Reasons for Decision

Court File No.: Goderich 5-2018D
Date: 2025-03-28
Ontario Superior Court of Justice

Between:
Christopher Michael Wright, Applicant
– and –
Robin Elizabeth Tolchard, Respondent

Appearances:
Jessica Brown and Mackenzie Walker, for the Applicant
Self-represented, for the Respondent

Heard: March 14, 2025

Justice E. ten Cate

Introduction

[1] This motion arises from my trial judgment in this matter dated May 6, 2024 [Wright v. Tolchard, 2024 ONSC 2659].

[2] The only issue to be determined on this motion is the allocation of the trial cost award to be designated as legal fees related to child support.

Background

[3] The Applicant and the Respondent met in 2017. Although they had a brief relationship, they never married or lived together. They have one child together, namely Callum Tolchard Wright, born on December 18, 2017.

[4] The parties were involved in a protracted and acrimonious legal dispute. As a consequence of my judgment, Callum’s primary residence switched from the Respondent to the Applicant, with commensurate changes in decision-making and parenting time. Because of the change in the child’s primary residence, I awarded child support to the Applicant payable by the Respondent. I also awarded costs to the Applicant of $228,302.21 representing partial indemnity costs of $194,058.31 plus HST on fees of $25,227.58 plus disbursements of $9,016.32.

[5] I pause to note that at paragraph 127 of my decision, I determined that the Respondent unnecessarily complicated and prolonged this matter, forcing the Applicant to repeatedly pursue redress through the courts at great cost. At paragraph 128, I indicated that although typically the Respondent’s unreasonable behaviour would attract an award closer to full indemnity ($341,267.67), because her income is modest, I awarded costs on a partial indemnity basis.

[6] To date, the Respondent has not paid any of the pre-trial cost awards ($44,390), nor any of the costs awarded at trial. Additionally, the Respondent has not paid $86,607 in penalties for missed visits owed pursuant to the order of Tranquilli J. dated August 8, 2023, nor an additional fine for contempt in the amount of $5,000.

[7] On the same day my judgment was released to the parties, the Respondent filed a Form 69: Notice of Bankruptcy. The largest liability listed is the cost award owed to the Applicant pursuant to my judgment.

Participation of the Respondent at the Motion

[8] The Respondent’s participatory rights were struck by the order of Tranquilli, J. dated August 8, 2023, due to her breaches of various court orders. Although I had the discretion to allow her to participate at trial, I declined to do so. The trial proceeded on an uncontested basis.

[9] With respect to this motion, I permitted the Respondent to make limited submissions on the issue of the allocation of the cost award to be designated as legal fees related to child support.

Analysis

[10] Section 178(2) of the Bankruptcy and Insolvency Act states:

Subject to subsection (1), an order of discharge releases the bankrupt from all claims provable in bankruptcy.

[11] Section 178(1) creates an exception to the blanket release as follows:

178(1) An order of discharge does not release the bankrupt from
(c) any debt or liability arising under a judicial decision establishing affiliation or respecting support or maintenance, or under an agreement for maintenance and support of a spouse, former spouse, former common-law partner or child living apart from the bankrupt. [Emphasis added.]

[12] Section 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, 1996 states:

“Support order” means a provision in an order made in or outside Ontario and enforceable in Ontario and for the payment of money as support or maintenance, and includes a provision for,
(g) interest or the payment of legal fees or other expenses arising in relation to support or maintenance. [Emphasis added.]

[13] The effect of these sections is that any portion of the cost award not related to child support is discharged by the bankruptcy.

[14] The Applicant urges me to find that most, if not all, of the costs awarded relate to child support. The Respondent made no submissions on the point other than to tell me she cannot afford to pay the costs.

[15] In Taylor v. Sist, 2017 ONSC 4280 the court used a two-step approach to determine the portion of costs related to support:

1. Does the court have an adequate evidentiary basis to determine the portion of costs that related to support issues?
2. If yes, what portion of costs is related to support issues?

[16] I have reviewed my extensive reasons (128 paragraphs in length). Quite apart from the review of my reasons, I have a clear and independent recollection of the trial, the evidence, and the result, and am satisfied that I have an adequate evidentiary basis to determine the apportionment of costs.

[17] The second stage of the analysis is the apportionment of costs to the child support issue given that the trial dealt with decision-making responsibility, parenting time, and child support.

[18] To give context for my decision, approximately 30 paragraphs were devoted to the various court orders which preceded mine. The next 25 paragraphs dealt with the investigations of sexual and physical abuse and the witness’ testimony (including the clinician retained by the Office of the Children’s Lawyer) which provided the evidentiary basis for my decision.

[19] Of my reasons, approximately 40 paragraphs were devoted to decision-making responsibility which resulted in a reversal of the status quo because of family violence caused by the instability and emotional harm to Callum while in the Respondent’s care. Three paragraphs were devoted to the reversal of the parenting-time arrangement, and six paragraphs to imputation of income to the Respondent and resulting child support pursuant to the Child Support Guidelines.

[20] Although approximately 10% of my reasons dealt directly with child support, in my view, not much turns on that. The previous 95 paragraphs dealt with the prior proceedings, evidentiary basis for, and analysis of decision-making and parenting time which ultimately determined the issue of child support. In my view, the time expended on decision-making and parenting time was inextricably linked to child support so as to be inseparable. [Taylor v. Sist, 2017 ONSC 4280, para 24]

[21] I also determine it would not be fair or just for me to leave the global costs order unchanged, when the allocation of some of the costs to child support would clarify the Applicant’s entitlement to recover costs through the bankruptcy. [Philip v. Philip] I therefore exercise my discretion pursuant to Rule 25(19)(c) to change my order since the matter was before the court, but not decided.

Order

[22] Accordingly, I declare that 75% of the costs ($171,226.65) ordered on May 6, 2024, are to be considered a debt in relation to the support of a child living apart from the Respondent, pursuant to section 178(1)(c) of the Bankruptcy and Insolvency Act.

[23] I also order that the partial indemnity costs ordered payable by the Respondent pursuant to my order dated May 6, 2024, totaling $171,226.65 shall be a support order and thus enforceable under the Family Responsibility and Support Arrears Enforcement Act, 1996.

[24] Since the Applicant was largely successful, costs of this motion are payable by the Respondent to the Applicant in the amount of $2,500 and I also find that the costs of this motion constitute a debt in relation to the support of a child living apart from the Respondent.

Justice E. ten Cate
Released: March 28, 2025