Court File and Parties

COURT FILE NO.: FS-14-36938-0004 DATE: 2024 10 29

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

LOPATOWSKI, Magdalena Applicant

H. ALEXANDER, for the Applicant

- and -

LOPATOWSKI, Cezary Respondent

S. M. PHILBERT, for the Respondent

HEARD: In Writing

Reasons for Judgment

LEMAY J

[1] On July 8th, 2024, I released reasons in this complicated and contentious family law trial (2024 ONSC 3833). In those reasons, I permitted the parties to make submissions on the following issues:

a) The question of whether there were any issues in the calculation of child support as set out in my decision. b) If there were any outstanding issues on parenting time, the parties were invited to discuss those issues and make submissions if necessary. c) The parties were invited to make submissions on costs.

[2] Having received the parties’ originating submissions, I permitted reply submissions on child support arrears and the parenting issues. Those submissions were completed on September 9th, 2024. I have considered all of those submissions in making my determinations below.

[3] I will deal with each issue in turn.

Issue #1 - Calculation of Child Support

[4] The purpose of my invitation to discuss the calculation of child support was to permit the parties to consider whether I had made arithmetical errors in the calculations that I had set out.

[5] Instead, I received a detailed submission from the Applicant outlining why the Respondent only had custody of the child of the marriage for 36.9 percent of the time and, therefore, why my conclusion that child support should be calculated on an offset basis was incorrect.

[6] There are two significant problems with this submission. First, it was not what I had requested. My request was to deal with errors in calculating the numbers and not errors in my factual findings. Any errors in my factual findings could have been the subject of an appeal to an appellate Court. I make no finding in terms of whether any appeal rights are still extant or whether the time limits have passed for such an appeal.

[7] In this respect, I note that paragraph 228 of my original reasons sets out both my view that the Respondent had responsibility for Olivia for more than 40% of the time and the basis on which I made that calculation. My invitation to correct any calculation errors was not directed at my findings of fact.

[8] Second, if the Applicant had wished to make these arguments, she could have included them in her original brief. These submissions are not an opportunity to re-argue the case and I am not prepared to revisit my calculations to address the issues that the Applicant has now raised. In any event, however, I disagree with the calculations that she has set out for the reasons set out in paragraph 228 of my original reasons.

[9] I also note that, in her reply submissions on this issue, the Applicant relied on the case of Evans v. Gravely for the proposition that “the Court should start with the presumption that the primary parent has access to and physical custody of the child all of the time.” Counsel goes on to provide a detailed analysis of the reasons why she says that the Respondent is under the 40% threshold required by section 9.

[10] The Evans decision was not provided to me in the original submissions. Had counsel wished to refer to this decision, she could have done so at that time. In addition, I have detailed my conclusions on this matter starting at paragraph 224 and I do not see anything in the Evans decision that would cause me to change those conclusions.

[11] In this respect, I would note that the Applicant’s calculation assumes that the Respondent gets no credit for any time that the Respondent spends in school. I have already explained why that calculation is not reasonable. The parties shared joint decision-making authority at the relevant times, and the Respondent would have viewed himself as being responsible for Olivia when she was at school during his parenting time. The Applicant’s arguments are dismissed.

[12] I also note that the Respondent has provided brief submissions in which he advises the Court that his employment was terminated as of March, 2024. This does not affect my calculations of child support in any way. Should the Respondent wish to bring a motion to change, he is free to do so. The judge hearing that motion will address it, including any question of whether the Respondent’s loss of his employment amounts to a material change in circumstances. I do not intend to take any further steps in this respect.

[13] Seeing no calculation errors, I am not making any adjustments to the Orders that I have already made in respect of child support.

Issue #2 - Parenting Issues

[14] I will start by noting two important points about these submissions:

a) The parties obviously did not discuss the issues between them in respect of the parenting orders. This is clear from the fact that both of them have proposed similar wording on the subject of the picking of vacation days. b) The parties are both attempting to re-litigate issues and doing so improperly. The Applicant is seeking to have gymnastics expenses added back into the order on the basis of new evidence that is not properly before me. The Respondent is attempting to litigate issues that took place at the end of August, also on the basis of new evidence that is not properly before me.

[15] With these observations in mind, I will address the five specific submissions that have been made.

[16] First, both parties agree that there should be an order on the selection of vacation. They disagree on the content of that Order. In my view, the Applicant’s order is to be preferred as it ensures that one parent does not have Olivia for four consecutive weekends. However, the rest of the order appears to be relatively similar. As a result, the Applicant’s paragraphs 3, 4 and 5 from her parenting orders submission are to be included in the final Order and are to replace any related provisions in the original Order of Fitzpatrick J.

[17] Second, both parties have raised the issue of ensuring Olivia’s consistent attendance at activities. The Applicant has requested that there be an Order requiring the Respondent to ensure that Olivia attends Polish school and gymnastics and is on time for them. She also suggests that the provision of the Order should include a requirement that the Respondent ensure that Olivia has everything she needs for gymnastics. The Respondent suggests that there be a mutual order requiring attendance and that gymnastics and polish school be given precedence over other activities.

[18] I start with whether the Order should be a mutual one. The Applicant argues that it should not, as it was the Respondent who was always late and/or reluctant to have Olivia attend these activities. The Respondent says it should apply to both parties. This is, frankly, not a large issue. However, I am of the view that the direction should apply to both parties for as long as Olivia is involved in these activities. I acknowledge that the Applicant now has the sole ability to remove Olivia from these activities. However, as long as Olivia is involved in them, the Order shall apply to both parties.

[19] In terms of the Applicant’s concern about Olivia having all of her equipment and other materials, I would observe that Olivia is almost a teenager. As she ages, one would expect that she will become more responsible for making sure that she has everything she needs to participate successfully, especially given how passionate she is about gymnastics. The Applicant’s order in this regard is not necessary. I would also note that this type of order is a form of micromanaging that the Court should be reluctant to engage in.

[20] For these reasons, the Order set out in paragraph 6 of the Respondent’s July 23rd, 2024 submissions is to be included in the final Order.

[21] Then, there are three potential orders that were only raised in the Applicant’s submissions. The first Order simply seeks to add the phrase “at the start of school or camp, or at 9:00 a.m.” to paragraph 252(f)(iii) of my reasons. The Respondent does not seem to object to this addition and, given the inability of either party to get along with the other party, it is a reasonable addition. This addition is to be included in the final Order.

[22] The second order seeks to ensure that the parties do not have any confusion over whether the regular parenting schedule supersedes specified holidays. The Applicant’s submissions suggest that this is necessary because of the Respondent. I am of the view that it is necessary but, as I have said elsewhere in these reasons (and in my decision on the merits), these parties have an inability to get along and clarity is a good idea. As a result, the order in paragraph 2 of the Applicant’s submissions is to be added to the final order.

[23] Finally, the Applicant seeks to include summer gymnastics expenses in the section 7 expenses, and asks that I modify paragraph 251(m) of my reasons. I decline to do so. The issue of whether gymnastics would be section 7 expenses was previously litigated and I determined that the costs of gymnastics would not be included in section 7 expenses. In my view, this is an attempt to relitigate this issue. I also note that there is no evidence to support the assertions that Applicant’s counsel has made in her submissions.

[24] Finally, the Respondent raised an issue as to whether the order should be police enforceable. This issue was raised in the Respondent’s reply submissions. In my view, the issue (and the underlying facts) should not have been raised in reply submissions. In addition, there is no evidence before the Court to support anything in these submissions. Finally, I am not sure that the Applicant was incorrect about her interpretation of the Order in these circumstances if the facts alleged by the Respondent are true. As a result, the request for police enforceability of the clause is denied. This issue (if it happened as described by the Respondent) shall be addressed by the adjustments set out above in respect of vacation time.

[25] I will also note that there was no right of sur-reply in this case. However, the Applicant’s counsel addressed the issues in the Respondent’s reply in her reply, which means that she was engaged in a form of sur-reply. I have disregarded those submissions as they should not have been made.

Issue #3 - Costs Submissions

a) Positions of the Parties

[26] The Applicant’s primary position is that she made an offer to settle on May 18th, 2023 and was more successful than this offer at trial. As a result, she seeks partial recovery costs up to the date of the offer and substantial recovery costs thereafter. Her total claim for costs is $82,807.31 inclusive of HST and disbursements.

[27] In the alternative, she asserts that she was mostly successful on the issues in this trial and should be at least entitled to partial indemnity costs. She also argues that the Respondent engaged in unreasonable conduct.

[28] The Respondent argues that each side should bear their own costs. He argues that success was divided in this case, and that there were criticisms of the conduct of both parties. As a result, no one should be entitled to costs in this matter. In respect of the Applicant’s offer to settle, the Respondent argues that the Applicant did not do as well or better than the offer on all of its terms, and that the offer was not severable. Therefore, from the Respondent’s perspective, the offer should not entitle the Applicant to substantial indemnity costs.

b) The Law

[29] The purposes of modern costs principles are set out in a number of decisions, including Serra v. Serra 2009 ONCA 395 and Beaver v. Hill 2018 ONCA 840, (2018) 143 O.R. (3d) 519. Serra sets out three primary goals of modern costs awards, as follows:

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

[30] Beaver concludes that the ‘close to full recovery’ approach adopted in some case-law is, in most cases, inconsistent with the fact that the Family Law Rules expressly contemplate full recovery in specific circumstances. Therefore, costs are generally recovered on a partial indemnity basis. In addition, Rule 2(2) of the Family Law Rules also sets out a fourth principle, which is to ensure that cases are dealt with justly. See also Selznick v. Selznick 2013 ONCA 35.

[31] The Family Law Rules also provide that a party who is more successful than their offer to settle may be entitled to full recovery costs (Rule 18(14)). Further, the general rule is that the party who is successful should be entitled to their costs (Rule 24(4)).

[32] In assessing costs, Rule 24(12) sets out the factors that the Court must consider. Those factors include the following:

a) Each party’s behaviour; b) The time spent by each party; c) Any written offers to settle, including offers that do not meet the requirements of Rule 18; d) Any legal fees, including the number of lawyers and their rates; and e) Any other relevant matter.

[33] The assessment of these costs is done taking these factors into account as appropriate. With these principles in mind, I will now consider the specifics of this case.

c) Application to This Case

[34] In fixing costs, the issues that I must consider are:

a) The effect of the Applicant’s May 18th, 2023 Offer to Settle. b) More generally, the question of who was more successful on this trial. c) The conduct of the parties. d) The overall assessment of costs.

[35] In fixing costs, I must also take into account the motion before Fragomeni J. that was adjourned, as those costs were left to the trial judge to determine. I start by observing that the reasonableness of the costs charged by either side is not really an issue. Both bills of costs show a total cost of around $100,000 inclusive of HST and disbursements for this matter. Given the length of the trial (12 days) as well as the documentation and other materials that had to be gathered and filed, I am of the view that these amounts would be within the reasonable expectations of the parties. They are also proportional to the work done and the issues in dispute.

[36] I will now deal with each of the issues that have been raised.

Offer to Settle

[37] The Applicant served an offer to settle on May 18th, 2023. The Applicant argues that she achieved a result that was at least as favourable or more favourable as her offer at trial. I disagree.

[38] I start by observing that the May 18th, 2023, offer to settle was not severable. As a result, if there are terms of the offer that the Applicant did not succeed in meeting, then the offer cannot be considered under Rule 18. Chomos v. Hamilton, 2016 ONSC 6232 at para. 20, Vekeman v. Vekeman, 2021 ONSC 3184, at para. 25.

[39] In this case, there were a number of features of the Offer that the Applicant did not obtain at trial:

a) She had a punitive rate of interest of 18% per annum on any arrears in child support. This provision was not ordered. b) She was prepared to agree that there were no arrears of child support. I found that the Applicant actually owed the Respondent arrears. c) Section 7 expenses did not include either gymnastics or polish school going forward, contrary to the Applicant’s offer to settle. d) There were differences in the parenting time orders between what was included in the Applicant’s offer and what the Court ordered. Many (but not all) of those differences favoured the Respondent.

[40] In respect of how to approach these differences, counsel directed my attention to the decision in Wilson v. Kovalev, 2016 ONSC 163. In that decision, the Court stated (at paras. 25 and 26):

[25] With respect to the requirement that the order obtained be as or more favourable than the Offer to Settle, the court is not required to examine each term of the offer as compared to the terms of the order and weigh with microscopic precision the equivalence of the terms. What is required is a general assessment of the overall comparability of the offer as contrasted with the order (Sepiashvili v. Sepiashvili, 2001 CarswellOnt 3459 (S.C.J.), additional reasons to 2001 CarswellOnt 3316 (Ont. S.C.J.)).

[26] In deciding costs, the court may also take into consideration as a favourable factor any written Offer to Settle, the date it was made and its terms, even if the conditions and presumptive consequences set out in Rule 18(14) do not apply (Rule 18(16)). In this regard, the court may in the exercise of its discretion consider whether portions of the Offer to Settle dealing with discrete issues were as or more favourable than the terms of the order. A party’s failure to serve an Offer to Settle may also be viewed as an adverse factor in determining the issue of costs (M. (J.V.) v. P. (F.D.), 2011 CarswellOnt 13510 (O.C.J.)).

[41] In my view, had the Respondent accepted the Applicant’s offer to settle, he would have been stuck with some very unfavourable terms that the Court did not order (for example, the interest clause). In my view when the general assessment described in Wilson is performed, the Applicant did not do as well or better than her offer to settle. She is not entitled to substantial (or full) recovery costs on account of this offer.

[42] That being said, both parties provided offers to settle that the Court should consider as a factor under Rule 24. The Applicant’s offer to settle is a more significant factor in this case because the Respondent’s offers all envisioned joint decision-making authority, a critical point that he was not successful on. As a result, the Applicant’s offer to settle is a factor that supports an award of costs in her favour.

[43] However, I also observe that the Respondent’s lack of success on the parenting time and decision-making issues does not automatically mean that he was taking an unreasonable position. Green v. Cook, 2012 ONSC 3731 at para. 11. The Court’s decision about whether there should be sole or joint decision-making is a binary one. One side will win the point and one side will lose the point. The fact that there is, in retrospect, a winner does not mean that the losing party acted unreasonably in pursuing the point. The Applicant’s offer to settle, therefore, is a factor, but it is not the only factor for the Court to consider. I now turn to some of the other factors.

Who Was Successful?

[44] In my reasons for judgment, I observed that there had been divided success in this case. The question becomes how divided was the success? In answering this question, I am guided by the analysis in Jackson v. Mayerle 2016 ONSC 1556, where the Court stated (at paras. 66 and 67):

[66] "Divided success" does not necessarily mean "equal success". And "some success" may not be enough to impact on costs.

(a) Rule 24(6) requires a contextual analysis. (b) Most family court cases involve multiple issues. (c) Not all issues are equally important, equally time-consuming or equally expensive to determine. (d) Comparative success can be assessed in relation to specific issues: [page700] (i) did a mid-point number prevail on a financial issue; (ii) did a compromise result on a parenting issue? (e) Comparative success can also be assessed globally in relation to the whole of the case: (i) how many issues were there; (ii) how did the issues compare in terms of importance, complexity and time expended; (iii) was either party predominantly successful on more of the issues; (iv) was either party more responsible for unnecessary legal costs being incurred?

[67] Where success in a step in a case is divided, the court may exercise its discretion to apportion costs as appropriate (rule 24(6)). The court may also in those circumstances award costs to the party who was more successful on an overall global basis (Boland v. Boland, 2012 ONCJ 239).

[45] In this case, the Respondent argues that success was relatively equally divided. In support of this argument, he set out a table of the various issues and who was successful on them in his costs submissions. The Applicant, on the other hand, argues that she was successful on the most important and most time-consuming issues in this case. I accept the Applicant’s submission on this point.

[46] There were two critical issues in this case. The first issue was whether there had been a material change in circumstances, such that I could revisit the orders of Fitzpatrick J. in respect of parenting time and decision-making authority. The Applicant prevailed on that issue. The second critical issue was who should have sole decision-making authority for Olivia. Again, the Applicant prevailed on that issue.

[47] Those two issues consumed the bulk of the evidence before me and the bulk of the work that the lawyers had to perform. As a result, I am of the view that the Applicant should be entitled to at least some of her costs in this matter.

[48] I acknowledge that the Respondent had some measure of success on some issues, including on child support arrears and on some of the other financial issues. It is appropriate to take that success into account in reducing the amount of costs that the Applicant is entitled to recover. The successes, however, are not significant enough to overcome the fact that the Applicant was entirely successful on the two issues that consumed the bulk of the evidence and of the Court time.

[49] For these reasons, I am persuaded that there should be some costs payable to the Applicant by the Respondent. The quantum of those costs depends on a number of factors, and I will consider those factors together at the end of this analysis.

The Conduct of the Parties

[50] The Applicant argues that her conduct has been reasonable throughout this proceeding, and that the Respondent’s conduct has been unreasonable. The Respondent very briefly acknowledges that his conduct has been the subject of criticism, but that the Applicant has been unreasonable in her conduct.

[51] In my decision on the merits, I criticized both parties for their approach to the issues in this case. I observed (at para. 58) that “the Applicant had difficulty in separating her dislike for the Respondent from the facts of the situation.” I also observed (at para 166) that the Respondent engages in inappropriate conduct in terms of parenting Olivia, while the Applicant tends to exaggerate and magnify the issues in respect of the Applicant’s conduct. In my view, this demonstrates that the case is a high-conflict one and that both parties are taking unreasonable positions. It is difficult, however, to establish that one party or the other is behaving more unreasonably.

[52] A good example of why I reach that conclusion can be found in the urgent motion that the Applicant brought in the middle of trial. This motion was heard on November 24th, 2023. This motion was brought by the Applicant and sought the suspension of the Respondent’s parenting time with Olivia until further Order of the Court.

[53] The trigger for the motion had been an incident in respect of Olivia forgetting her make-up bag as well as an incident where the Respondent was not responding to questions about whether he was going to take Olivia to gymnastics or not for a competition over the following weekend.

[54] With one exception, I dismissed the motion. The exception was in respect of Olivia’s gymnastics, where I directed that the Respondent was required to take Olivia to her gymnastics practices and competitions pending the outcome of the trial.

[55] In this case, the Respondent was behaving unreasonably by not committing to take Olivia to gymnastics. It was conduct that was sufficiently concerning that I made a mid-trial order to address it. However, the Applicant overstated the problems and overreached in the relief that she sought. It is illustrative of the problems that were identified in this case.

[56] On the mid-trial motion itself, I am of the view that neither party should recover any costs for it. On the larger question of the parties’ conduct, I am of the view that both of them have engaged in conduct that is, in some respects, unreasonable and, as a result, this is not a factor that supports either an increase or a decrease in the quantum of costs that should be payable by the Respondent to the Applicant.

The Overall Assessment

[57] In addition to the foregoing points, there are two issues that were raised in the Respondent’s submissions that require some comment from me.

[58] First, the Respondent makes the observation that, in parenting decisions, success alone is not a sufficient basis for an award of costs. He argues that even a successful party may not be entitled to costs because of “any number of reasons, such as the prospect of a costs award further exacerbating mutual parental conflict, hobbling a primary care parent’s ability to meet the child’s financial needs or reflecting the Court disapproval of unreasonable course of litigation conduct.” In support of this argument, the Respondent directs my attention to the decision in Giansante v. Di Chiara.

[59] I have already set out my conclusions in terms of the parties conduct, above. The argument that a costs award will hobble a primary care parent’s ability to meet the child’s financial needs does not apply in this case, as the Respondent is not the primary care parent. This brings me to the argument about conflict. I am not persuaded that I should take that argument into account to justify a reduction or elimination of costs either. The Giansante decision was a unique case involving the death of a child’s mother, and a motion for access by the grandparents. It is understandable why costs were not awarded in that case. In this case, however, the usual rules should apply and the Applicant, as the more successful party, should be entitled to her costs.

[60] Second, the Respondent makes the observation that he is “financially drained”, and that he lost his employment in March of 2024. This is not a factor to be considered in assessing the costs of this case for three reasons. First, this information is not before the Court in any proper or meaningful way. Second, even if it was before the Court properly, the Respondent’s circumstances may very well have changed in the eight months since he lost his job. Third, I do not have any information about the Respondent’s current financial position beyond his income. In the circumstances, I am not persuaded that the Respondent’s financial circumstances are a basis for adjusting the costs payable.

[61] This brings me to the assessment of the quantum of costs. The Applicant’s partial indemnity fees and disbursements would be approximately $67,000.00 inclusive of HST and disbursements. Had she been entirely successful on all issues, this would have been a reasonable amount to award her in costs.

[62] However, as I noted, there was some divided success in this case, and I am of the view that this divided success must be accounted for in assessing costs. In addition, I have determined that each side should bear their own costs for the motion on November 24th, 2023.

[63] The Applicant was successful on more of the issues, and on the issues that consumed more of the Court time. As a result, I am of the view that a reasonable assessment of costs would be to deduct approximately $7,000.00 from the partial indemnity number. This deduction accounts for the motion on November 24th, 2023, and some of the impermissible additional submissions that were made in this case.

[64] Once those deductions are made, I am then of the view that the Applicant (as the more successful party) should be entitled to two-thirds of her partial indemnity costs. As a result, I conclude that the Respondent should pay the Applicant costs in the sum of $40,000.00 inclusive of HST and disbursements.

d) Conclusion

[65] For the foregoing reasons, I determine that costs for this trial, including the motion before Fragomeni J. and the November 24th, 2024, motion before me, are to be paid by the Respondent to the Applicant in the sum of $40,000.00 inclusive of HST and disbursements.

[66] While I have not considered the Respondent’s assertion that he has lost his employment in assessing the quantum of costs, I am cognizant of the income that the Applicant has. These costs are to be paid out within the next twelve months.

Conclusion

[67] For the foregoing reasons, I am providing the following directions:

a) There is to be no change in the calculation of child support arrears from what was set out in my original reasons of July 8th, 2024. b) The proposed order in paragraphs 3, 4 and 5 from the Applicant’s parenting orders submission are to be added to the final Order and are to replace any provision that conflicts with them. c) The proposed order in paragraph 6 from the Respondent’s July 23rd, 2024 submissions on parenting issues is to be included in the final Order. d) Paragraph 252(f)(iii) in my July 8th, 2024 reasons is to have the phrase “at the start of school or camp, or at 9:00 a.m.” added to it in the final Order. e) The proposed order in paragraph 2 in the Applicant’s parenting orders submissions is to be added to the final Order. f) There are to be no other additions, deletions or changes to the orders as set out in my July 8th, 2024 decision.

[68] In addition, the Respondent is to pay the Applicant the sum of $40,000.00 inclusive of HST and disbursements on account of the costs of this matter within twelve (12) months of the release of these reasons.

[69] Finally, it could be argued that one party or the other should be entitled to additional costs on account of the written submissions that have been engaged in since the trial decision was released. However, I am not prepared to award either party costs for those submissions for two reasons. First, success was truly divided on these issues. Second, both parties engaged in improper litigation in these submissions. The Applicant sought to re-litigate both the arrears of child support and the calculation of section 7 expenses. The Respondent sought to re-litigate issues in respect of parenting time on the basis of written submissions, without any evidence. Neither of these approaches were appropriate. There shall be no other costs beyond what is set out above.

[70] My involvement in this matter is at an end. Should the parties have any issues remaining, they will have to address them in other fora.

LEMAY J

Released: October 29, 2024