Sterling v. Whittingham, 2025 ONCJ 626
COURT FILE NO. D45353/24
ONTARIO COURT OF JUSTICE
B E T W E E N:
KRYSTAL KAY STERLING
ACTING IN PERSON
APPLICANT
- and –
ANDREW GREGORY WHITTINGHAM
ACTING IN PERSON
RESPONDENT
HEARD: November 28, 2025
JUSTICE S.B. SHERR
COSTS ENDORSEMENT
Part One – Introduction
1On November 28, 2025, the court heard a trial regarding the respondent’s (the father’s child support obligations for the parties’ 17-year-old child (the youth). The parties had previously settled the parenting issues.
2The court ordered the father to pay retroactive support to the applicant (the mother) starting on January 1, 2020. It imputed annual income to him for the purpose of the support analysis.
3The mother was the successful party at trial. She seeks her costs of $10,000. The father submits that the mother’s costs should be fixed between $4,000 to $4,500.
Part Two – Legal considerations
2.1 General legal considerations
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:
(1) to partially indemnify successful litigants;
(2) to encourage settlement;
(3) to discourage and sanction inappropriate behaviour by litigants and;
(4) to ensure that cases are dealt with justly under subrule 2 (2) (all references to rules in this decision are to the Family Law Rules).
5Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.
2.2 Legal considerations for self-represented litigants
6Justice George Czutrin reviewed considerations for determining costs for self-represented litigants in Jordan v. Stewart, 2013 ONSC 5037 as follows:
a) A self-represented litigant does not have an automatic right to recover costs. The matter remains fully within the discretion of the trial judge. Moreover, self-represented litigants, be they legally trained or not, are not entitled to costs calculated on the same basis as those of the litigant who retains counsel. The self-represented litigant should not recover costs for the time and effort that any litigant would have to devote to the case. Costs should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer to conduct the litigation, and that as a result, they incurred an opportunity cost by foregoing remunerative activity.
b) Parties who litigate against a self-represented person should not be able to ignore the potential for costs. The court retains the discretion to fashion an award of costs that is fair and reasonable in the circumstances of the case before it.
c) It is near impossible to come up with an objective way of fixing an in-person party's hourly rate or the amount of time they spent, not at the court, doing what we might otherwise consider lawyer's work.
d) Ultimately, the overriding principle in fixing costs is "reasonableness".
e) Courts addressing costs should consider Bills of Costs certified by lawyers who have provided assistance, even if not on the record throughout the case.
7Justice Laura Fryer added the following considerations in Browne v. Cerasa, 2018 ONSC 2242:
a) Determination of costs for self-represented litigants should take into account all of the objectives which costs orders should promote. Rules 18 and 24 apply. Otherwise the resulting amount can render the entitlement to costs illusory; undermine access to justice by self-represented litigants; and frustrate the administration of justice.
b) If a self-represented litigant, in performing the tasks that would normally have been performed by a lawyer, lost the opportunity to earn income elsewhere, this may be a relevant factor. But costs for self-represented parties are not the same as damages for lost income. Remunerative loss is not a “condition precedent” to an award for costs.
c) To require proof of lost income would disqualify litigants who are homemakers, retirees, students, unemployed, unemployable and disabled; and deprive courts of a tool required re administration of justice.
d) Lost income may be one measure. But even if no income was lost, the self-represented party’s allocation of time spent working on the case may still represent value. The fact that a self-represented litigant is not a lawyer who charges a standard and commonly accepted hourly rate makes it more difficult – but not impossible – to assess their costs. However, the difficulty in valuing the time and effort of the lay litigant is not a good reason to decline to value it.
e) An applicable hourly rate should be taken into account when quantifying even a self-represented lay litigant’s costs. But the appropriate hourly rate, once determined, is only one of several factors to be considered.
f) In considering the hourly rate, the court should consider what the lay litigant’s reasonable expectations were as to the costs he or she would pay if unsuccessful.
g) As with counsel, the appropriate hourly rate may be affected by the level of indemnification or recovery deemed to be appropriate, given all of the rule 18 and 24 considerations.
8Several courts have fixed hourly rates for self-represented litigants in assessing costs. In Jahn-Cartwright v. Cartwright, 2010 ONSC 2263, 2010 91 R.F.L. (6th) 301 (SCJ) an hourly rate of $200.00 was applied, which was approximately two-thirds of what the husband’s lawyer would have been entitled to claim. In Cassidy v. Cassidy, 2011 ONSC 791, 2011 92 R.F.L. (6th) 120 (Ont. S.C.J.), an hourly rate of $150 was applied. In Agmon v. James, 2018 ONCJ 240, Anyumbe v. Kebe, 2018 ONCJ 865 and in Ferlisi v. Boucher, 2021 ONCJ 101, this court used an hourly rate of $125 in assessing costs for a successful self-represented litigant. This amount was also applied by Justice Renu Mandhane in Ahluwalia v. Ahluwalia, 2022 ONSC 2169. In Izyuk v. Bilousov, 2011 ONSC 7476, the court fixed the self-represented party’s hourly rate at $100 per hour. This amount was followed in Browne v. Cerasa, 2018 ONSC 2242.
2.3 Legal considerations - amount of costs
9Subrule 24 (14) 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:
(i) each party’s behaviour,
(ii) the time spent by each party,
(iii) any written offers to settle including offers that do not meet the requirements of rule 18,
(iv) any legal fees, including the number of lawyers and their rates,
(v) any expert witness fees, including the number of experts and their rates,
(vi) any other expenses properly paid or payable; and
(b) any other relevant matter.
10The 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.
11The 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.
12Costs accrued from activity not specifically related to a prior step in a case can be ordered at the end of a case. Activity not requiring judicial intervention is often better dealt with at the end of the case and not by the motions judge. See: Houston v. Houston, 2012 ONSC 233; Walts v. Walts, 2014 ONSC 98; F.S. v. M.B.T., 2023 ONCJ 144. This can include time spent preparing and reviewing pleadings, preparing and reviewing financial statements, obtaining and reviewing financial disclosure, meetings with clients, meetings and discussions with professionals and discussions with opposing counsel. See: Jansen v. DiCecco, 2025 ONCJ 256.
13The court should also take into consideration the ability of a party to pay costs. See: MacDonald v. Magel (2003) 2003 CanLII 18880 (ON CA), 67 O.R. (3d) 181 (Ont. C.A.). Difficult financial circumstances are a factor but not are 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.
14Those 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.
15In 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 Three – Analysis
16This was an important case for the parties. The father was not paying any child support to the mother before she brought this case to court. The case was not complex. However, it was made more difficult because the father failed to provide meaningful financial disclosure to the mother.
17The mother acted reasonably throughout this case.
18The father did not act reasonably as follows:
a) He did not provide the mother with court-ordered financial disclosure.
b) He did not file a trial affidavit and an updated financial statement, as ordered. He was permitted to give his evidence orally at the trial.
c) He did not comply with the temporary court order for child support.
d) He paid a paltry amount of support to the mother before she brought the case to court, despite having the ability to pay generous support.
e) He did not attend court on September 3, 2025. Costs of $500 were ordered against him.
f) He sold his home in September 2024. He claimed he received $300,000, after paying off the mortgage and personal debts. He gave none of the proceeds to the mother for child support. Instead, he said he spent $150,000 paying off his debts and his partner’s debts. He gave the other $150,000 to his partner’s father to put a downpayment on a home that was purchased in Oshawa in December 2024.
The father says he rents this home from his partner’s father. He says he lives there with his partner and four children.
The father said he gave the $150,000 to his partner’s father because his own credit was bad, and he couldn’t qualify for a mortgage.
The father claimed he has no legal or beneficial interest in the property.
The father provided no documentation regarding the sale and purchase of these properties. He provided no accounting of the sale proceeds, despite requests for production by the mother.
It appears the father is trying to avoid his support obligations by putting his assets in the names of third parties.
19The father was unable to provide any explanation for his unreasonable conduct at trial.
20The mother had counsel on record prior to the court attendance on September 3, 2025. Her counsel assisted the mother in negotiating a final parenting agreement and temporary support agreement that was incorporated into a court order on April 22, 2025.
21The court will not order costs for the time spent by the mother or her counsel on the parenting issues. Those issues were settled without costs being ordered.
22However, the mother is entitled to costs for the work done by her former counsel on the support issues.
23The support issues were the dominant issues in this case. The youth is 17 years old.
24Counsel assisted the mother in preparing her case for trial, including her trial affidavit
25The mother spent about $9,000 for legal fees, inclusive of fees, disbursements and HST. The court finds that $7,500 of those fees are attributable to the support issues. Counsel prepared the mother’s application, reviewed the father’s financial statement, made efforts to obtain financial disclosure, obtained an order for financial disclosure, and assisted the mother in preparing for the trial of the support issues. This work was of great assistance to the mother who was able to produce the required evidence to obtain a sizeable order for retroactive child support.
26The time spent by the mother’s counsel on the case was reasonable and proportionate, as were counsel’s hourly rates of $325.
27The mother is also entitled to work she did on her case after she became self-represented. The court accepts the mother’s submission that she spent about eight hours on the case. This was also reasonable and proportionate. The court will apply an hourly rate of $125 to this work. All of the work was attributable to the support issues.
28The court will not order full recovery of the mother’s costs. However, it will order significantly elevated costs due to the extent of the father’s unreasonable conduct.
29The mother has already received $500 costs regarding the September 9, 2025 court date. No additional costs will be ordered for that appearance.
30The court finds that the father has the ability to pay the costs that will be ordered. He likely has a beneficial interest in the home he lives in. He provided the entire downpayment for the home. He acknowledged that his partner’s father made no financial contribution to the purchase of the property.
31The father should have reasonably expected to pay the costs that will be ordered if the mother was successful.
32This costs order is entirely attributable to child support. The court will order it to be enforced as a support order by the Director of the Family Responsibility Office.
Part Four – Conclusion
33A final order shall go on the following terms:
a) The father shall pay the mother costs of $7,500, inclusive of fees, disbursements and HST. The costs are due and payable forthwith.
b) This costs order is in addition to the costs of $500 previously ordered.
c) This costs award is a support order within the meaning of clause 1 (1) (g) of the Family Responsibility and Support Arrears Enforcement Act, 1996, and as such, it is enforceable by the Director of the Family Responsibility Office.
34Court staff are directed to send a copy of this endorsement to the legal department of the Director of the Family Responsibility Office. There may be enforcement remedies available against the father’s partner, and his partner’s father.
Released: December 1, 2025
Justice Stanley B. Sherr