COURT FILE NO.: FS-17-00416379-0000

DATE: 20260128

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

NEIL CLOSNER Applicant

– and –

SHERRI LAVINE CLOSNER Respondent

Gary S. Joseph, for the Applicant

Kristen Normandin and Joanna Hunt-Jones, for the Respondent

VELLA J.

COSTS ENDORSEMENT

1The Applicant brought a motion for contempt of court against the Respondent.

2The motion was dismissed.

3The Respondent seeks full recovery costs in the sum of $61,700. In the alternative, she seeks costs of $53,450 (substantial indemnity costs to the date of her offer to settle, and full recovery thereafter), or, in the further alternative, in the sum of $47,500 (partial indemnity costs to the date of her offer to settle and full recovery thereafter).

4The Applicant agrees that the Respondent should have costs but submits that it should be based on a partial recovery and reduced for time that was excessive and/or not properly recoverable, and her offer to settle does not attract the cost consequences of r. 24(12) of the Family Law Rules (“FLRs”). He seeks the costs order to be fixed in the sum of $25,000 in favour of the Respondent.

5The Respondent was entirely successful, and therefore is presumptively entitled to costs (r. 24(1), FLRs).

6The court may increase or decrease the appropriate quantum of costs, absent a r. 24(12) offer to settle, taking into account the factors set out in r. 24(14). In Beaver v. Hill, 2018 ONCA 840, at paras. 9 and 12, proportionality and the reasonableness of the costs are the “touchtone consideration to be applied in fixing the amount of costs”.

7The court will also take into account the reasonable expectations of the losing party as measured by their cost outline.

Offer to Settle

8On March 24, 2025, the Respondent served a written offer to settle this motion. The offer’s main term was that the Applicant’s motion would be dismissed, in its entirety, with prejudice. Also, if the Offer was accepted by March 25, 2025 at 4:00 p.m. there would be no costs payable. If the offer was accepted after that time, however, the Applicant would have to pay the Respondent’s costs in an amount to be agreed by the parties or fixed by the Court.

9The Offer to Settle meets the formal requirements set out by r. 24(12).

10The issue is whether the Offer to Settle is a true compromise. There was a time limited compromise of sorts in the sense that the Respondent would have foregone her entitlement to costs, had the offer been accepted by March 25, 2025 at 4:00 p.m. However, had it been accepted at anytime between March 25, 2025 at 4:01 p.m. and the commencement of the hearing (it expired one minute after the commencement), then the Respondent maintained her right to have her costs paid in an amount to be agreed upon or fixed by the court.

11The Respondent states that this was an all or nothing motion. That she could not provide a different offer without conceding she had committed contempt, which was untenable. There was no ability to provide an offer which was a genuine compromise.

12In Beaver v. Hill, at para.15, the Court of Appeal held that in these types of cases, where genuine compromise is not possible, it held that offers to settle should not play “any material role in determining the appropriate quantum of costs”.

13Accordingly, I exercise my discretion under r. 24(12) (“unless the court orders otherwise”) to decline to order costs on a full recovery basis from the date the offer was served on the basis that the Respondent’s Offer to Settle was not a genuine compromise.

14The failure of an offer to settle to contain a genuine element of compromise is nonetheless one of the factors that may be considered. As stated in Beaver, at para. 16,

It is recognized that the failure of an offer to settle to contain a true element of compromise is a factor to be considered in deciding whether the offer properly impacts on the appropriate award of costs. In addition, judges should be very cautious about relying too heavily on this factor to increase or decrease the quantum of costs, when the specific Rules regarding such offers are not directly engaged. Even under rule 24(5)(a) of the Family Law Rules, it is but one factor that is to be considered.

Bad Faith

15In the alternative, the Respondent relies on r. 24(10) and seeks costs on a full recovery basis on the basis that the Applicant acted in bad faith. In her view, the Applicant’s motivation for the contempt motion was to punish her for not allowing him to make medical decisions and to force her to change the Final Order which vests her with decision making authority over medical decisions. She alleges that he has used his “immense wealth to unnecessarily perpetuate this litigation”.

16In my view, the Applicant’s behaviour in bringing the motion for contempt of court in these circumstances was unreasonable and amounted to bad faith. Contempt of court is a remedy of last resort – not first resort (as I found in the Reasons, at para. 154). The Applicant fell woefully short in establishing contempt of court with respect to any of the multiple grounds he alleged and chose to bring this motion before seeking lesser remedies for alleged noncompliance with court orders under r 1(8). As I stated in my Reasons at paragraph 149, the Applicant’s approach to the contempt motion as to “collect each alleged transgression, no matter how small, over the course of four years, and then lead with a motion for contempt of court”. I characterized his strategy as bearing “resemblance to the analogy of death by a thousand cuts”

17The Applicant’s motivation was to intimidate the Respondent into granting him decision making authority over medical decisions or refashion the Final Order because, in his view, he was better suited to making medical decisions, notwithstanding the terms of the Final Order. This is not an appropriate use of the contempt motion as I observed in my Reasons at para. 21.

18I also find that the Applicant intended to inflict financial and emotional harm on the Respondent (Goldstein v. Walsh, 2019 ONSC 3174, at para. 8). Furthermore, I accepted the Respondent’s argument at the motion that the Applicant was disentitled from bringing the contempt motion in light of his own noncompliance with the Final Order, pursuant to r. 1(8).

19The Respondent is entitled to her costs on a full recovery basis pursuant to r. 24(10) of the FLRs.

20However, those costs must still be fair and reasonable.

Quantum

21The factors the court may consider in fixing the quantum of costs are set out in 24(14) and are not exhaustive.

22I agree with the Applicant that some of the costs claimed are not properly recoverable and somewhat excessive, though not to the extent he claims. However, I also agree with the Respondent that the Applicant’s full recovery costs of $37,338.02 are lower than hers, in part, because the Applicant did much of the drafting of his affidavits himself.

23The hourly rates of the lawyers are reasonable, and lower than the Applicant’s lawyer’s rates. With some minor exceptions, the time incurred by the Respondent’s legal team are reasonable and proportionate to the importance of the issues, notably a defence of the serious allegations of contempt of court. I have already addressed the unreasonableness of the Applicant’s behaviour (r. 24(14)(a)(i)) and considered the Respondent’s offer to settle under r. 24(14)(a)(iii).

24Contempt of court is a quasi-criminal remedy. The Applicant had to expect that the Respondent would take these allegations very seriously, and mount a thorough defence (Goldstein, at para. 24).

25Having considered the factors in r. 24(14) of the FLRs and the fundamental purposes of the family costs rules (Mattina v. Mattina, 2018 ONCA 867, at para. 10), I am fixing costs, payable immediately and on a full recovery basis, in the sum of $55,000. This is fair and reasonable in the circumstances of this case.

____________________________ Justice S. Vella

Released: January 28, 2026