Ginese v. Fadel, 2025 ONSC 128
Court File No.: FC-19-2026
Date: 2025-01-08
Ontario Superior Court of Justice
RE: Salvatore Ginese, Applicant
-and-
Rita Fadel, Respondent
Counsel:
Self-represented, Applicant
Katherine A. Cooligan, for the Respondent
Heard: In Writing
Cost Decision
Background
[1] Following a 15-day trial, I released my decision in this matter in three parts: on April 24, June 24, and September 20, 2024. The issues at trial were parenting, child and spousal support, and equalization of the parties’ net family property. However, the entire trial focussed almost entirely on parenting and, more specifically, on the parties’ allegations of family violence, poor parenting, and extreme parental alienation.
[2] Although, in the end, I declined making the parenting order that the mother was seeking (a custody reversal) and left the children in their father’s sole care without parenting time to the mother, I made very damaging findings against the father. More specifically, I concluded that the father had completely and severely alienated the children against their mother, which I found was the continuation post-separation of the family violence and coercive control that permeated the parties’ relationship.
[3] On the financial issues, there was mixed success on all issues.
[4] The mother seeks full-recovery costs in the amount of $390,650 for the entire proceeding (excluding steps for which costs were already dealt with), including the trial and regardless of success based on the father’s unreasonable and bad faith conduct which she says necessitated extensive court intervention, time, and expenses. The father argues that success was mixed on all issues and asks that no order be made in relation to costs.
Applicable Legal Principles
[5] Modern cost rules are designed to foster four fundamental purposes: partial indemnification of successful litigants for the cost of litigation; encouraging settlements; discouraging and sanctioning inappropriate behaviour by litigants; and dealing with cases justly: Mattina v. Mattina, 2018 ONCA 867. Proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs to be awarded. At the end of the day, cost awards should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful party or parties.
[6] Although rule 24(1) of the Family Law Rules, O. Reg. 114/99 (“the Rules”) establishes that success is the starting point in determining costs, rule 24(4) states that a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs. Rule 24(5) provides that reasonableness is decided in consideration of a party’s behaviour in relation to the issues, whether an offer to settle was made, the reasonableness of any offer, and offers withdrawn or failed to be accepted.
[7] In addition to the above, rule 24(8) provides that when there is a finding of bad faith, the court shall order costs on a full recovery basis to be paid forthwith. A finding of bad faith requires meeting the high threshold of egregious behaviour consciously carried out with the intent to inflict harm, conceal, or deceive: Chomos v. Hamilton, 2016 ONSC 6232, paras 42-48.
[8] The principles applicable to the determination of costs in family law cases were very helpfully summarized by Justice Leach in Baker v. Baker, 2023 ONSC 4860, para 10. Although I see no need to repeat these principles here, I have carefully reviewed and considered them in arriving at my decision.
Analysis
[9] The father never made an offer to settle any of the issues in this case. Although the mother made two formal offers to settle the financial issues, the results she achieved at trial on these issues were not more favourable to her than the terms of her offers.
[10] As stated above, I came to the clear conclusion that the father had engaged in the most extreme form of parental alienation, which was simply the continuation, post-separation, of the significant family violence perpetrated against the mother and the children during the parties’ relationship. I found that the father’s extreme alienating behaviours were the main causes for the children’s complete and unjustified rejection of their mother. Considering this finding, it is impossible to come to the conclusion that the father’s behavior did not amount to “egregious behaviour consciously carried out with the intent to inflict harm, conceal, or deceive.”
[11] Indeed, in my June 24, 2024, decision, I concluded that the significant emotional harm and mental health decline suffered by the mother following the parties’ separation, which resulted in the mother becoming unable to engage in any form of employment, was due entirely to the father’s severe alienation of the children post-separation. The father’s egregious behaviour started when the parties separated and lasted to the day this trial was held, and beyond. There is no question that the father’s behaviour raised to the level of unreasonable and bad faith behaviour giving rise to an award of costs on a full recovery basis, within the meaning of the Rules.
[12] The consequences of the father’s behaviour on the costs of these proceedings, including the trial, were many. It resulted in a long, costly and protracted litigation that spanned over the course of almost five long years, necessitating the involvement of numerous (and expensive) professionals. In his attempts to convince everyone, including the court, that he was innocent of any wrongdoing, and that the mother was guilty of many, the father adduced excessive documentary and witness evidence at trial, some of which that were both a waste of significant court time and not supportive of his position. He also took unreasonable positions in relation to some of the evidence being adduced by the mother at trial, which resulted in wasted court time (for instance, his attempt to prevent Dr. Leonoff’s evidence from being admitted, only to later make his recommendations an integral part of the final order the father was seeking).
[13] For these reasons, I am of the view that the mother is entitled to her full recovery costs for the trial itself. I agree with the mother’s submission that, although the result favoured the father, it did not result from the court’s acceptance of his evidence, but from the success of his alienation and inability to change in the best interests of his children. I agree that it would be completely unjust in these circumstances for an order of costs to flow in the father’s favour when his success is the result of his bad faith actions. It would be equally unjust to deny the mother the costs she was forced to incur to refute the extreme and false allegations of the father, in a last-ditched effort to regain some form of contact with her four children, when her evidence was overwhelmingly accepted over his.
[14] However, I am not prepared to grant the mother any costs in relation to the entire proceeding. Although the entire trial focussed primarily on the parenting issues, the legal proceeding itself dealt with all issues, including support and equalization. There was mixed success on these issues and surely, many of the conferences held in this matter (six in total) dealt with all these issues, including the motion for disclosure and the parties’ questioning (for which costs are being sought by the mother). Furthermore, although I made very harsh findings against the father in relation to parenting issues, I also concluded that the mother’s own actions were unhelpful and contributed to some extent to the high conflict litigation that followed the parties’ separation.
[15] Having reviewed the mother’s Bill of Costs, I accept that the time spent by the mother’s counsel and her team to prepare for and attend trial, while significant, was made necessary by the high level of complexity arising from the parenting issues, the large number of court experts and professionals who were involved with this family, and the father’s very challenging litigation conduct as a self-represented litigant. This was a 15-day trial, with 14 witnesses, over 10,000 pages of documents, and four years of high conflict litigation with obstructionist conduct by the father. The mother chose to be represented by an experienced Certified Specialist in Family Law and her team, which I agree was reasonable (and needed) in this case given the complexity of the issues before the court. Lead counsel delegated work as needed to other lawyers, clerks, and students to minimize fees and there were efforts made to avoid the duplication of work or time charged to the mother for the work performed by multiple counsel or clerks.
[16] The mother’s legal costs for her legal team’s trial preparation and attendance amounted to almost $215,000, with costs submissions in the amount of $7,500. The court in Baker reminded us that the determination of costs is not a purely mathematical exercise, and that the overriding principle is reasonableness. In the end, while I find that the costs charged to the mother were reasonable considering the circumstances of this case, it does not necessarily flow that they are reasonable from the other party’s perspective.
[17] In this case, the father chose to become self-represented at some point during this litigation because he could not continue to pay for a lawyer. The mother’s evidence at trial was that her continued legal representation had been made possible only by family members who had provided her with significant financial assistance in that regard. To now impose on the father an obligation to pay costs for legal representation at the level chosen and incurred by the mother would not be just or reasonable, in my view.
[18] Having regard to all the above, I conclude that the amount of $150,000 is reasonable in the circumstances.
[19] The mother also seeks a contribution towards the costs she had to incur to retain Dr. Leonoff and Dr. Milestone to provide expert evidence and to testify at trial. The total cost for these experts was $17,612.50 ($3,450 for Dr. Leonoff and $14,162.50 for Dr. Milestone). I am not prepared to award an amount towards the cost of Dr. Leonoff, who was retained by the mother to provide a critique of the Family Court Clinic’s assessment, but I agree that the cost of Dr. Milestone’s involvement, which ended up being a complete waste of resources due to the father’s ongoing obstruction with this reunification process, should be borne by the father entirely.
Order
[20] The father shall pay costs to the mother in the amount of $165,000, payable forthwith.
Cheryl A. Audet
Date: January 08, 2025