Prokopchuk v. Borowski

In this case the Ontario Superior court was faced with determining an order for costs.  This case is an excellent demonstration in what will guide a court in making an award for damages.

Ms. Borowski was awarded sole custody of the couple’s six year old daughter. She was also given permission by the court to relocate with the child from Ontario to Alberta.  She had made an offer to settle before going to trial in which she had offered  Mr. Prokopchuk generous access and requiring no child support while she would retain sole custody, premised on whether or not the court would permit her to relocate.  Mr. Prokopchuk made an offer to settle as well, he offered to pay child support, but also sought out joint custody.

The court determined that Ms. Borowski had been completely successful at trial. She was granted sole custody, and she was allowed to move to Alberta. The court required Mr. Prokopchuk to pay child support, but required Ms. Borowski to pay for his transportation costs when exercising his access rights.  Due to her success, Ms. Borowski was presumptively entitled to her costs.

The court had to determine whether or not to award Ms. Borowski was entitled to full recovery costs.  Such costs are awarded when bad faith is established, or when an offer has been matched or bettered, according to Rule 18 of the Family Law Rules.   The court determined that while Mr. Prokopchuk did unnecessarily delay the trial through attacking Ms. Borowski’s roommate, and excessively cross-examining a clinical investigator and a Psychologist this was not bad faith within the meaning of Rule 24(8) of the Family Law Rules.   The court determined that Ms. Borowski’s offer was matched or bettered by the court’s decision, and satisfied Rule 18.

The court then assessed costs.  The court considered what is fair and reasonable for the unsuccessful party to pay, and what the unsuccessful party might expect to pay.  The court rejected Mr. Prokopchuk’s request to alter the amount based on humanitarian grounds, stating that he knew the risk or paying costs if he failed in litigation.  The court determined that a fair and reasonable amount, and what an unsuccessful party might expect to pay would be $45,000 of the $51, 985.49 which Ms. Borowski had incurred in legal costs.

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