Court File and Parties
Court File No.: FS-15-0213 Date: 2024-11-20 Ontario Superior Court of Justice
Between: M.D., Applicant
And: N.P., Respondent
Counsel: Ron Shulman and Sabrina Mangiapane, for the Applicant Valarie Matthews and Sima Hashemi, for the Respondent
Heard: May 15, 16, 17, 21, 22, 23, 2024
Trial Reasons
I. Overview
[1] The applicant mother, MD, and the respondent father, NP, were a common law couple, starting in 2013. There is one child of the relationship, C, born in 2014.The parties separated in 2015.
[2] This proceeding was started by application dated September 18, 2015.
[3] The parties settled many issues prior to trial. They are to be congratulated for this, particularly given the protracted and hard-fought litigation (nine years and dozens of court endorsements).
[4] Parenting time is now 60/40 between the applicant and the respondent, with the Respondent spending 6 of 14 overnights with C.
[5] The focus of this trial was child support, section 7 expenses, and therapy. As an overview, I have imputed income to MD in the amount OF $72,072 and made corresponding findings on child support and section 7 expenses. With respect to therapy, the parties are required to engage in family therapy to improve the parties’ co-parenting skills and provide C with needed supports.
[6] A great deal of trial time was spent on the past. While the court is always appreciative of context, the focus on past events was not always relevant or productive. It is time for the parties to focus on a path forward for the sake of C.
II. Request for Anonymization
[7] At the outset of trial, the parties requested a consent order to anonymize the parties. During the trial, I agreed that this is an appropriate order to make in light of the publication ban made in another proceeding involving these parties. In addition, the trial evidence required the court to consider some personal health information of the parties and the child.
[8] The parties did not request a sealing order, nor would this have been granted. However, I am satisfied that granting an order to anonymize the parties and the child of the marriage is appropriate in the circumstances of this case.
III. Issues
[9] At the outset of trial, the parties advised the court that “90%” of the issues had resolved. These included:
a. All property issues; b. Parenting time, including holidays and travel outside Ontario; c. Decision making, which shall be joint; d. Sharing of child-related tax credits and benefits; e. The child’s current section 7 activities; f. Medical and dental providers for the child; g. Child’s legal name; h. Communications protocol (parties to use OFW for non-urgent issues); i. Arrears of child support and section 7 expenses (up to May 1, 2024); and j. Dispute resolution mechanism [^1].
[10] The remaining issues are:
a. Income imputation for the applicant; b. Child support from May 1, 2024; c. Division of section 7 expenses going forward; d. Therapy; and e. Costs
IV. Witnesses
[11] The court heard from four witnesses during the trial:
| Name | Called By | Description |
|---|---|---|
| MD | Applicant | mother |
| Ms. Rasaei | Applicant | Child’s current therapist |
| NP | Respondent | father |
| Mr. Hurwitz | Respondent | S.30 assessor from 2020 |
V. Factual Overview
[12] This is not a recitation of all evidence heard during trial. Rather, it is an outline of major events in the chronology. Both parties spent considerable time at trial covering the events of 2013 to present. As noted above, while context is appreciated and often important, much of the evidence was not relevant to the trial issues.
[13] The parties met as work colleagues in 2008.They became romantically involved in 2013. MD moved into NP’s apartment in late 2013 (there was disagreement about the precise timing, but the date does not impact the issues in the case). NP’s apartment was in the basement of his parents’ home.
[14] The parties learned they were expecting a child in March 2014. C was born later that same year.
[15] The parties purchased a house in Brampton towards the end of 2014 and the transaction closed in the spring of 2015.
[16] The precise date of separation is not clear, but it is not necessary to find a specific date to decide the issues in this case. There was a domestic incident in June 2015. NP retained legal counsel in July 2015. The parties continued to live together until another incident in September 2015, at which time they separated without reconciliation. MD started this application in the same month.
[17] The matrimonial home was sold. During this proceeding, the parties had several court attendances over parenting time for NP.
[18] MD repartnered. In 2019, she proposed to relocate C to a different jurisdiction. This proposal drove many of the next steps in the litigation. NP opposed the move. MD ultimately abandoned this relief prior to trial.
[19] The parties retained a section 30 assessor, Dr. Kimmons. For reasons not clear to the court, this assessment was not seen through to completion. The parties then retained Mr. Hurwitz, who delivered a section 30 assessment report in the summer of 2020. In 2022, MD had concerns about C’s behaviour and ability to cope so she organized supports through the school social worker and a psychotherapist. NP developed concerns regarding the therapy and seeks to have it terminated.
VI. Incomes of the Parties and Income Imputation to Applicant
a. Positions of Parties
[20] The applicant, MD, says no income should be imputed to her. In the alternative, she submitted that, if the court was inclined to impute, the amount should be $32,000, which she described as approximately minimum wage.
[21] The respondent, NP, submits that an annual income of $140,000 should be imputed to the applicant, on the basis that this figure represents a roughly calculated average of her expenses over the last few years.
b. Respondent’s Income
[22] NP is employed by an aircraft manufacturer. Historically, he has received incremental increases to his income each year, accompanied by a cost of living allowance tied to the consumer price index (CPI). His income over the last few years was as follows:
| Year | Total Income | Source Document |
|---|---|---|
| 2020 | 121,811 | NOA, line 15000 |
| 2021 | 127,409 | NOA, line 15000 |
| 2022 | 132,254 | NOA, Line 15000 |
| 2023 | 134,700.07 | 2023 T4, box 14 |
[23] Approximately 10 years ago, NP became the chair of his union local. This is a position which is elected every three years. In the event that NP was not reelected, he would return to his original position as a parts buyer at the same employer. If this occurred, NP estimates that his income would decrease by @ $100 per week ($5200 per year).
c. Applicant’s Income
[24] In the recent past, MD worked full time except for her three maternity leaves. C was born in 2014. After the parties separated, MD had two children with her new partner, (one child born in December 2020 and the other born in February 2022). MD’s second and third maternity leaves ran together, so she did not return to work between the birth of her second and third child nor did she return to work following the birth of the third child.
[25] In the last decade, MD worked in communications and marketing at various corporations. Her work hours were usually between 9am and 530pm with some weekend or evening events. Her income can be summarized as follows:
| Year | Total Income | Source Document | Notes |
|---|---|---|---|
| 2016 | 45,682.56 | 2016 T4 | |
| 2017 | 88,187 | NOA, line 150 | |
| 2018 | 89,413 | NOA, line 150 | |
| 2019 | 62,640 | NOA, line 15000 | On EI from late 2019 |
| 2020 | 74,436 | NOA, line 15000 | On EI in early 2019; 2nd child born December, 2020 |
| 2021 | 49,562 | NOA, line 15000 | Comprised of employer mat leave top up income ($20,912) and EI ($28,650) |
| 2022 | 20,326 | NOA, Line 15000 | 3rd child born February, 2022; |
| 2023 | 3,862.31 | 2023 T4, box 14 |
[26] As noted above, MD did not return to work following the birth of her third child. Had she taken an 18-month maternity leave, she would have returned to work in May 2023.
[27] MD does not have a financial need to work as she is supported by her current partner. MD’s expenses of @$12,000 per month disclose that she has economically stable and comfortable circumstances. MD confirmed that she does not pay any of these expenses; they are paid by her new partner.
[28] MD would like to return to work, providing that she can find a position which is flexible enough to accommodate her childcare obligations. MD is the main childcare provider for the children as her partner works in a different city during the week. She stated that she hoped to shift her career path to have a better work life balance.
[29] C is in full time school. The two younger children are enrolled in a daycare which is open from 8am to 5pm, although they typically only attend from 10am to 2pm.The school and daycare are in the same location.
[30] MD described herself as a very involved parent. She started sitting on school council when C started daycare and she is now on the parent council. MD volunteers regularly and does daily homework with C.
[31] MD looked for nanny support but was unable to find someone willing to work a split day (in the mornings and again in the late afternoon/early evening). Other than daycare, she has some occasional childcare help from her parents.
[32] MD testified that she has been unable to find employment (full time or part time) which was sufficiently flexible to accommodate her childcare responsibilities and her children’s extra-curricular activities.
[33] The court noted MD’s evidence that she is fluent in French and completed the following post-secondary education:
a. Undergraduate honors degree in political science and English; b. Graduate degree in education; c. College certificate in marketing; and d. College certificate in public relations.
[34] MD would like to change her career to focus on the health and wellness sector. She started taking university courses in a health and wellness coaching program. At the time of trial, MD had completed two courses and anticipated returning to work in two to three years.
[35] MD also testified that she had a cardiac issue. However, no records were put into evidence and MD did not state that this medical condition limited her ability to work.
[36] MD’s position is that there was no part-time work that she was qualified for. It is also her position that she cannot look for work without finishing her schooling.
[37] Finally, there was evidence that MD received loans from her parents following separation, but there was no evidence regarding the amount of the loans and whether these funds had been repaid.
d. Law and Findings re: Imputation of Income
[38] Section 19 of the Federal Child Support Guidelines permits the court to impute income to a party in certain circumstances. The relevant circumstance in this case is section 19(1) where income may be imputed if a spouse is intentionally under-employed or unemployed unless the lack of employment is required by the needs of a child or the reasonable educational or health needs of the spouse.
[39] Starting Presumption: In order for a parent to meet their legal obligation to support a child, they must earn what they are capable of earning. [^2]
[40] Disclosure: The first step in the imputation analysis is whether the party resisting the imputation made sufficient financial disclosure. In this case, I find that MD made sufficient disclosure of her income and expenses. The court notes that the expense data was imprecise in that the expense information was varied, in real time, during trial. The expenses initially testified to by MD were modified later in the trial.
[41] Intentionality: Section 19(1) asks whether a spouse is intentionally under-employed or unemployed. Intentionality simply refers to voluntariness and does not require the court to find that a parent is unemployed for the purpose of avoiding child support [^3]. I find that MD has chosen to remain unemployed since May 2023. Although she gave evidence that she looked for part-time employment, there was no evidence of what positions were applied for.
[42] Reason for unemployment: Section 19(1) of the Guidelines does not permit imputation if a parent’s unemployment is due to childcare or reasonable educational or health needs of the parent. I find that none of those circumstances exist in this case.
a. Childcare: The parties did not provide any caselaw on this point. If a party withdraws from the workplace, the court will assess whether that decision is reasonable [^4]. C is presently in full time school. MD elected not to put him in after school care. The two younger children have access to daycare between 8am and 5pm, but generally attend for fewer hours in the middle of the day. I find that MD’s current unemployment is not required by the childcare needs of any of the three children and is therefore not reasonable. MD’s circumstances are a choice, but not a reasonable requirement. MD is able to make that choice because her current partner is able to fund the family’s expenses. Absent that circumstance, I find that MD would work full time and use daycare, afterschool care and babysitting as needed.
b. Educational needs: I find that MD’s unemployment does not stem from reasonable educational requirements. MD is engaging in additional education because she wants to (she believes working as a wellness coach will give her more work life balance), not because she must. This case is different from circumstances in which a person has been terminated from their employment and/or has insufficient education or training to find another position. At trial, MD asserted that:
i. There was no part-time work that she was qualified for; and ii. She cannot look for work without finishing her schooling.
Apart from MD expressing her opinion on these points, there was no evidence in support. I find that MD’s education and employment history is such that she could find full-time employment if she desired it.
c. Health: MD did not submit any evidence or argue that her health precludes her from working as of May 1, 2024 (the date which the court must determine child support).
[43] Amount of imputation: Having found that the circumstances support an imputation of income, the court must establish an income amount. Any imputed income must be grounded in the evidence; the amount cannot be arbitrary and there must be a rational basis for the amount selected [^5]. I find that a reasonable imputation of income to MD is $72,072. This represents the average of her total income from 2016 to 2020, the last five years of full-time work before her most recent maternity leaves [^6]. In using the total income, the court has taken into account both employment earnings and employment insurance benefits for the brief period when MD was between positions due to a lay off. That data therefore takes into account the practical exigencies of employment.
[44] The court did not take into account the loan from MD’s parents. NP asked that I infer that there was no requirement for the loans to be repaid and therefore these were gifts. There was no evidence on this point.
[45] NP also argued that I should treat MD’s annual expenses (@ $144,000) per year as a “gift” because her new partner was funding these expenses. NP asked the court to analogize to cases in which a party’s parents were funding the party’s lifestyle through ongoing gifts. In my view, there is no legal basis to equate the caselaw involving family gifts to a current partner’s contribution to a current marriage or common law relationship. Child support is a parent’s obligation alone. There was no section 10 claim (Federal Child Support Guidelines) of undue hardship that would bring in an analysis of the spouse’s income.
[46] Going forward, the parties will agree on a date by which income information will be exchanged on an annual basis.
VII. Child Support
[47] Child support is the right of the child.
[48] Having settled child support arrears, the parties ask this court to set child support for May 1, 2024, forward.
[49] Section 9 of the Federal Child Support Guidelines provides that where parents have a child for not less than 40% of time (over the course of a year), the amount of child support must be determined by taking into account three factors:
a. The applicable table support for each spouse; b. The increased costs of shared custody arrangements; and c. The conditions, means, needs and other circumstances of each spouse and the child.
[50] Section 9 does not automatically lead to the court reducing the child support payable by the higher earning parent by the amount of support owing by the lower earning parent. The courts have found that the simple set-off approach is the preferable starting point, but it must be followed by an examination of all the factors, including assessing whether the support-receiving parent will be able to continue to meet the needs of the child. The court tries to avoid a significant variance in the standard of living between households for the child of the relationship [^7].
[51] In this case, I find that the set off method is appropriate. Neither party described a disparity between the households such that C’s standard of living would be materially different between parents. Neither party argued that there were any factors which would warrant departing from the set-off method.
[52] I therefore find that, effective May 1, 2024, child support will be paid by NP to MD in the amount of NP’s table support less MD’s table support. If there is any dispute regarding the precise amount of table support to be assigned to each party, counsel may see me at 9am for a ruling on this issue. An appointment may be booked by contacting Pamela.Marsh@ontario.ca. A support deduction order will issue.
VIII. Section 7 Expenses
[53] The parties have settled section 7 arrears and the court is to determine the division of section 7 expenses from May 1, 2024, forward.
[54] Just prior to trial, the parties agreed that C’s current section 7 expenses were a martial arts class and a robotics camp. As C is only 10, his interests will no doubt change over time. While it is impossible to predict what section 7 expenses will be incurred in future, the court can establish a protocol for dividing those expenses.
a. Exchange of Section 7 Expense Information
[55] Regarding past section 7 expenses, the parties poor communications resulted in invoices not being provided by one parent to the other and/or payment not being made by one parent to the other.
[56] The parties need to establish a system for timely provision of information and invoices and timely payment for future section 7 expenses.
b. Position of the Parties
[57] MD advocated for the parties to share section 7 expenses proportionate to income.
[58] NP submitted that section 7 expenses should be divided based on household income.
c. Law and Findings on Section 7 Expense Division
[59] Section 7(2) of the Federal Child Support Guidelines states the guiding principle is that expenses are shared by parents in proportion to their incomes. (In the case of older children, the child’s contribution is also taken into account, but that is not relevant in this case).
[60] This approach is not mandatory, and the court has the ultimate discretion as to how the parties’ contributions should be calculated, based on the facts of each case [^8].
[61] NP relies on a recent Court of Appeal case which upheld a finding of the lower court in which section 7 expenses were to be divided based on the parties’ household income [^9].
[62] I find that the appropriate approach is to divide section 7 expenses proportionate to the incomes of MD and NP. There is no basis to use the household income approach for two reasons:
a. First, there was no evidence about MD’s total household income. NP asked me to draw certain inferences (based on MD’s expenses and the fact that MD’s new partner apparently extinguished a mortgage in a short period of time), but there is insufficient evidence to draw such inferences.
b. Second, the facts of this case are not remotely comparable to those in the Zhao case. In Zhao, there was actual evidence of what expenses had been paid by the respondent’s second husband (including educational, medical, and dental expenses). In this case, there is no such evidence.
IX. Therapy
a. Current Therapist
[63] Ms. Mojgan Rasaei is the child’s current therapist. She has been working with the child since May 2022. The respondent consented to her being a participant expert.
[64] MD retained Ms. Rasaei. MD described C as suffering from anxiety and a lack of confidence which led to the retainer.
[65] Ms. Rasaei’s graduated with undergraduate and graduate degrees in psychology from university in Iran. Upon her relocation to Canada, she obtained an education degree and obtainer her teacher’s registration in 2006. She worked as a clinical associate for some years before becoming a member of the College of Registered Psychotherapists of Ontario in 2016. Since 2018, she has run her own psychotherapy practice.
[66] The court heard about Ms. Rasaei’s career trajectory. Specifically, she testified that she left a previous counselling position because 100% of her work was with high conflict clients and this was too much. Since the start of the pandemic, she tried not to take on high conflict clients. At the time she started to work with this child in 2022, she estimated that high conflict clients were @ 20% of her work. Ms. Rasaei also spoke about her choice to have a smaller caseload as she ages, as working with children comes with considerable responsibility.
[67] Ms. Rasaei described her therapeutic approach to C. Her emphasis was on helping the child to build his character, confront his fears and be ready for real life. Ms. Rasaei said that she makes a deal with her young clients in that the children set the goals and she helps them to work on achieving those goals.
[68] Ms. Rasaei’s focus was empowering the child. In cross examination, she said she was not familiar with the concept or literature on parental alienation (although she could assume what it was) and was not aware of the Association of Family and Conciliation Courts (AFCC). Ms. Rasaei conceded that it was possible that one or both parents was influencing the child, noting that this was always a concern when working with children. At the same time, Ms. Rasaei adamantly stated that this child cannot be manipulated or brainwashed as he is highly intelligent.
[69] Ms. Rasaei’s notes were generally written shortly after her sessions with C. Various notes were put to Ms. Rasaei. Some of C’s behaviours which were described in the notes were of great concern to the court, particularly in late March 2024, in which C expressed violent thoughts towards NP.
[70] Ms. Rasaei did not seem to appreciate the seriousness of C’s comments throughout her therapy, and she continued to frame her approach through the lens of C’s personal empowerment. It is also of concern to the court that the parties, both of whom had access to these notes prior to trial, and who agreed to joint decision making and 60/40 parenting time, were not motivated to put their heads together to get the needed resources for this child.
b. Howard Hurwitz
[71] Howard Hurwitz is a social worker and mediator who has worked as a family assessor and counsellor for over 30 years. He has extensive experience working with high conflict families. He was retained to do a section 30 assessment.
[72] For oral reasons given during the trial, I ruled that Mr. Hurwitz’s evidence was relevant and he could be called to give evidence on the issue of what therapy would be appropriate for C.
[73] The court found Mr. Hurwitz’s evidence to be thorough, balanced, fair, and focused on the best interests of C. His evidence was of great assistance to the court.
[74] Mr. Hurwitz had no involvement with this family between July 8, 2020, and trial (and his last interaction with C was on May 30, 2020). The trial was adjourned on different occasions for reasons completely unrelated to Mr. Hurwitz. Any information which was outdated was not the fault of Mr. Hurwitz.
[75] Because of the passage of time, the parties examined and cross-examined Mr. Hurwitz on his findings at the time of the section 30 assessment (2020) and posed hypothetical questions based on the trial evidence received in 2024.
[76] At the time of the section 30 assessment, Mr. Hurwitz did not believe that counselling was necessary. However, his opinion was that C was being placed in the middle of parental conflict and Mr. Hurwitz recommended a parenting coordinator. The parents did not act on this recommendation.
[77] Mr. Hurwitz was concerned by some of the comments attributed to C in more recent years. He said that such disclosures would warrant further investigation. Mr. Hurwitz defined numerous questions that he would ask in these circumstances (such as: parenting schedule, how child was doing with each parent, how child doing in school, etc.), including two questions which I find struck at the core of this issue:
a. Did the child have a therapist – someone to speak to? b. Was there family counselling as well as individual counselling?
[78] When asked to assume that the child had been in therapy for two years, Mr. Hurwitz indicated that he would want to know if the therapist had sessions with the child/mum and the child/dad. He expressed the hope that the therapist would have involved each parent in an appropriate way and manner.
[79] When asked if the disclosures of concern (made by C to his therapist and noted above) should result in termination of therapy, Mr. Hurwitz observed that therapeutic termination is a major event. He was unable to comment on the advisability of termination without more information but commented that there may be situations in which termination is appropriate (for instance, if a counsellor was retained unilaterally and did not have the trust of both parents).
[80] Both parties used the term “alienation”. Mr. Hurwitz explained the clinical meaning of the term and clarified that, at the time of his assessment, his opinion was the MD was engaging in gatekeeping, which is not alienation. In cross examination, both parties pressed Mr. Hurwitz to describe the family’s current circumstances as being (or not being) an instance of alienation by MD. There is no need for the court to make a finding on the allegation of alienation, especially in the absence of current clinical expert evidence. Finding or rejecting alienation is not a precondition to finding that this family is in immediate need of family therapy for the benefit of the child.
[81] In cross examination, MD placed emphasis on the fact that C reported his dad “yelling” at him at the time of the 2020 assessment. Mr. Hurwitz explained why he put little weight on this information; his reasons included the fact that MD was seeking to relocate to another city and C had become aware of the move and believed that he would have a big house and a pool in in the new city. The relocation issue is no longer on the table; both parties are staying in or near the Peel Region.
c. Findings on Therapy
[82] I find that there is a gap between Ms. Rasaei’s mandate (helping C to build character, confront his fears and be ready for real life) and the prevailing issues in this case (helping C and the entire family move forward from nine years of high conflict litigation toward effective co-parenting between the parties and strong, loving relationships between C and both parents). While Ms. Rasaei possesses many therapeutic tools, they are not the right tools for this larger job of dealing with C and his parents.
[83] MD stated in her closing submissions that this trial was about what C needs to navigate life’s challenges and “being caught in the middle”. MD also conceded that parenting issues have loomed large for the entirely of C’s life and he needs help with these. The challenge is that Ms. Rasaei was not retained to focus on the parenting issues and/or family therapy. Ms. Rasaei was asked to focus on C’s self-improvement. This is a laudable goal but does not address the core parenting issues in this trial.
[84] Despite MD’s acknowledgement of parenting issues, the parties have not been proactive about addressing them. Indeed, even though the parties settled parenting time prior to trial (MD has 60% of overnights and NP has 40%, based on a two-week schedule), MD spent considerable trial time trying to demonstrate that NP is a bad parent and trying to blame him for issues which should have been addressed by a professional.
[85] The question is how to get C and his family to the right resources. In asking this question, the court is focused on the best interests of the child. The child should not bear the responsibility of doing all of the therapeutic work to make up for his parents’ deficient behaviour over the last nine years. The parties have demonstrated that they need therapeutic help but have not done anything about it.
[86] MD submits that there is no law on the removal of a counsellor and proposes the test of the best interests of the child. MD does not oppose family counselling, but wants this to be supplemental and opposes the removal of Ms. R.
[87] NP wants the court to order removal of Ms. Rasaei and order further counselling.
[88] There is no question that the court has the jurisdiction to order therapy [^10]. By extension, I find that there is also jurisdiction to order that therapy be terminated if therapy was not in the best interests of the child. However, in this case, there is no basis to order Ms. Rasaei to terminate the therapy. As noted above, I find that C is in need of additional resources. It is up to Ms. Rasaei and the parties, as joint decisions makers, to decide if C continues his counselling with Ms. Rasaei. The only consideration in this decision is whether continued counselling is in C’s best interests.
[89] The parties will, within four weeks of these trial reasons, retain a family therapist to work with the parties and with C, both together and individually to address C’s needs and to ensure that the parties develop a less toxic and more productive relationship as co-parents. The parties will provide a copy of Ms. Rasaei’s complete chart to the therapist, along with these trial reasons and the motion decision of September 2022.
[90] The parties will share the therapy expense equally.
X. Abandonment of Relocation Claim
[91] As noted above, MD abandoned her request that she be allowed to relocate with C.
[92] The parties could not agree on the disposition of this issue and raised it in closing submissions. MD says the issue is now moot, having abandoned it. NP says there needs to be a final order on all issues in the pleadings.
[93] In the court’s view, it is generally not productive to make negative retrospective orders (declaring that something has not occurred). However, for the sake of clarity, the purpose of this trial was to resolve all outstanding issues between the parties. MD did not pursue her requested relief regarding relocation. This case has been litigated and final orders have been made (except for costs). The claim for relocation is dismissed.
XI. Orders
[94] I therefore make the following orders:
a. Income is imputed to MD in the amount of $72,072. b. Child support will be set off and a support deduction order will issue. c. Therapy: (1) Within four weeks of receiving this decision, the parties will immediately retain a therapist to work with the parties and the child (both individually and together). (2) The parties will provide the new therapist with a copy of this decision, the complete records of Ms. Rasaei and the motions decision from September 2022. (3) The parties will provide Ms. Rasaei with a copy of this decision.
XII. Costs
[95] Both counsel expressed a preference to make written costs submissions. Given the length of this litigation and the need to determine which pre-trial steps are included or excluded in trial costs, I agreed with this practical approach.
[96] The parties are encouraged to agree on costs. If they will not, written costs submissions will be served, filed, and uploaded to Case Centre on the following schedule:
a. Respondent by January 10, 2025, at 4pm; b. Applicant by February 7, 2025, at 4pm.
[97] These deadlines cannot be varied unless by court order. If submissions are not received by these deadlines, the court will proceed on the basis that costs are not being sought.
[98] Costs submissions will be double spaced, in 12-point font, and eight pages, maximum (exclusive of authorities and bills of costs).
[99] The submissions and bills of costs will identify any step in the proceeding (including trial) which requires costs to be assessed. The submissions and bills of costs will exclude any step for which costs have already been awarded or agreed upon.
Closing Comments
[100] Thank you to the parties for their candor and to counsel for running a civil, timely and efficient proceeding. The submissions were of great assistance to the court.
Stewart J. Released: November 20, 2024
Footnotes
[^1]: In drafting this list of resolved issues, the court reviewed the consents executed by the parties on April 29, 2024, May 7, 2024, and May 15, 2024 (two separate consents). [^2]: Drygala v. Pauli, 61 O.R. (3d) 711 (C.A.), 219 D.L.R. (4th) 319, at para 32. [^3]: Drygala v. Pauli at para 36. [^4]: H.A v. M.M., 2016 ONCJ 246; Reece v. Thomas, 2017 ONCJ 311. [^5]: Drygala v. Pauli at para 44. [^6]: It is noted that MD began her maternity leave in December 2020, but the court included this given that it was almost a full year of work. [^7]: Contino v. Leonelli-Contino, 2005 SCC 63. [^8]: Szitas v. Szitas, 2012 ONSC 1548 at para 146. [^9]: Zhao v. Xiao, 2023 ONCA 453 at paras 15 to 17. [^10]: Leelaratna v. Leelaratna, 2018 ONSC 5983.