COURT FILE NO. D46905/25
ONTARIO COURT OF JUSTICE
B E T W E E N:
SOCRATES LORENZO CUEVAS
ACTING IN PERSON
APPLICANT
- and -
DIANA MARQUES
ERMALINDA M. NOGUEIRA, acting for the RESPONDENT
RESPONDENT
HEARD: AUGUST 6, 2026
JUSTICE S.B. SHERR
COSTS ENDORSEMENT
Part One – Introduction
[1] On August 6, 2026, the court gave oral reasons for decision after the completion of the respondent’s (the mother’s) motion for temporary parenting and support orders for the parties’ two children (the children).
[2] The mother was the successful party on the motion. The parties made oral costs submissions. This is the court’s decision on that issue.
[3] The mother seeks costs of $12,500, in addition to a prior costs order of $1,500 that the court made against the father when he sought and obtained a late adjournment of the motion. The father asks that no costs be ordered.
Part Two – Brief background
[4] The parties are both 44 years old. They cohabited from March 2020 until May 2024. They have two children, ages 4 and 5. The children have lived with the mother since the parties separated.
[5] The father issued an application for parenting and support orders on December 2, 2025. The mother filed her answer/claim on February 20, 2026.
[6] A case conference was held on March 25, 2026. A motion date and filing timelines were set.
[7] The mother brought her motion returnable on June 5, 2026. The father filed no material and sought an adjournment at the hearing. The mother contested the adjournment. An adjournment was granted, on terms. The mother was given temporary primary residence and decision-making responsibility for the children. An order was made for supervised parenting time for the father. He was ordered to pay temporary child support to the mother based on an imputed annual income to him of $75,000. He was also ordered to pay the mother’s costs thrown away of $1,500.
[8] The motion was adjourned until June 19, 2026. The father was given until June 15, 2026 to serve and file his motion material. He did not meet this timeline.
[9] On June 19, 2026, the parties settled the issue of the father’s temporary parenting time. The father sought another adjournment to file his motion material to address the remaining issues. The mother opposed this request. The father was given one more adjournment. The court endorsed that the mother was presumptively entitled to the costs of the adjournment to be determined on the return date.
[10] The father filed his motion material and the motion was completed on August 6, 2026. The court ordered that the mother have temporary primary residence and decision-making responsibility for the children. It also ordered that the father pay the mother child support of $1,296 each month, starting on February 1, 2026, based on an imputed annual income to him of $85,000. Lastly, it ordered him to provide the mother with all disclosure previously ordered within 30 days and gave the mother leave to bring a motion to strike his application if he failed to do so.
[11] The father has not paid any of the costs ordered. He has only partially paid the child support ordered.
Part Three – General costs principles
[12] The 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).
[13] Costs 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.
[14] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.
[15] An 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 Four – Did the mother’s offer to settle attract the costs consequences set out in subrule 24 (12)?
[16] Subrule 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.
[17] The 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.
[18] Subrule 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).
[19] The 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.
[20] Close 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.
21The technical requirements of subrules 18 (4) and 24 (12) must be met to attract the costs consequences set out 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.
[22] The 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.
[23] The mother made a severable offer to settle dated April 7, 2026. It was a reasonable offer to settle the issues. However, the offer contained a provision that the father had to pay the mother her full recovery costs if he accepted the offer after 2 p.m. on April 10, 2026. That term was not severable.
[24] The case law has set out that an offer to settle substantive terms which also includes a predetermination of costs perverts the subrule 24 (12) analysis, because the party ends up trying to claim credit for accurately predicting a costs determination a judge has not yet made. Subrule 24 (12) contemplates full recovery for costs where all of the terms of an offer have been obtained in the trial judgment. An offer which includes costs obligations not yet determined by the court, cannot satisfy the strict requirements of this section. See: Chomos v. Hamilton, 2016 ONSC 6232; Hall v. Hall, 2019 ONSC 4198; Akhter v. Ul Haq, 2024 ONCJ 17; Da Silva v. Quevedo, 2025 ONSC 2012.
[25] The court finds that the mother’s offer to settle was not as good as or better than the final result because it pre-determined that the father was to pay her full recovery costs.
[26] The court considered that the mother’s offer provided that no costs were payable if the father accepted the offer by 2 p.m. on April 10, 2026. This did not help her. Paragraph 3 of subrule 24 (12) requires that the offer must still be alive when the motion starts for the costs consequences in the subrule to apply. The “no costs” term in the mother’s offer had expired long before the motion was heard, replaced by the provision for full recovery costs.
[27] Further, the father was given a very short time to accept the mother’s offer for no costs. This court has indicated in the past that it is unlikely that it will apply the costs consequences set out in subrule 24 (12) if a self-represented litigant is given a short time to process and accept the offer. See: Abrahiumkhill v. Khaled, 2022 ONCJ 324; Maggio v. Souza, 2025 ONCJ 182; Shirley v. Wellington, 2024 ONCJ 128.
[28] The court considered the mother’s offer under subparagraph (iii) of clause 24 (14) (a) of the rules in determining the extent of the mother’s success and the amount of costs. See: Gjorsovski v. Krajisnik, 2026 ONSC 2202; Lynch v. Lewis, 2024 ONCJ 276.
Part Five – Success
[29] Subrule 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).
[30] To 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.
[31] Subrule 24 (4) sets out that if success in a step in a case is divided, the court may apportion costs as appropriate.
[32] The mother was the successful party on the motion. The father sought joint decision-making responsibility for the children. The court ordered that the mother have primary residence and decision-making responsibility for them. The father agreed to less parenting time than what the mother proposed. The mother sought to impute the father’s annual income at $90,000 for the support analysis. The father claimed his income should be set at $54,300. The court imputed his annual income at $85,000 and started temporary support on February 1, 2026.
[33] The father did not rebut the presumption that the mother is entitled to her costs.
Part Six – Analysis of the amount of costs
[34] Subrule 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.
[35] This case was important to the parties. It was not complex. The father made the case much more difficult than it needed to be. The motion was adjourned twice because he did not file his responding materials. He provided only a small portion of the financial disclosure ordered.
[36] 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. 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.
[37] 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.
[38] Conduct which unduly complicates or unduly lengthens and increases the cost of a proceeding constitutes unreasonable conduct under subrule 24 (7). See: Goldstein v. Walsh, 2019 ONSC 3174 (SCJ); Hutchinson v. Peever, 2021 ONSC 4587 (SCJ); Jackson v. Mayerle, 2016 ONSC 1556 (SCJ).
[39] The 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.
[40] In 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., 2023 ONSC 3748.
[41] The mother acted reasonably throughout this motion.
[42] The father has acted unreasonably. He did not meet filing timelines, only provided partial disclosure ordered, has not paid anything towards the prior costs order of $1,500, and has only partially complied with the temporary support order. He maintained a position that he should be granted joint decision-making responsibility for the children that had no realistic chance of success.
[43] The rates of $400 per hour claimed by the mother’s counsel are very reasonable for a 1988 call to the bar.
[44] The court reviewed the mother’s bill of costs. Her full recovery costs were $18,125. Some of the time claimed by her was covered by the court’s June 5, 2026 costs order. The balance of the time claimed was on the high side for a straight forward parenting and child support motion.
[45] The 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.
[46] The father has the ability to pay the costs being ordered if he is given a reasonable time to pay them. The mother proposed that costs be paid in 3 equal instalments by the end of 2026. The father proposed paying any costs ordered at $300 each month. The court will permit the father to pay the costs at $500 each month, starting on September 1, 2026. However, he will be required to keep these payments and his child support payments in good standing. Otherwise, he will have to immediately pay the balance of costs then owing.
[47] In 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.
[48] The court ordered costs of $1,500 against the father on June 5, 2026, and on June 19, 2026, ordered that the mother was presumptively entitled to her costs of that appearance. The parties were also cautioned throughout this process that the unsuccessful party would be facing a significant costs award. The father should have reasonably expected to pay the costs being ordered.
[49] In summary, the court considered the mother’s success on the motion, the importance, complexity and difficulty of the motion, the mother’s offer to settle, the father’s unreasonable conduct, the rates and time claimed by the mother, the father’s ability to pay the costs and his reasonable expectations of the costs award, in deciding the amount of costs.
[50] The court will order the father to pay the mother $10,000 for costs, inclusive of fees, disbursements and HST. This is in addition to the costs of $1,500 previously ordered.
Part Seven – Conclusion
[51] The court order is as follows:
a) The father shall pay costs to the mother of $10,000, inclusive of fees and disbursements. This is in addition to the costs of $1,500 ordered against the father on June 5, 2026.
b) The father shall pay these costs at $500 each month, starting on September 1, 2026. However, if he is more than 30 days late, after September 1, 2026, in paying any costs or support payments, the entire amount of arrears then owing shall immediately become due and payable.
Released: August 7, 2026
_____________________ Justice S.B. Sherr