C.M. v. R.S.E.M., 2026 ONCJ 391

CITATION: C.M. v. R.S.E.M., 2026 ONCJ 391

DATE: June 29, 2026

COURT FILE NO. DR30892/19

ONTARIO COURT OF JUSTICE

B E T W E E N:

C.M.

JENNIFER HOWARD, for the APPLICANT

APPLICANT

• and –

R.S.E.M.

ACTING IN PERSON

RESPONDENT

HEARD: In Chambers

JUSTICE S.B. SHERR

COSTS ENDORSEMENT

Part One – Introduction

1On May 28, 2026, the court delivered written reasons for decision after hearing the parties’ motions to change the final order of Justice Danielle Szandtner, dated July 14, 2023, regarding their two children (the final order). See: C.M. v. R.S.E.M., 2026 ONCJ 296.

2The court found that the applicant (the mother) was the successful party on the motions to change and entitled to costs. She made costs submissions at the hearing. The court asked for additional written submissions and gave the respondent (the father) an opportunity to make a written response.

3The mother made further submissions and seeks costs of $23,598. The father did not make written 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 – Success

8The court found the mother was the successful party on the motions. She was successful on the following issues:

a) The father’s motion to set aside the final order was dismissed.

b) The father’s motion to change the final order about decision-making responsibility for the children was dismissed.

c) The father’s motion to terminate the restraining order made against him in the final order was dismissed.

d) The father’s request for unsupervised parenting time was dismissed.

e) The mother’s request for the father to require leave of the court before he can start any further proceeding in this court was granted.

9The mother was not completely successful. The court did not grant her request that the father’s parenting time be completely in her discretion. It also did not grant her request that pre-conditions be placed on the father for him to obtain leave to bring a future proceeding. Specifically, she had sought orders that all costs first be paid and that the father post security for costs.

Part Four – Amount of costs

4.1 Subrule 24 (14)

10Subrule 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.

4.2 Reasonableness of parties’ behaviour

4.2.1 Legal considerations

11The 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.

12Conduct 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).

13The 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).

14Being 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.

4.2.2 Analysis of behaviour

15The mother acted reasonably. However, she did not make an offer to settle. She should have done this.

16The father did not act reasonably. He aggressively asserted unreasonable positions. Everything was contested. He did not make an offer to settle. The supervised access centre terminated his visits with the children because of his aggressive conduct. He refused to go to another supervised parenting program. He continued to attack the mother on social media. At his visits, he involved the children in the litigation and made inappropriate comments to them about the mother. He violated his restraining order.

4.3 Prior steps in the case

4.3.1 Legal considerations

17The mother claimed her fees for all steps in the case.

18Subrule 24 (1) sets out that promptly, after dealing with a step in a case, the court shall, in a summary manner, determine who, if anyone, is entitled to costs in relation to that step and set the amount of costs or reserve the decision on costs for determination to a later step in the case.

19Subrule 24 (2) sets out that the failure of the court to make a costs order, or reserve costs after a step in a case does not prevent the court from awarding costs in relation to that step at a later step in the case.

20Courts continue to be cautious about awarding costs at the trial stage where costs were not awarded at earlier steps in a case. See: Baezner v. Brunnenmeir, 2018 ONCJ 956; Nabwangu v. Williams, 2019 ONCJ 171.

21In Laidman v. Pasalic and Laidman, 2020 ONSC 7068 the court set out that the presumption remains that costs should be determined at each stage, and there are good reasons for this. Parties should have an ongoing awareness of the cost consequences of litigation decisions they make. Reserving costs may impede final resolution by needlessly inflating and complicating the list of future issues still to be dealt with. A judge who has just completed a step in a case will usually be in the best position to evaluate all of the relevant costs considerations. Reserving costs to a future event – often to a different judge – can result in later confusion and controversy about what really happened at the earlier step.

22In Berge v. Soerensen, 2020 ONCJ 265 Justice Roselyn Zisman set out the following circumstances where costs of a prior step should be awarded:

a) Costs have been reserved to the trial judge.

b) When, considering subsequent events, the trial judge is better situated to determine the costs of the prior step than the judge presiding over the step or

c) In exceptional circumstances

23Costs 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.

24In Thomas v. Saunchez, 2022 ONCJ 532, the court ordered costs for the attendance at First Appearance Court. These are appearances before a court clerk to ensure that the case is ready to send to a judge for a case conference. There should be no expectation that costs will be addressed at this step of a case. This was also ordered in N.M. v. S.M., 2023 ONCJ 23.

4.2 Analysis

25The mother will receive costs for preparing her motion to change, amended motion to change, affidavits, and for responding to the father’s motion to change, amended motion to change and affidavits. She will also receive her costs for her attendances at First Attendance Court and her preparation for and attendance at the hearing of these motions to change.

26The mother will not receive costs for her preparation for and attendance at two case conferences before Justice Szandtner. Costs were not reserved and Justice Szandtner was in the best position to determine if costs should have been awarded. There are no exceptional circumstances to order costs at this stage.

27The mother also will not receive costs for her research and preparation for a claim for security for costs. This request was denied by Justice Szandtner.

4.4 The mother’s rates and times claimed

28Several people worked on this case for the mother – three lawyers and two law clerks. The rates claimed by the lawyers were reasonable. The rates claimed for the law clerks were high.

29The court reviewed the mother’s bill of costs. The time claimed was high, particularly by the junior lawyer working on the case. These were not complex or difficult motions. The volume of people working on the case might have resulted in a duplication of work.

4.5 Other factors

30The 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.). He earns over $86,000 annually. He has the ability to pay the costs that will be ordered.

31In any event, ability to pay will be less of a mitigating factor when a 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. Family law litigants are responsible for and accountable for the positions they take in the litigation: See: Heuss v. Surkos, 2004 ONCJ 141.

32In 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 Szandtner ordered costs of $8,500 against the father in the previous proceeding (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.

33The court will not order a payment plan because the father has made no effort to pay Justice Szandtner’s previous costs order.

Part Five – The order

34The court orders as follows:

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

b) The costs are due and payable forthwith.

Released: June 29, 2026

Justice Stanley B. Sherr