McNamara v. McNamara, 2026 ONCJ 157

Court File and Parties

Date: March 20, 2026 Court File No: D45722/24 Ontario Court of Justice

B E T W E E N:

Megan Marie McNamara Acting in Person Applicant

- and -

Michelle McNamara Acting in Person Respondent

Heard: March 20, 2026

Justice S.B. Sherr

Costs Endorsement

Part One -- Introduction

1The parties are involved in a parenting dispute in this court involving their 7-year-old son (the child).

2On March 2, 2026, the case management judge, Justice Sara Mintz, set a date of April 14, 2026, so she can hear a temporary parenting time motion. She also scheduled this case for a conference before me to assist the parties to resolve the issues without the expense of a motion.

3The respondent attended court today. The applicant did not.

4The respondent seeks costs of $4,050 for this step in the case.

Part Two -- Legal considerations

2.1 General legal considerations

5The 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).

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

2.2 Costs for unproductive conferences

7Subrule 17 (18) addresses costs for unproductive conferences. It reads as follows:

Costs

17 (18) Costs shall not be awarded at a conference unless a party to the conference was not prepared, did not serve the required documents, did not make any required disclosure, otherwise contributed to the conference being unproductive or otherwise did not follow these rules, in which case the judge shall, despite subrule 24 (1),

(a) order the party to pay the costs of the conference immediately;

(b) decide the amount of the costs; and

(c) give any directions that are needed.

8This was an unproductive conference because the applicant did not file a conference brief or attend court. The respondent is entitled to her costs.

2.3 Legal considerations for self-represented litigants

9Justice 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.

10Justice 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.

11Several 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 Ferlisi v. Boucher, 2021 ONCJ 101, and in Sterling v. Whittingham, 2025 ONCJ 626, this court used an hourly rate of $125 in assessing costs for successful self-represented litigants. 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.

12A self-represented litigant may be entitled to costs for legal fees they pay to counsel who assisted them on a limited scope basis, provided the time claimed is for the step or steps in the case being considered by the court. See: Michener v. Carter, 2018 ONSC 4050; Kale v. Santiago, 2026 ONCJ 65. The court must guard against the potential overlap between reimbursement for the lawyer's services, and compensation for the self-represented litigant's own time. Presumably, the more the lawyer did, the less there was for the self-represented litigant to do. See: Houston v. Houston, 2025 ONSC 2824.

2.4 Legal considerations for the amount of costs

2.4.1 Subrule 24 (14)

13Subrule 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.

2.4.2 Reasonableness

14The 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.

15The 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.

16Conduct which unduly complicates or unduly lengthens and increases the cost of a proceeding constitutes unreasonable conduct under subrule 24 (14) (a) (i). See: Goldstein v. Walsh, 2019 ONSC 3174 (SCJ); Hutchinson v. Peever, 2021 ONSC 4587 (SCJ); Jackson v.

2.4.3 Ability to pay costs and expectations of unsuccessful party

17The court should 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 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, See: Gobin v. Gobin, 2009 ONCJ 278; D.D. and F.D. v. H.G., 2020 ONSC 1919.

18Those 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.

19In 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

20This attendance was very important for the parties. The respondent is trying to exercise parenting time with the child. The applicant is resisting this.

21The issues for this conference had some complexity and difficulty because the parties previously litigated their parenting issues in California. On consent, an order was made by the California Family Court, dated September 11, 2024, setting out the respondent's parenting time with the child. There are also issues about sibling parenting time, as two of the parties' children are living with the respondent in California. The child lives with the applicant in Toronto.

22The respondent acted reasonably on this step. She served and filed a conference brief and attended court hoping to reach a resolution. The applicant acted unreasonably. She did not serve and file a conference brief, as required by the rules. She did not attend court.

23The respondent seeks costs for two lawyers she retained to assist her in this matter on a limited scope basis.

24The respondent submitted two bills totaling $255 for her California lawyer. However, there is no indication in that lawyer's accounts that the work was done for this step in the case. The court will not include these amounts in its costs order. This does not stop the respondent from seeking these costs on the motion before Justice Mintz.

25The respondent submitted three bills from an Ontario lawyer. However, two of those bills were for work done by the lawyer that pre-dated Justice Mintz setting up this conference. The court is going to restrict this costs award to the work done for this step in the case. Again, this does not stop the respondent from seeking those costs on the motion before Justice Mintz.

26One of the bills from the Ontario lawyer was for work done for this step in the case. The bill was $1,107.40, including HST. The lawyer assisted the respondent in preparing her conference brief and gave her legal advice regarding this court attendance. The court finds the time claimed for the Ontario lawyer is reasonable and proportionate. The respondent will be compensated for these costs.

27The respondent submitted that she spent eight hours preparing her conference brief and for this court attendance. The court finds there was some overlap between the time claimed by the respondent and her Ontario lawyer for this step in the case. The respondent will be compensated for most of, but not all her time claimed.

28The court also considered that the respondent missed a work shift to attend court and was unable to accomplish anything because of the applicant's unreasonable conduct. She is a nurse and paid $61 an hour in U.S. funds.

29The applicant is able to pay the costs that will be ordered. She should have reasonably expected to pay this amount of costs for not attending today.

Part Four -- Conclusion

30A final order shall go on the following terms:

a) The applicant shall pay the respondent $2,500 for the costs for this unproductive case conference. This amount is inclusive of fees, disbursements and HST.

b) Pursuant to clause (a) of subrule 17 (18), the costs are due and payable forthwith.