ONTARIO COURT OF JUSTICE
BETWEEN:
Ian Walkington Applicant
— AND —
Felicia Caruana Respondent
COSTS ENDORSEMENT
Ian Walkington................................................................................................. on his own behalf
Theresa MacLean.................................................................................. counsel for the applicant
Shelley D. McIntrye................................................................................................... OCL counsel
Justice W. Kapurura:
Part One – Introduction
1This three-day trial was about school placement for the parties’ ten-year-old child, L (the child).
2On the first day of trial, the parties executed final minutes of settlement regarding all issues except for the child’s school placement.
3The court heard a trial on the outstanding issue of school placement for the 2026-2027 school year and onwards.
4In their minutes of settlement, the parties agreed that the child would remain at D.G. Public School (D.G. school) for the remainder of the 2025-2026 school year.
5The applicant (the father)’s position was that the child should remain at D.G. school.
6The mother’s position was that the child should be moved to a school within her catchment area, which is the […] area in Toronto.
7The Office of the Children’s Lawyer (OCL) provided independent legal representation to the child. Her position was that the child was not tied to D.G. school.
8At the conclusion of the trial, the court made the following order:
a. The following terms shall apply regarding the child’s school enrolment for the 2026-2027 school year and onwards:
i. If the mother remains at her current location in Toronto, the child shall be enrolled at T.O. school.
ii. If the mother moves from her current location prior to September 2026, she shall enrol the child in a school within her new catchment area. Such catchment or geographical area shall be consistent with the court order requiring her residence to be maintained at a location no farther than 25 kilometres from the father’s residence at […] Road, Pickering, measured in a straight line.
iii. Once enrolled in a school, the child shall maintain the same school for the entire school year. There shall be no changes of school during a school year.
iv. If the mother intends to change the child’s school after the initial enrolment in her catchment area per subparagraphs (i) and (ii) above, she shall provide the father with not less than four months’ advance notice of her intention to change the child’s school.
v. Neither parent shall homeschool the child.
b. All other claims are dismissed.
9The mother seeks her costs in the amount of $84,402.53, inclusive of HST and disbursements.
10The father’s position is that neither party is entitled to costs. He seeks an order for no costs. In the alternative, his position is that any costs order should be modest and proportionate to the issues and circumstances of this case.
Part Two– General costs principles
11Modern 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 [the Rules]. See: Mattina v. Mattina, 2018 ONCA 867.
12Costs 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, 2002, S.C.C., supra, paragraph 25.
13An 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 – Offers to settle
14Subrule 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.
15Subrule 24 (12) of the Family Law Rules (the Rules) reads as follows:
24(12) A party who makes an offer in relation to a step in a case is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date to the conclusion of the step, 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
16The 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 24(12) is required. See: Mussa v. Iman, 2021 ONCJ 92.
17The 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; Ajiboye v. Ajiboye, 2019 ONCJ 894; Obitulata-Ugwu v. Ugwu, 2024 ONCJ 655.
18The parties did not provide details of any offers to settle exchanged. No offers to settle were attached to the materials received by the court.
19Therefore, the court cannot assess whether any offers to settle exchanged between the parties would meet the technical requirements under subrule 24(12).
Part Four – Success
20Subrule 24(3) of the Rules creates a presumption of costs in favour of the successful party.
21Subrule 24(4) provides that if success in a step in a case is divided, the court may apportion costs as appropriate.
22Courts have granted costs to a party that was substantially successful, and this does not necessarily require success on all issues. See: Zhang v Guao, 2019 ONSC 5767; Blackwood v Nichols, 2022 ONCJ 357 at para 9. Boland v Boland, 2012 ONCJ 239; Baryla v Baryla, 2019 BCCA 192; Jacques v. LeBlanc, 2023 ONSC 4269.
23The mother enjoyed partial success as the court granted her request to move the child to a school within her catchment area, the […] area in Toronto. However, the court noted that both parties were deficient in their respective plans, as explained in the decision. In paragraph 43 of the decision, the court noted the factors that militated against the mother’s plan.
24The court went on to provide for additional clauses to address its concerns. In paragraph 50, the court noted that in considering an appropriate and child-focused order in this case, the court wished to address the following:
a. Reduce the child’s travel time to school.
b. Ensure the child’s safety when travelling to school.
c. Minimize disruption to the child’s education.
d. Minimize conflict between the parties.
e. Provide stability to the child.
f. Provide predictability to the parents.
g. Ensure that the child’s special needs are addressed in whichever school the child is enrolled in.
h. Avoid the potential of having the child coached by one parent to frustrate any existing parenting and school arrangements in violation of existing court orders. In addressing this issue, the court will prohibit the parents from homeschooling the child.
25Although the mother’s school plan was the only option, the court revised it to align with the child’s best interests.
Part Five – Should the mother be awarded costs? If so, how much?
5.1 – Legal considerations
26Subrule 24(14) provides as follows:
(14) In setting the amount of costs in relation to a step in a case, the court may consider,
(a) the reasonableness and proportionality of the following factors, as applicable, as they relate to the importance and complexity of the issues in the step:
(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 conditions set out in subrule (12) or 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
27Conduct which unduly complicates or unduly lengthens and increases the cost of a proceeding constitutes unreasonable conduct under subrule 24 (4). See: Goldstein v. Walsh, 2019 ONSC 3174 (SCJ); Hutchinson v. Peever, 2021 ONSC 4587 (SCJ); Jackson v. Mayerle, 2016 ONSC 1556 (SCJ).
28A high or full recovery costs award may be justified where a party persists in advancing unreasonable claims or arguments. See: Lawrence v. Lawrence, 2017 ONCJ 431; M.A.B. v. M.G.C., 2023 ONSC 3748.
29In considering the reasonableness of the parties’ conduct, the judge deciding costs should also address their mind to whether they have complied with court orders and the Rules during the proceeding. Rules 1(8)(a) and 1(8.1) provide that if a person fails to obey an order in a case or a related case or with the Rules, the court may deal with the failure by making an order for costs. See: M.A.B. v. M.G.C., supra.
5.2 – Analysis
30The case was important to the parties. It was not complex. It was made more difficult by the parties challenging parenting relationship.
31Both parties acted reasonably by:
a. Resolving most of the parenting issues just before trial.
b. Agreeing to have the child remain at D.G. school for the 2025-2026 school year. This minimized disruption to the child’s current school arrangements.
c. Agreeing to engage in family therapy.
32Both parties acted unreasonably by:
a. Litigating the issues for eight years.
b. Failing to file a trial record pursuant to Justice J. Harris’ trial scheduling endorsement form dated October 17, 2025.
c. Engaging in conflict.
d. Failing to exchange severable offers to settle with respect to the school issue.
33The mother acted unreasonably by providing evidence at trial that was neither credible nor reliable. The court noted that:
a. Her evidence was internally inconsistent.
b. Several aspects of the mother’s evidence were contradicted by statements she previously made to CAS workers and the OCL clinicians who have worked with the family in the past.
c. In a recent decision dated October 17, 2025, Justice J. Harris made the following findings:
72…the evidence at this motion clearly supports that there are repeated and ongoing breaches, by the Mother, of the April 2017 Consent Parenting Order, the February 2019 Parenting Order, the 2021 Parenting Order, the November 2024 Non-Removal Order, the January 2025 Communication Order, the February 2025 Consent Parenting Time and Therapy Order, and the May 2025 Therapy and Non-Removal Order.
d. On February 28, 2019, Justice A. Finlayson found that the mother breached the court order of April 28, 2017, by not allowing contact between the child and the father. Justice Finlayson went on to state that there was some suggestion that the mother also breached the prior order of Justice S. O’Connell of August 24, 2014.
34The father acted unreasonably as follows:
a. His position at trial lacked logic. Neither parent was residing in D.G. school’s catchment area. The evidence at trial was that D.G. school was “closed” to accepting out-of-area admissions. According to the evidence presented at trial, he still insisted that the child remain at D.G. school. He did not offer to move into D.G. school’s catchment area to maintain eligibility. He failed to address the child’s long commute from the mother’s home to D.G. school.
b. He attempted to rehash issues that had already been settled by way of minutes of settlement.
c. In his closing submissions, he attempted to present a different school plan for the child. The court told him it was not appropriate to do so, as his evidence had already been entered.
35The mother seeks her costs in the amount of $84,402.53. This amount represents $52,042.50 incurred prior to the trial date, and $22,500.00 for the three-day trial, before adding HST and disbursements. The court agrees with the father that it is inappropriate for the mother to seek costs prior to the first day of trial (November 24, 2025), as the parties resolved the costs in their final minutes of settlement. In their minutes, the mother agreed to pay the father $125,000.00 “for the case as a whole.” However, the father agreed to defer the costs unless a triggering event specified in the minutes of settlement occurs.
36The court agrees with the father’s submission that the mother’s inclusion of $52,042.50 in her bill of costs is a misrepresentation to the court.
37The court will focus on the trial costs of $22,500.00, HST and disbursements.
38As noted in the trial decision, the mother admitted in the parties’ minutes of settlement to engaging in the following conduct:
a. Caused emotional confusion, instability, and conflict for the child and was inconsistent with the duties of good-faith co-parenting and respect for court orders.
b. Wrongly repeatedly interfered with, or failed to support the father’s relationship with the child and parenting-time exchanges, including unilateral changes to time and location, conditioning transitions on her demands, and permitting the child to ignore the father and/or reject him and remain with her contrary to Orders. She acknowledges that this eroded stability, modeled disregard for lawful direction, and undermined the child’s confidence and relationship with the father.
c. Engaged the child in adult conflict, portrayed the father as unsafe or unfit, and encouraged alignment against him.
d. Coached and influenced the child, leading to inaccurate statements made to authorities and service providers, and that such conduct harmed the child’s bond with the father.
e. Made or supported knowingly false or unfounded allegations about the father, his family and about various events and incidents.
f. Made disparaging, profane, and defamatory statements about the father, including on social media, which were false, humiliating, and contrary to the child’s best interests. The Respondent shall remove any remaining online content and refrain from all future public commentary about the Applicant and the paternal family.
g. Used threats of police, CAS, or Court intervention to impose unilateral terms, thereby escalating conflict and creating instability.
h. Caused measurable harm to the child’s emotional security, trust, and sense of stability.
i. Shall complete a counseling program targeting alienating behaviour.
j. Acted inappropriately by filming exchanges, and calling the police.
39Subrules 24(7) and 24(8) provide as follows:
Unreasonable behaviour by successful party
24(7) A successful party who has behaved unreasonably during a step in a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs. O. Reg. 10/25, s. 4.
Same
24(8) In deciding whether a successful party has behaved unreasonably, the court may consider,
(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 did not accept.
40The court will dismiss the mother’s request for costs, for the following reasons:
a. The mother’s conduct, viewed in the context of family law litigation, is troubling and egregious. In Levely v. Levely 2013 CarswellOnt 1953, the court wrote:
- Family Court proceedings are intended to be a means by which aggrieved parties can have their disputes arising after separation adjudicated upon by the court in a just, efficient and timely manner. Unfortunately, they all too often become a destructive tool which one party wields and manipulates in order to create further financial and emotional hardship for the other party. …
b. In its decision, the court was clear that she could not be trusted.
c. The court found that the mother engaged in conduct that was contrary to the child’s best interests. She was evicted from her residence in the D.G. school’s catchment area due to non-payment of rent. Her landlord obtained an eviction order against her from the Landlord and Tenant Board (LTB). The child was residing primarily with her around that time. This conduct interfered with the child’s educational and emotional stability. The father testified that he agreed to provide additional funds to the mother to pay her rent and maintain her residence, but she still failed to pay rent. The trial was precipitated by the eviction, as the child now resided outside D.G. school’s catchment area. The order from the LTB dated August 5, 2025, determined that:
i. The tenant owed the Landlord $12,060 in arrears and costs to the end of April 2025. The tenant consented to an order that required her to pay to the landlord rent on time plus $250.00 on or before the 20th day of each month from May 2025 for 4 years.
ii. The tenant made the May payments but has made no payments to the landlord since. The amount the tenant owes the landlord has increased to $16,776.11 in arrears and costs to the end of July.
d. At trial, the court found her evidence to be neither credible nor reliable.
e. In her costs submissions, she asks for costs on issues where costs have already been determined.
f. The 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. See: Weber v. Weber, 2020 ONSC 6855.
Part Six – Conclusion
41Order to go as follows:
The mother’s request for costs is dismissed.
Each party to bear their own costs.
January 27, 2026
Justice W. Kapurura