A.O. v. J.A., 2026 ONCJ 375

CITATION: A.O. v.J.A., 2026 ONCJ 375

DATE: June 19, 2026

COURT FILE NO. D45231/24

ONTARIO COURT OF JUSTICE

B E T W E E N:

A.O.

ACTING IN PERSON

APPLICANT

• and –

J.A.

PAUL COOPER for the RESPONDENT

RESPONDENT

HEARD: In Chambers

JUSTICE S.B. SHERR

COSTS ENDORSEMENT

Part One – Introduction

1On May 14, 2026, the court delivered written reasons for decision after a three-day trial about the parenting and child support arrangements for the parties’ two children.

2The parties were given the opportunity to make written costs submissions. The respondent (the mother) seeks costs of $40,002, inclusive of her fees, disbursements and HST. The applicant (the father) asks that no costs be payable.

Part Two – General costs principles

3The 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).

4Costs 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.

5Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.

6An 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 Two – Did any of the parties’ offers to settle attract the costs consequences set out in subrule 24 (12)?

2.1 Legal considerations

7Subrule 18 (4) sets out that an offer shall be signed personally by the party making it and also by the party’s lawyer, if any.

8Subrule 24 (12) sets out the consequences of a party’s failure to accept an offer to settle that is as good as or better than the trial result of the person making the offer. It 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:

1. If the offer relates to a motion, it is made at least one day before the motion date.

2. 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.

3. The offer does not expire and is not withdrawn before the hearing starts.

4. The offer is not accepted.

5. The party who made the offer obtains an order that is as good as or better than the offer.

16Subrule 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).

9The court is not required to examine each term of the offer as compared to the terms of the order and weigh with microscopic precision the equivalence of the terms. What is required is a general assessment of the overall comparability of the offer as contrasted with the order. See: Wilson v Kovalev, 2016 ONSC 163.

10Close is not good enough to attract the costs consequences of 24 (12). The offer must be as good as or more favourable than the trial result. See: Gurley v. Gurley, 2013 ONCJ 482; Axford v. Axford, 2024 ONSC 2864.

11The technical requirements of subrules 18 (4) and 24 (12) must be met to attract the costs consequences in subrule 24 (12). See: Sader v. Kekki, 2014, ONCJ 41; Jakubowski v. Kopacz-Jakubowski, [2008] O.J. No. 1442 (SCJ); Weber v. Weber, 2020 ONSC 6855; Clancy v. Hansman, 2013 ONCJ 702; Ajiboye v. Ajiboye, 2019 ONCJ 894.

12The costs presumption set out in subrule 24 (12) can have significant repercussions – full recovery costs from the date of the offer. That is why full technical compliance with subrules 18 (4) and (14) is required. See: Mussa v. Iman, 2021 ONCJ 92; T.R. v. S.G., 2025 ONCJ 284.

13Even if subrule 24 (12) does not apply, the court may take into account any written offer to settle, the date it was made and its terms when assessing the reasonableness of a party under sub-clause (iii) of subrule 24 (14) (a).

2.2 The mother’s offers to settle

14The mother made two severable offers to settle, dated December 9, 2025 and March 9, 2026. She claims that both of her offers attract the costs consequences set out in subrule 24 (12). The father disagrees.

15The mother divided her offers to settle into six severable parts.

16The mother’s offers were both as good as or better than the final result on the issue of decision-making responsibility. The costs consequences set out in subrule 24 (12) apply to this issue.

17The mother’s offers were close to the final result on the parenting time issues. However, they were not good as or better than the final result.

18An unusual aspect of this trial was that the mother sought an order requiring the father to have more weekend parenting time than he wanted. She wanted it to start on Friday evenings, so she would have her Saturdays free to do other things. The father wanted parenting time to start on Saturdays because he was struggling in get to the Friday parenting exchanges on time. While the court had sympathy for the mother, it was not prepared to compel the father to exercise parenting time. See: Reddick v. Turner, 2025 ONCJ 631. So, even though the mother offered more parenting time than was ordered, the father was successful in obtaining the parenting time order he wanted.

19The mother was unsuccessful in seeking a right of first refusal if the father was unavailable for eight hours of his parenting time. She was also unsuccessful in obtaining an order requiring the father to pay for a device for the children to exercise virtual parenting time with him.

20The parties agreed on the final holiday parenting schedule.

21The mother’s offers to settle were not as good as or better than the final result on the issues of documentation and travel.

22The mother’s offers to settle were close to but not as good or better than the final result on child support. The court ordered $1,500 more in child support arrears than the mother had offered. However, the ongoing child support ordered was slightly less than the mother offered, and the court only ordered the father to contribute $20 each month towards her net daycare costs. This was less than what was offered by the mother.

23The mother’s offers to settle each aspect of the case 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 220

2.3 The father’s offers to settle.

24The father also made two offers to settle. His first offer to settle was dated December 10, 2025. It was not as good as or better than the final result. It did not attract the costs consequences set out in subrule 24 (12).

25The father’s second offer to settle, dated March 30, 2026 was severable. However, it did not meet the technical requirements of subrule 24 (12) as it was only capable of acceptance prior to the start of a trial. An offer cannot expire before a trial starts. See: Ajiboye v. Ajiboye, 2019 ONCJ 894.

26Only one part of the father’s second offer was as good as or better than the trial result for the mother – his offer regarding section 7 expenses.

27The father’s offers to settle each aspect of the case 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 his conduct and the extent of his success.

Part Three – Success

3.1 Legal considerations

28Subrule 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 CanLII 22584 (ON SC), [2000] O.J. No. 330 (SCJ- Family Court).

29To 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.

30Subrule 24 (4) sets out that if success in a step in a case is divided, the court may apportion costs as appropriate.

31Divided 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.

32Where 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.

3.2 The dominant issues

33There were many disputed issues between the parties. However, the dominant issues were as follows:

1. Child support – specifically the father’s income and the start date of support.

2. Decision- making responsibility.

3. International Travel.

3.3 Analysis of success

3.3.1 Child support

34The mother was the successful party on the issue of child support – but not completely successful. She sought, at trial, to impute the father’s annual income at $153,000, starting on July 1, 2024. She also asked that he pay a proportionate share of the daycare expenses.

35The father asked the court to assess his annual income at $32,800. He changed that to $50,000 in closing argument. He asked for the support order to start on June 1, 2026. He made an unsuccessful undue hardship argument under section 10 of the guidelines.

36The court imputed the father’s annual income at $75,327, starting on July 1, 2024. It only ordered him to pay $20 each month for the daycare expenses. This represented his proportionate share of the net, not the gross amount of the expense, after considering tax benefits and credits associated with the expense.

3.3.2 Decision-making responsibility

37The mother was the successful party on this issue. The costs consequences set out in subrule 24 (12) apply.

3.3.3 International Travel

38There was divided success on this issue. The mother sought restrictions on the children traveling internationally until they were 13 years old. The father sought no restrictions. The court placed a one-year restriction on international travel and a restriction on international travel to a country that is a non-Hague Convention signatory until 2030.

3.3.4 Other substantive issues

39The parties were very close in their parenting time positions. The father was successful in starting his weekend visits on Saturdays. He was not required to buy a device for the children for his virtual parenting time. However, the mother was more successful on the issue of where the parenting exchanges would take place. There was divided success on this issue.

40The mother, at trial, sought spousal support of $760 each month. The father sought an order that the mother was not entitled to spousal support. The court found the mother was entitled to spousal support on a compensatory and non-compensatory basis. However, due to the priority of child support, no spousal support was ordered. There was divided success on this issue.

41The mother sought orders dispensing with the father’s consent to obtain or renew government documentation for the children and to travel internationally with them. The court did not order this. The father was more successful on this issue.

3.3.5 Overall success

42The court finds that overall, the mother was more successful than the father. The presumption that she is entitled to costs was not rebutted.

Part Four – The amount of costs and the order

43Subrule 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.

44This case was important to the parties. It was made more difficult and complex because the father did not provide complete or timely financial disclosure. There was a considerable amount of trial time spent trying to establish his income.

45Considerable trial time was also spent on the issue of whether the father had perpetrated family violence against the mother. The court did not make that finding and found that the mother had acted vindictively against the father. The court concluded at paragraph 60 of its decision:

The father has treated the mother poorly in this case. He is demanding about his rights, and difficult to deal with. He communicates poorly. He has not provided her with proper support. However, this does not rise to the level of family violence.

46The 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.

47Conduct 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).

48Being 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.

49The mother made reasonable offers to settle. Her offers to settle the dominant issue of child support were very close to the final result. She acted unreasonably by denying the father virtual parenting time.

50The father made reasonable efforts to settle the case by making two offers to settle. However, he acted unreasonably by not providing complete, timely and transparent financial disclosure. He also acted unreasonably by not paying proper child support to the mother.

51The rates of $450 per hour claimed by the mother’s lawyer are reasonable. The rates of $325 per hour charged by his law clerk are excessive. For instance, in Ahluwalia v. Ahluwalia, 2022 ONSC 2169, the court stated that $125 per hour was the going rate for a senior law clerk.

52The court reviewed the mother’s bill of costs. The court recognizes that additional time had to be spent by counsel to establish the father’s income. However, the court finds that the time claimed was high.

53The court considered the father’s ability to pay costs. See: MacDonald v. Magel (2003) 2003 CanLII 18880 (ON CA), 67 O.R. (3d) 181 (Ont. C.A.). However, 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. Family 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.

54In 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. The court finds that the father should have reasonably expected to pay the costs that will be ordered.

55The court finds that the father can afford to pay the costs that will be ordered, if a reasonable payment plan is ordered.

56The court orders as follows:

a) The father shall pay the mother’s costs of $15,000 plus 13% HST of $1,950, for a total of $16,950.

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 costs payment, any ongoing child support payment, or any child support arrears payment due after this date, the entire amount of costs then owing shall immediately become due and payable.

57The mother asked that the costs be payable to her counsel in trust. The court prefers not to be involved in retainer arrangements. See: A.M. v. S.D., 2020 ONCJ 546: John v. Vincente, 2016 ONCJ 78. Counsel can always have his client assign the costs ordered.

Released: June 19, 2026

Justice Stanley B. Sherr