The decision addressed Costs in respect of an Application in the family law context, where the Defendant was ultimately successful.

The Plaintiff began by arguing that since the Defendant did not request costs in their FL-10 Claim form, the Defendant’s prima facie entitlement to Costs had been displaced. The Court rejected this argument, noting that the Defendant did request costs in the conclusion of her brief of argument, and the Court invited the parties to provide submissions on costs.

In determining the appropriate Costs to be awarded, the Court considered various case law, along with Rules 4.24, 4.29, 10.29, 10.31, and 10.33. Justice Loparco found that Schedule C failed to provide an appropriate level of indemnity for Costs, as the Plaintiff engaged in litigation misconduct by attempting to mislead the Court and hindered proceedings by creating delay that was due to his own conduct, lack of preparation, and incomplete disclosure. Loparco J. also found that the Plaintiff engaged in coercive and controlling behaviour. Although much of it was pre-litigation, the Court provided authority to support that it can be considered in a determination of Costs where, in situations such as this, the conduct created an intolerable situation that prompted (in part) the litigation. Further still, the conduct continued throughout the litigation, increasing costs and duration.

Additionally, the Court considered the fact that the Defendant was entirely successful and put forward offers to settle, which were rejected. The Court rejected the Plaintiff’s argument that that any costs ordered against them would impact his ability to see their child in Quebec and would fuel further litigation and hostility between the parties. In doing so, the Court noted that increased travel costs associated with parenting time had already been accounted for by way of a reduction in child support payments in the months when parenting time is exercised. Justice Loparco stated that the Plaintiff’s financial state due to high debts cannot be considered in a costs award where the applicant was entirely successful. The Court ultimately awarded 80% of solicitor-client costs to the Defendant, totalling $39,371.78.