine what she describes as her support to the children to reconnect with their father. She was clear in her testimony that she does not want to see or communicate with him and does not forgive him for the abuse she describes suffering at his hands, psychological and physical, during their 8 years together.

25. The court does not make findings whether “forgiveness” is or is not appropriate for any party at this time. These observations, however, support a conclusion that mother cannot at present do differently than she has been doing do encourage the children to be open to reconnection with their father.

26. I found mother sincere in her testimony that she believes the children would benefit as they get older from having a father in their life. At this time, however, she does not consider that father has done his part to accept responsibility for his own contribution to the children’s mistrust of him.

27. The court also observed that mother’s protective stance with the children continues to this day, and she may lack insight as to how those behaviours may be perceived by the children as inconsistent with her request that the court find them to be mature enough to make their own decisions about any next steps in their relationship with their father.

28. On father’s further part, he admitted has not pursued and continued individual counselling to assist him to understand the children’s experiences and learn how to listen, not interrupt, and validate their perspective, even when that is hard, without rejecting and labelling them as “brainwashed” or “wrong”.

29. For example, the children expressed to their father in the YWCA sessions that they remembered his verbal and physical aggression toward them and mother prior to separation, but could not recall the specific “good times” with father when asked about their early memories. To father, their responses to him were not believable, other than as evidence that mother’s alienating behaviours had supressed their happy memories: he did not appear to consider the possibility that their trauma memories of father may have overshadowed more positive recollections of their time with him in early childhood.

30. Neither party called expert evidence with respect to the children’s best interests. Evidence of the OCL clinician, Ms Hylton-Campbell, who collapsed her s. 112 report was of limited assistance. The court appreciated her description of the intelligence and communication abilities of each of the children, based on her three meetings with each child. The parents did not dispute her descriptions.

31. However Ms Hylton-Campbell was unable to complete her report as the children refused to attend an in-person supervised visit at the Peel access centre at which the OCL would observe them with their father. The court therefore had no OCL recommendations as to next steps.

32. A further, significant limitation to Ms. Ms Hylton-Campbell’s assistance to the court is that neither parent gave her the detailed notes of the YWCA supervised videoconference sessions between father and children. These sessions took place over approximately 8 months, ending a few months before the OCL s. 112 commenced. The detailed notes of the conversations between father and children, the efforts made by all three at various points, and then the notes of mother’s comments to YWCA staff after the sessions, were useful relevant background which might have helped the OCL identify the recent history relating to the children’s reluctance to attend supervised inperson sessions with their father at that point, and to explain their concerns in a manner the parties could understand.

[Interim] Conclusion on parenting issue:

33. I have reviewed the parties’ evidence and arguments closely on the parenting time with Respondent issue.

34. I am satisfied that the children expressed clearly and strongly to mother, and to the OCL clinician, that they do not want to see their father.

35. I do not find on all the evidence, as father urges the court to do, that this is solely because the children have been “alienated” from him by the mother. However it is inevitable that their views and perspective have been affected by living soley with mother, who does not trust or forgive father, over the last 8 years. In such circumstances their expressed positions cannot be viewed as independent of mother’s.

36. For that reason, it is insufficient for this court to have only mother’s evidence of what she believes is in the children’s best interests.

37. Father referenced the UNCRC and the rights of children. Significant parts of that convention has been incorporated into our federal and provincial law in Canada, including the right of children to be heard on matters affecting them, in accordance with their age and maturity. There is no dispute that the children have such rights, nor that they are of the age and maturity to instruct counsel.

38. Case law referenced by both parties is consistent with the court’s finding that parenting time ordered by the court must be determined in the children’s best interests, and that significant weight must be given to the children’s views, even in contexts of strong alignment with one parent, at the ages of the parties’ daughter and son.

39. It is not in dispute that the children will continue to reside with their mother. Nor will decision making change. However the children’s independent counsel is requested to assist the parties to “flesh out” the potential options, any preconditions, and terms of any parenting time with father and children;

40. At this point mother has recommended a beginning of supervised (by her) email exchanges between the children and their father with no requirement that the children send or respond to any communication. Father is concerned that he would not know if the children even received or read his message if they did not respond.

41. Father suggests that the children and he meet together in the presence of an agreed family member for each side of the family, and that he “hear whatever they want to tell me”.

42. The court views both proposals as a positive steps, and improvements on earlier non-communication on this topic.

43. Mother emphasized in her evidence that the children do not feel their father has “taken responsibility” for the harm he caused them and mother when he threatened to kill all of them in 2015. Father has tried to do so, it would appear from the YWCA transcripts, but each time he starts doing so, he ends up pointing a finger at mother or telling the children they should have therapy.

44. The court accepts that father wants his children back in his life. However, he has not yet done the hard work to learn how to accept, address, and improve his aggressive and responsibility-deflecting behaviours, and show others that he has done so.

45. The trial testimony and notes of the YWCA session confirmed that if father continues to deflect blame away from himself, the children will continue to view him as not taking responsibility and not interested in what they want him to hear and understand about their feelings.

46. Father confirmed to the court on the last day of trial that he would commit to obtaining and pursuing a course of individual counselling to help him with these self-awareness and self-regulation challenges

47. In the court’s view, father taking these steps is the next necessary step to a potential change in parenting arrangements between children and father.

Re: joint decision-making request:

48. Father seeks to change decision-making from sole (to mother) to joint. The evidence establishes that the parents have not had healthy communication, or any communication at all, for the better part of the eight years since separation. For most of that time their contact has been restricted by successive restraining orders.

49. The evidence confirms that the children are doing well in school and their needs are met in the care of their mother. Father agreed with this in general, apart from his evidence that during the pandemic the children were not vaccinated against COVID.

50. I also note that these parents have not to date demonstrated the respectful, effective communication required to make decisions jointly. The court is not persuaded that joint decision-making is in the best interests of the children of these separated parents. Father’s request for joint decision-making is dismissed.

51. The court notes with that no finding was sought at trial regarding whether the children were vaccinated against COVID-19 while in mother’s care. Going forward, however, the children are both of sufficient age and maturity, that they can ultimately make their own decisions as to whether to obtain vaccinations.

Police enforcement clause:

52. With respect to father’s position that there should be a police enforcement clause in any parenting order, mother’s counsel submitted that any order to compel the children to attend parenting time with father, enforced by the police, would have the opposite effect and increase the children’s resistance to contact and further impair their trust in their father.

53. To his credit, father appeared to acknowledge this in his submissions at trial. He explained that he seeks such a clause not because he wants to involve police in parenting matters, but rather to ensure that mother will have an incentive to comply with any order the court makes.

54. No police enforcement is ordered in this matter.

Other matter – [travel consent]:

55. Father made submissions about proposed restrictions on mother travelling with the children and consent for same. No specific evidence was led on this issue. In view of the children’s ages such an order is not indicated.

Role of OCL counsel at this stage:

56. At their current ages, determination of whether parenting time with the Respondent father is in the children’s best interests, and if so, on what terms, requires representation of the children by their own independent counsel at this time.

57. Determination of the motion to change re: parenting time between children and their father is hereby adjourned to permit OCL to review the court’s order requesting representation for the children, to ensure that their concerns and preferences are understood and considered by the court before a final decision is made.

58. The court will issue an order requesting that OCL appoint s. 89 counsel in this matter on an urgent basis. OCL will be provided with a copy of this endorsement.

PART II – PARTIES AND OCL POSITION AT MAY 24, 2024 HEARING:

[11] Ms. Phenix, Mr. Chakraborty, and OCL for the children filed written final argument on the children’s parenting time with their father. They attended court virtually on May 24, 2024 to make oral submissions. Those submissions are summarized below.

Submissions of Ms. Phenix:

[12] Counsel for Ms. Phenix submits that it is in the children’s best interests at this time to respect their expressed wishes not to have contact with Mr. Chakraborty. Ms. Phenix’s evidence at trial was that she had encouraged the children to forgive their father and to see him, but that her efforts were not successful. At this stage and at their current ages, she cannot force them to have contact with Mr. Chakraborty. Further, her attempts to do so have been damaging to the children’s relationship with her and their trust in her.

[13] Ms. Phenix proposes that if the Court orders her to do so, she is willing to set up an email account for each child and give Mr. Chakraborty the address so that he can write to them if he wishes. She would tell the children how to access their email account but tell them it is up to them whether to check the account or not and whether to reply to any messages.

Submissions of Mr. Chakraborty:

[14] Mr. Chakraborty made submissions on his own behalf. He understands that his children have clearly expressed to their mother, and now to OCL counsel, that they do not want to have contact with him at this time in their lives.

[15] He expressed his strong belief that children need a father and a mother in their life. He stated that in his view, children raised by a single parent end up being “antisocial” and that maximum contact with both parents is in their best interests. In Mr. Chakraborty’s view, the court process was “tilted” against him as a father.

[16] He disputes that the children’s views as expressed on their behalf by OCL counsel were their own “voice.”

[17] Regarding his threat to kill Ms. Phenix and children (“I will kill you all”), for which he was charged and convicted, Mr. Chakraborty asserted that the incident “has been embellished.” According to him, all that happened was that he “yelled and banged on the door for the safety of my children once.”

[18] Mr. Chakraborty asked that the Court find the children have been “poisoned” against him by Ms. Phenix. He asserts that the children’s refusal to see him did not start with his threat to kill them and their mother in 2015. Rather, it started in 2018, when Ms. Phenix moved to British Columbia with them without his knowledge, in contravention of the court order and thereby frustrated any timely reunification therapies.

[19] In Mr. Chakraborty’s view: “this is a very simple case of alienation. If Ms. Phenix had not moved the kids in 2018 we would have a very normal situation.” Mr. Chakraborty asks the Court to set an example and to require the children to have contact with him because “they have to have contact.”

[20] As part of such an order, he asks the court to exercise its discretion to compel the children to have psychological assessments and to attend therapy. Mr. Chakraborty submits that such an order is appropriate because it will help the Court to “understand their psyche” and will help the children “access their true feelings”. It is in the children’s best interests to order such treatment, in his view, because they will want to resume contact with their Mr. Chakraborty, to their benefit and his, once they are able to access their “true feelings”.

[21] In support of his submission as to precedent for the Court making the orders he seeks, Mr. Chakraborty cited cases including Malhotra v Henhoeffer, 2018 ONSC 6472, in which children were put into the sole care of the parent from whom they were found to be alienated, with cessation of contact from the alienating parent ordered for a specified period.

[22] Mr. Chakraborty stated in his submissions he has been heartbroken for years. At this point he does not want to “get his hopes up” about future contact with them. Mr. Chakraborty also expressed concern that the children have lost contact with the paternal grandparents and cousins.

[23] However, although he misses his children and desires contact with them, Mr. Chakraborty does not support Ms. Phenix’s “email address” proposal as a way for him to communicate with the children. He states he does not want to email the children if they are not going to be required to respond, as he would be left unaware whether they received his message.

[24] Although the only issue for submissions on May 27, 2024 was what parenting order is in the best interests of the children, Mr. Chakraborty made repeated references to his child support obligation. During his submissions he made statements and posed rhetorical questions, including: “Why do I have to pay child support? They have to support themselves”; “Child support is going to stop”; and “I am not a father so why should I pay child support?”

[25] At the conclusion of his submissions, Mr. Chakraborty described his love for his children as deep and unconditional. He wants them to know that he has never left them, would never leave them, that he feels “a big remorse” for the past, and that “my door for them is always open for as long as I live.”

Submissions and Position of the OCL on behalf of the children:

[26] OCL counsel submits on behalf of the children, who are now 16 and 15 years old, that parenting time with Mr. Chakraborty should be in their sole discretion. OCL counsel emphasized the following in her submissions.

[27] Strength of views: the children have been clear and strong in their views expressed to all professionals involved in this matter, that they do not want to see their father. This was expressed to OCL counsel and previously to the clinician for the Children's Lawyer, Juliet Hylton-Campbell, in 2023.

[28] Consistent views: their views have been consistent over a lengthy period. They continue to hold those views despite an attempt to engage them in seeing their father through supervised access over a period of eight months in 2018.

[29] The children seek finality: the children express frustration at continually being asked about seeing their father when they have been so clear that they do not want to do so. They feel the Court is ignoring what they are saying. They are clear that they do not want to be involved in the court process any longer.

[30] Maturity: the children are both mature and articulate. The trial evidence was that they are doing well in school, and socially, and have varied interests.

[31] Practical considerations: Considering the children’s ages and the consistency of their views, OCL counsel pointed out that forcing the children to have parenting time against their clear wishes would be counterproductive, detrimental to them and likely futile.

[32] OCL counsel cited case law including De Melo v. De Melo, 2015 ONCA 598, [2015] O.J. No. 4613, and argues that the children’s views should be respected for all these reasons.

[33] With respect to Ms. Phenix’s email “mailbox” proposal, OCL counsel did not support such a step, on the basis that it would put more pressure on the children to feel they should be in contact with their father.

[34] The OCL also advised the Court that the children want to be free of involvement in the court process and able to focus on their own school and social lives. They are not open to having counselling at this time.

[35] Accordingly, the OCL asks the Court to find that it is in the best interests of the children that parenting time with Mr. Chakraborty should be at their initiation and in their sole discretion.

PART 3 – ANALYSIS AND CONCLUSIONS:

Legal framework:

[36] The Court must make a parenting order which, on the evidence, is in the best interests of the children. The factors to consider in determining best interests are set out in The Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 24(3) and the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 16.

[37] Pursuant to s. 16(2) of the Divorce Act, the Court’s primary consideration shall be “the child(ren)’s physical, emotional and psychological safety, security and well-being.”

[38] The Court weighs all relevant factors and determines the weight to be given to each. The views and preferences of children are one of the factors and is to be given due weight considering the age and maturity of the child. Where children are of teenage years, mature and doing well, the courts have tended to give significant weight to their views.

[39] The Court accepts the trial evidence and finds that the two children, now young adults, are both intelligent, articulate, and mature enough to articulate their own views clearly.

[40] The children’s views may be summarized as follows: that they do not wish to see Mr. Chakraborty or have contact with him at this time; that they have felt pressured to do so in the litigation; that they have been clear as to their views, but do not feel they have been heard because they are still being asked the same question; and that their views are based on their own individual experiences and memories of their father’s actions toward them, both the death threat, and also his interactions with them including during the period of YWCA supervision.

[41] Within s. 16 of the Divorce Act, the Court must also consider the impact of “any family violence.” Section 16(4)(a)-(h) contains a non-exhaustive list of relevant factors to take into account when considering the impact of any family violence.

[42] In this case the evidence supports a finding that Mr. Chakraborty’s threat to kill Ms. Phenix and children remains a relevant and disturbing part of the children’s experience of their father’s behaviour toward them. Mr. Chakraborty’s minimizing of the significance of that event, both in his evidence at trial, and in his final submissions to the Court, supports Ms. Phenix’s position that he has not taken responsibility for his actions.

[43] The Court appreciates that the death threat and resulting criminal conviction took place several years ago. Unfortunately, the evidence also supports a finding that Mr. Chakraborty has not been able to consistently accept responsibility for his actions nor to follow through in a consistent manner on promised steps to increase his self-awareness as to the long-term harm caused by his actions and threats on his relationship with his children.

[44] At the time the parenting issue was adjourned in late 2023 to permit the appointment of OCL counsel, I found that certain steps were necessary in order for Mr. Chakraborty to obtain a “potential change in parenting arrangements between children and father.”

[45] Specifically, I found that although he clearly wants his children back in his life, Mr. Chakraborty had “ not yet done the hard work to learn how to accept, address, and improve his aggressive and responsibility-deflecting behaviours, and show others that he has done so” and that “if father continues to deflect blame away from himself, the children will continue to view him as not taking responsibility and not interested in what they want him to hear and understand about their feelings.”

[46] At the time of that adjournment, Mr Chakraborty had assured the Court that he would be obtaining and pursuing a course of individual counselling to help him with his self-awareness and self-regulation challenges.

[47] The Court was hopeful that if Mr. Chakraborty could take such steps and learn to demonstrate self-awareness, as he committed to doing, OCL counsel could make the children aware of these new circumstances and discuss potential next steps for the resumption of contact with their father.

[48] Unfortunately, this did not happen. Mr. Chakraborty indicated he may have attended a counselling session or two following the end of trial. However, the Court observed that his submissions in May 2024 remained focused on his entitlements as a father, on Ms. Phenix’s faults, and specifically on his belief that that it was not his threat to kill his wife and children, but Ms. Phenix’s subsequent removal of the children that caused the children’s “alienation” from him.

Decision:

[49] I am satisfied that the children’s current views have been ascertained and communicated by OCL counsel. I am further satisfied that those views are strongly held and have been consistent over time, including over the six-month period from the adjournment of this issue on November 1, 2023 to the date of submissions May 27, 2024.

[50] I am satisfied that bot children are of sufficient age and maturity that their views should be given significant weight in making my decision.

[51] I am satisfied that the children do not wish to see Mr. Chakraborty at the present time, and that they wish no further involvement in litigation or court-ordered interventions, including pursuing further counselling at this time.

[52] The evidence does not support Mr. Chakraborty’s position that his behaviour toward them is not the reason they do not want to have contact with him at this time. I am satisfied on the evidence at trial, and by submissions from OCL counsel with respect to current views of the children, that their refusal to see their father is based on their own experiences with Mr. Chakraborty before and during the court process. At this time, they want to focus on their own lives and activities as is normal for youth of their ages.

[53] In this regard I find the above-cited Court of Appeal decision in De Melo v De Melo to be applicable. In that case, as in the present case, the views of the teenaged children were to continue with their arrangements, and not see their father, based on their experiences: para. 14.

[54] As noted in my decision of November 1, 2023, both parents in different ways have contributed to the polarizing of their children’s alignment with one parent and distancing from the other. At this time, I am satisfied on all the evidence and submissions that it is in the best interests of these children for their parents, Mr. Chakraborty and Ms. Phenix, to respect their current wishes.

[55] For the reasons above, contact with Mr. Chakraborty shall be in the sole discretion of, and initiated by the parties’ children: their daughter, now 16, and their son, now 15.

[56] I emphasize that whether to initiate contact with their father is a decision for each of the children to make for themselves. If either child so requests, Ms. Phenix shall give them contact information for their father and provide any other assistance they may ask for.

[57] The Court does not find that the “email address/mailbox” proposal by Ms. Phenix is in the best interests of the children at this time. Neither Mr. Chakraborty nor the children through OCL counsel requested that proposal to be implemented.

PART 4 - FINAL ORDERS:

[58] The remaining final orders in this trial are as follows:

[59] Ms. Phenix’s motion to change the final order with respect to parenting time is granted. The parties’ children, born March 2008 and June 2009 shall have contact with the Mr. Chakraborty at their sole discretion and at their own initiative.

[60] Ms. Phenix’s counsel may take out an order incorporating all the final orders in the Court’s decision of November 1, 2023, in the Court’s reported child support decision, and including the parenting term ordered herein.

[61] Approval of Mr. Chakraborty of draft order as to form/content is dispensed with. The parenting terms of the draft order will require form/content approval of OCL on behalf of the children.

[62] Ms. Phenix’s counsel is directed to provide Mr. Chakraborty with a copy of the final order once issued and entered.

PART 5 – TIMELINE FOR COST SUBMISSIONS ON REMAINING TRIAL ISSUES:

[63] The Court has now decided all the issues from this trial.

[64] Costs were neither sought by the OCL nor against the OCL.

[65] Ms. Phenix and the Mr. Chakraborty may file updated cost materials as directed below.

[66] Ms. Phenix is directed to serve on Mr. Chakraborty and file no later than October 31, 2024 the following:

a) copy (unedited) of the same Bill of Costs filed at trial;

b) separate Bill of costs for period after November 1, 2023;

c) relevant offers to settle with proof of service; and

d) cost submissions not to exceed 5 pages double spaced, no smaller than 12-point font, pages with minimum 1” margins.

[67] Note: Ms. Phenix’s bills of costs are to omit any time for matters for which costs were previously ordered by the Court. The omitted time periods and attendance shall be listed in the cost submissions.

[68] Mr. Chakraborty is to serve and file his cost submissions, and any relevant offers to settle, no later than November 14, 2024. Mr. Chakraborty’s cost submissions not to exceed 5 pages double spaced, no smaller than 12 point font, pages with minimum 1” margins.

[69] Cost materials not filed in accordance with the time and content directions given may not be considered by the Court in determining costs.

[70] Ms. Phenix may in her discretion serve and file a reply cost submission by November 21, 2024. Reply not to exceed 2 pages double spaced, font and margins directions as specified above.

McSweeney J. Released: October 16, 2024