D.M.S. v. E.L.R., 2026 ONSC 4333

Court File and Parties

CITATION: D.M.S. v. E.L.R., 2026 ONSC 4333

BRAMPTON COURT FILE NO.: CV-25-00005955-0000

DATE: 20260724

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: D.M.S., Plaintiff

AND:

E.L.R. and D.G.E., Defendants

BEFORE: J.P.L. McDermot J.

COUNSEL: Plaintiff and Defendant, E.L.R. unrepresented

Robert Zochodne, for the Defendant, D.G.E.

HEARD: By written submissions

COSTS ENDORSEMENT

1After having his pleadings struck in matrimonial proceedings brought by the Defendant, E.L.R., her husband D.M.S. commenced a Statement of Claim for malicious prosecution, defamation, intentional infliction of mental suffering and intentional interference with economic relations against E.L.R. and the parties’ daughter, D.G.E. D.M.S. alleged that the Defendants had colluded in making false allegations of sexual interference and assault resulting in criminal charges against D.M.S. which were eventually dismissed.

2I ordered that the Plaintiff’s claim be reviewed by the court under r. 2.1.01 of the Rules of Civil Procedure.¹ After the argument of a long motion, I ordered on June 25, 2026 that the claim be struck as being frivolous, vexatious and an abuse of process. I found that the Plaintiff brought this claim to raise issues of alienation, an issue that was not permitted in the matrimonial proceedings as the Plaintiff abandoned his parenting rights on consent in 2022. The defamation claim was statute barred as the putative statements were made more than two years prior to the claim being issued. The malicious prosecution claim did not disclose a cause of action as neither Defendant had actually prosecuted that claim as the charges were preferred by the Crown. The claim was further found to be a collateral attack on proceedings which were struck as a result of the Plaintiff’s failure to provide disclosure and I found (in contempt proceedings) that the Plaintiff’s Statement of Claim qualified as litigation abuse.

3I found that the Defendants were entitled to their costs as the successful parties. They have filed costs submissions in this matter. The Plaintiff did not file any responding costs submissions.

4The Defendant, E.L.R. has requested full indemnity costs of $19,001.98. E.LR. was self -represented but obtained assistance of counsel in preparation of the materials from her counsel in the matrimonial proceedings, Ms. Cushon. Therefore, of those $19,001.98 in costs, Ms. Cushon’s expenses were $7,227.98 inclusive of HST. The remaining amount of $11,774 consisted of time spent on the file by E.L.R. at a partial indemnity rate (E.L.R. is a practicing lawyer).

5D.G.E. was represented by counsel. Her counsel, Mr. Zochodne has claimed costs on her behalf of $5,680.00 on a full indemnity basis.

6As the Plaintiff has not filed any materials in opposition, I assume that the costs claims of the Defendants are uncontested. The only issue is whether the amounts requested are reasonable.

Costs of E.L.R.

7E.L.R. claims costs on a full indemnity basis of $19,001.98. As pointed out above, E.L.R. says that she paid her lawyer $7,227.98 inclusive of HST and she has outlined the time spent by Ms. Cushon in her Bill of Costs. She says that she herself spent 59 hours in total in legal research, preparing written submissions and in “addressing D.M.S.’s unnecessary steps”. In her costs submissions, E.L.R. fails to outline exactly what was meant by this latter entry, for which E.L.R. says she spent 13.9 hours and Ms. Cushon spent 3.2 hours.

8Certainly, D.M.S.’s unreasonable litigation conduct might have warranted an award of full recovery costs: see NDrive, Navigation Systems S.A v. Zhou, 2021 ONSC 7772. In that case, Healey J. suggested that full indemnity costs may be paid for litigation misconduct which would include bringing a matter to court that should never have been brought or “involved a scurrilous attack on the administration of justice or waste of scarce judicial resources.” I have found that this Statement of Claim was all of these. The claims of D.M.S. were confused and contradictory and at best, did not disclose a valid cause of action or were statute barred. I have found that the Statement of Claim was, as stated in r. 57.01(1)(f)(i), “improper, vexatious or unnecessary” as being a collateral attack on the result of matrimonial proceedings previously engaged in by D.M.S. and E.L.R. in which D.M.S. was wholly unsuccessful.

9However, I find the 59 hours spent on the litigation by E.L.R. to be excessive. She failed to explain what was meant by addressing D.M.S.’s “unnecessary steps.” She spent more than 28 hours on the preparation of written submissions, and Ms. Cushon then spent an additional 8 hours on those submissions. E.L.R. is self-represented and is a practicing family law lawyer; she is correct that r. 57.01(4)(e) permits costs to be awarded to a self-represented litigant. However, she fails to explain in her costs submissions as to where remunerative activity was foregone as a result of the time spent by her on this file: see Mustang Investigations Inc. v. Ironside (2010) 2010 ONSC 3444, 321 D.L.R. (4th) 357 (Ont. Div. Ct.) at para. 23 which suggests that the proof of lost opportunity costs is a requirement for costs to be awarded to a self-represented litigant.

10However, to E.L.R.’s credit, she has not used her full hourly rate in calculating the costs payable to her. Moreover, in White v. Richie, [2009] O.J. No. 2360 (S.C.J.), Newbould J. concluded that, even where an opportunity cost for the costs of a self-represented party was not specifically calculated or addressed, it would be wrong to deprive that party of all of her costs, especially where there was misconduct on the other side.

11I therefore assess costs to E.L.R. at the partial indemnity amount of $13,225.61, payable within 30 days.

Costs of D.G.E.

12Respecting D.G.E., different considerations apply. She was represented by counsel throughout and the issue of payment of the costs of a self-represented litigant are inapplicable.

13More important are the issues of the Plaintiff’s conduct. The court cannot lose sight of the fact that the Plaintiff made claims against his own daughter concerning statements made by her when she was between 12 and 13 years of age. He has also attributed malice to these statements as required for a claim for malicious prosecution. This claim was inconsistent with the Plaintiff’s narrative of parental alienation by E.L.R. who he suggests was the true malicious party. True parental alienation involves the co-opting of the child’s free will by the alienating parent which would largely eliminate malice on the part of D.G.E.

14To sum up, the Plaintiff’s claim and the findings that it was frivolous, vexatious and an abuse of process targeting the Plaintiff’s own daughter are sufficient for an award of costs on a full indemnity basis as claimed by D.G.E’s counsel. This is especially so where the Plaintiff’s actions have resulted in overuse of scarce resources in Simcoe County; there have now been four different hearings, one in excess of 18 days and extensive costs have been ordered, none of which have been paid.

15Mr. Zochodne is senior counsel, having been called in 1984. His hourly rate and the time spent in this matter are reasonable.

16The Defendant, D.G.E. shall have her costs on a full recovery basis in the amount of $5,680.00 payable within 30 days.

Costs Payable as Support

17The Defendant, E.L.R., has requested costs to be characterized and collectable as support. She relies upon Clark v. Clark, 2014 ONCA 175 wherein the court stated at para. 81 that “trial courts have considerable discretion concerning requests that legal costs in a multi-issue matrimonial proceeding be designated as support for the purpose of FRO enforcement.”

18The key word in that statement is “multi-issue”. The case cited by E.L.R. was a multi-issue matter in which child support, as well as other issues, were before the court. The issue before the court was whether, considering that there were other issues before the court, the trial judge could order enforcement of costs by the FRO in like manner as support. The point of Clark was that, in such a multi-issue matter, it was difficult for the court if not impossible to apportion out the costs related to support for enforcement purposes.

19The present case did not involve multiple issues. The sole issue was whether the Statement of Claim, on its face, was frivolous, vexatious or an abuse of process within the meaning of r. 2.1.01. Support was not in issue; indeed, this was a civil matter under the Rules of Civil Procedure and support had been previously addressed and finalized in the uncontested trial in the matrimonial proceedings.

20The sole jurisdiction for enforcement of costs as support is contained in the Family Responsibility and Support Arrears Enforcement Act, 1996.² That statute only permits a “support order” to be enforced by the Director of the Family Responsibility Office. A “support order” in turn is defined as including, under s. 1(1)(g) of that act, “the payment of legal fees or other expenses arising in relation to support or maintenance.” There does not appear to be any other jurisdiction allowing the court to order costs to be enforceable as support as requested by E.L.R. The costs in this case do not relate at all to “support or maintenance” but solely as to the question of whether the Statement of Claim was to be struck under r. 2.1.01 of the Rules.

21There is therefore no jurisdiction to order the enforcement of the costs in this matter as support. That request is denied.

Costs Award

22Concerning the proceedings concerning the striking of the Plaintiff’s Statement of Claim, there shall therefore be an award of costs against the Plaintiff, D.M.S., as follows:

a. The Plaintiff shall pay the costs of E.L.R. in the amount of $13,225.61, payable within 30 days;

b. The Plaintiff shall pay the costs of D.G.E. in the amount of $5,680.00, again payable within 30 days.

Footnotes

1. 1R.R.O. 1990, Reg. 194
2. 2S.O. 1996, c. 31