Endorsement on Costs

Court File No.: 11692/20
Date: 2025-06-10
Superior Court of Justice – Ontario
Re: Rona Elizabeth Scott, Applicant
And: Thomas Ryan Scott, Respondent
Before: Thomas A. Heeney
Counsel:

• R. Sandy Bruce, counsel for the Applicant
• James Battin, counsel for the Respondent
• Phaedra Klodner, Agent for the Office of the Children’s Lawyer
  Heard: December 11, 12, 13, 19 and 20, 2024 at Woodstock
  Judgment released: March 31, 2025, cited as Scott v. Scott, 2025 ONSC 1800
  Submissions on costs completed: April 17, 2025

Introduction

[1] I have received and reviewed the written submissions on costs.

[2] The applicant submits that she was entirely successful in this case, and is entitled to her costs. As to the scale, she seeks full recovery costs, on the basis that the respondent acted in bad faith, primarily in that he spent much of the trial pursuing the claim that the applicant was secretly an internet porn star, who has been earning millions of dollars for the past 10 or 15 years. He claimed that this entitled him to an equalization payment of $1,843,580. I found this claim to be “patently ridiculous” in my reasons for judgment. The applicant’s full recovery costs amount to a total of $57,839.91.

[3] The respondent does not dispute the applicant’s entitlement to a costs award, although he points out that the respondent made some reasonable concessions on some of the issues, and achieved some success on two of the issues. He proposes that the applicant’s costs be fixed at $37,500.

Success on Issues

[4] Rule 24(3) provides that there is a presumption that a successful party is entitled to costs. Here there is no question that the applicant was the successful party. There were a multitude of issues and sub-issues, and the applicant was successful on virtually every one. They are listed at para. 18 of the applicant’s costs submissions, as follows:

a. A Divorce Order was granted as requested;
b. An Order was granted as requested for Sole Decision-Making Authority regarding the children, Ava and Alissa.
c. An Order for Parenting Time regarding the Respondent/Husband and the children, Ava and Alissa was granted as requested to be in accordance with the children's wishes.
d. An Order was granted as requested regarding Passport Applications/Travel with the Children.
e. An Order for Child Support — Table Amount was granted as requested including an Order imputing income to the Respondent/Husband for being intentionally unemployed.
f. An Order for Child Support — Section 7 order was granted as requested.
g. An Order for Spousal Support was granted as requested.
h. Post-Separation Adjustments: the Respondent/Husband claimed a net amount owing in his favor for adjustments. In particular, the Respondent/Husband asserted that he is owed the difference between the amount that he and his mother paid after separation towards the Matrimonial Home mortgage, interest, and credit protection. Whereas the Applicant/Wife was successful in her claim that he owed a greater amount of child and spousal support and that the Respondent/Husband still owed a net balance of arrears of support after deducting one-half the amount paid by the Respondent/Husband towards the household maintenance.
i. Occupation Rent: this potential claim was not pleaded by the Respondent/Husband; he gave no notice of pursuing this issue; and the Respondent called no evidence about this issue. The claim was not considered by the Court.
j. Health/dental benefits and life insurance: the Applicant/Wife obtained the Orders as requested.
k. Equalization of Net Family Property: the Applicant/Wife requested an Order that the Respondent/Husband owed her an equalization payment of $75,636.90. The Respondent/Husband requested an Order that the Applicant should pay him an equalization payment of $1,899,426.50. The Court ordered an equalization payment by the Respondent/Husband to the Applicant/Wife in the sum of $55,846.50. The judgment result was within $19,790.40 of the Applicant/Wife's request and the Respondent/Husband was off by $1,843,580 from the final result!
l. Household goods: the Applicant/Wife's position was sustained regarding the household goods and personal property should be considered divided with no further adjustment.
m. Bank Account — Joint TD Canada Trust: the Applicant/Wife was successful on this issue.
n. "Proceeds of Pornographic Lifestyle" claim by the Respondent/Husband: as mentioned above, the Court strongly found against the Respondent and dismissed this claim.
o. Alleged Joint Loan: the Respondent/Husband had alleged the existence of a jointly-held loan of $47,250 and during the presentation of evidence, via his counsel, the Respondent/Husband agreed to strike his claim for the inclusion of this alleged loan in the NFP calculation.
p. Promissory Note: the court allowed a partial adjustment for this debt, but not the sum of $83,626.59 requested by the Respondent/Husband.
q. Sale of the two (2) Jointly-Owned Real Properties: the Court ordered the sale of the properties as requested by the Applicant/Wife.

Respondent’s Partial Success Claims

[5] As to the respondent’s claims for partial success, the court did accept his submission that future child support commencing January 1, 2026 should be based on his actual income from Trackless Vehicles. However, he also sought to base retroactive child support from 2021 to the date of judgment on his actual income, as well as for the period from the date of judgment to the end of 2025. This included periods when he had almost no income at all.

[6] I found that he was intentionally unemployed during those periods, as a result of losing his job at Toyota by reason of failing to report to work, and failing to provide his employer with an explanation for his absence and documentation to support that explanation, as repeatedly demanded by them. Accordingly, income was attributed to him in the amount of $75,000 per year.

[7] The net result is that the respondent’s claim that he had overpaid child support by $27,998.15, and was entitled to a refund from the applicant in that amount, was rejected. Instead, he was found to have underpaid child support for that same period, in the amount of $11,981.17, which is a reversal from the respondent’s position totalling almost $40,000. Clearly the applicant was the successful party on this issue.

[8] The respondent also claimed partial success on the promissory note issue. I did find that he was entitled to a deduction of $19,790 relating to this issue in the calculation of the equalization payment he owed to the applicant. However, this is a far cry from the amount he claimed in his NFP Statement, where he included the sum of $83,626 as a v-day debt in his column relating to this note, which would have resulted in a reduction in the equalization payment owing by him of $41,813.

[9] Furthermore, this was but one item in a list of items that went into the calculation of the equalization payment. As noted in the applicant’s submissions, above, the respondent claimed an equalization payment payable to him of $1,899,426.50. The applicant claimed that she was owed an equalization payment of $75,636.90. The final result was that the applicant was awarded an equalization payment of $55,846.50. Thus, the applicant was within $19,790.40 of the result at trial, while the respondent missed the mark by a staggering $1,843,580. Clearly, the applicant was the successful party on the equalization issue.

Entitlement to Costs

[10] There is no question that the applicant is entitled to her costs. The only question is whether they should be allowed on a full recovery or a partial recovery basis.

[11] Rule 24(10) provides as follows:

(10) If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.

Bad Faith

[12] In Scalia v. Scalia, 2015 ONCA 492 at para. 68, Epstein J.A., speaking for the court, defined the meaning of “bad faith”:

... The legal test for bad faith in the family law context, as set out in S. (C.) v. S. (M.), para 17, aff’d 2010 ONCA 196, is that the impugned behaviour must be shown to be carried out with “intent to inflict financial or emotional harm on the other party or persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court.” In short, the essential components are intention to inflict harm or deceive.

[13] The primary example, among others, of the respondent’s bad faith is his claim that the applicant has secretly been an internet porn star over the past 10 or 15 years, using the screen name “Princess Consuela”. He calculated that she made a total of $3,830,401 from selling porn videos online, which should be included in the equalization calculation, generating the entitlement to an equalization payment in his favour of roughly $1.9 million.

[14] While the respondent raised this porn star allegation during the course of the litigation, the details of his financial claim arising from it didn’t emerge until the “document dump” his counsel perpetrated in the early morning hours of the first day of trial, when literally thousands of pages of documents were served on the applicant. A series of coloured pornographic photos were also served on the applicant at the courthouse before the start of the trial.

[15] My analysis of this claim is found at paras. 118 to 161 of my reasons for judgment, and I do not propose to repeat all of my findings here. A few points are noteworthy, however. First, the respondent attempted to prove his claim that the applicant was a porn star by putting into evidence 39 images he captured from a porn site, which he swore under oath were of the applicant. However, the vast majority of those photos either don’t show the woman’s face at all, or her face is obscured such that her facial features are not visible. Only 13 images actually showed the woman’s face, but in each and every one of those, the woman was wearing a mask, which itself obscured the woman’s face. Not a single one of the 39 images showed the facial features of the woman in the video, which would have permitted a comparison to be made with the face of the applicant.

[16] This cannot have been a coincidence. The respondent said he took these photos by way of screen shots of images on a video. Clearly there would have been countless opportunities during the course of a porn video to freeze and capture images of the woman’s face while it was not obstructed. I am led to the inevitable conclusion that this was an intentional strategy on the part of the respondent, to present photos where an independent facial comparison by the court would be impossible, thereby forcing the court to rely on the respondent’s proclaimed ability to recognize the applicant from the body parts that were visible. This was, in my view, an attempt to deceive the court.

[17] The supposed independent witness, Mr. Whitefield, whom the respondent produced to supposedly corroborate his preposterous story, was equally deceptive. At para. 158, I listed how his testimony “piles improbability upon improbability”. I rejected it in the strongest possible terms. I am satisfied on a balance of probabilities that this evidence was concocted.

[18] In my reasons I also accepted the applicant’s testimony as to the “humiliation and embarrassment she has been made to endure in dealing with these absurd and unfounded accusations for the past several years”. I accepted that these scurrilous allegations are “a form of revenge on the respondent’s part, done for the purpose of hurting her and tarnishing her reputation in the community”.

[19] These allegations consumed a substantial portion of this 5-day trial, which forced the applicant to spend a considerable amount in legal fees to deal with them.

[20] I thus conclude that these actions meet the definition of bad faith in Scalia, in that they were both intended to inflict emotional, psychological and financial harm on the applicant, and to deceive the court. I find that full recovery costs are warranted.

Quantum of Costs

[21] As noted above, the applicant’s legal fees in total amount to $57,839.91, which includes the fees billed by her previous counsel Mr. McQuaid. The hourly rates of both counsel are reasonable, and the time spent on this file is proportionate to the number of contested issues and the amount in dispute, which was roughly $1.9 million.

[22] Costs are awarded to the applicant, on a full recovery basis, fixed at $57,800 all inclusive, payable by the respondent forthwith.

Thomas A. Heeney
Date: June 10, 2025