COURT FILE NO. D11552/17
ONTARIO COURT OF JUSTICE
B E T W E E N:
SAMANTHA REID
EFUA COBBINA, for the APPLICANT
APPLICANT
- and -
OMAR KAREEM FORTUNE
ACTING IN PERSON
RESPONDENT
HEARD: In Chambers
JUSTICE S.B. SHERR
COSTS ENDORSEMENT
Part One – Introduction
1On January 17, 2026, the court released its reasons for decision arising from a trial about the parenting and child support arrangements for the parties’ ten-year-old son (the child). See: Reid v. Fortune, 2026 ONCJ 371.
2The court found that the applicant (the mother) was the successful party and entitled to costs. She was permitted to make written costs submissions and seeks costs of $32,244. She also asks that these costs and two prior costs orders made in this case of $1,800 and $6,675 be enforced as support by the Director of the Family Responsibility Office (the Director).
3The respondent (the father) was given the opportunity to make responding written costs submissions. He did not do so.
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) (all references to rules in this decision are to the Family Law Rules).
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 – Did the mother’s offer to settle attract the costs consequences set out in subrule 24 (12)?
8Subrule 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.
9The costs 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, is set out in subrule 24 (12). 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:
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.
10Subrule 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).
11The 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.
12Close is not good enough to attract the costs consequences of 24 (12). The offer must be as good as or better than the trial result. See: Gurley v. Gurley, 2013 ONCJ 482; Axford v. Axford, 2024 ONSC 2864.
13The mother made a severable offer to settle dated May 3, 2026. Each Part of the offer was as good as or better than the final order. For instance:
a) The court ordered the parenting terms sought by the mother.
b) The mother offered to determine ongoing child support based on an imputed income to the father of $125,000. The court imputed an annual income to him of $133,940.
c) The mother offered to fix additional support arrears at $26,000. The court fixed them at $27,854.
d) The court ordered the daily fine sought by the mother for the father’s failure to make the insurance designations required in the existing order
14The father did not rebut the presumption that the costs consequences set out in subrule 24 (12) should be applied. The mother will receive her costs up until May 3, 2026, and her full recovery costs after that date.
Part Four – Analysis of the amount of costs
15Subrule 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.
16Even where the "full recovery" provisions of the Rules are triggered by an offer which meets subrule 24 (12) requirements quantification of costs still requires an overall sense of reasonableness and fairness. See: Goryn v. Neisner 2015 ONCJ 318 (OCJ).
17The Rules do not require the court to allow the successful party to demand a blank cheque for their costs. See: Slongo v Slongo 2015 ONSC 3327 (SCJ). The court retains a residual discretion to make costs awards which are proportional, fair and reasonable in all the circumstances. See: M.(C.A.) v. M.(D.) 2003 CanLII 18880 (ON CA), [2003] O.J. No. 3707; Scipione v Scipione 2015 ONSC 5982, [2015] O.J. No. 5130 (supra). See: Jackson v. Mayerle, 2016 ONSC 1556.
18This case was important to the parties. The father made the case much more difficult than it needed to be. He evaded service of the mother’s motion to change. He breached several disclosure orders. He did not provide transparent financial disclosure. He has failed to pay anything towards the two previous costs orders.
19The 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.
20The most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing. Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice. Unnecessary judicial time is spent, and the final adjudication is stalled. Financial disclosure is automatic. It should not require court orders to obtain production. See: Roberts v. Roberts, 2015 ONCA 450.
21The mother has acted reasonably.
22The father acted unreasonably throughout the case.
23The mother was required to bring a third party records motions to determine the father’s income. On January 15, 2026, the court released its costs endorsement ordering the father to pay the mother’s costs of $6,675 for these motions. See: Reid v. Fortune, 2026 ONCJ 19. He has paid none of those costs. The court wrote at paragraph 39 of its costs decision:
39This decision is intended to send the following messages to the father:
a) He must provide complete and transparent disclosure about his income – particularly his business income.
b) He is expected to comply with court orders.
c) If he fails to provide complete and transparent financial disclosure and does not comply with court orders the financial consequences will be significant.
d) If his strategy in this case is obstruction, this is a poor strategy that is not working. It is time to change his approach.
24The father ignored those messages and continued to avoid his obligation to provide complete financial disclosure.
25The father is an experienced litigant. The parties have been before the court since 2017. They have had two previous trials regarding the father’s child support obligations. He knows or ought to know his disclosure obligations and the importance of complying with court orders.
26The mother properly did not include time spent by her counsel on the prior steps in the case where costs had been awarded.
27The mother is entitled to costs for work spent by her counsel not attributable to prior steps in the case. This can include time spent preparing and reviewing pleadings, preparing and reviewing financial statements, obtaining and reviewing financial disclosure, meetings with clients, meetings and discussions with professionals. See: Jansen v. DiCecco, 2025 ONCJ 256. It also includes her attendance at First Appearance Court. See: Thomas v. Saunchez, 2022 ONCJ 532.
28The rates of $450 per hour claimed by the mother’s lawyer are reasonable for a 2009 call to the bar.
29The father increased the costs of this case by turning this into a financial chase file. He was warned to change his approach, or the financial consequences would be significant. He chose to ignore that warning.
30The court reviewed the mother’s bill of costs. The full recovery costs claimed of $32,244 are excessive and not reasonable or proportionate. This was not a complex case. It was a half-day focused hearing. And the mother has already been awarded two costs orders totalling $8,475.
31The 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.). Ability to pay will be less of a mitigating factor when the impecunious party has acted unreasonably. See: Gobin v. Gobin, 2009 ONCJ 278; D.D. and F.D. v. H.G., 2020 ONSC 1919. 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.
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. The court made two prior costs orders against the father. He should have reasonably expected to pay the costs that will be ordered.
33The court finds that the father can afford to pay the costs that will be ordered. He has equity in his home to satisfy all costs orders.
34The court will order the father to pay the mother $15,000 for costs, inclusive of fees, disbursements and HST. This is in addition to the costs of $8,475 previously ordered.
35The father has not complied with previous payment orders for costs. To order monthly payments now would be pointless. The costs shall be due and payable forthwith.
Part Five – Enforcement by the Director
36The mother seeks an order that her costs of this matter, including the previous court orders, be payable as support and enforced as an incident of support by the Director pursuant to clause 1 (1) (g) of the Family Responsibility and Support Arrears Enforcement Act (the Act).
37The court has discretion to allocate what portion of the costs are attributable to support, particularly when there are multiple issues being litigated. See: Sordi v. Sordi 2011 ONCA 665.
38A flexible approach has been endorsed when the court is determining what proportion of costs should be allocated to the support issues. See: Shelley v. Shelley, 2019 ONSC 2830.
39The costs in question need not necessarily relate to the hearing and adjudication stages of a support claim for the costs to fall within the scope of clause 1 (1) ( g) of the Act. They may pertain to a case management step in which the issue of support was addressed. See: Meidell v. Meidell, 2013 ONSC 438 (S.C.J.); Arthur v. Arthur, 2019 ONSC 938; R.H. v. S.C., 2025 ONCJ 309.
40The court has the jurisdiction to make an order after costs have previously been awarded or consented to in family law proceedings that the costs be enforceable as support by the Director, the costs in question must still arise “in relation to the issue of support or maintenance”, as set out in 1(1) (g) of the Act. See: R.H. v. S.C., 2025 ONCJ 309.
41The costs claimed in this decision were mostly attributable to the support issues. The court will allocate 85% ($12,750) of these costs to them. The two prior costs orders totaling $8,475 were entirely attributable to support. The court will order that costs of $21,225 ($12,750 + $8,475) shall be payable as support and shall be enforced as an incident of support by the Director under clause 1 (1) (g) of the Act.
Part Six – Conclusion
42The court order is as follows:
a) The father shall pay costs to the mother of $15,000, inclusive of fees and disbursements.
b) The father shall pay these costs, and the previous costs orders of $1,800 and $6,675 forthwith.
c) Costs of $21,225 are payable as support and shall be enforced as an incident of support by the Director pursuant to clause 1 (1) (g) of the Family Responsibility and Support Arrears Enforcement Act.
Released: August 4, 2026
_____________________ Justice S.B. Sherr