Reasons on Costs

Court File No.: FS-16-004-002
Date: 2025-02-20
Ontario Superior Court of Justice
Between:
Alexandra Kylie Atkinson (Chalifoux) (Self-Represented) — Applicant
and
Thomas Jonathan Atkinson (Ms. Filipovic for the Respondent) — Respondent

Heard: January 27, 2025 at Thunder Bay, via Zoom
Justice: H. M. Pierce

Introduction

[1] The respondent father claims full recovery costs of $36,471.66 for two motions: the mother’s motion for interim variation of a final order and his motion for summary judgment, seeking dismissal of the mother’s motion in its entirety or narrowing the issues for trial. The motions were heard on August 19, 2024.

[2] The father argues that:

1. he was wholly successful in recovering primary care of the parties’ three younger children, having consented to the order made for the care of the eldest child in accordance with the child’s wishes;
2. the mother would have been in a better position had she accepted his offers to settle compared to the court’s judgment;
3. the mother acted in bad faith and proceeded vexatiously by taking unreasonable positions and breaching court orders with the result that she escalated costs; and
4. the court fix a time for payment of costs ordered, failing which they shall be set-off against the father’s obligation to pay the mother child support.

[3] The applicant mother submits that each party should bear his or her own costs. She argues:

1. that the motion was necessary and was proposed by the court;
2. some issues were resolved on consent;
3. aspects of the court’s decision were in alignment with the mother’s motion to change, for instance, child support and changes to the parenting schedule;
4. several offers were put forward by each party but none of the offers to settle addressed the children’s school attendance;
5. the respondent’s offers to settle were not severable;
6. the claim for costs is more than three times her annual income; and
7. the hourly rate and the times claimed by counsel are excessive.

Principles Governing Costs

[4] The principles governing costs are set out at Rule 24 of the Family Law Rules. Generally, the successful party is presumptively entitled to costs; however, if a successful party has behaved unreasonably, he or she may be deprived of his or her costs. If a party has acted in bad faith, the court may order costs on a full recovery basis and order them paid immediately.

[5] Determination of costs is a summary proceeding and within the court’s discretion. At Rule 24(12) the rule provides:

In setting the amount of costs, the court shall consider:

a. the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues: (i) each party’s behaviour, (ii) the time spent by each party, (iii) any written offers to settle, including offers that do not meet the requirements of rule 18, (iv) any legal fees, including the number of lawyers and their rates, (v) any expert witness fees, including the number of experts and their rates, (vi) any other expenses properly paid or payable; and b. any other relevant matter.

Analysis

[6] I conclude that the father was successful in this litigation, although not because of his litigation strategy or the positions he took during the motions. His primary position was that the mother’s motion for interim variation should be dismissed.

[7] It was the position advocated by the Children’s Lawyer as to the children’s views and preferences and the failure of the mother to ensure their school attendance that resulted in the court granting summary judgment, although not in accordance with the father’s position that her motion should be dismissed.

[8] The father was awarded primary care of the parties’ three younger children even though the father did not ask for such an order in his pleadings. Child support was adjusted in accordance with the children’s parenting schedule.

[9] It was the Children’s Lawyer who argued that there was no necessity for a trial, despite the mother’s position that a trial was necessary and only temporary orders should be made.

[10] The parties agreed that the eldest child’s school placement should be in accordance with his wishes as he was already established in high school. The real issue was adjusting the parenting schedule for the three youngest children in such a way that they consistently attended school. The mother admitted she could guarantee their attendance.

[11] Ms. Chalifoux proposed that the father ensure that the children attend school even during periods of her parenting time, and that he pay her costs of getting the children to school as s. 7 expenses. These positions were wholly unreasonable and completely unworkable since Mr. Atkinson worked full-time, as the mother well knew.

[12] The mother continually took unreasonable positions because of her conflictual relationship with the father. For example, she threatened a motion to find him in contempt but never brought one, even though she was in breach of Justice Fregeau’s final order as to the location of her residence. She brought a second motion to change while the first one was still before the court.

[13] The father made several offers to settle which would have been more advantageous to the mother than the court’s ultimate order. There is no obligation on a litigant making an offer to make it severable. If the mother wished to settle isolated issues, she could have served an offer accordingly.

[14] Ms. Chalifoux has represented herself in court proceedings for some time and so she should have been aware of the risk of costs should she not prevail in her case. If her income is modest, it is all the more reason for her to explore settlement and avoid unreasonable positions.

[15] I recognize that having counsel for the Children’s Lawyer assigned to the file was advantageous but also required additional costs in the litigation for a disclosure meeting and other communication.

[16] Although the father is entitled to his costs, the court must determine the appropriate amount having regard to what was at issue. He does not claim time spent in preparation for and attendance at the costs argument.

[17] In my view, full indemnity costs claimed by the father are excessive and out of proportion to what was in issue.

Disposition

[18] Mr. Atkinson shall have his partial indemnity costs against Ms. Chalifoux fixed at $22,135.32 inclusive of disbursements and HST, payable within 60 days of service of this order, enforceable as child support. If Ms. Chalifoux is in default of the payment of costs after that time, Mr. Atkinson shall be credited with the sum of $300 per month against his obligation to pay child support to Ms. Chalifoux until the balance is paid in full. Post-judgment interest shall apply on the outstanding balance in accordance with s. 129 of the Courts of Justice Act.

“original signed by”
The Hon. Madam Justice H. M. Pierce

Released: February 20, 2025