Court File and Parties

Court File No.: FS-18-0012-00 Date: 2025-07-28 Superior Court of Justice - Ontario

Re: David Pawluczuk, Applicant And: Cidalia Waters, Respondent

Before: Justice Conlan

Counsel:

• Brian Ludmer, for the Applicant
• Laura Paris, for the Respondent

Heard: July 28, 2025

Endorsement on Costs

[1] On March 19, 2024, this family law proceeding settled. I signed a Final Order on that date, and counsel reserved the right to file written submissions on costs.

[2] Ten months later, in January 2025, the applicant father filed written submissions on costs. That spawned a flurry of activity from the parties, culminating in a very large amount of material for this Court to review, particularly on behalf of the applicant.

[3] After reviewing all of the materials filed, I am of the view that no costs ought to be ordered in favour of either side. Each side shall bear its own costs. That is the decision of this Court.

I. Materials Reviewed

[4] The references below are to the Case Center document pages.

Applicant father, David Pawluczuk

• The Applicant's Cost Submissions ("ACS") [A262]
• The Applicant's Reply Cost Submissions [A982]
• The Applicant's Limited Sur-Reply Cost Submissions [A994]

Respondent mother, Cidalia Warren (née Waters)

• Cost Submissions of the Mother, Cidalia Warren ("RCS") [B304]
• Limited Reply Cost Submissions of the Mother, Cidalia Warren [B506]

II. Background

[5] The parties had a brief relationship resulting in the birth of their child on October 31, 2014. They never married or cohabitated. In 2018, the applicant brought a parenting motion. Since then, there have been seven conferences, one long motion, one motion for leave to appeal, seven 14B motions, and one four-way settlement meeting. Costs have already been awarded for some of these steps in the proceeding.

[6] In October 2019, a s. 30 Assessor's parenting plan was released, recommending equal shared parenting. The parties agreed to the plan after some refinements negotiated with Dr. Irving. The applicant says that the respondent subsequently reneged on this agreement in late 2019; the respondent says that both parties were prepared to settle on those terms but discussions broke down because the applicant insisted there be a cost determination.

[7] In April 2020, the child was placed in the applicant's exclusive care for 5 weeks while the CAS investigated an incident that occurred between the respondent and her husband, in front of the child. In 2020, the respondent was dealing with an alcohol abuse problem.

[8] Later in 2020, the applicant brought a motion for an updated s. 30 assessment. After some delays, the updated s. 30 assessor's recommendations were provided to the parties in 2022.

[9] The trial was scheduled for March 2024. On January 18, 2024, the parties held a 4-way meeting to negotiate and resolve the outstanding issues in the proceeding. This led to a settlement agreement, which was affirmed in a final consent order dated March 19, 2024.

[10] In January 2025, the applicant filed the present submissions for costs.

III. Positions of the Parties

A. The Applicant Father

[11] The applicant submits that the respondent is fully responsible for the protracted, expensive litigation including because she acted in bad faith, raised unfounded allegations against the applicant, sabotaged the shared parenting regime, and refused to settle in the face of numerous conferences, s. 30 assessments, and therapy reports. He asks for costs on a full indemnity basis in the amount of $344,656.72 (see detailed breakdown below).

[12] The applicant has provided extensive examples of how he says the respondent has acted improperly or unreasonably — too many to summarize here. Some examples of the applicant's allegations include the following.

• The respondent knowingly made serious false allegations against the father for the purpose of sabotaging his relationship and parenting time with the child. Refuting these allegations took a significant amount of time and eventually the CAS and the s. 30 assessor rejected the allegations.

• The respondent was found to be harmful to the child because of severe alcoholic and mental health and behavioural issues, as well as maladaptive parenting practices.

• The respondent misled the s. 30 assessor (Marcie Goldhar), the parties' first Parenting Coordinator (Dr. Howard Irving), SCAN, SickKids Hospital, the child's school, CAS, and the police. The applicant specifically alleges that the respondent encouraged the child to lie to the police and CAS that the applicant beat him with a fork and a potato masher.

• The respondent's refusal to accept the outcome of the first motion led to harmful efforts to sabotage the court-ordered equal parenting regime, which consequently resulted in CAS involvement, additional court appearances and conferences, 14B motions, and two lengthy and expensive s. 30 assessments.

• The respondent repeatedly refused to participate in 4-way settlement negotiations (approximately 17 times).

[13] The applicant says that the respondent's motive to marginalize the applicant's relationship with the child and turn the child against his father constitutes bad faith motives.

[14] The applicant says that the settlement accepted on January 18, 2024 provides the respondent with significantly less parenting time due to her ongoing alcoholism, mental health issues, and parenting impairments which have had a profound and detrimental impact on the child. The applicant further submits that he "withstood 7+ years of coercive control, undermining and abusive behaviour and aggressive litigation" and has achieved meaningful care for his child under the settlement.

[15] The applicant submits that he was entirely successful in the settlement on all of his claims with the exception of one (travel), on which he was partially successful, and that the respondent was unsuccessful. The applicant further submits that he acted reasonably throughout the proceeding.

[16] The applicant's bottom-line request is for costs of the overall proceeding (except costs already adjudicated and paid), on a full recovery basis. He submits that this amounts to $304,691.44 inclusive of disbursements and HST. He further requests costs of the costs submissions (January 23, 2024 – January 31, 2025) on a full recovery basis in the amount of $39,965.28, inclusive of disbursements and HST. Total, then: $344,656.72.

[17] In the alternative, the applicant requests costs on a substantial recovery basis of $243,753.15 + $31,972.22 (costs submissions), for a total of $275,725.37.

[18] The applicant submits that the respondent is in a good financial position. She is employed full-time at Metrolinx and her most recent known line 15000 income was $77,858.71. Her husband earned $181,704 in 2022. The applicant also submits that the respondent owns a 100% interest in her home, valued at approximately $2,000,000.00 (in 2023), mortgage free; he also submits that as of November 2023, the respondent had significant savings and investments valued at $764,950.00.

B. The Respondent Mother

[19] The respondent submits that no costs ought to be ordered against either party. She submits that the applicant has consistently bullied her and drove the costs of the litigation through calculated attacks. She submits that the years of litigation cannot be appropriately captured in the form of costs submissions, absent tested evidence and credibility findings.

[20] The respondent acknowledges that she went through a "difficult time in her life" in April 2020, which involved alcohol abuse, but says that she has been consistently sober from October 2022 to January 2025.

[21] The respondent disagrees with numerous aspects of the applicant's version of events. For example, the respondent says the following.

• She accepted the schedule, alcohol testing, and treatment options recommended by the s. 30 assessor in the updated 2022 assessment.

• Both parties were actively engaged in settlement efforts from November 2022 to January 2024.

• She did not misrepresent her enrollment in a treatment program.

• She did not intentionally delay the settlement.

• The applicant previously launched a "smear campaign" against her relating to her struggles with alcohol, despite over 9 months' proven and tracked sobriety; his objective was to force a serious regression in her parenting time.

• The applicant's purported 17 attempts to arrange 4-way meetings are disingenuous because the applicant ignored subsequent correspondence from the respondent on several occasions.

• She did not instruct the child to lie about the applicant hitting him.

[22] The respondent submits that no costs ought to be ordered because of the following considerations.

a) The parties engaged in a negotiated settlement which does not and cannot presume a winner or successful party.

b) Judgments/orders cannot be based on opinions/submissions alone.

c) Even in consideration of cost Rules, the applicant acted unreasonably throughout the course of the case, driving the conflict and excessive legal fees and engaging in litigation through lengthy and aggressive correspondence; the applicant made no genuine efforts to ever co-parent with the respondent and rather used her mental health as a weapon and a means to continue to kick her while she was down.

[23] On point (a), the respondent submits that the case law says there is no way to determine success under Rule 24 of the Family Law Rules ("FLR") because the final terms of settlement are not a benchmark for what would have been decided by a court.

[24] The respondent submits that she did not act in bad faith. She submits that none of the previous cost orders against her arose from any finding of bad faith.

[25] The respondent states that submissions are not evidence and that many of the attachments in the applicant's costs submissions do not match their descriptions.

[26] The respondent submits that a costs award such as the one the applicant is asking for will be detrimental to her retirement savings, and she further submits that the applicant is very wealthy – that his most recent income disclosed was over $1.5 million (2022).

[27] The respondent characterizes the applicant's bill of costs as a "docket dump" in which it is impossible to particularize the work done by issue, event, or step in the proceeding. Further, the respondent says that there were approximately six attendances and 14B motions in which costs were specifically not ordered, meaning that they were not reserved to the trial judge and therefore cannot be dealt with after the fact.

[28] The respondent also submits that the applicant's request for costs for the costs submissions themselves is "egregious" because the applicant refused to agree to reasonable limits on the written costs submissions, which drove up the litigation expenses on this step for both parties.

[29] The respondent says that the applicant, through his counsel, represented to this Court on March 19, 2024 that a joint document brief or agreed statement of facts relevant to costs would be prepared but then refused to collaborate with the respondent on doing so.

IV. Leading Authorities & Principles

[30] The parties each cite numerous cases on the issue of post-settlement costs in family matters.

[31] This Court recommends that one follow the framework and principles outlined in Justice Kurz's decision in DeSantis v. Hood, 2021 ONSC 5496. That authority provides a most helpful overview of the general law of costs in family matters and of the particular issue of post-settlement costs.

[32] On the post-settlement costs issue, DeSantis, supra highlights the following points.

• Costs of a proceeding may be awarded to a party despite the fact that a case has settled, but there should be compelling reasons to do so: para. 54, citing Talbot v. Talbot, 2016 ONSC 1351, para. 58, citing Davis v. Fell, 2016 ONCJ 84.

• A judge called upon to decide costs of steps which they did not adjudicate must decide costs in a summary manner: para. 54, citing 24(10) FLR.

• A post-settlement judge has far less ability to determine relevant issues such as success, favourability, and reasonable or unreasonable behaviour, than a judge adjudicating costs for each step at the time that it occurs: para. 55.

• The attempt to argue costs entitlement and quantification through application of the normally applicable cost recovery rules, after the parties have reached a formal settlement of the substantive issues between them, without trial, is fundamentally misconceived and inappropriate; the court should be very slow to make an award of costs in such circumstances because, for one, objective benchmarks of success are lacking in an agreed settlement, and attempts to address costs post-settlement are unlikely to promote judicial economy: paras. 56-57, citing Witherspoon v. Witherspoon, 2015 ONSC 6378.

[33] The key legislative authority is Rule 24, which sets out the factors that the court must consider in exercising its discretion over costs in the family context. The key points relating to this provision are the following.

• The successful party is presumptively entitled to costs of a motion, enforcement, case, or appeal: 24(1) FLR.

• There is no presumption that the successful party in a family law proceeding is entitled to an amount approaching full or even substantial indemnity costs, except in circumstances of bad faith [24(10) FLR] or exceeding an offer to settle [18(14) FLR]: see Beaver v. Hill, 2018 ONCA 840, at paras. 11 and 13.

• The reasonableness and proportionality of a party's conduct in litigation can be determined in part by looking at offers to settle: DeSantis, supra, para. 27.

• Subrule 24(12) FLR sets out the appropriate considerations in fixing the quantum of costs.

• A court can deprive a successful party of all or some of their costs if they have behaved unreasonably: 24(4) FLR.

• Despite Rule 24, the court retains its ultimate discretion to determine what costs are reasonable: A.M. v. D.M., at para. 43.

[34] Another helpful case is Johanns v. Fulford, 2010 ONCJ 756. It has been cited numerous times by the Superior Court in post-settlement costs decisions. Justice Murray operationalized the analysis into three questions.

1. Was either party successful? If success was divided, was one party markedly more successful than the other?

• "Success" is assessed by comparing the terms of an order against the relief originally requested in the pleadings and against the terms of offers to settle: para. 13.

• The degree of success in a negotiated settlement is an important factor in assessing costs, but the reasonableness of a party's litigation behaviour in such a case may take on even greater weight than it does in a case that goes to trial: para. 16.

• An offer that does not comply with 18(14) FLR (which provides that an offer must be signed by a party and the party's lawyer) is not an "offer": para. 17. That does not mean, however, that a court assessing either party's reasonableness cannot consider overtures towards settlement that fall short of an "offer" under the FLR: para. 18.

2. Was either party guilty of bad faith or unreasonable behaviour in their conduct of the case?

• The onus is on a litigant asserting unreasonable behaviour by the opposing party to prove the facts which support the allegation: para. 22.

• A judge who has not heard a trial has a scant evidentiary basis upon which to form conclusions about whether a party acted unreasonably: para. 23.

3. If costs are to be awarded, what should be the amount?

• The 24(14) FLR considerations include:

  a. the importance, complexity or difficulty of the issues;

  b. the reasonableness/unreasonableness and bad faith factors;

  c. the lawyer's rates;

  d. the time properly spent on the case;

  e. the expenses properly paid; and

  f. any other relevant matter.

V. Decision

[35] I am of the view that the most fair, just, and reasonable result on the costs of this proceeding is to make no order that either party pay any costs to the other.

A. Relative Success

[36] When comparing the terms of the ultimate settlement in 2024 with the original pleadings from 2018, the applicant father appears to have been more successful.

[37] Success, however, must also take into consideration the offers to settle. It is clear that the respondent mother's position changed over time between 2018 and 2024, in response for example to the s. 30 assessment reports. That should be encouraged and not penalized.

[38] The respondent says that the vast majority (>80%) of the settlement terms were agreed to in early 2023, and that the final terms agreed to in 2024 were the result of compromise achieved during the 4-way meeting. There is no reliable basis for this Court to reject that.

[39] The complexity of the settlement negotiations in this case reminds me of the very important point made by Kurz J. in DeSantis, supra and by Leach J. in Witherspoon, supra: that objective benchmarks of success are lacking where the outcome against which parties attempt to argue their degree of success is not the product of judicial fact-finding and objective determination but, rather, an agreed settlement: DeSantis, supra, at para. 56.

[40] In short, I am not convinced that either party was clearly "successful" given that the final settlement was the result of 7 years' worth of refining of positions, changed circumstances, and an ultimate compromise.

B. Conduct of the Parties

[41] Both parties point to various examples of what they say was unreasonable conduct by the other side. In the applicant's case, he also alleges bad faith by the respondent, which can justify full indemnity on costs: 24(10) FLR.

[42] On this written record, however, I do not think that I can reliably say that one party was unreasonable and the other reasonable.

[43] The DeSantis, supra and Johanns, supra, authorities stress that the court must exercise great caution in determining the reasonableness of the parties' conduct on a summary costs determination when there has been no trial or contested hearing in which factual findings were made: DeSantis, supra, at para. 45, and Johanns, supra, at para. 23.

[44] With the amounts at stake and the highly conflicting allegations back and forth, this Court would have to embark upon a mini-trial on the issue of costs. That would not be consistent with how costs ought to be dealt with; it would not be in the interests of justice; and it would not be in the best interests of this family and this child.

[45] Both parties bear some fault for this lengthy and expensive litigation. Through the good work of their counsel and through valuable compromise, the parties ultimately did the right thing and settled the case. That should be the end of it, in my respectful opinion.

Conlan J.

Date: July 28, 2025