Court File and Parties

Court File No.: FS-18-00000045 Date: 2025-09-02 Ontario Superior Court of Justice

Between:

Wioleta Kosewski Self-Represented Applicant

- and -

Mariusz Kosewski Self-Represented Respondent

Heard: In Writing

Costs Endorsement from Trial

Overview

1. The applicant/mother, Wioleta Kosewski (born 1985), and the respondent/father, Mariusz Kosewski (born 1981), married in 2003 and separated in 2012. There is one child of the marriage, N., born in 2010.

2. In May, 2012, the parties signed a separation agreement. In 2018, Ms. Kosewski started this application, seeking to set aside or vary the 2012 separation agreement.

3. The trial decision was released on June 6, 2025. The court declined to set aside the separation agreement as it pertained to spousal support but did set aside the agreement as it pertained to child support. The court made findings about Mr. Kosewski's annual income.

4. In a short, supplementary hearing on July 25, 2025, the court calculated the outstanding arrears of child support and section 7 expenses.

5. The court is adjudicating the costs of the entire proceeding with the exception of the order of November 25, 2022 (arising from a motion) and the order of September 22, 2023 (arising from a trial management conference). Costs were already awarded for these two steps.

6. For the reasons below, the court finds that Mr. Kosewski shall pay costs in the amount of $190,000 and that those costs may be paid from the funds held in trust from prior real estate transactions.

Positions of the Parties

7. Ms. Kosewski argues that she is entitled to full recovery costs in the amount of $255,249.22; in the alternative, she seeks substantial recovery costs in the amount of 80% of the full recovery figure ($204,199.38).

8. Mr. Kosewski asks the court to depart from the presumption that costs follow the result. He submits that he should be entitled to costs (although he does not specify an amount); in the alternative, he asks the court to deny any costs to Mr. Kosewski.

Preliminary Note on Materials Considered by Court

9. These costs submissions are based on the trial reasons (June 6, 2025), the supplementary trial reasons (July 25, 2025) and the costs submissions from both parties.

10. The costs submissions from both parties included bills of costs and offers, which were considered by the court. However, both parties appended text messages to their submissions. Any new text messages (meaning texts which were not put into evidence at trial) were not considered by the court as they were not properly appended to affidavits.

Costs of the Income Valuation Have Been Decided

11. Mr. Kosewski asks the court for a "fair allocation of the valuation costs related to income and asset analysis".

12. That issue is not properly before the court on the costs portion of the trial because it was already decided in the trial reasons.

13. During the litigation, the parties jointly retained an expert to value Mr. Kosewski's income. It was agreed that Mr. Kosewski would pay the fees, subject to the court modifying that arrangement at trial.

14. In the trial decision, the court found that Mr. Kosewski should be responsible for all of the expert fees for two reasons:

    a. The need for the expert valuation in the first instance was because Mr. Kosewski did not provide proper disclosure; and

    b. Although the original expert estimate was $6,000, that cost ballooned to over ten times that amount solely because of Mr. Kosewski's delay in providing information to the expert.

15. This court has no jurisdiction to revisit that trial finding in this costs decision.

Costs Generally

16. The successful party is presumptively entitled to its costs of this motion, although costs are ultimately in the discretion of the court.

17. Modern family law cost rules are designed to foster these fundamental purposes:

    a. to partially indemnify successful litigants;

    b. to encourage settlement;

    c. to discourage and sanction inappropriate behaviour by litigants; and

    d. to ensure that cases are dealt with justly.

18. 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.

19. Proportionality and reasonableness are the touchstones.

20. Assessing costs is not a mechanical process or accounting exercise.

21. Rule 24 of the Family Law Rules, O.Reg. 114/99 sets out several factors to be considered in costs awards. The factors relevant to this case are:

    a. There is a presumption that a successful party is entitled to the costs of the case: R. 24(3).

    b. If success is divided, the court may apportion costs as appropriate: R. 24(4).

    c. A successful party who has behaved unreasonably during a case may be deprived of their own costs or ordered to pay costs to the unsuccessful party: R. 24(7).

    d. In assessing behaviour as reasonable or unreasonable, the court shall examine the behaviour, offers made and offers withdrawn and offers not accepted: R. 24(8).

    e. If the court finds bad faith, costs shall be assessed on a full recovery basis and paid immediately: R. 24(10).

22. Rule 18 and Rule 24(12) sets out the considerations relevant to offers (addressed below).

Successful Party at Trial

23. Trial success is not always a question of the court choosing between binary options. Parties often do not get the exact result they are seeking, so the court must evaluate which party, on balance, was more successful.

24. There were four issues adjudicated at trial. On balance, Ms. Kosewski was the more successful party, although she did not succeed on all issues:

Issue	A's Position	R's Position	Trial Result
Setting aside separation agreement re: child support	Set aside agreement	Maintain agreement	A succeeds: Separation agreement set aside; child support to be reconsidered.
R's income	Accept expert valuation and impute income for 2024	Adjust expert valuation and do not impute income for 2024	A more successful: expert valuation accepted entirely; 2024 income not imputed
Setting aside separation agreement re: spousal support	Set aside agreement	Maintain agreement	R succeeds: separation agreement upheld on spousal support
R's counterclaim for damages for A's alleged misuse of in-laws credit card and credit line	No misuse	Damages sought	A succeeds: no damages awarded.

25. Having made findings about Mr. Kosewski's income, the court asked the parties to calculate arrears of child support and section 7 expenses. Because the parties could not agree, the court conducted a short supplementary hearing on July 25, 2025 to make these calculations.

    a. On the issue of child support, the parties agreed on the arrears and only disagreed on Mr. Kosewski's 2024 income. The court used Mr. Kosewski's 2024 income, so he succeeded on that issue.

    b. On the issue of section 7 expenses, the parties also agreed on the arrears except for some vision and dermatology expenses which were disallowed. Mr. Kosewski was the more successful party on that issue.

26. From a time perspective, the trial issues did not take equal trial time. There was significant overlap between the setting aside the separation agreement as it pertained to child support and spousal support. There was much less time spent on the respondent's counterclaim. As noted above, the child support and section 7 calculations were done within a morning appearance.

27. Rule 24(6), which provides that where success is divided, the court may exercise its discretion to order and apportion costs as appropriate. The determination of whether success was truly "divided" does not simply involve adding up the number of issues and running a mathematical tally of which party won more of them. Rather, it requires a contextual analysis that takes into consideration the importance of the issues that were litigated and the amount of time and expense that were devoted to the issues which required adjudication. Where the court concludes that success was in fact divided, it may award costs to the party who was more successful on an overall global basis or on the primary issue, subject to adjustments that it considers appropriate having regard for the lack of success on secondary issues and any other factors relating to the litigation history of the case.

28. In this case, Ms. Kosewski was the more successful party. Although the separation agreement was not set aside as it pertained to spousal support, it was set aside as it pertained to child support.

Impact of Offers

29. There were five offers in this case:

    a. March 1, 2023: Ms. Kosewski

    b. September 13, 2023: Ms. Kosewski

    c. September 6, 2024: Ms. Kosewski

    d. September 6, 2024: Mr. Kosewski

    e. June 25, 2025: Mr. Kosewski

30. The trial started on September 11, 2024 (the parties anticipated that trial would occur in 2025, but the court moved the case to the September, 2024 sittings). Ms. Kosewski was the only party who made efforts to settle the case well in advance of trial.

31. Ms. Kosewski's offers were all severable. The offers dealt with many issues (such as parenting time and post-secondary education) which did not go to trial. Broadly speaking, Ms. Kosewski did not "beat" her 2023 offers from a financial perspective, but did beat her 2024 offer as it pertained to child support. She did not succeed at trial on the issue of spousal support.

32. Looking at the offers alone, Ms. Kosewski's offers would not result in entitlement to elevated costs.

33. Ms. Kosewski recovered well in excess of what Mr. Kosewski offered on September 6, 2024 and slightly more than his offer of June 25, 2025.

Unreasonable Behaviour

34. Both parties accuse each other of unreasonable behaviour.

35. Rule 24(7) addresses situations where a successful party has behaved unreasonably, and Rule 24(8) provides guidance on how to evaluate reasonableness. These factors include how a party reacted to an issue that was raised, whether either party made an offer to settle and whether a party withdrew or failed to accept an offer.

36. An unsuccessful party will not attract a heightened cost consequence if their conduct, including the legal position advanced, is reasonable. That being said, that does not entitle a party to litigate with total immunity.

37. Losing an issue at trial does not lead to the inexorable conclusion that the legal position was unreasonable. The court finds that both parties were entitled to take the legal positions that they did at trial and those legal positions, in and of themselves, were not unreasonable.

Bad Faith

38. Both parties accuse each other of bad faith. The court does find that Mr. Kosewski engaged in bad faith during this litigation. The trial decision specifically asked the parties to make submissions on this issue of whether a bad faith finding was warranted.

39. Findings of bad faith are rarely made. The bar is a high one: the court must find evidence of significant wrongdoing, dishonest purpose or moral iniquity.

40. Bad faith can occur when a party has a hidden purpose. Bad faith can also be overt. Whether committed secretly or overtly, bad faith is done knowingly and intentionally.

41. Mr. Kosewski exhibited bad faith over the life of this litigation, including, but not limited to the following admissions at trial:

    a. Stopping paying child support in 2018 because he was unhappy that the applicant started this proceeding.

    b. Swearing false affidavits: Mr. Kosewski swore an affidavit on June 28, 2019, stating that he was not an owner, director or shareholder of AllStar software and that his relationship with AllStar had been terminated; these statements were false. He also stated that he had worked with Build with Care since July, 2019 as "skilled trade worker". This was also false.

    c. Providing false financial statements: in cross-examination, he admitted that his 2018 and 2019 financial statements were incorrect.

    d. Breaching two court orders (of Price, J. and Woollcombe, J.).

    e. False allegations in pleadings: in his amended amended answer, Mr. Kosewski asserted that the applicant had legal counsel when the separation agreement was signed; this was patently untrue.

    f. Intimidation of expert witness: when Mr. Kosewski was unhappy with the jointly retained expert's calculations and invoices, he threatened to report the expert to the police and the expert's professional regulator (he later recanted these allegations).

42. The trial reasons found that this litigation angered Mr. Kosewski and he clearly thought that if he lobbed enough insults at Ms. Kosewski and refused to disclose income information, the litigation would be dropped.

43. Mr. Kosewski engaged in bad faith actions from the time this case was started in 2018 until the commencement of trial.

44. Because Mr. Kosewski acted in bad faith, Ms. Kosewski is entitled to full recovery costs, payable immediately upon receipt of the costs decision.

Proportionality

45. Quantification of costs, regardless of whether they are full or partial recovery, require an overall sense of reasonableness and fairness. The court will not award a blank cheque to the successful party. The court always retains jurisdiction to make costs awards which are proportional, fair, and reasonable in all the circumstances.

46. To be proportional, there must be a correlation between legal fees sought and the importance of monetary value of the issues at stake. In this case, the applicant recovered $184,517 when the respondent's position was that he owed nothing.

47. Intertwined with the concept of proportionality is the reasonable expectation of the losing party. These expectations are relevant, but not determinative on costs. In this case, it is impossible to assess Mr. Kosewski's expectations as he did not submit a bill of costs.

48. Given that he is seeking costs, Mr. Kosewski is required to submit a bill of costs. Even if he was not seeking costs, Rule 24(16) provides that a party who opposes a claim for costs respecting fees or expenses shall provide documentation showing the party's own fees and expenses.

49. Indeed, in the case of O.K. v. M.H., the court inferred that a losing party who did not submit a bill of costs incurred legal fees that were at least as high or higher than the winning party. I draw the same inference in this case: that Mr. Kosewski's legal costs were at least as high as those incurred by Ms. Kosewski.

Analysis of Costs

50. The applicant's bill of costs is $253,559.62 for full recovery, inclusive of all fees, HST and disbursements. This figure appropriately excludes the costs of the November 25, 2022 motion, but does not exclude the $2,500 award made at the TMC on September 22, 2023: this must be deducted.

51. Broadly speaking, the hourly rates for each timekeeper are reasonable.

52. The applicant's bill of costs discloses that she changed law firms once and multiple lawyers and clerks worked on her file. Although there was no overstaffing (meaning too many lawyers working on the file at the same time), the number of professionals and the change in counsel means that there was some element of duplication, despite best efforts.

53. The disbursements are not fully particularized, although they are not high (under $2,000). One disbursement ($175 for electronic file storage) is not allowed as this charge is in the nature of overhead/administration, as opposed to a discrete disbursement.

54. Not surprisingly, it is impossible to break out the individual dockets and determine what percentage of the work applied to specific trial issues. Instead, the court takes a holistic view of the case to assess reasonable and proportional costs.

55. While both parties were self-represented at trial, they continued to have legal support in the background. This was reflected in their opening and closing statements, as well as in the comprehensive caselaw submitted by both parties. These legal services were legitimate and compensable.

56. Taking into account the length of the case (the application was issued in February, 2018), the effort required to move the proceeding forward and the days of trial (ten full days plus a further short supplementary attendance), I find that reasonable and proportional costs for the trial issues is $225,000, inclusive of all fees, taxes and disbursements.

57. Taking into account the divided success, as discussed above, I reduce the costs award to Ms. Kosewski to $190,000.

Orders Made

58. Mr. Kosewski is ordered to pay costs in the amount of $190,000 to Ms. Kosewski, inclusive of legal fees, taxes and disbursements.

59. Costs are to be paid within 30 days.

60. Ms. Kosewski may satisfy the costs order by accessing the funds held in trust by real estate lawyer Harry Hong for the 197 Orchard property ($15,483) and the 87 Durham property (which the parties estimate to be $169,000 but a precise trust figure was not provided to the court). Any funds owing in excess of what is held in trust by the real estate lawyer are to be paid by Mr. Kosewski.

61. Post-judgment interest will run at 4% starting 30 days after the date of this decision.

L. B. Stewart J.

Released: September 2, 2025