Magalhães de Araújo v. Torres, 2025 ONCJ 164

DATE: March 26, 2025
COURT FILE NO.: D45772/25
ONTARIO COURT OF JUSTICE

B E T W E E N:

Lidia Mónica Magalhães de Araújo
Glenda Perry, for the APPLICANT
APPLICANT

– and –

Michael Filipe Carvalho Torres
Pritinder Nanda, for the RESPONDENT
RESPONDENT

HEARD: March 24, 2025
JUSTICE: Stanley B. Sherr

COSTS ENDORSEMENT

Part One – Introduction

[1] On March 24, 2025, for oral reasons given, the court granted the respondent’s (the father’s) oral motion to extend the time for him to file an Answer/Claim regarding the parenting and child support issues related to the parties’ 5-year-old child (the child).

[2] The mother had served and filed a Form 23C affidavit for an uncontested hearing. She sought her costs of $10,000 thrown away because the hearing did not proceed. The father asked that no costs be ordered.

Part Two – General costs principles

[3] The costs provisions in the Family Law Rules (all references to the rules in this decision are to the Family Law Rules) were amended on January 22, 2025. The court will apply those amendments in this decision.

[4] 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).

[5] 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, para 25.

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

Part Three – Brief background

[7] The parties married in 2017. They physically separated in September 2024. The father moved that month to Portugal. The child remained with the mother in Toronto.

[8] On December 21, 2024, the mother traveled with the child to Portugal to visit her family. She arranged parenting time for the father in Portugal. She planned to return with the child to Canada on January 5, 2025.

[9] On January 4, 2025, the father refused to return the child to the mother after a visit.

[10] The mother issued this application on January 13, 2025. On the same day, on a without notice motion, this court made temporary without prejudice orders, including finding Ontario to be the child’s habitual residence, ordering the immediate return of the child to the mother in Ontario, and granting the mother temporary decision-making responsibility for the child.

[11] The mother served the father with the application materials and the court order on January 16, 2025. The father had 60 days to serve and file an Answer/Claim as he resided outside of Canada and the United States.

[12] The mother’s motion returned before Justice Carolyn Jones on January 27, 2025. The father did not attend court. Justice Jones continued the terms of the January 13, 2025 order, with prejudice.

[13] The mother deposed that the father resisted enforcement of the Ontario orders.

[14] On January 30, 2025, after a hearing at the Judicial Court of the District of Porta, Portugal, that court ordered that the child be returned to Canada.

[15] The mother and the child returned to Canada on January 31, 2025.

[16] The next court appearance in this matter was on February 12, 2025. Again, the father did not attend. The case was adjourned until March 24, 2025, as the time limit had not expired for him to serve and file his Answer/Claim.

[17] The father did not serve and file an Answer/Claim by March 17, 2025, being the 60-day deadline. He did not contact the mother before that date, either personally or through counsel, to seek a filing extension.

[18] The mother served and filed a Form 23C affidavit for an uncontested hearing.

[19] The father’s counsel contacted the mother’s counsel on the weekend of March 22-23, 2025, informing her that he had been retained. He sought a filing extension and an adjournment of the March 24, 2025 court attendance. The mother did not consent to this.

[20] On Monday March 24, 2025, the father’s counsel advised the court that he had just been retained by the father on the weekend.

[21] After submissions, the court granted the father an extension, until April 24, 2025, to serve and file his Answer/Claim, Form 35.1 parenting affidavit, financial statement and disclosure required by the Automatic Order. It also adjourned the matter for a case conference. However, the court granted the request on terms, including terms that the father pay the mother temporary child support of $723 each month, starting on January 1, 2025, based on an imputed annual income to him of $77,595,[1] and it would hear costs submissions.

Part Four – Costs thrown away

4.1 Legal considerations

[22] Subrule 24(1) states:

(1) Promptly after dealing with a step in a case, the court shall, in a summary manner,
(a) determine who, if anyone, is entitled to costs in relation to that step and set the amount of any costs; or
(b) expressly reserve the decision on costs for determination at a later step in the case.

[23] 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.

[24] In Caldwell v. Caldwell, 2023 ONSC 7715, the court reviewed the law regarding costs thrown away when a trial is adjourned, at paragraphs 8 and 11 to 13 as follows:

8 The phrase “costs thrown away” refers to a party’s costs for trial preparation which have been wasted and will have to be re-done as a result of the adjournment of the trial: Pittiglio v. Pittiglio, 2015 ONSC 3603, para 7; Middleton v. Jaggee Transport Ltd., 2014 ONSC 3041, para 5.

11 Costs thrown away are generally payable on a full recovery basis: Pittiglio, at para. 5; Milone v. Delorme, 2010 ONSC 4162, para 12; Straume v. Battarbee Estate, 2001 CarswellOnt 6225, at paras. 2-3; Middleton, at para. 5. This is because the purpose of such an award of costs is to “indemnify a party for the wasted time for trial preparation arising from the adjournment”: Pittiglio, at para. 6; Legacy Leather International Inc. v. Ward, para 9. Such an award is not to punish the party seeking the adjournment, but to indemnify the other party for the wasted time for trial preparation arising from the adjournment: Incandescent Revolution Manufacturing Co. v. Gerling Global General Insurance Co., para 12; Pittiglio, at para. 6, citing Kalkanis v. Kalkanis, 2014 ONSC 205, para 3.

12 The court must determine what costs have actually been wasted. This is not an easy task: some witnesses will require little further preparation while some will require much: Straume, at para. 4. It has been described as an “intuitive”, rather than a scientific, process: Pittiglio, at para. 17.

13 An award of costs thrown away can be revisited at the end of the trial to determine if further costs should be awarded: Straume, at para. 37; Middleton, at para. 23; Laudon v. Roberts & Sullivan, para 20.

[25] In Pryce v. Pryce, 2019 ONSC 3441, in a highly contested parenting case involving a request to adjourn a six-day trial scheduled to start that day, the court observed that while “much of the preparation will need to be redone in advance of the trial…” there were “tasks that will not be completely wasted, such as preparation of the opening statement, questions for witnesses and draft order.” The costs claimed were reduced from $7,585.71 to $6,102, both amounts inclusive of disbursements and HST.

[26] The above cases relate to costs thrown away arising from the adjournment of contested trials. The principles in these cases should also apply, with any necessary modifications, to costs thrown away when a party prepares for an uncontested trial that does not proceed at the request of the other party.

[27] 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.

4.2 Analysis and order

[28] The court finds that the mother is entitled to her costs thrown away for the following reasons:

a) The father was in default.
b) The father did not attend the court appearances on January 27, 2025, and February 12, 2025, without any explanation.
c) The father gave the mother no indication that he intended to participate in this proceeding. He did not attend court on three appearances, including this appearance, where only his counsel appeared. He resisted enforcement of the Ontario court orders. He did not contact her before the March 17, 2025 filing deadline.
d) The mother reasonably prepared materials for an uncontested hearing once the father missed the filing deadline. The court had told her, when the father did not attend court on February 12, 2025, that she should be prepared to proceed on the next court date if he was in default.
e) The mother’s counsel was first contacted by the father’s counsel on the weekend before the return date of March 24, 2025.
f) The father acted unreasonably by withholding the child in Portugal and by resisting enforcement of the Ontario court orders to return the child to the mother in Canada.

[29] The mother has acted reasonably.

[30] The issues are important to the parties.

[31] The hourly rate of $525 for the mother’s counsel is reasonable for a 1992 call to the bar.

[32] The costs claimed by the mother are only for her preparation for and attendance at the March 24, 2025 court date. The costs she incurred prior to March 12, 2025 (the start date of the mother’s bill of costs) are still a live issue.

[33] The court reviewed the mother’s bill of costs. It is high for the work required to prepare an affidavit, in these circumstances, for an uncontested hearing. Further, the mother claimed a block fee of $2,500 for the March 24, 2025 court attendance. The appearance was heard in under an hour. The amount she claimed for the attendance is not proportionate.

[34] The court also considered that the time spent by the mother for the preparation of her trial affidavit will not be completely wasted. She will be able to use much of the thorough narrative in her Form 23C affidavit in any future affidavit in this matter.

[35] The father can afford to pay the costs that will be ordered.

[36] The father should have reasonably expected to pay the costs that will be ordered.

[37] The court orders as follows:

a) The father shall pay the mother’s costs fixed in the amount of $4,500, inclusive of fees, disbursements and HST.
b) The costs are due and payable by April 7, 2025.

Released: March 26, 2025

Justice Stanley B. Sherr

[1] The father’s counsel asked the court to assess the father’s annual income at minimum wage for support purposes. As of April 1, 2025, a full-time annual minimum wage income will be $36,920.