Kale v. Santiago, 2026 ONCJ 65

ONTARIO COURT OF JUSTICE

DATE: February 9, 2026

COURT FILE NO. DR30892/19

B E T W E E N:

JAMILA KALE

ACTING IN PERSON

APPLICANT

• and – RAFAEL SANTIAGO

ACTING IN PERSON

RESPONDENT

HEARD: In Chambers

JUSTICE S.B. SHERR

COSTS ENDORSEMENT

Part One – Introduction

1On January 5, 2026, the court released its reasons for decision after a trial of the parties’ motions to change the decision-making responsibility terms regarding their two children contained in the court’s order, dated October 11, 2024 (the existing order).

2The court changed the existing order by granting the applicant (the mother) sole decision-making responsibility for the children. It ordered that the mother should first consult with the respondent (the father) prior to making any major non-emergency decision for the children. It also prohibited the father from contacting the children’s teachers, doctors or service providers without the prior written authorization of the mother.

3The mother was the successful party at trial. She seeks her costs of $11,577. The father submits that no costs should be ordered. In the alternative, he submits that costs should be fixed between $2,500 to $3,500 and he should be given time to pay them.

Part Two – Legal considerations

2.1 General legal considerations

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 awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill , 2018 ONCA 840 .

6An 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 .

2.2 Legal considerations for self-represented litigants

7Justice George Czutrin reviewed considerations for determining costs for self-represented litigants in Jordan v. Stewart , 2013 ONSC 5037 as follows:

a) A self-represented litigant does not have an automatic right to recover costs. The matter remains fully within the discretion of the trial judge. Moreover, self-represented litigants, be they legally trained or not, are not entitled to costs calculated on the same basis as those of the litigant who retains counsel. The self-represented litigant should not recover costs for the time and effort that any litigant would have to devote to the case. Costs should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer to conduct the litigation, and that as a result, they incurred an opportunity cost by foregoing remunerative activity.

b) Parties who litigate against a self-represented person should not be able to ignore the potential for costs. The court retains the discretion to fashion an award of costs that is fair and reasonable in the circumstances of the case before it.

c) It is near impossible to come up with an objective way of fixing an in-person party's hourly rate or the amount of time they spent, not at the court, doing what we might otherwise consider lawyer's work.

d) Ultimately, the overriding principle in fixing costs is "reasonableness".

e) Courts addressing costs should consider Bills of Costs certified by lawyers who have provided assistance, even if not on the record throughout the case.

8Justice Laura Fryer added the following considerations in Browne v. Cerasa , 2018 ONSC 2242 :

a) Determination of costs for self-represented litigants should take into account all of the objectives which costs orders should promote. Rules 18 and 24 apply. Otherwise, the resulting amount can render the entitlement to costs illusory; undermine access to justice by self-represented litigants; and frustrate the administration of justice.

b) If a self-represented litigant, in performing the tasks that would normally have been performed by a lawyer, lost the opportunity to earn income elsewhere, this may be a relevant factor. But costs for self-represented parties are not the same as damages for lost income. Remunerative loss is not a “condition precedent” to an award for costs.

c) To require proof of lost income would disqualify litigants who are homemakers, retirees, students, unemployed, unemployable and disabled; and deprive courts of a tool required re administration of justice.

d) Lost income may be one measure. But even if no income was lost, the self-represented party’s allocation of time spent working on the case may still represent value. The fact that a self-represented litigant is not a lawyer who charges a standard and commonly accepted hourly rate makes it more difficult – but not impossible – to assess their costs. However, the difficulty in valuing the time and effort of the lay litigant is not a good reason to decline to value it.

e) An applicable hourly rate should be taken into account when quantifying even a self-represented lay litigant’s costs. But the appropriate hourly rate, once determined, is only one of several factors to be considered.

f) In considering the hourly rate, the court should consider what the lay litigant’s reasonable expectations were as to the costs he or she would pay if unsuccessful.

g) As with counsel, the appropriate hourly rate may be affected by the level of indemnification or recovery deemed to be appropriate, given all of the rule 18 and 24 considerations.

9Several courts have fixed hourly rates for self-represented litigants in assessing costs. In Jahn-Cartwright v. Cartwright, 2010 ONSC 2263 , 2010 91 R.F.L. (6 th ) 301 (SCJ) an hourly rate of $200.00 was applied, which was approximately two-thirds of what the husband’s lawyer would have been entitled to claim. In Cassidy v. Cassidy, 2011 ONSC 791 , 2011 92 R.F.L. (6th) 120 (Ont. S.C.J.), an hourly rate of $150 was applied. In Agmon v. James , 2018 ONCJ 240 , Anyumbe v. Kebe , 2018 ONCJ 865 Ferlisi v. Boucher , 2021 ONCJ 101 , and in Sterling v. Whittingham , 2025 ONCJ 626 , this court used an hourly rate of $125 in assessing costs for a successful self-represented litigant. This amount was also applied by Justice Renu Mandhane in Ahluwalia v. Ahluwalia , 2022 ONSC 2169 . In Izyuk v. Bilousov , 2011 ONSC 7476 , the court fixed the self-represented party’s hourly rate at $100 per hour. This amount was followed in Browne v. Cerasa , 2018 ONSC 2242 .

2.3 Legal considerations for the amount of costs

2.3.1 Subrule 24 (14)

10Subrule 24 (14) reads as follows:

24 (12) 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.

2.3.2 Reasonableness

11Subrules 24 (7) and (8) read as follows:

Unreasonable behaviour by successful party

(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.

Same

(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.

12The 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 .

13The 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 .

14Conduct 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) .

15The failure to make an offer to settle can be unreasonable behaviour when there is an opportunity to compromise. See: Beaver v. Hill , 2018 ONCA 840 ; M.T. v. J.L.-T., 2018 ONCJ 922 .

16Being 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 .

2.3.3 Prior steps in a case

17Subrule 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.

18Subrule 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.

19Costs 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 . This can include time spent preparing and reviewing pleadings, meetings with clients, discussions with professionals and discussions with opposing counsel. See: Jansen v. DiCecco , 2025 ONCJ 256 .

20Courts are 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.

22Courts are far less likely to award costs for prior steps in the case when settlement was reached, and final orders were made. See: See Witherspoon v. Witherspoon , 2015 ONSC 6378 ; Talbot v. Talbot, 2016 ONSC 1351 ; Frape v. Mastrokalos , 2017 ONCJ 915 .

23In 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

2.3.4 Ability to pay costs and expectations of unsuccessful party

24The court should take into consideration the ability of a party to pay costs. See: MacDonald v. Magel (2003) , 67 O.R. (3d) 181 (Ont. C.A.). Difficult financial circumstances are a factor but are not always a reason to deprive a successful party of costs or to reduce the amount of costs. See: Beaulieu v. Diotte , 2020 ONSC 6787 . 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 .

25Those 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 .

26In 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 .

Part Three – Analysis

3.1 Should any costs be ordered for prior steps in the case?

27The mother seeks costs for all prior steps in the case.

28The parties resolved the parenting time, enforcement of parenting time and communication issues between them on a final basis on October 3, 2025. Neither party sought costs nor sought to reserve costs at that time. It is not appropriate for the mother to currently seek costs pertaining to those issues.

29The trial was limited to the issues of decision-making responsibility and incidents of decision-making responsibility. The costs ordered will be limited to the trial step and any costs related to the trial issues that are not attributable to prior steps in the case.

3.2 Unreasonable behaviour

30The parties acted reasonably in settling many issues and focusing the trial on issues related to decision-making responsibility.

31The father submits that the mother should not be awarded any costs for the decision-making responsibility issues because of her unreasonable behaviour. The court agrees that the mother’s costs should be reduced due to unreasonable behaviour. It set out her unreasonable behaviour in the reasons for decision as follows:

a) She did not keep the father updated about the children’s schooling earlier in 2025.

b) She did not facilitate the father’s virtual parenting time with the children earlier in 2025.

c) She did not comply with the court order for the father’s summer parenting time in 2025.

d) She did not cooperate with the completion of the Voice of the Child Report that was twice ordered by the court.

32Further, the mother did not make an offer to settle. While the joint vs. sole decision-making responsibility issue was binary, compromises could have been reached regarding the incidents of decision-making responsibility. For instance, the court ordered that the mother consult with the father prior to making any major decision for the children. The mother opposed this at trial. The failure to make an offer to settle was unreasonable behaviour.

33However, the court disagrees with the father that the mother should not receive any costs. The court set out in the reasons for decision unreasonable behaviour by the father as follows:

a) He unilaterally wrote to the children’s public school seeking religious accommodation for them without first telling the mother he was going to do this.

b) He sent emails to the children’s public school enclosing court documents without advising the mother he was going to do this.

c) He insisted on giving the children a debit card and cellphone. When the mother refused, he threatened her with court proceedings.

d) While he perceived his correspondence with the mother as respectful, it often was insistent, lecturing, critical of her and focused on his rights. Sometimes he gave her short deadlines for responses and threatened her with litigation if his demands were not met.

e) He over-litigated this case resulting in Justice Debra Paulseth making an order that no further Form 14B motions could be brought.

f) He inappropriately involved the children in adult matters.

g) His requests for the mother to undergo a mental health assessment, regular drug testing and to obtain criminal record checks for any romantic partners were overly intrusive, without justification, and indicative of a controlling personality.

34The father also did not make an offer to settle. This was unreasonable behaviour.

3.3 Should the mother receive costs for lawyers who assisted her in this case?

35The mother retained two lawyers during this case. The mother submitted she spent close to $7,700 on her first lawyer, who was counsel of record until the trial step. The mother did not provide a detailed bill of costs from this lawyer that broke down what work was done and when it was done. It appears that most of the lawyer’s work was done for prior steps in the case. The court has determined the mother will not receive costs for those steps. Some work was likely done by her first lawyer related to the decision-making responsibility issues that were not attributable to prior steps in the case, such as drafting the response to motion to change and meeting with the mother about these issues. The court will order a portion of costs for this lawyer’s work done on the case.

36The mother retained her second lawyer on a limited scope retainer. This lawyer did not attend the trial. The mother submitted a bill of costs from this lawyer for $821. The time was all attributable to the trial step. The amount of the bill is reasonable and proportionate. The mother will receive costs for this lawyer.

37The court will add 13% for HST attributable to the costs it awards for the mother’s two lawyers.

3.4 The mother’s costs as a self-represented litigant

38The mother claimed $2,700 costs for her own work on the trial step. She based this on 45 hours of work and a rate of $60 each hour.

39The father submits the time claimed by the mother is excessive. The court agrees. This was not a complex or difficult trial, although the father made unfounded allegations that increased the time required by the mother to rebut them.

40However, the court finds that the excessive time claimed by the mother is offset by the mother only claiming $60 each hour for her time spent on the case. As set out in section 2.2 above, this court usually compensates self-represented parties at $125 each hour. The court will do that here. The court finds that the total costs of $2,700 claimed by the mother for the trial step are reasonable and proportionate.

41The mother claimed $360 for disbursements. Most of the expenses she claimed were for parking and transportation costs. These are expenses she would have incurred if she was represented by counsel – she still had to come to court. She also claimed babysitting expenses. These expenses are not recoverable disbursements.

42The mother will be awarded her printing costs of $60. They are attributable to the litigation.

3.5 Other factors and the amount of costs

43This case was important to the parties.

44The mother wasn’t completely successful. The court required her to consult with the father before making major decisions for the children. She opposed this requirement at trial.

45The father can afford the costs that will be ordered, particularly if he is given a reasonable payment order.

46The father should have reasonably expected to pay the costs that will be ordered if he was unsuccessful.

47The court will order the father to pay the mother’s costs fixed in the amount of $4,200, inclusive of fees, disbursements and HST. The father will be permitted to pay the costs in instalments.

Part Four – Conclusion

48A final order shall go on the following terms:

a) The father shall pay the mother’s costs of $4,200, inclusive of fees, disbursements and HST.

b) The father may pay the costs at $300 each month, starting on March 1, 2026. However, if he is more than 30 days late making any payment, the entire amount of costs then owing shall immediately become due and payable.