T.H. v. A.F., 2025 ONCJ 314

DATE: June 6, 2025

COURT FILE NO. D43213/22

ONTARIO COURT OF JUSTICE

B E T W E E N:

T.H.
ACTING IN PERSON
APPLICANT

• and -

A.F.
RESPONDENT
Pamila Bhardwaj, for the Respondent

HEARD: In Chambers
JUSTICE S.B. SHERR

COSTS ENDORSEMENT

Part One – Introduction

1On April 4, 2025, the court delivered oral reasons for decision related to parenting motions the parties had brought regarding their 6-year-old child (the child).

2The respondent (the mother) was given the opportunity to make costs submissions. Timelines for the service and delivery of the motions were set. The mother seeks costs of $13,526.

3The applicant (the father) was represented by counsel on these motions. The father served and filed a Form 4 Notice to Act in Person on May 23, 2025. No costs submissions were filed on his behalf.

Part Two – General costs principles

4The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 set out that modern costs rules are designed to foster four fundamental purposes:

a) to partially indemnify successful litigants;
b) to encourage settlement;
c) to discourage and sanction inappropriate behaviour by litigants; and
d) to ensure that cases are dealt with justly under subrule 2(2) of the Family Law Rules (all references to the rules in this decision are to the Family Law Rules).

5Costs can be used to sanction behaviour that increases the duration and expense of litigation or is otherwise unreasonable or vexatious. In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice. See: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, para 25.

6Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.

7An award of costs is subject to the factors listed in subrule 24(12), subrule 24(4) pertaining to unreasonable conduct of a successful party, subrule 24(8) pertaining to bad faith, subrule 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party. See: Berta v. Berta, 2015 ONCA 918, para 94.

Part Three – Success

8Subrule 24(3) creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. See: Sims-Howarth v. Bilcliffe, [2000] O.J. No. 330 (SCJ-Family Court).

9The mother was the successful party on the motions. The court ordered that the father shall have supervised parenting time with the child. The father had sought unsupervised parenting time. The court also ordered, pursuant to section 28 of the Children’s Law Reform Act, that the father shall not contact the child or come within 500 meters of the child, the child’s school, or the mother, except as permitted in the order.

10The father did not rebut the presumption that the mother is entitled to costs.

Part Four – Other legal considerations

11Subrule 24(12) reads as follows:

24(12) In setting the amount of costs, the court shall consider,
a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:
b) each party’s behaviour,
c) the time spent by each party,
d) any written offers to settle including offers that do not meet the requirements of rule 18,
e) any legal fees, including the number of lawyers and their rates,
f) any expert witness fees, including the number of experts and their rates,
g) any other expenses properly paid or payable; and
h) any other relevant matter.

12The reasonableness of the parties’ positions, arguments and conduct are relevant to the issue of costs. An important function of costs is to uphold the integrity of our justice system. Costs are one way of ensuring the resources of the justice system are not unduly drained by clearly unreasonable claims and ill-advised litigation strategy. See: Weber v. Weber, 2020 ONSC 6855. The court may award elevated costs where one party's conduct has been unreasonable. See: Barrett v. Watson, 2024 ONSC 1118 (SCJ); Houston v. Houston, 2025 ONSC 2824.

13In considering the reasonableness of the parties’ conduct, the judge deciding costs should also address their mind to whether they have complied with court orders and the Rules during the proceeding. Rules 1(8)(a) and 1(8.1) provide that if a person fails to obey an order in a case or a related case or with the Rules, the court may deal with the failure by making an order for costs. See: M.A.B. v. M.G.C., 2023 ONSC 3748.

14The court should also take into consideration the ability of a party to pay costs. See: MacDonald v. Magel, 67 O.R. (3d) 181 (Ont. C.A.). Difficult financial circumstances are a factor but are not always a reason to deprive a successful party of costs or to reduce the amount of costs. See: Beaulieu v. Diotte, 2020 ONSC 6787. Ability to pay will be less of a mitigating factor when the impecunious party has acted unreasonably, or where their claim was illogical or without merit. See: Gobin v. Gobin, 2009 ONCJ 278; D.D. and F.D. v. H.G., 2020 ONSC 1919.

15Those who can least afford to litigate should be most motivated to seriously pursue settlement and avoid unnecessary proceedings. See: Mohr v. Sweeney, 2016 ONSC 3338; Balsmeier v. Balsmeier, 2016 ONSC 3485.

16In determining the appropriate quantum, the court should consider the amount that the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation. See: Arthur v. Arthur, 2019 ONSC 938.

Part Five – Analysis and court order

17This case was important to the parties. It was not complex. It was made more difficult because of the father’s conduct.

18Neither party made an offer to settle the motions. Before the absence of an offer to settle can be used against a party, the situation has to be one where it is realistic to expect offers to settle to be made. Either/or cases are not conducive to offers to settle – there is no way to compromise. See: Beaver v. Hill, 2018 ONCA 840. However, this was a case where some form of compromise was possible. The parties should have made offers to settle.

19The mother otherwise acted reasonably.

20The father did not act reasonably. He breached the existing court order by overholding the child and by refusing to return the child to the mother. The mother was required to bring an urgent motion. On December 4, 2024, the court ordered the father to return the child to the mother. It suspended his parenting time pending the return of the motion.

21The father delayed in returning the child to the mother after the court order was made.

22The father later attended at the child’s school, again breaching the court order.

23The father made several allegations that the child had been harmed in the mother’s care. He took her for invasive medical examinations. His allegations were not supported by independent professionals.

24The mother’s counsel’s rates of $450 per hour are reasonable for a 1994 call to the bar.

25The mother prepared Form 14B motion materials for leave to bring an urgent motion. That order was granted. The father attended at court on December 4, 2024 and sought an adjournment. The court granted the adjournment on terms. Those terms were for the immediate return of the child to the mother, a suspension of his parenting time and police enforcement of the order. Costs were reserved.

26The father retained counsel and brought his own motion for parenting time. The mother responded to his motion.

27The return date for the motions was adjourned on consent for the parties to exchange further affidavit material. The motions were argued on April 4, 2025.

28The mother served and filed four affidavits.

29The mother obtained and reviewed material from the Children’s Aid Society.

30The mother’s counsel spent considerable time doing the necessary work to obtain the relief sought. The court finds the time claimed on the motions by the mother is reasonable.

31The father is of modest means. He is paying child support to the mother based on an annual minimum-wage income. The court has taken this into consideration. The court will order that the father may make monthly payments towards this costs order.

32The father should have reasonably expected to pay this level of costs if he was unsuccessful.

33An order will go that the father shall pay the mother’s costs fixed at $7,500, inclusive of fees, disbursements and HST. The father may pay the costs at the rate of $250 each month, starting on July 1, 2025. However, if he is more than 30 days late in making any costs payment, the full amount then owing shall immediately become due and payable.