Costs Endorsement

Court File No.: FC-23-1050
Date: 2025/03/19
Ontario Superior Court of Justice

Re: Anna Andrea Lissansky, Applicant
And: Francisco Alas, Respondent

Before: Somji J
Counsel: Applicant, Self-Represented; Michael Rappaport for the Respondent
Heard: In Writing

Background

[1] The Respondent father seeks full recovery costs of $4,633.56 following his success on a motion determining whether the parties’ teenage children could attend their choice of schools in the catchment area of the father’s home in Ottawa: Lissansky v. Alas, 2024 ONSC 5033.

[2] The Applicant mother did not provide a formal response to the costs submission but sent an email dated October 18, 2024, that she intended to appeal the decision and intends to file complaints with the relevant bodies regarding the father’s counsel’s conduct as well as judicial bias. The mother also sent my judicial assistant an email copied to the father’s counsel that she intends to bring a motion for her own costs and for other relief related to the sale of the matrimonial home and for the father making false representations. On March 18, 2025, the Applicant mother sent another email outlining provisions related to contempt and costs.

[3] The issues to be decided are whether the father is entitled to costs and if so, the quantum.

Issue 1: Is the Mother Entitled to Costs?

[4] Courts have broad discretion to determine whom costs should be paid and the quantum: s. 131(1) Courts of Justice Act, RSO 1990, c C.43, as am.

[5] Rule 24 sets out the legal framework for cost orders in family cases: Mattina v. Mattina, 2018 ONCA 867 at para 9.

[6] The starting point is that the successful party is presumptively entitled to costs: r. 24(1) of the Family Law Rules, O. Reg. 114/99 as am (“FLR”). However, in assessing entitlement, judges must consider: (1) written offers to settle: rr. 18(14) and 24(12)(a)(iii); (2) any unreasonable conduct of the successful party: r. 24(4); and (3) if a party has acted in bad faith: r. 24(8).

[7] The father was entirely successful on the primary issue at trial which was whether the teenage children should attend their choice of schools.

[8] The mother argued at the motion that the father was relying on the children’s choice of schools as leverage to hang on to the matrimonial home which is in the current catchment area of the schools rather than selling it so that she can obtain her share of the proceeds. I addressed this issue in my decision and noted the mother’s frustration that the parties’ financial issues had not been resolved including the sale of the matrimonial home. However, I found that the father’s position with respect to the children’s choice of school was in their best interests.

[9] Furthermore, I found that the mother’s failure to consider the children’s views on choice of school, her assertion that she would unilaterally enrol them in school in Gatineau, Quebec, her refusal to sign school consents, and her suggestion that she would not take the children to school if they were enrolled in Ottawa during her parenting time was indicative that she was not acting in the best interests of the children, but of herself.

[10] I find the father did not engage in any conduct in the litigation that would disentitle him to a costs award. On the contrary, given the mother lived in Gatineau and would have to drive a considerable distance to get the children to and from school in Ottawa during her parenting time, the father offered to pay $200/month to assist with the transportation costs. He also agreed to have the children stay with them overnight or be picked up later should the children’s after-school or extracurricular activities run late.

Issue 2: What Costs Amount is Fair and Reasonable?

[11] Modern costs rules are designed to foster the following: (1) to partially indemnify successful litigants; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants; and (4) pursuant to Rule 2(2) of the Family Law Rules, O. Reg. 114/99 as am, to ensure that cases are dealt with justly: Mattina at para 10.

[12] Rule 24(12) requires a judge to consider the following in determining quantum:

(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 r. 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.

Conduct of the Mother

[13] Counsel for the father argues that the mother engaged in bad faith conduct. In particular, he argues that decisions around the children’s schooling for the fall 2024 school year were raised early in the spring of 2024. The mother engaged in unreasonable conduct both with respect to the litigation and her position on the legal issue. In this regard, counsel highlights the following:

a. On January 30, 2024, Local Administrative Judge for Family Law, Ottawa, Audet J, found that the mother engaged in inappropriate and uncivil correspondence with counter staff and ordered that the matter be case managed by Justice Summers.

b. On February 14, 2024, Summers J found that the mother continued to engage in excessive, threatening, and impolite conduct with staff and that her inability to commit to court dates was unnecessarily taking up scarce and limited judicial resources. Summers J made various orders at the case management hearing including for disclosure.

c. On April 12, 2024, Summers J held a further case management conference. Considerable progress was made on the property issues including agreement on the valuation of the matrimonial home. The parties were ordered to provide additional disclosure. The mother was also granted leave to bring a motion for the sale of the matrimonial home.

d. On July 12, 2024, Summers J held a further case conference. The primary purpose of the conference was to assess the status of disclosure to prepare a net family property statement to allow for a meaningful settlement conference. Both parties had issues with the valuations of the father’s business, and the mother could not confirm if she would obtain her own valuator. Justice Summers also noted that the presence of the mother’s partner, Mr. Perry, was interfering with the ability of the court reporter to do their job.

e. Summers J highlighted that notwithstanding that the mother had leave to bring a motion for the sale of the matrimonial home, which was her principal source of frustration, she did not proceed with such a motion. In addition, Justice Summers told the mother that if she intended to challenge the children’s choice of schools, she needed to bring a motion. Summers J stated as follows:

It appears that Ms. Lissansky also intends to bring a motion on the issue of where the children will attend school in the fall of 2024. The court cautioned that should such a motion be necessary, her motion materials should be served and filed well in advance of the return to school dates.

f. Instead of bringing a motion to address choice of school in a timely manner, the mother simply refused to sign the consents to enroll the eldest child in grade 9 at Colonel By in August 2024, forcing the father to bring a motion for leave to schedule an urgent motion on school choice.

g. On August 14, 2024, in response to the Applicant’s continued inappropriate and uncivil correspondence with counter staff, Audet J released another Endorsement addressing the mother’s continued “relentless, inappropriate, and disrespectful communications” with court staff. Audet J went on to impose conditions significantly curtailing the mother’s communications with the court.

[14] The mother suggests in her email of October 18, 2024, that she understands the value in promoting settlement and expressed regret if her “insistence on transparency and fairness was seen as adversarial.” She states that her actions were motivated by a desire to ensure accountability within the legal system.

[15] The mother was aware of the children’s views and some of this information was reiterated in the Voice of the Child report issued in November 2023. If she believed it was in the children’s best interest to go to school in Gatineau, it was incumbent on her to bring a timely motion. Furthermore, she was directed to bring a motion by Summers J in July 2024 if she took issue with the children’s choice of schools and failed to do so. Instead, the mother engaged in obstructive conduct by refusing to sign consents which delayed the children’s enrollment in school and caused both the children and the father considerable stress. Ultimately, it was the father who had to bring a motion at the start of school in September to resolve the matter and ensure the children’s continued attendance at school.

[16] I find the mother’s conduct as it relates to the motion on the choice of school was unreasonable and warrants an elevated costs award. However, as a self-represented accused and given her considerable financial stress at the time, I am not prepared to find that her conduct on this issue alone met the threshold of bad faith to warrant full recovery costs.

[17] As I noted in my decision, it is in the parties’ best interest to resolve the financial issues between them as this was the primary source of stress within the family. In all other respects, the children have healthy and positive relationships with both parents.

Complexity, Billings and Rates

[18] Counsel for the father is a 16-year call and charges a rate of $295/hour. Counsel billed a total of 13.9 hours to prepare the pleadings, meet with the client, review the decision, and prepare costs submissions. The total legal costs for the motion, including HST, was $4,633.56.

[19] Counsel has in fairness not included the costs of the case conferences referred to above.

[20] The issues were not complex. Counsel rate and billings are reasonable and commensurate with the work necessary for this motion.

Conclusion

[21] Proportionality and reasonableness are the “touchstone considerations” in fixing the amount of costs: Beaver v. Hill, 2018 ONCA 84.

[22] The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant: Boucher v. Public Accountants Council for the Province of Ontario, para 26.

[23] Having considered the father’s success, the mother’s unreasonable conduct on the motion, and the reasonableness of the rates and billings, I find that an elevated costs award in the fixed amount of $4,000 inclusive of HST is fair and reasonable in this case.

Order

[25] The mother will pay the father costs in the fixed amount of $4,000 within 30 days.

Somji J.
Date: March 19, 2025