Ontario Superior Court of Justice

Court File No.: FS-18-41627
Date: 2025-07-08

B E T W E E N:

Egle Maria Paglialonga
Applicant
Counsel: Jeffrey Hart

• and -

Jairo Umana Arias
Respondent
Counsel: Omar Rambhajan

Heard: In Writing

Costs Endorsement
McGee J.

Overview

[1] This trial was organized during the videoconference before me on April 8, 2025. On that day I learned that all issues arising from the end of the parties’ common law relationship had been resolved, but for:

a. the applicant mother’s request that a temporary restraining order issued early in this lengthy and high conflict proceeding be made into a final order, and

b. the father’s request for parenting time with their daughter. The mother had avoided and opposed any father-daughter contact since January 2020, citing family violence and the risk of harm.

[2] The trial was heard on April 9, 10 and 11, 2025 with closing submissions received on April 19, 25 and May 2, 2025.

[3] In reasons released May 26, 2025, I did not find that there had been family violence as alleged by the mother and her family, and I found no legal basis for a restraining order. The temporary order was dismissed.

[4] Although I was firm in my findings of a lack of credibility regarding the mother’s and her allied family’s allegations, I did not go so far as to make a finding that the mother had acted in bad faith.

[5] I also ordered a detailed, stepped-up parenting plan that was to be supported by counselling, and I seized myself of at least one post-trial check-in on the progress of the parenting plan. The parents were to schedule a Zoom attendance before me at 9:00 am through my assistant for one of the following dates: July 23, 24 or 25. To my knowledge, no date has yet been scheduled.

[6] The parties have served and filed their costs submissions in accordance with the timetable provided for in my reasons: the father as of June 6, 2025, the mother as of June 16, 2025, and a reply was received June 23, 2025. The mother’s submissions indicate that although her counsel is on an unexpected medical leave, his law office was nonetheless able to serve and file a response to the father’s cost submissions.

[7] For the reasons set out below, I award the father costs in the amount of $43,505, payable within 30 days, with interest to accrue thereafter.

Positions of the Parties

[8] The father was the successful party at trial. Rule 24(1) of the Family Law Rules provides that a court shall make an award of costs in favour of a successful party. He seeks a full recovery of his costs in the amount of $133,335.92 calculated as his fees of $112,500, plus HST thereon of $14,625, plus disbursements of $2,900 and a former counsel’s account for $3,310.92.

[9] The father’s Bill of Costs is reflective of a Statement of Account. It lists docket entries from counsel’s initial meeting with the father on June 20, 2023, to the three-hour meeting on May 26, 2025, during which my decision was reviewed.

[10] No provision of services appears to have been left out, not even docket entries dealing with financial issues that were resolved prior to this trial. Two Statement of Accounts from the father’s previous solicitor dated January 10, 2017, and April 6, 2017 are attached in an unredacted form. Each carries the re: line of “Separation Agreement.”

[11] The mother asks that no costs be awarded, or alternatively, that only a minor amount be ordered. Her comprehensive response sets out several challenges to the amount of costs claimed by the father on this three-day trial, the most significant of which are:

a. The majority of time docketed by the father relates to financial issues that were resolved prior to trial. Costs of those prior settlements were neither preserved to the trial judge, nor presented in the father’s submissions as costs sought on settled terms. The dockets have not been curated to remove conferences (some of which were sought to be adjourned by the father) or motions for which costs were previously addressed.

b. Moreover, the father was not successful on the financial issues which were the subject matter of the prior settlements. For example, he conceded that $190,000 was owed in arrears of child support and post separation adjustments that had been incurred over the course of the previous nine years.

c. The father relies on Rule 18(14) now Rule 24(12) of the Family Law Rules, for a full recovery of all his costs by referencing his March 20, 2025 Offer to Settle that he states was severable and “closely aligned with the ultimate order made by the court.” The mother states that in fact, the

i. Offer was not severable, and

ii. included mandatory terms for joint decision-making, that the father receives one half of the home without accounting for post-separation adjustments, that child support arrears be forgiven prior to May 1, 2025, and

iii. included incidental parenting terms, none of which were adjudicated at trial.

[12] The father does not attach a copy of his March 20, 2025 Offer to Settle. He bears the onus to demonstrate that the orders obtained at trial were as good as, or better than the terms within an Offer to Settle. By failing to attach his Offer, and in light of contradictory submissions, I cannot consider his request for a full recovery of costs in accordance Rule 24(12).

[13] Neither can I accept his submission for a full recovery based on bad faith when no such finding was made within my reasons for decision.

[14] In his reply submissions, the father lists aggravating factors that he asks be considered in this award of costs, many of which are inappropriately placed within reply submissions. Reply is for issues that come up for the first time in a response. It is not an opportunity to split one’s submissions in a manner that precludes response. Many of the father’s arguments in reply cannot be the subject matter of this decision. For example:

a. The failure of the mother to follow-up to her complaint to the Oakville Child Centre and Halton Women’s Place. While relevant to the parenting decision, it is not relevant to an award of costs because the father incurred no resulting costs. The mother’s actions in this regard were not fully known to the father until trial.

b. Obtaining a restraining order without notice. The time to seek costs for that event was when the motion returned in September of 2019. The father was not successful in lifting the restraining order at that time.

c. A motion to recuse a prior trial judge which was not argued and did not result in any additional costs to the father.

d. Post trial conduct alleged by the father that is not under oath and to which the mother has no ability to respond. I was clear in my reasons for decision that further costs may be considered after the check-in attendance. Such costs if any, are not before me in this decision.

General Legal Provisions

[15] Costs rules are designed to foster four fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants; and (4) to ensure that cases are dealt with justly under subrule 2(2) of the Family Law Rules. See: Mattina v. Mattina, 2018 ONCA 867.

[16] The two most important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840. Amounts actually incurred by the successful litigant may therefore not be determinative. See: Hackett v. Leung.

[17] A determination of the amount of costs is not the signing of a blank cheque, or the reimbursement of one’s entire Statement of Account. There must be a clear and proportionate correlation between legal fees incurred and the importance or monetary value of the issues at stake. See: O’Brien v. O’Brien, 2017 ONSC 402.

A Solicitor’s Statements of Account to a Client are not a Bill of Costs

[18] The father attached his previous solicitor’s accounts in their original and unedited form and attached receipts showing payments to his solicitor.

[19] Including Statements of Accounts as either a proxy for a properly drafted Bill of Costs or as a disbursement is a practice that must be discouraged because it can trigger an inadvertent breach of solicitor-client privilege.

[20] A solicitor’s account is information shared between a lawyer and a client. The narrative portions detailing legal advice are subject to solicitor-client privilege when they relate to the seeking or giving of legal advice. While purely administrative details about payments might not be considered privileged, particularized provisions that reveal directly or indirectly the nature of any legal advice given are subject to privilege.

[21] Proof of the payment of legal fees to a solicitor carries a related risk and is not necessary to a determination of costs. A legally aided client who does not pay the amount sought within an award of costs stands before the court in exactly the same position as any other litigant, see Justice Kaufman’s decision in Baksh v. Baksh, 2017 ONSC 3997. Even pro bono work, in which there is no payment to counsel, is not a limiting factor when considering a reasonable and proportionate award of costs, see O.K. v. M.H., 2025 ONCA 486.

Analysis

[22] Two issues were at stake in this trial: the restraining order sought by the mother and the parenting time sought by the father. Neither party made an Offer to Settle the issues that were to be decided at this trial.

[23] An award of costs is subject to the factors listed in subrule 24(14) and (7) of the Rules, which reads:

24(14) 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.

[24] I find the mother’s conduct in avoiding and refusing parenting time since January 2020 to have constituted unreasonable litigation conduct pursuant to Rule 24(14). Had her concerns been merit based, she would have fully engaged with the investigation of the Children’s Lawyer. Instead, she chose the self-help route of rejecting any persons or institutions who did not pre-emptively agree with her position. As set out in my reasons, many of her actions can be ascribed to a lack of agency on her own part in being able to separate her daughter’s interests from those of the extended family as a whole.

[25] At the same time, I also accept the mother’s submissions that many of the dockets within the father’s Bill of Costs are problematic. I do not take issue with the hourly rate of $350 per hour for father’s counsel, but there are mathematical errors within his Bill of Costs, and much of the docketing relates to events not relevant to the costs of this trial.

[26] A useful benchmark for determining whether costs claimed are fair, reasonable, and proportionate is to consider the amount that the unsuccessful party paid for their own legal fees and disbursements in the same matter. See: Smith Estate v. Rotstein, 2011 ONCA 491 and more recently, Laidman v. Pasalic and Laidman, 2020 ONSC 7068.

[27] I have examined the mother’s dockets in this regard and find that I cannot adopt her proposal for a percentage inclusive rate. Both the parties’ accounts demonstrate the difficulty in separating out the settlement discussions on the financial issues and trial preparation on the parenting issues leading up to trial. Instead, I will take the approach set out in Mattina v. Mattina supra and apply the principle that an award of costs must reflect the reasonable expectations of the paying party, see: Tintinalli v. Tutolo, 2022 ONSC 6276.

[28] This has been a hard fought, high conflict dispute. Each parent has had moments of poor conduct that ought to invite reflection, but in the end, it has been the mother’s unwavering position that there must be no father-daughter contact that has driven the conflict to trial. She has demonstrated no willingness to support any relationship between their daughter and her father. Specifically, the mother has misapplied prior courts’ directions by treating a therapeutic process as a barrier to parenting rather than a facilitation. Even a mid-trial opportunity to rechart a parenting recovery was rebuffed.

[29] When I consider reasonable litigation conduct within this context, I find that it is appropriate to give the father a near full recovery on the costs of the trial, and a partial recovery on the events that precipitated a parenting trial, such as the mother’s refusal to permit parenting time after January 2020 without a court order, the subsequent avoidance of any litigation steps that might have resulted in a parenting order, her refusal to engage with the OCL resulting in a collapsed report, and her failure to comply with the order of July 24, 2024 requiring each party to propose the specifics of a plan for reunification.

[30] The refusal to engage with the OCL cries out for selective admonishment, lest non-engagement be incentivized. The OCL is the court’s service provider, tasked with obtaining neutral, objective evidence that informs a court’s determination of a child’s best interests. To refuse to participate in a section 112 investigation is in my view, de facto unreasonable litigation conduct.

[31] In reviewing the father’s Bill of Costs, the factors in Rule 24(14) of the Family Law Rules and the costs incurred by the mother for the trial, which assist in understanding her reasonable expectations for costs, I find that the fair, reasonable and proportionate amount of costs to be paid is the amount of $43,505, which I calculate as follows:

a. the rounded amount of $7,500 in fees per day of trial (x 3 = $22,500) inclusive of written submissions later received, as a near full recovery of the costs that an unsuccessful party ought to have anticipated paying, and

b. the rounded amount of $16,000 for a partial recovery of litigation costs specifically arising from the mother’s unreasonable refusal to permit parenting time after January 2020 without a court order, her avoidance of certain litigation steps, including an order to provide a reunification proposal, and her refusal to engage with the OCL. I do not make recovery for this pretrial period more than partial because the father also failed to make a specific proposal for reunification therapy and did not advance the parenting issues in a timely manner.

c. HST thereon of $5,005 and

d. I order no amount in disbursements, as the amounts identified in the costs submissions relate primarily to the copying of the Separation Agreement and an appraisal of the home, neither of which were in furtherance of the trial issues.

McGee J.

Released: July 8, 2025