Ontario Civil

Family Law


Custody and access

Father's unreasonable conduct concerning his children was relevant for setting costs amount for trial

Parties agreed to joint custody of two children and time sharing. Father engaged in serious misconduct and had his time sharing reduced to supervised access. Father refused to exercise access and had not seen children in more than 12 months. Mother brought application for sole custody and child support. Father was allowed limited participation as his pleadings were struck. Application granted; mother was awarded sole custody with no access to father and child support. Just prior to trial father brought motion for access which was adjourned. Father was ordered to pay mother $114,281.39 in costs including $108,781.39 from trial and $5,500.00 from motion. Costs of $108,781.39 from trial were made enforceable as support. Mother was successful at trial and on father’s adjourned motion for access. From offers it could be seen that by 2015 parties were all in agreement that mother would have sole custody of children but that was major issue argued at trial, with father continuing to argue in favour of shared custody even though he was not exercising any access by time of trial. Under Rule 18(14) mother was entitled to her costs on full recovery basis from date of her second offer. While father had behaved poorly his conduct did not rise to level of bad faith as there was no furtive design or ill will which was necessary for finding of bad faith. Father was guilty of unreasonable conduct. Rare order to strike pleadings was made against father. Father failed to pay numerous cost awards against him. Father was unsuccessful in most of motions he brought. Father’s offer to settle was unreasonable and he failed to consider mother’s offers to settle. Father did not properly disclose his income. Father’s treatment of his children was very poor as he said terrible things about mother to them and was inconsistent in his exercise of access. Father’s inability to see harm he was doing to his children was one of major issues at trial and for assessor. Father was guilty of unreasonable litigation conduct and unreasonable conduct concerning his children which was relevant for setting costs amount for trial. Relief mother sought was ambitious. Because of principle of maximization of conduct for parents and their children mother had heavy onus to meet. Trial took six days. Counsel fees and time spent were appropriate in light of circumstances. Disbursements were appropriate. Mother was entitled to costs on full recovery basis.

Van v. Palombi (2018), 2018 CarswellOnt 20668, 2018 ONSC 7291, J.P.L. McDermot J. (Ont. S.C.J.); additional reasons (2018), 2018 CarswellOnt 17245, 2018 ONSC 6228, J.P.L. McDermot J. (Ont. S.C.J.).

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