Author: dawi

“The cases of F.K. v. A.K., 2020 ONSC 3726 (CanLII), and S.H. v. D.K., 2022 ONSC 1203 (Ont. Div. Ct.) set out and clarified the legal threshold for when a final order can be varied on a temporary motion.

The starting point of any analysis is the decision of Pazaratz, J. in F.K. v. A.K., 2020 ONSC 3726 (CanLII). Starting at paragraph 48, Pazaratz, J. provides an excellent overview of the legal considerations:

1. 1. 1. 1. 48. Todetermine a request to change custody, access or parenting order, the court must embark upon a two-stage inquiry. Gordon v. Goertz 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 (SCC).
            49. The first step: There must be a material changein circumstances since the last order was made.

 a.    There must be a changein the condition, means, needs or circumstances of the child and/or the ability of the parents to meet those needs.

b.    The changemust materially affect the child.

c.     It must be a changewhich was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.  The change must be substantial, continuing and “if known at the time, would likely have resulted in a different order.” L.M.L.P. v. L.S. [2011] SCC 64.

d.    The finding of a material changein circumstances is a prerequisite to an examination of the merits of an application to vary an existing custody or access order.

e.    If there is no material changein circumstances, the inquiry ends.  The court would be without jurisdiction to vary the order.  Litman v. Sherman,  2008 ONCA 485 (Ont. C.A.).

f.     If there is a material change, the court must move tothe second stage and consider the best interests of the child and whether to vary the original order.

50. The second step:

a.    If a material changein circumstances has been established the court, then embarks on a fresh inquiry into the best interests of the child.

b.    In this fresh inquiry, both parties bear the evidentiary burden of demonstrating where the best interests of the child lie.   There is no legal presumption in favour of the custodial parent, or in favour of maintaining the existing timesharing arrangements. Bubis v. Jones, 2000 CanLII 22571 (ON SC); Persaud v. Garcia-Persaud2009 ONCA 782; Deslauriers v. Russell, 2016 ONSC 5285; Roloson v. Clyde, 2017 ONSC 3642.

c.    The court must ascertain the child’s best interests from the perspective of the child rather than that of the parents. Parental preferences and rights do not play a role in the analysis, except tothe extent that they are necessary to ensure the best interests of the child. Gordon v. Goertz; Young v. Young 2003 CanLII 3320 (Ont. CA).

d.    The child should have maximum contact with both parents if it is consistent with the child’s best interests. Gordon v. Goertz; Rigillio v Rigillio2019 ONCA 548 (Ont. CA).

e.    Any assessment of the best interests of a child must take into account all of the relevant circumstances pertaining tothe child’s needs and the ability of each parent to meet those needs. Gordon v. Goertz.

….

1. 1. 1. 1. 52. The added complication: the father seeks a temporaryvariation of a finalparenting order.  This requires that the court conduct an even more stringent analysis:

a.     In all instances, courts must exercise caution before changingan existing arrangement which children have become used to.

b.    This is especially the case where the existing parenting arrangement has been determined by way of court order.  The starting point is that court orders are presumed tobe correct. Montgomery v. Montgomery 1992 CanLII 8642 (ON CA); Gordon v. Gordon 2015 ONSC 4468 (SCJ); Oickle v. Beland 2012 ONCJ 778 (OCJ).

c.      And the level of required caution is further heightened if the court is being asked tochange a final parenting order on a temporary basis.  If the general rule is that we are reluctant to change temporary orders pending trial, then it goes without saying that we should be even more reluctant to change final orders pending determination of the issue.

d.    Although counsel did not raise jurisdiction as an issue, I am satisfied the court has the authority togrant a temporary variation of a final order in the appropriate circumstances. Stokes v. Stokes 2014 ONSC 1311 (SCJ); Huliyappa v Menon 2012 ONSC 5668 (SCJ); Clements v Merriam 2012 ONCJ 700 (OCJ).

e.      But the evidentiary basis togrant such a temporary variation must be compelling.

f.      The court must start with the aforementioned two-part material changein circumstances analysis.

g.    But for a temporary variation, the court must also assess whether the changedcircumstances have created a situation of actual or potential harm, danger, or prejudice for the child; of such nature or magnitude that immediate rectification or correction are required to safeguard the child’s best interests.

h.    The onus on the party seeking a temporary variation is onerous.  They must establish that in the current circumstances the existing order results in an untenable or intolerable situation, jeopardizing the child’s physical and/or emotional well-being.  They must establish that the situation is so serious and potentially harmful that any delay in addressing the problem is likely tocontinue or exacerbate actual or potential physical and/or emotional harm for the child.

i.      The court must be satisfied that the child’s best interests requirean immediate change – to reduce the detrimental impact of unacceptable negative dynamics or behaviours.

j.       The court must be satisfied that the existing order has come tobe demonstrably contrary to the best interests of the child – and that the proposed temporary variation is urgently needed to shield the child from likely future harm.

k.    Implicitly, the court must have a level of confidence that the temporary variation would not only remove the child from a negative situation, but that the proposed new arrangement is so necessary and beneficial that it would be unfair tothe child to delay implementation.

l.      And given the qualitative difference between untested affidavit materials on a motioncompared with a more thorough evidentiary analysis at a trial or oral hearing, the court must be satisfied – on a balance of probabilities – that a clear and compelling need to make an immediate change has been established.

m.   On a temporary motion, the status quo will have a strong gravitational pull – until the moment when the court determines that a child is in peril.  After that, priority switches torescuing and protecting the child.  And the pace of correction is directly related to the magnitude of the child’s current exposure to harm.

Dambrot, J. sitting in Divisional Court in S.H. v. D.K., 2022 ONSC 1203 (Ont. Div. Ct.) as a modification of the threshold described by Pazaratz, J., at paragraph 40 concurred that the court must be satisfied “that circumstances exist of so compelling and exceptional nature that they require an immediate change”. However, he continued:

40 … I would only caution that there may be exceptional circumstances that justify a temporary variation of a final order other than those described in F.K. v. A.K. It will be recalled that Pazaratz J. insisted that a temporary variation of a final parenting order could only be made where the child’s physical and/or emotional well-being is in jeopardy and the proposed new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation. That is certainly an indication of how exceptional the circumstances must be to make an interim variation of a final parenting order, but I would not foreclose the possibility that other, equally compelling circumstances might meet the test.

Dambrot, J. in S.H. v. D.K. supra, sent a cautionary note when the court is asked to overturn longstanding status quo on a temporary motion. Analytical rigor must be maintained. In overturning a decision that changed a final order on a temporary basis, Dambrot, J. wrote at paragraph 61:

I noted earlier the motion judge’s caveat on the stringent legal test in F.K. that cautioned against placing too much emphasis on maintaining the status quo may have led him into error. I am satisfied that it did. Having reviewed his reasons in detail, I am driven to the conclusion that he watered down the importance of maintaining the status quo on an interim motion, and that his approach runs directly contrary to what Benotto J. said in Davis v. Nusca, that “there is the basic principle of maintaining the status quo until trial which is extraordinarily important in family law cases.” The motion judge lost sight of the importance of maintaining the status quo until trial and conflated the requirement that there be compelling reasons to make an order on an interim basis with a determination of the best interests of the child. He gave the requirement of compelling reasons no real meaning and disturbed a long-standing parenting arrangement on an interim basis in the complete absence of urgent, exceptional or in any other sense compelling reasons. In effect, he gave final relief on an interim motion.

In Epshtein v. Verzberger-Epshtein, 2021 ONSC 7694 (CanLII), Kurz, J. set out that the proper text for an interim variation of a final parenting order requires:

a.   A strong prima facieproof that there is a material change in circumstances regarding a parenting issue;

b.   The parenting issue must be an important one;

c.   The circumstances arising since the final order must be urgent or pressing; and

d.   The moving party must then prove that the remedy sought is in the child’s best interests.”

            Y.H.P. v. J.N., 2023 ONSC 5766 (CanLII) at 21-25

“Significant amendments to the Divorce Act came into force on March 1, 2021. These amendments modernized the language in the Act by removing any reference to the terms “custody” or “access” and replacing them with terminology that focuses on parent’s responsibilities for their children, with the goal of helping to reduce parental conflict. The Act introduced new terminology relating to “parenting orders”, “parenting time” and “decision-making responsibility”, and further added other terms and definitions including “family dispute resolution process”, “family justice services”, “family member” and “family violence”.   Similar changes were also made to provincial statutes such as the Children’s Law Reform Act (CLRA), contained in the Moving Ontario Family Law Forward Act, 2020, (which also came into force on March 1, 2020).

In my view, these changes are very welcome to the Family Courts and it is my hope they will do exactly what they were intended to do, which is to help reduce conflict, which is ultimately in the best interests of children.

…

The amendments to the Act relevant to this matter is that the Court may now make an order directing the parties to attend a family dispute resolution process pursuant to s.16.1(6). The definition for “family dispute resolution process” is set out in s. 2(1) of the Act, as follows:

Family dispute resolution process means a process outside of court that is used by parties to a family law dispute to attempt to resolve any matters in dispute, including negotiation, mediation and collaborative law; (mécanisme de règlement des différends familiaux)

Here, the husband deposes that the parties had discussions and, prior to separation, agreed that JAL would attend public school and be enrolled in Jewish religious school on Sundays. The wife denies that agreement. Instead, she deposes that she recalls one discussion where the husband expressed his desire for JAL to attend public school and, at that time, she said “sure”. The wife submits that there were no ongoing discussions between the parties about JAL’s school placement but, rather, this was a one-time discussion. Again, JAL was six months old when the parties separated.

These parties have a demonstrated history of being able to reach agreement in relation to matters concerning JAL. They were able to reach a parenting agreement in mediation with Philip Epstein on May 19, 2019. The parenting schedule agreed to in mediation was to be in place for one year and to be reviewed in September 2020 and, failing agreement, the parties were to determine the dispute resolution process. After the husband commenced this application, even though he sought a s.30 custody and access assessment and raised concerns about the wife’s mental health and parenting abilities, the parties were still able to agree on an equal-time shared parenting residential schedule at a case conference, such that JAL resides with the parties, pursuant on a 2-2-3 schedule.

While court is unquestionably a dispute resolution process, I find that a court application was not a dispute resolution process of first resort envisioned by the parties when they signed their agreement at mediation. Had court been the first option, they could easily have said so.

There is no urgency to the Court making a determination about JAL’s school placement for September 2022. There is, in my view, an opportunity here for the parties to attempt a less divisive solution – to enter into a family dispute resolution process where, with creativity and compromise, they can try to negotiate an agreement about how they will share the decision-making responsibility for JAL and one where they can try and design a comprehensive parenting plan to establish principles and rules to guide how they will share responsibilities and time with JAL, including addressing such matters as: how information is to be shared and communicated between them; how other related issues are to be addressed, such as the involvement of a new partner with the child; how future disagreements about the child are to be resolved; whether or not a parent should have a right of “first refusal” is the scheduled parent is unable to personally be with the child; how the parents are to manage attendance at child-related events; which parent is to hold the child’s government-issued documents; how travel with the child can take place; how the children’s personal items are to managed – and what school the child will attend. Again, with creativity, compromise and third-party assistance, the parties have the chance to find a less divisive solution that will ultimately benefit their child.

It is well-established that children of parents who separate do significantly better if their parents co-operate and communicate with each other and conflict is minimized. If communication and co-operation with the other parent is difficult, then a good parenting plan can provide the details of parenting arrangements so that parents are not required to negotiate every decision that needs to be made and so that parents do not turn to the Court to make decisions for them that they themselves may be able to make with some assistance.

Section s.16.1(6) of the Act is a new tool that can be used by the Court to assist parties who cannot agree about a major decision that impacts their child(ren) prior to making such a determination, in circumstances where such a decision is not time-sensitive. Having parents arrive a decision together, with the assistance of a skilled professional, is far better for children than having the Court impose a decision on a family where parents cannot reach a resolution about an important matter affecting children. If parents, even those who have tremendous difficulty, can be part of the design of a parenting plan, they will no doubt be far more likely to follow the terms of the plan since they were invested in making up the terms and plan. The Act requires parents to act in the best interests of children, to the best of their abilities, and to protect their children from conflict that may arise as a result of separation or divorce. It also includes an expectation that parents will support the child’s relationship with the other parent, unless it would be inappropriate to do so, for example, if there are concerns surrounding family violence. The amendments to the Act which enable the Court to order the parties to attend a family dispute resolution process, in my view, are a reflection of the growing body of research about the effects of separation and divorce on children which can be reduced if parents are able to develop parenting plans that meet the needs of children and promote children’s healthy development.”

            Leinwand v. Brown, 2021 ONSC 6866 (CanLII) at 15-16, 19-25

“I begin my analysis by confirming that child support is the right of the child, and no contract or agreement can operate to oust the jurisdiction of the court to order interim child support: Deiter v. Sampson, 2004 CanLII 12841 (ON CA), [2004] O.J. No. 904, at para. 4.

When there is a dispute surrounding a separation agreement, the central issue to be determined is the validity of the agreement.  Only after that is determined can any secondary issues be addressed, including, for example, support: Chee-A-Tow v. Chee-A-Tow, 2021 ONSC 2080, at paras. 36-38.

However, in Salzmann v. Salzmann, 2004 CanLII 5009 (ON SC), [2004] O.J. No. 166, the court held (at para. 19) that interim spousal support may be granted, in spite of a waiver of spousal support, where there is a triable issue as to the enforceability of a contract.

On motions for interim spousal support, courts should apply the two-stage approach as set out by the Supreme Court of Canada in Miglin v. Miglin, 2003 SCC 24, [2023] 1 S.C.R. 303, when assessing whether spousal support should be ordered despite it having been waived in an agreement.

As the court held in Chaitas v. Christopoulos, 2004 CanLII 66352 (ON SC), [2004] O.J. No. 907, at para. 20:

In my view, the court, on an application for interim support, is required to conduct the Miglin analysis.  If, on the evidence filed, a serious issue to be tried has been raised with respect to the circumstances under which the contract was negotiated and executed, then the contract will not act as a bar to the application.  This is particularly the case in circumstance where, as here, if the contract is upheld at trial, there are assets in the applicant’s name that can be used to compensate the respondent for any support that should not have been paid.  Interim orders are not final orders.  As noted by Granger J. in Cafik, they are meant to provide “a reasonably acceptable solution to a difficult problem until trial.””

            Huang v. Guo, 2023 ONSC 5717 (CanLII) at 25-29

“I take judicial notice of the significant short-term and long-term negative impacts that a child’s estrangement or alienation from one of his parents can have on that child’s social and emotional development and adjustment, physical, psychological and mental health, as well as on his overall well-being. These negative consequences have been documented in countless court decisions in the past, including in many of those cited above.

I am of the view that most therapeutic orders sought in the context of family law proceedings to assist parents and children resolve their disputes, improve their relationships, manage their stress, and transition to their new family reality in a healthier way will seldom be considered “treatment” under the HCCA. While there is no doubt that individual and family counselling, if successful, will have a significantly positive impact on everyone’s health, their goal will usually be to address stress management strategies and inter-relationship management strategies. As such, such therapeutic interventions will not be “health-related” and, if they are, they will usually pose little or no risk of harm. The risk of harm, particularly to children, will often reside in NOT administering them. This being said, the question as to whether a specific therapeutic intervention is a treatment pursuant to section 2 of the HCCA needs to be determined on a case-by-case basis.

To the extent that a therapeutic intervention is considered to be a “treatment” to be provided by a “health practitioner” as defined by the HCCA, the parents’ consent will be required before a therapeutic order can be made. This is clearly set out in section 10 of the HCCA. An older or more mature child’s consent will also likely be required (for a detailed analysis of whether and when a child’s consent to treatment is necessary under the HCCA, see Children’s Aid Society of Toronto v. M.S., 2018 ONCJ 14 (Ont. C.J.) and L. (N.) v. M. (R.R.)).”

Leelaratna v. Leelaratna, 2018 ONSC 5983 at 65-67

“The applicant must show more than a mere display of common courtesy or hospitality. The facts of family life should be established, and the court will assess the relationships that have developed within the family unit. Material circumstances include: the place where the child lived; the manner in which the expenses of the child were discharged; the interest taken in the child’s welfare, and the responsibilities assumed by the parties for the care of the child, including matters of discipline. The word “settled”, in my opinion, denotes quality and not duration. What is required is a state of mind consciously formed and firmly established. The brevity of the intention — or the brevity of the relationship in issue — is not, of itself, decisive, although it is one piece of evidence from which the prescribed intention may be deduced. Once a settled intention has been demonstrated, a subsequent change in that intention does not remove the obligation of support: Barlow v. Barlow; Dokuchie v. Dokuchie, and Riopelle v. Daniel. There is, indeed, no reason to suggest that the statutory intention is an ambulatory concept, the legal effects of which a respondent can cast aside at will to the detriment of the child. It seems unlikely that the legislature intended to place the financial well-being of a child in so vulnerable a position.

The view has been expressed that, while “settled intention” is to be inferred from the respondent’s conduct, the inference may be rebutted by evidence of actual intent: Bair v. Bair and Hines v. Davy. I agree that the respondent’s actual state of mind may form part of the totality of evidence. However, I share the view of Nasmith Prov. Ct. J. in Barlow v. Barlow, that the intention contemplated by the Act is intention objectively determined. I say this for three reasons. First, the legislative purpose of the definition is to enact a relationship between a respondent and a child that, as a matter of public policy, is considered appropriate to ground the support obligation. The right to support, if established, is the right of a child. Assume that a respondent’s intention, inferred from his conduct, is such as to satisfy the statutory test. As it is this intention, and this intention alone, that has been communicated to family members, and, indeed, to the outside world, it seems to me curiously inapposite to permit the respondent to escape the support obligation by asserting an actual intention at variance with the facts of family life knowingly created. So extravagant a construction does not seem consistent with the public policy base of the Act. Secondly, not only must there be a settled intention, but, further, the intention must be demonstrated; that is, translated into behaviour towards the child. I do not find it easy to understand how a party can “demonstrate” an actual intention, where this intention is different from the intention that is to be inferred from conduct. Finally, the statutory language breaks new ground, and there seems no reason to read into the Act unnecessary refinements and complexities. In my view, therefore, settled intention is to be objectively determined from a respondent’s conduct. I believe, also, that it is necessary to distinguish this intention from the motive or reason that prompted its formation. Motive, as a rule, is immaterial, save in so far as it may indicate intention.”

Spring v. Spring, 1987 CanLII 4379 (ON SC)

“In the final paragraph of her factum, the respondent “respectfully requests that this Honourable Court review her Offer to Settle this Motion for Leave to Appeal prior to awarding costs.”

It is not open to parties to disregard case management directions, even “respectfully”.  If a party wishes a variation in a case management direction, that variation must be sought prospectively.  Our case management system facilitates timely and efficient disposition of motions for leave to appeal, both for the parties and for the court.  It is not efficient for leave panels to reconstitute themselves a second time to consider costs issues.  This practice is in keeping with the practice as to costs of motions for leave to appeal in the Ontario Court of Appeal and the Supreme Court of Canada.

Where parties fail to provide their costs materials to the court as directed, the court will usually exercise its discretion to award no costs or to award a standard amount of costs that, in the opinion of the court, is appropriate for the matter at hand, generally $2,500 or $5,000, depending on the nature of the case.  It will be only in exceptional circumstances that the court will direct or permit further materials on costs after the decision has been rendered on the merits of the leave motion.”

            Rego v. Pearsall, 2021 ONSC 6624 (CanLII) at 4-6

“In Pintea v. Johns, 2017 SCC 23, at para. 4, the Supreme Court of Canada unanimously endorsed the Principles on Self-Represented Litigants and Accused Persons (“the Principles”) published by the Canadian Judicial Council in 2006. See: Canadian Judicial Council, archived version: http://www.scc-csc.ca/cso-dce/2017SCC-CSC23_1_eng.pdf).

The Principles ensure that self-represented litigants are provided with fair and equal treatment in the courts.  They require:

• • • • Fair access to justice – This requires all aspects of the court process to be, as much as possible, open, transparent, clearly defined, simple, convenient, and accommodating. Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons. (The Principles, page 2)
      • Some leniency for minor deficiencies – Self-represented persons should not be denied relief on the basis of a minor or easily rectified deficiency in their case. (The Principles, page 4)
      • Judges have a responsibility to inquire – Judges have a responsibility to inquire whether self-represented persons are aware of their procedural options, and to direct them to available information if they are not. Depending on the circumstances and nature of the case, judges may explain the relevant law in the case and its implications before the self-represented person makes critical choices. (The Principles, page 7)
      • Rules should not be used to hinder – Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons. (The Principles, page 7)

In Girao v. Cunningham, 2020 ONCA 260, at para. 149, the Court of Appeal for Ontario reminded us that the Principles, as endorsed and outlined in Pintea, need to be followed throughout the entire proceeding. They affect how the self-represented litigant should be treated in the courtroom and require that the court be flexible (while ensuring impartiality) in terms of procedures and the admissibility of evidence when one party is self-represented.

            Ramnarine v. Dindyal, 2022 ONSC 5713 (CanLII) at 47-49

“The following excerpts from Steps to Justice: Your Guide to Law in Ontario provides a useful overview of the Parenting Coordination process:

Parenting coordination is an alternative dispute resolution, also called family dispute resolution process. Parents can meet with a parenting coordinator for help with following the parts of their court order, family arbitration award, or separation agreement that are about parenting.

     …

A parenting coordinator is a person who helps parents resolve day-to-day conflicts about their parenting arrangements or parenting orders.

A parenting coordinator doesn’t decide major things like decision-making responsibility or parenting time. These used to be called custody and access. But a parenting coordinator can decide minor issues like:

• • • • • • • small changes to a parenting access plan such as vacations and holidays
            • scheduling activities and arranging for pick up and drop off to activities like ballet, hockey, or tutoring
            • children’s travel and passport arrangements
            • how your children’s clothing and school items are moved between your and your partner’s homes

A parenting coordinator helps you speak with each other to try and agree on your parenting issues. If you can’t agree, they can decide for you. Their decision is based on information they get from the parents, professionals such as doctors, teachers, counsellors, etc., and, if needed, your child.

The process is similar to mediation-arbitration. But the parenting coordinator cannot make major decisions. Their job is to help you follow the parts of your court order, family arbitration award, or separation agreement that are about parenting.

Parenting coordinators are trained to:

• • • • • • •    understand the needs of children
            •    help each parent discuss their parenting issues
            •    help parents to manage and keep children out of conflicts

…

Some of the reasons to use parenting coordination are:

• • • • • • • You get professional help that you may need even after you have a court order, family arbitration award, or separation agreement on parenting issues. Children’s needs and issues often change as they get older. A parenting coordinator can help parents who find it hard to communicate with each other and want to set up a process for how they will resolve future issues.
            • It can be faster than going to court once you have agreed on all of the process details and signed a parenting coordination agreement.
            • It can be cheaper than going to court to resolve minor parenting issues.

Community Legal Education Ontario, “What is Parenting Coordination?” (1 March, 2021),

online: https://stepstojustice.ca/questions/family-law/what-parenting-coordination/?gclid=.”

S-L.T. v. M.L., 2023 ONSC 5551 (CanLII) at 15

“Rule 2.1 of the Rules of Civil Procedure empowers a court, on its own initiative, or on motion by any party to a proceeding, to stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.

A proceeding includes an appeal. As this court noted in Simpson v. The Chartered Professional Accountants of Ontario, 2016 ONCA 806, 5 C.P.C. (8^th) 280, at para. 43, “Rule 2.1 is meant to provide a streamlined procedure for disposing of proceedings and motions that on their face are frivolous, vexatious or otherwise an abuse of process.”

…

To permit the appellant to continue with her appeals would allow her to ignore the consequences of her breaches of numerous court orders, endlessly re-litigate issues, and continue to abuse the process of the court. It would also be grossly unfair to the respondent and their child, both of whom are entitled to finality. As this court stated in Simpson , at para. 41: “Everyone is entitled to their day in court but once they have had that day, they cannot be permitted to subject other parties to the cost of further proceedings attempting to re-litigate issues that have already been decided”. That is the case here.”

Bell v. Fishka, 2022 ONCA 683 (CanLII) at 1-2, 13

“To avoid trial or to narrow the issues, Ms. Burley did nothing.  She made no Offer to Settle, formally or informally.  Intransigence as such comes at a price.  As aptly stated by Wilson J. in Hussain v. Alam, 2013 ONSC 2250:

“Parties cannot take an untenable position, refuse to negotiate to achieve a reasonable compromise, and then when the outcome is adverse, plead that it would be unfair to require them to pay costs.”

Burley v. Bradley, 2019 ONCJ 737 (CanLII) at 4