Aguilar v. Pesantez, 2026 ONCJ 460

ONTARIO COURT OF JUSTICE

CITATION: Aguilar v. Pesantez, 2026 ONCJ 460 DATE: August 4, 2026 COURT FILE No.: Toronto DFO-24-45604-00

BETWEEN:

ROGER AGUILAR Applicant

— AND —

NICOLE PESANTEZ Respondent

Before Justice Jennifer S. Daudlin Heard in Chambers on August 4, 2026. Costs of Motion argued on March 17, 2026

Paul Cooper, counsel for the applicant Jessica Santucci, counsel for the respondent

DAUDLIN J.:

Part One – Overview

1This decision addresses the costs of the father’s motion heard on March 17, 2026. The motion was dismissed for written reasons released on March 24, 2026.¹ The mother seeks costs in the amount of $11,063.26, inclusive of HST. In the alternative, she seeks costs in the amount of $8,850.61. The father asks that costs be reserved to the trial judge, or fixed at a significantly reduced amount and made payable in the cause.

2For the reasons that follow, the father shall pay costs to the mother fixed at $5,000, inclusive of fees, disbursements and HST.

Part Two – General Legal Principles

3Modern costs rules are designed to foster four fundamental purposes: to partially compensate successful litigants, to encourage settlement, to discourage and sanction inappropriate behaviour by litigants, and to ensure that cases are dealt with justly under the Family Law Rules.²

4Subrule 24(3) creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs.³ To determine whether a party has been successful, the court examines the positions taken in the litigation and the relief sought.⁴

5In fixing the amount of costs, the court must consider the factors set out in Rule 24(14), including the complexity and importance of the issues, the conduct of the parties, the time spent, any offers to settle, the legal fees claimed and any other relevant matter. Costs awards must be reasonable and proportionate.⁵

Part Three – The Successful Party

6There is no serious dispute that the mother was the successful party.

7The father sought an interim expansion of parenting time, additional overnight parenting time, changes to exchanges, changes respecting therapy involvement, holiday parenting provisions and related parenting terms. The mother opposed the relief and sought continuation of the existing parenting regime pending completion of the OCL investigation.

8The motion was dismissed in its entirety save for matters resolved on consent before the hearing.

9The father submits that there was divided success because the parties resolved March Break parenting time and certain parenting terms. The court does not agree for the following reasons:

(1) The March Break issue was resolved before the hearing and did not require adjudication nor intervention by the court.

(2) The non-disparagement and related provisions reflected terms that already existed in an earlier temporary order, remained in force, and were simply continued.

(3) The substantive contested issues before the court were determined in favour of the mother. The parenting schedule remained unchanged, and the father obtained none of the substantive parenting-time relief sought.

10Divided success does not equate with equal success. It requires a comparative analysis focused on the dominant issues before the court.⁶ Here, the dominant issues were resolved in favour of the mother.

11The mother is therefore the successful party and is presumptively entitled to costs. The remaining issue is quantum.

Part Four – The Father’s Position

12The father submits that costs should be reserved to the trial judge because the OCL process remains ongoing and a trial judge may be better positioned to assess the parties’ conduct in the future.

13The court rejects that submission.

14Rule 24 contemplates that costs are ordinarily determined at each step of a proceeding. Parties should have an ongoing awareness of the costs consequences of the litigation decisions they make. Reserving costs often complicates future proceedings and creates uncertainty regarding what occurred at an earlier stage.⁷

15This court heard the motion, reviewed the evidence, assessed the parties’ positions, and delivered detailed written reasons. It is in the best position to determine the costs arising from that step. There is no reason to defer the issue to a future judge.

16The father further submits that the motion was principally brought to reduce parental conflict and create a more collaborative parenting structure through increased reliance on neutral exchanges, and that a substantial costs award would discourage parents from bringing legitimate child-focused concerns before the court.

17Those submissions must be considered in light of the findings made in the motion decision.

18The father’s motion was largely premised on the assertion that parenting exchanges had become conflictual and that this conflict justified a change to the parenting schedule. The court rejected that position. The evidence did not establish that the exchanges themselves had become conflictual. The police incident relied upon by the father did not arise during a parenting exchange, but occurred after the child had already been returned to the mother’s care and arose from a dispute concerning the return of belongings.

19The evidence also established that the existing parenting regime already relied extensively upon neutral third-party exchange locations, including school, daycare, therapy, and extracurricular activities. Only one exchange every two weeks occurred directly between the parties, and the evidence did not establish that this exchange was routinely conflictual.

20Most significantly, the court found that the father’s proposed variation would not meaningfully address the concern he identified. Direct exchanges would continue under the proposed schedule. The relief sought therefore extended beyond reducing parental conflict and included a substantial expansion of parenting time.

21The father submits that a substantial costs award would discourage parents from bringing legitimate child-centred concerns before the court.

22The court does not find that the father acted in bad faith. Nor does it find that the motion was frivolous. The motion raised legitimate legal questions concerning whether the existing temporary without prejudice order had crystallized into a status quo and what legal framework governed the requested variation. The court devoted considerable analysis to those issues. The fact that the father was unsuccessful does not render the motion frivolous.

23At the same time, several of the factual foundations underlying the motion were not established. The alleged exchange conflict was not supported by the evidence. The relief sought would not have meaningfully addressed the concerns identified by the father. Most significantly, the motion proceeded notwithstanding the recent involvement of the OCL and before the child-specific information sought through that process became available. The court ultimately concluded that interim intervention was not warranted on the evidentiary record before it and that the matter should await the child-specific information to be obtained through the OCL process.

24Costs are not imposed as punishment for raising parenting issues, nor are they awarded because a parent seeks greater involvement in a child’s life. However, parties remain responsible for the positions they advance in litigation.⁸ Almost every parenting litigant believes that the position being advanced serves the best interests of the child. That belief does not immunize a litigant from the ordinary costs consequences of an unsuccessful motion. Costs remain an important mechanism for encouraging reasonable litigation decisions and the responsible use of court resources.

25The father was entitled to bring the motion. However, the fact that it was brought in good faith does not insulate him from the ordinary costs consequences of being unsuccessful.

Part Five – Quantum

26The mother seeks recovery of more than $11,000 arising from a single parenting motion. The court accepts that those fees were incurred. The issue is whether the amount sought is fair, reasonable, and proportionate having regard to the factors set out in Rule 24.

5.1 The Nature and Complexity of the Motion

27Although important, this was not an unusually complex motion.

28The motion involved an interim request to vary an existing parenting schedule. It did not involve expert evidence, cross-examinations, novel legal questions, complicated disclosure issues or extensive records. It was an important parenting dispute, but it remained a relatively straightforward interim motion.

29This factor weighs against the level of recovery sought by the mother.

5.2 Counsel’s Hourly Rate

30The mother’s bill of costs reflects an hourly rate of $525 for counsel, who had approximately six years of experience at the time of the motion.

31The court does not interfere with the agreement between counsel and client. Counsel is free to charge rates agreed upon with the client. However, the issue before the court is different. The task is to determine what amount should reasonably be recovered from the opposing party.

32As the Court of Appeal noted in Zesta Engineering Ltd. v. Cloutier⁹, costs awards should reflect what the court views as a fair and reasonable amount to be paid by the unsuccessful party rather than an exact measure of the successful party’s actual legal expenses. Similarly, in Thompson v. Thompson¹⁰, the court emphasized that it is not appropriate simply to multiply counsel’s hours by a particular hourly rate and award the resulting figure. The same principle is reflected in Boucher et al. v. Public Accountants Council for the Province of Ontario¹¹, Delellis v. Delellis and Delellis¹², Farjad-Tehrani v. Karimpour¹³, Arthur v. Arthur¹⁴ and Hackett v. Leung.¹⁵

33In assessing the reasonableness of the rates claimed, the court may also consider the fees charged by the lawyer for the party challenging the costs claim. As noted in Goryn v. Neisner¹⁶, the costs actually charged by opposing counsel may provide a useful point of comparison when evaluating whether the rates claimed are reasonable. In this case, however, the father did not provide a bill of costs, docket summary, account, or other evidence of the fees incurred on his behalf. The court is therefore unable to undertake that comparative analysis or use the father’s own legal fees as a benchmark.

34Counsel was approximately six years at the bar at the time of the motion. While years of call are not determinative, they remain a relevant consideration.

35The rate claimed is at the higher end of the range of rates frequently seen by the court in family law litigation and is more commonly associated with counsel having substantially greater experience.

36This was not a complex proceeding. It was a single parenting motion that did not involve expert evidence, cross-examinations, novel legal issues, extensive records, or unusually complicated factual disputes. While important to the parties, it did not involve issues of a complexity that would justify recovery at the rate claimed.

5.3 Law Clerk Fees

37The mother also seeks recovery for law clerk time charged at $285 per hour.

38The court accepts that properly delegated law clerk work may be recoverable. However, the rates claimed, once again, raise concerns.

39The court recognizes that the passage of time, inflation, and changes in the legal marketplace necessarily affect hourly rates. However, the authorities continue to provide useful guidance regarding the reasonableness of law clerk fees for costs purposes. In C.R. v. L.A.¹⁷, a law clerk rate of $165 per hour was described as very high. In Duntin v. Beckles¹⁸, Justice Sherr concluded that a paralegal rate of $225 per hour was excessive. In Chan v. Town¹⁹, the court described $100 per hour as a more realistic law clerk rate. Significantly, in Ahluwalia v. Ahluwalia²⁰, the court observed that $125 per hour was the going rate for a senior law clerk. While those authorities must be viewed in light of inflation and the passage of time, they do not support recovery at the rate of $285 per hour claimed in this case. The court is not persuaded that inflation, market changes, or the nature of the services provided adequately explain recovery at more than double the rate described in Ahluwalia.

40The court also notes that portions of the law clerk time relate to filing, uploading materials, preparing affidavits of service and preparing the bill of costs. While some of this work may appropriately form part of a costs claim, it does not justify shifting recovery to the father at a rate of $285 per hour.

5.4 Proportionality and Fairness

41The court’s task is to determine what amount is fair, reasonable, and proportionate for the father to be required to reimburse.

42As discussed above, costs are not determined by a simple multiplication of hours and rates, nor by the amount actually charged to the successful party. Rather, the court must fix an amount that is fair and reasonable in all of the circumstances and that reflects what the unsuccessful party could reasonably have expected to pay.

43The mother seeks recovery exceeding $11,000 arising from a single parenting motion that occupied approximately one-half day of court time. The court accepts that those fees were incurred. However, actual legal expenses are not determinative.

44Having regard to the mother’s complete success on the issues determined by the motion, the relatively straightforward nature of the motion, the rates claimed by counsel and the law clerks, and the principles of reasonableness and proportionality, the court concludes that the amount sought exceeds what is fair and reasonable in the circumstances.

45Even accepting the hours claimed by counsel and the law clerks, a substantial reduction would remain necessary having regard to the rates claimed and the requirement that costs remain fair and proportionate to the nature of the motion.

46Viewed globally, and having regard to all of the factors discussed above, a costs award of $5,000 inclusive of fees, disbursements and HST appropriately compensates the mother for the costs reasonably incurred in responding to the motion. Even accepting the hours claimed by counsel and the law clerks, both the primary and alternative amounts sought exceed what is fair, reasonable, and proportionate in the circumstances.

Part Six – Ability to Pay

47The father submits that he is training for a new career and attempting to improve his financial circumstances.

48Ability to pay is a relevant consideration.²¹ However, difficult financial circumstances do not automatically deprive a successful party of costs.²² Nor does impecuniosity provide unrestricted access to litigation without costs consequences.²³

49The court has considered the father’s financial circumstances. They do not justify any further reduction in the amount awarded. However, they are relevant to the terms of payment.²⁴

50The father shall have 90 days to satisfy the costs award.

Part Seven – FRO Enforcement

51The mother seeks an order that the costs award be enforceable through the Family Responsibility Office.

52Costs may be characterized as support where they arise from, or are properly attributable to, the determination, recovery, or enforcement of support obligations.²⁵

53This was a parenting motion. No child support relief was sought or determined. The costs incurred arose from the mother’s response to the father’s attempt to vary parenting arrangements. The record does not support characterizing any portion of this costs award as support. Accordingly, the award is enforceable as an ordinary costs judgment.

Part Eight – Orders

54Having regard to all of the relevant factors, the following orders shall issue:

(1) Costs are fixed at $5,000 inclusive of fees, disbursements and HST.

(2) The father shall pay costs to the mother in the amount of $5,000 within 90 days.

Footnotes

1. 1Aguilar v. Pesantez, 2026 ONCJ 165.
2. 2Mattina v. Mattina, 2018 ONCA 867.
3. 3Sims-Howarth v. Bilcliffe 2000 CanLII 22584 (ON SC), [2000] O.J. No. 330 (SCJ-Family Court).
4. 4Lazare v. Heitner, 2018 ONSC 4861; Kyriacou v. Zikos, 2022 ONSC 401.
5. 5Beaver v. Hill, 2018 ONCA 840.
6. 6Jackson v. Mayerle, 2016 ONSC 1556.
7. 7Laidman v. Pasalic and Laidman, 2020 ONSC 7068.
8. 8Heuss v. Surkos, 2004 ONCJ 141.
9. 9(2002), 2002 CanLII 25577 (ON CA), 21 C.C.E.L. (3d) 161 (Ont. C.A.).
10. 10(2006), 2005 CanLII 42266 (ON SC), 22 R.F.L. (6th) 54 (Ont. S.C.J.).
11. 112004 CanLII 14579 (ON C.A.), (2004) 71 O.R. (3d) 291.
12. 122005 CanLII 36447 (ON SC), [2005] O.J. No. 4345.
13. 132009 CarswellOnt 2186 (S.C.J.) at para. 32, aff’d 2010 ONCA 326, 2010 O.N.C.A. 326 at para. 4.
14. 142019 ONSC 938.
15. 152005 CanLII 42254 (ON SC), [2005] O.J. No. 4888 (Ont. S.C.J.).
16. 162015 CarswellOnt 8562 (Ont. C.J.)
17. 172015 ONCJ 152.
18. 18[2017] O.J. No. 668 (O.C.J.).
19. 192014 ONSC 2217.
20. 202022 ONSC 2169.
21. 21See: MacDonald v. Magel (2003), 2003 CanLII 18880 (ON CA), 67 O.R. (3d) 181 (Ont. C.A.); Fyfe v. Jouppien, 2012 ONSC 97.
22. 22Beaulieu v. Diotte, 2020 ONSC 6787.
23. 23G.W.S. v. C.S., 2018 ONCJ 378.
24. 24M.A.B. v. M.G.C., 2023 ONSC 3748.
25. 25Shelley v. Shelley, 2019 ONSC 2830; Blackwood v. Nichols, 2022 ONCJ 357.