J.A. v. S.M., 2026 ONCJ 328

Court File and Parties

Citation: J.A. v. S.M., 2026 ONCJ 328 Date: June 8, 2026 Court File No.: D45749/24 Ontario Court of Justice

Between: J.A., Applicant

• and - S.M., Respondent

Counsel: J.A., Acting in person Aron David, for the Respondent

Heard: In Chambers

Before: Justice S.B. Sherr

Costs Endorsement

Part One – Introduction

1On May 6, 2026, the court delivered written reasons for decision after a trial about the parenting and child support arrangements for the parties’ two-year-old daughter (the child). See: J.A. v. S.M., 2026 ONCJ 259. The trial was heard from April 22 to 24, and on May 4, 2026.

2The parties were given the opportunity to make written costs submissions. The respondent (the mother) seeks costs of $15,000, inclusive of her fees, disbursements and HST.

3The applicant (the father) did not make any costs submissions.

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:

(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).

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, 2003 S.C.C. 71, paragraph 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 (14), subrule 24 (7) pertaining to unreasonable conduct of a successful party, subrule 24 (10) pertaining to bad faith, subrule 24 (12) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party. See: Berta v. Berta, 2015 ONCA 918, at paragraph 94.

Part Three – The offers to settle

8The mother made two offer to settle dated December 9, 2025 and March 23, 2026. The father made one offer to settle dated December 12, 2025.

9The mother claims that both of her offers to settle attract the costs consequences set out in subrule 24 (12). Notwithstanding this claim, she is not asking the court to apply those costs consequences. Her full recovery costs are over $23,000. She is only claiming $15,000 for costs.

10The father’s offer to settle was not close to being more favourable to the mother than the final result.

11The mother’s offers to settle were not severable. They were much more favourable to the father than the final result on the parenting issues. They were not as favourable to the father as the final result on the support issues.

12The mother’s offers to settle were considered under sub-clause (iii) of subrule 24 (14) (a) when determining the amount of the costs award, particularly related to the reasonableness of her conduct and the extent of her success. See: Gjorsovski v. Krajisnik, 2026 ONSC 2202.

Part Four – Success

13Subrule 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).

14To determine whether a party has been successful, the court should examine who was the successful party, based on the positions taken in the litigation. See: Lazare v. Heitner, 2018 ONSC 4861. This assessment includes the positions taken in the pleadings, and the specific relief sought at the hearing, if different. See: Kyriacou v. Zikos, 2022 ONSC 401.

15Subrule 24 (4) sets out that if success in a step in a case is divided, the court may apportion costs as appropriate.

16Divided success does not equate with equal success. It requires a comparative analysis. Most family cases have multiple issues. They are not equally important, time-consuming or expensive to determine. See: Jackson v. Mayerle, 2016 ONSC 1556, paragraph 66.

17Where there are multiple issues before the court, the court should have regard to the dominant issue at trial in determining success. See: Firth v. Allerton, [2013] O.J. No. 3992 (SCJ); Mondino v. Mondino, 2014 ONSC 1102.

18The parenting issues were the dominant issues in this case. The mother was far more successful on them than the father. The father sought joint decision-making responsibility for the child, extensive overnight parenting time, leading to a shared parenting arrangement, and a requirement that his consent must be provided for the mother to obtain or renew government documentation for the children or for the mother to travel internationally with them.

19Instead, the mother was granted primary residence and sole decision-making responsibility for the children. She was given permission to obtain or renew government documentation for the child, and to travel internationally with the child without the father’s consent. Restrictions were placed on the father’s communications with service providers for the children. The court ordered that parenting exchanges take place through a professional supervised parenting time agency. The father was only given day parenting time. Strict contact and communication terms were ordered to address the father’s problematic conduct under section 28 of the Children’s Law Reform Act.

20The court finds that neither party was successful on the child support issues. The mother received less than she asked for at the start of the trial. However, she cannot be blamed for seeking more support from the father. She was litigating blind because the father had not complied with orders to provide her with timely and updated income disclosure. He did not provide the relevant financial information for the mother to assess his income until mid-way through the trial. Further, the court commented in its decision that the father was fortunate that the mother did not seek to impute income to him retroactively. Money was not a prominent concern for the mother in this case.

Part Five – Amount of costs and order

21Subrule 24 (14) 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.

22This case was important to the parties. It was made more difficult because the father contested every issue, often unreasonably.

23Subrule 24 (8) provides criteria for determining the reasonableness of a successful party’s behaviour in a case (a factor in subclause 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, the court 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.

24The 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.

25Conduct 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. Mayerle, 2016 ONSC 1556 (SCJ).

26The reasonableness of litigation conduct must be gauged over the totality of the proceeding. A court can order increased costs to express disapproval of unreasonable conduct. The amount may be higher where a party has had to incur unnecessary added expense as a result of the other party’s unreasonable conduct. See: Rolfe v. Boneo, 2023 ONSC 2269: John v. John, 2020 ONSC 6437 (SCJ); O’Brien v. Chuluunbaatar, 2019 ONCJ 882 (OCJ); Habibi v. Aarabi, 2022 ONSC 240 (SCJ).

27Being unsuccessful does not equate necessarily to being unreasonable. See: Wauthier v. McAuliff, 2019 ONSC 5302; W.H.C. v. W.C.M.C., 2021 ONCJ 363.

28The mother acted reasonably. She made very reasonable offers to settle.

29The father did not act reasonably. He aggressively asserted unreasonable positions. Everything was contested. He made an offer to settle that it was nowhere close to the final result. The court made significant findings of family violence against him. He breached several orders, as set out in the Reasons for Decision. He made this trial much longer and more difficult than it needed to be.

30The rates of $325 per hour claimed by the mother’s lawyer are very reasonable.

31The court reviewed the mother’s bill of costs. The time claimed was reasonable and proportionate. The mother only claimed time for the trial step.

32The court considered the father’s ability to pay costs. See: MacDonald v. Magel (2003), 67 O.R. (3d) 181 (Ont. C.A.). The father has limited means. However, 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. Impecuniosity does not grant a litigant the right to unrestricted access to the courts. Such access has to be exercised responsibly and reasonably. See: G.W.S. v. C.S., 2018 ONCJ 378.

33Family law litigants are responsible for and accountable for the positions they take in the litigation: See: Heuss v. Surkos, 2004 ONCJ 141. Those 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. The father’s requests for joint decision-making responsibility for the children and a shared parenting arrangement were ill-considered.

34In 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. Justice Jennifer Daudlin ordered costs of $3,000 on one motion in this case against the father (he has paid none of those costs). The court finds that he should have reasonably expected to pay the amount of costs that will be ordered if he was unsuccessful.

35The court finds that the father can afford to pay the costs that will be ordered, if a reasonable payment plan is ordered.

36The court orders as follows:

a) The father shall pay the mother’s costs fixed in the amount of $15,000, inclusive of fees, disbursements and HST.

b) The father may pay the costs at $400 each month, starting on July 1, 2026. However, if he is more than 30 days late in making any payment, or any ongoing child support payment due after this date, the entire amount of costs then owing shall immediately become due and payable.