Court of Appeal for Ontario

Date: 2025-06-20
Docket: C68822
Panel: Michael Tulloch C.J.O., Pardu J.A. [*], L.B. Roberts J.A.

Between:
Stephen Harold Hendriks
Applicant (Respondent)

and

Eleanor Dawn Hendriks
Respondent (Appellant)

Appearances:
Michael Ruhl and Ashley Timm, for the appellant
Michael Stangarone and Stephen Kirby, for the respondent

Heard: In writing

On appeal from the order of Justice Erika Chozik of the Superior Court of Justice, dated October 9, 2020.

Costs Endorsement

[1] The appellant succeeded on three of the five grounds she raised in her family law appeal. She submits that she was substantially successful and seeks a costs order of $15,000 all-inclusive for the appeal, $10,000 all-inclusive for the family law motion in the Superior Court, and a reversal of the motion judge’s order requiring her to pay $40,000 in costs to the respondent. The respondent submits that no costs should be awarded on appeal and that the motion judge’s costs award should not be disturbed.

Costs of the Appeal

[2] The starting point of the costs analysis is the presumption that a successful party is entitled to the costs of the appeal. See r. 24(3) of the Family Law Rules; Berta v. Berta, 2015 ONCA 918, 128 O.R. (3d) 730, at para. 94; Selznick v. Selznick, 2013 ONCA 35, at para. 4. If success is divided, then the court may apportion costs as appropriate. See r. 24(4) of the Family Law Rules. In this case, the appellant was the more successful party. She succeeded on most issues that she raised. We therefore order that the respondent pay costs to the appellant. See Van Delst v. Hronowsky, 2020 ONCA 402, 55 C.C.P.B. (2d) 288, at para. 2.

[3] As well, we reject the respondent’s argument that the appellant obtained an equally favourable or worse outcome on appeal than she would have by accepting his offers to settle. The respondent did not meet his burden to prove this. See r. 24(13) of the Family Law Rules; H.C. v. J.S., 2023 ONSC 4171, at para. 18. [2] While the respondent’s offers did propose increases to the appellant’s spousal and child support entitlements for a limited time, this court’s decision significantly increased and extended the appellant’s spousal support entitlements for a longer period, resulting in a greater award than the offers provided.

[4] We would accordingly award the appellant the sum that the parties agreed would go to the successful party, $15,000, inclusive of HST and disbursements, as the costs of the appeal.

Costs of the Motion to Vary

[5] Because the appellant was partially successful on appeal, we must reconsider the motion judge’s costs disposition. Leave to appeal is unnecessary because our decision changed the decision under appeal. See Climans v. Latner, 2020 ONCA 554, 152 O.R. (3d) 369, at paras. 83, 85.

[6] Our appeal decision rendered the appellant the more successful party on the motion because the former and the latter addressed the same issues. Thus, factoring in the effect of the appeal presumptively entitles the appellant to the costs of the motion. See Climans, at paras. 86-87, 108.

[7] As well, we disagree with the motion judge’s conclusion that the appellant acted unreasonably. The motion judge erred in principle by finding that the appellant’s claims were unsupported and that she would have been better off if she accepted the respondent’s offers to settle. Rather, most of those claims were ultimately successful and the respondent has not proved that his offers were superior to the outcome she obtained on appeal. While the motion judge also faulted the appellant for excessive filings, that factor alone does not establish unreasonableness in the circumstances of this case because the appellant, then a self-represented litigant, was simply struggling to navigate the litigation process.

[8] Accordingly, we would reverse the motion judge’s costs order against the appellant and award her $5,000, inclusive of HST and disbursements, as the costs of the motion. This sum compensates the appellant for the litigation tasks she performed and ensures that the respondent is not immunized from costs simply because he was litigating against a self-represented litigant. See Jahn-Cartwright v. Cartwright, 2010 ONSC 2263, 91 R.F.L. (6th) 301, at para. 84; Browne v. Cerasa, 2018 ONSC 2242, 7 R.F.L. (8th) 300, at para. 31.

Disposition

[9] The motion judge’s costs order is reversed, and the respondent shall pay to the appellant costs of the appeal and the motion in the amount $20,000, inclusive of disbursements and HST.

“M. Tulloch C.J.O.”
“L.B. Roberts J.A.”

[*] Pardu J.A. took no part in the decision.

[2] Subrule 18(15), which is referenced in the cited decision and earlier jurisprudence, is the predecessor to r. 24(13) following amendments to the Family Law Rules on January 22, 2025.