ONTARIO COURT OF JUSTICE
BETWEEN:
Carrie Alford (nee Marco)
Applicant
— AND —
Jodi Alford
Respondent
Before Justice S. E. J. Paull
Reasons on Costs
Released on May 28, 2026
Danica Maslov counsel for the applicant
Respondent....................................................................................................... on his own behalf
PAULL J.:
1Before the court is the issue of costs following the trial which took place over two days in March 2026 dealing with retroactive and ongoing child support.
2The parties resolved the parenting issues on consent on August 20, 2025 when a final orders for sole decision-making and primary residence were made in favour of Ms. Marco with regular parenting time to Mr. Alford.
3The applicant sought an order for child support retroactive to the date of separation in 2018, and ongoing child support based on an imputed income.
4The respondent disputed that there was any entitlement to arrears and submitted that there should be no ongoing child support on the basis of a claim that he was totally disabled.
5The court ordered retroactive child support from January 1, 2021 and imputed income of $38,000 for ongoing support.
6The court invited written submissions on costs. The applicant seeks $15,500 (inclusive) based on her success at trial and what she submits was bad faith on the part of the respondent. The respondent did not provide cost submissions.
7Modern 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) of the Family Law Rules). Mattina v. Mattina, 2018 ONCA 867.
8Costs 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. British Columbia (Minister of Forests) v. Okanagan Indian Band, 2002, S.C.C., supra, paragraph 25.
9Subrule 24 (3) of the Family Law Rules (the rules) creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. Sims-Howarth v. Bilcliffe 2000 CanLII 22584 (ON SC), [2000] O.J. No. 330 (SCJ- Family Court). To determine whether a party has been successful, the court should take into account how the order or eventual result compares to any settlement offers that were made. Lawson v. Lawson 2008 CanLII 23496 (ON SC), [2008] O.J. No. 1978 (SCJ); Reichert v. Bandola, 2024 ONSC 4573.
10The failure to make an offer to settle much earlier by either party is unreasonable behaviour. Subrule 2(4) imposes a duty on parties and their lawyers to promote the primary objective of the rules to deal with cases justly (Rule 2(2)). This includes taking appropriate steps to save time and expense. See: Subrule 2 (3). Offers to settle play an important role in saving time and expense by promoting settlements, focusing parties and often narrowing issues in dispute. Laing v. Mahmoud, 2011 ONSC 6737. The failure to serve an offer to settle will be an adverse factor when assessing costs.
11Subrule 24 (12) of the Family Law Rules reads as follows:
COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER
24 (12) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:
If the offer relates to a motion, it is made at least one day before the motion date.
If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
The offer does not expire and is not withdrawn before the hearing starts.
The offer is not accepted.
The party who made the offer obtains an order that is as good as or better than the offer.
12Subrule 24 (13) sets out that the onus of proving that the order is as good as or better than the offer to settle is on the party who claims the benefit of subrule 24 (12).
13The Rules expressly provide that depending on the conduct of the parties and the presence or absence of offers to settle, a judge may increase or decrease what would otherwise be the appropriate quantum of costs awarded, although there is no obligation to make an offer to settle. Beaver v. Hill, 2018 ONCA 840.
14The applicant submitted an offer to settle dated October 27, 2025. The offer included retroactivity to 2022 and support commencing January 1, 2025 on an imputed income of $47,512.
15The respondent did not submit an offer to settle.
16The applicant was clearly the successful party. She achieved retroactive support and ongoing support on an imputed income. She did not meet or exceed her offer to settle in all areas, and the offer was not severable. While she achieved one year more of retroactive support than she offered, and did have income imputed, she did not achieve the level of imputed income in her offer to settle.
17Her offer was entirely reasonable in the circumstances, particularly as it was made without the court ordered disclosure from the respondent.
18The absence of an offer to settle by the respondent was not reasonable in the circumstances.
19Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. Beaver v. Hill, 2018 ONCA 840.
20In making this decision the court has considered the factors set out in subrule 24 (14) of the rules which reads as follows:
24 (14) 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.
21Subrule 24 (8) provides criteria for determining the reasonableness of a successful party’s behaviour in a case (a factor in clause 24( 14)(a) (1) above). It reads as follows:
DECISION ON REASONABLENESS
24 (8) In deciding whether a successful party has behaved reasonably or unreasonably, shall examine,
(a) the party's behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
(b) the reasonableness of any offer the party made; and
(c) any offer the party withdrew or failed to accept.
22The 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. Weber v. Weber, 2020 ONSC 6855.
23The applicant seeks her full recovery of costs pursuant to subrule 24 (10) which states:
Bad faith
24 (10) If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.
24Subrule 24 (10) requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made. Cozzi v. Smith, 2015 ONSC 3626; Scipione v. Del Sordo, 2015 CarswellOnt 14971 (Ont. SCJ).
25There is a difference between bad faith and unreasonable behaviour. The essence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose. It is done knowingly and intentionally. S. (C.) v. S. (M.) (2007), 2007 CanLII 20279 (ON SC), 38 R.F.L. (6th) 315 (Ont. SCJ).
26Bad faith is not synonymous with bad judgment or negligence; rather, it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. Bad faith involves intentional duplicity, obstruction or obfuscation. See: Scipione, supra.
27Persistent refusal by a party to make accurate financial disclosure and reveal their true income may rise to the level of bad faith. DePace v. Michienzi 2000 CanLII 22460 (ONSC); Kardaras v. Kardaras, 2008 ONCJ 616; Jones v. Hugo, [2012] ONCJ 381; Jansen v. DiCecco, 2025 ONCJ 256.
28A party who adopts “a catch-me-if-you-can approach to financial disclosure” demonstrates bad faith and breaches rule 13. Parry v. Parry, 2020 ONSC 3437.
29In Lewis v. Lynch, 2024 ONCJ 325, the court made a finding of bad faith against the father because he withheld financial disclosure and did not advise the mother of large increases in his income.
30A bad faith finding on some specific issue does not necessarily have a spill-over effect to other issues. Hunt v. Hunt [2001] O.J. No. 5111 (SCJ); Kardaras v. Kardaras, 2008 ONCJ 616; R.A.K. v. M.Z., 2024 ONCJ 2.
31The court made the following findings as noted in the Reasons for Judgement (Alford v. Alford, 2026 ONCJ 187):
- The respondent unreasonably delayed disclosure and breached court orders to provide disclosure. On June 2, 2025 he was ordered to provide his ODSP application with attachments, and a report from his treating physician outlining his diagnosis, prognosis, and treatment plan for any condition he claimed limited his ability to work. On August 20, 2025 he was again ordered to provide his ODSP application.
He failed to provide this disclosure as ordered. He produced his disability application for the first time on the second day of trial despite the application being dated March 31, 2025. He never produced the detailed medical report, and provided his medical file from his family doctor on the first day of trial.
By the end of 2024 he stopped paying child support entirely, despite earning significant income at the time and despite his continuing promises to abide by the parties’ verbal agreement.
He knew or ought to have known that his income would have provided for a substantially higher amount of child support than the parties agreed, and he only disclosed his income after the applicant brought the application.
He made no efforts to pay any support after 2024. He was in default of the court’s temporary order dated June 2, 2025 that he pay $278 per month.
He was working for cash in 2025 starting within a month of when he claimed to be totally disabled.
He failed to disclose he continued working occasionally to his doctor, in his EI reports, in his disability application, or in his sworn financial statements. If the applicant had not taken the pictures showing him working and called Mr. Lord as a witness this evidence would not have come out.
Despite the compelling evidence from Mr. Lord and in the pictures that the respondent was providing service and receiving renumeration, he continued to insist that he was not “working”.
Mr. Alford’s claim to being totally disabled was not supported by his own evidence, particularly that of Dr. Aliu-Berisha.
He exaggerated the impact of his medical condition to avoid his child support obligation. He prioritized his own interests over the needs of his child, and in doing so caused the applicant and child hardship.
32These findings reflect that the respondent continued to make ill advised litigation decisions and advance unreasonable positions. Poor litigation decisions and advancing unreasonable claims or filing meritless and incomplete pleadings may also justify an elevated costs award. Hughes v. Hughes, 2024 ONSC 1119; Ali Hassan v Abdullah, 2023 ONCJ 186, at para 61.
33However, his deliberate delay in disclosure and dishonesty with respect to his level of disability and his continued work amount to bad faith.
34The finding of bad faith does not extend beyond the financial issues. The parties resolved the parenting issues on a reasonable basis on August 20, 2025.
35Subrule 24 (15) sets out that any claim for costs respecting fees or expenses shall be supported by documentation satisfactory to the court.
36The applicant provided a detailed Bills of Costs. The hourly rate of counsel is reasonable given her years of experience, as was the time spent on this matter.
37Even if full recovery costs are triggered by the rules, the claim must still be reasonable and proportionate. It must also reflect, to some extent, the reasonable expectations of the paying party. Tintinalli v. Tutolo, 2022 ONSC 6276.
38The respondent maintained a reasonable income over the years when he failed to pay or significantly underpaid child support. The court found that at present he is intentionally unemployed and capable of earning income of $38,000 annually. While it will likely be a challenge for him, he is capable of paying the costs which will be ordered, and he should have reasonably expected to pay these costs if he was unsuccessful.
39Those who can least afford to litigate should be most motivated to seriously pursue settlement and avoid unnecessary proceedings. Mohr v. Sweeney, 2016 ONSC 3338; Balsmeier v Balsmeier, 2016 ONSC 3485.
40Family law litigants are responsible and accountable for the positions they take in the litigation. Heuss v. Surkos, 2004 CarswellOnt 3317, 2004 ONCJ 141.
41The primary issue in this matter and the sole issue remaining for trial related to retroactive and ongoing child support. This case was clearly important to the parties. The evidence and legal issues were not particularly complex or difficult.
42The applicant claims total costs of $15,500 (inclusive). She was entirely successful and approached the matter reasonably throughout. The respondent behaved unreasonably and maintained a position on child support that was not supported by his own medical evidence. His delay in disclosure and dishonestly on the primary issue amounted to bad faith. Pursuant to Rule 24(10) the applicant is entitled to full recovery on the support issues.
43However, the court will exercise its discretion and discount the total costs by $3000 to reflect that some of the time spent was for advancing and resolving the parenting issues on consent. As such, the respondent shall pay costs to the applicant of $12,500 (inclusive). The costs shall be payable forthwith.
44Based on all the considerations outlined herein, there shall be a final order as follows:
Costs in the amount of $12,500 payable by the respondent to the applicant forthwith.
Approval is waived.
Released: May 28, 2026
Signed: “Justice S. E. J. Paull”