Costs Endorsement
Part One – Introduction
DATE: February 26, 2025
COURT FILE NO. D43335/22
ONTARIO COURT OF JUSTICE
B E T W E E N:
A.S.A.
Theodora J. Oprea and Stephanie Okola, for the APPLICANT
APPLICANT
- and –
T.I.
Omer S. Chaudry, for the RESPONDENT
RESPONDENT
HEARD: IN CHAMBERS
JUSTICE S.B. SHERR
[1] On January 28, 2025, the court released its reasons for decision following a 5-day trial regarding parenting and support issues for the parties’ 8-year-old daughter (the child). The dominant issue at trial was whether the applicant (the mother) could relocate with the child to Wisconsin, in the United States. See: A.S.A. v. T.I., 2025 ONCJ 51.
[2] The court ordered:[1]
a) The child shall have her primary residence with the mother.
b) The mother shall have decision-making responsibility for the child. She shall consult with the father before making any major decision.
c) The mother may relocate with the child to Wisconsin at the end of the present school term.
d) The mother may obtain or renew government documentation for the child without the father’s consent.
e) The father shall have decision-making authority over the child’s health care and extra-curricular activities when the child has parenting time with him in Canada.
f) Until the child relocates to Wisconsin, the child shall have parenting time with the father during the entire March Break and on two out of every three weekends.
g) Once the child relocates to Wisconsin, the child will have extended blocks of parenting time with the father including Winter Break, March Break and six weeks during the summer. The father may also exercise parenting time in Wisconsin up to twice each month.
h) Terms of communication and contact.
i) The father to pay child support to the mother of $824 each month, based on his annual imputed income of $88,000, retroactive to August 1, 2022.
[3] The parties made written costs submissions. The mother seeks costs of $65,000. The father agrees that the mother was the partially successful party at trial. He submits that the costs awarded to her should be limited to $10,000, or nothing at all, considering his financial constraints, his commitment to providing for the child and the travel costs he will need to incur.
Part Two – General costs principles
[4] 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.
[5] 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).
[6] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.
[7] 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 Three – Did the mother make an offer to settle that attracts the costs consequences set out in subrule 24(12)?
[8] 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.
[9] The mother made four offers to settle. The father made two offers to settle.
[10] The mother submitted that her offers to settle dated July 10, 2024, August 13, 2024 and October 31, 2024 all complied with the preconditions set out in subrule 18(14) (now subrule 24(12)), as they were served on the father at least 7 days before the trial and did not expire until one minute after the trial.
[11] 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 now 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.
[12] The technical requirements of subrules 18(4) and 24(12) must be met to attract the costs consequences in subrule 18(14). See: Sader v. Kekki, 2014 ONCJ 41; Jakubowski v. Kopacz-Jakubowski, [2008] O.J. No. 1442 (SCJ); Weber v. Weber, 2020 ONSC 6855; Ajiboye v. Ajiboye, 2019 ONCJ 894; Obitulata-Ugwu v. Ugwu, 2024 ONCJ 655.
[13] 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 (14) is required. See: Mussa v. Iman, 2021 ONCJ 92.
[14] Here, the mother’s first three offers to settle did not meet the technical requirements of subrule 24(12). This is because in the mother’s offer to settle dated January 16, 2025, she withdrew all previous offers. Paragraph 3 of subrule 24(12) states that for the costs consequences to apply to an offer to settle, the offer cannot be withdrawn before the hearing starts.
[15] The mother’s offer to settle dated January 16, 2025 also did not meet the technical requirements of subrule 24(12). It was not served at least 7 days before the trial as required by paragraph 2 of subrule 24(12).
[16] Similarly, the father’s two offers to settle did not meet the technical requirements of subrule 24(12). His offer to settle dated January 16, 2025 was not made at least 7 days before the trial. In that offer, he withdrew his offer to settle dated October 29, 2024. He also did not obtain a court order that was as good as or better than either offer to settle.
[17] The court may take into account any written offer to settle, the date it was made and its terms when assessing the reasonableness of a party under sub-clause (iii) of subrule 24(14)(a), even if subrule 24(12) does not apply. The court has done this.
Part Four – Success
[18] Subrule 24(3) sets out a presumption that the successful party is entitled to costs.
[19] Overall, the mother was the successful party at trial as:
a) She was permitted to relocate with the child to Wisconsin.
b) The child’s primary residence will be with her.
c) She has decision-making responsibility for the child, except for major decisions about medical care and extra-curricular activities when the child is having parenting time with the father in Canada. The father unsuccessfully sought an order for joint decision-making responsibility or parallel parenting for the child.
d) She is able to obtain or renew government documentation for the child without the father’s consent.
e) The father may only travel with the child to a country that is a signatory to the Hague Convention.
f) The court ordered most of the parenting time terms she sought. However, the court granted the father some additional parenting time, including the complete March Break and Winter Break and six weeks in the summer, instead of the five weeks sought by the mother. The court also ordered that until the child relocates to Wisconsin, the father shall have parenting time on two out of every three weekends, instead of the alternate weekends proposed by the mother. The father unsuccessfully sought an equal parenting time schedule at trial.
g) The parties agreed, in closing submissions, that the father would pay child support, up until the trial, of $824 each month, starting on August 1, 2022, based on an annual income of $88,000. The court, not on consent, also ordered this amount on an ongoing basis. The father unsuccessfully asked the court to reduce his annual income to $60,000, for the purpose of calculating ongoing child support. He also unsuccessfully asked the court to apply a shared parenting analysis of child support pursuant to section 9 of the Child Support Guidelines.
[20] The father did not rebut the presumption that the mother is entitled to her costs.
Part Five – Analysis
5.1 Reasonableness
[21] 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, any legal fees, including the number of lawyers and their rates,
(iv) any expert witness fees, including the number of experts and their rates,
(v) any other expenses properly paid or payable; and
(b) any other relevant matter.
[22] This case was important to the parties. It was not complex. It had some difficult issues and some difficult fact finding that was required.
[23] The mother acted reasonably. She tried very hard to resolve the case. She made four reasonable offers to settle. She offered to waive child support if the father permitted the relocation. She offered him generous parenting time.
[24] The mother litigated in a reasonable manner. She followed court orders and timelines and litigated proportionally.
[25] The father also acted reasonably. He made two offers to settle the case. He also litigated in a reasonable manner. He followed court orders and timelines and litigated proportionally.
[26] Being 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.
[27] Relocation cases are challenging for everyone involved. By their very nature, an approved move will usually compromise a parent’s relationship with his or her child. For this reason, such cases are difficult to resolve and often need to be decided by the court. It is understandable for parents to contest such requests. See: Kawamata v. Phan, 2015 ONCJ 96; Bridgeman v. Balfour, 2009 CarswellOnt 7214 (Ont. S.C.J.); Kazberov v. Kotlyachkova, 2020 ONSC 884; N.S. v. R.M., 2019 ONSC 5386.
5.2 Prior steps in the case
5.2.1 Legal considerations
[28] The mother claimed costs for prior steps in the case. The father submitted these costs should not be awarded as they were not ordered or reserved at the time by the case management judge.
[29] Subrule 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.
[30] Subrule 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.
[31] Courts continue to be 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.
[32] In 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.
[33] In 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.
[34] Costs 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.
5.2.2 Analysis
[35] The mother claimed costs for prior steps in the case, including case conferences, the settlement conference and the trial management conference. She did not claim costs arising from a motion where she was awarded costs of $3,500 on August 17, 2023.
[36] The case management judge did not order or reserve costs at any of these conferences.
[37] The court finds that the case management judge was better situated than the trial judge to determine costs for the case conferences and the settlement conference. The court also finds there are no exceptional circumstances that dictate ordering costs for those steps in the case.
[38] The costs of trial management conference are different. This is part of the trial process. It is rare that costs are ordered at those attendances, although it is a best practise for counsel to ask for costs to be reserved. The court finds that the trial court in this case is better situated to determine the costs of the trial management step.
[39] The mother is also entitled to costs not associated with any step in the case. This includes:
a) Preparing and amending pleadings and Form 35.1 parenting affidavits.
b) Preparing financial statements.
c) Reviewing the father’s responding pleadings and Form 35.1 parenting affidavits.
d) Obtaining and reviewing the father’s financial statement and financial disclosure.
e) Obtaining and organizing relevant documents.
f) Dealings with the Office of the Children’s Lawyer, including preparing intake forms and the disclosure meeting.
g) Settlement discussions and preparing offers to settle.
5.3 Second counsel
[40] The mother has claimed an additional 46 hours for a second counsel who acted on her behalf, and who attended at court throughout the trial. The father submits this is unreasonable and should be significantly discounted.
[41] In Diamond v. Berman, 2020 ONSC 4301, Justice Heather McGee suggested a legal principle whereby multiple counsel cannot be claimed in costs against another party:
As a general principle, I am of the view that the costs of multiple counsel cannot be recovered in costs. The recovery of fees for multiple counsel does not create an exception to the ordering of costs in an amount that would have been reasonably expected to have been paid by the unsuccessful party. One cannot shift to the other party the financial consequences of engaging multiple counsels any more than the consequences of engaging counsel with a higher hourly rate than is reasonable in the circumstances. To allow otherwise would be to permit litigants to financially intimidate their opponent and to potentially discourage meritorious claims.
[42] In Fearon v. Fearon, 2021 ONSC 2305, Justice Trimble wrote as follows:
A client is entitled to have as many lawyers work on a file as that client wishes to pay for. Whether the opposing party shall be forced to pay for the cost of more than one lawyer on a party and party assessment is a different question. An award of costs in this context is no reflection on the economic relationship between lawyers and their counsel. Rather, the determination is whether it is fair and reasonable that the paying party should pay for more than one counsel in all the circumstances.
[43] In M.P.M. v. A.L.M., 2020 ONSC 3491, some allowance on account of the more junior lawyer was found warranted. The applicant’s lawyers conducted the trial in an exceedingly efficient and commendable manner. They were well organized. They were well prepared. It was clear from the dockets provided that junior counsel played a meaningful role in the preparation for and conduct of the trial. He was much more than a spectator. Further, a significant concession was made by applicant’s counsel to ensure that any duplication of time was eliminated.
[44] The complexity of the matter also would dictate where co-counsel would be permitted at trial. If a matter is sufficiently complex or the efficient presentation of evidence requires two counsel, an exception might very well be made. However, the message has to be given that, where co-counsel is employed at trial, the client risks those costs being disallowed unless the particular matter warrants it. The matter must be extremely complicated for the court to find that there is a need for second counsel, and this is particularly so in family law matters where the affordability of trials and the cost of representation for matrimonial clients is increasingly in issue. See: Iacobelli v. Iacobelli, 2020 ONSC 6128, at paragraph 47.
[45] In Oretsky v. Viktyuk, 2024 ONCJ 163, Justice Wiriranai Kapurura found that a costs claim for two lawyers attending for a party at trial amounted to a duplication of services and that a reduction in costs was warranted.
[46] Here, the court will partially order costs for the second counsel for the following reasons:
a) She actively participated in the trial. She prepared for and cross-examined collateral witnesses.
b) She did legal research. This was not a duplication of work.
c) She assisted in preparing the cross-examination of the father.
d) She prepared a chart of evidentiary objections. This was not a duplication of work.
[47] The court will not order costs of the second counsel for duplicate work, such as reviewing the file and joint meetings with the mother and co-counsel. It also will not order costs for the attendance of the second counsel at trial. Although the second counsel added value to the mother’s case, and the mother is entitled to retain more than one lawyer on her case, one counsel could have presented her case at trial. The case was not complex. It is not reasonable to expect the father to pay costs for the trial time of two counsel for the mother.
[48] Otherwise, the time claimed by the mother for the trial step was reasonable and proportionate.
5.4 Additional costs factors
[49] The rates of $400 per hour claimed by both lawyers acting for the mother were reasonable. They were both called to the Bar in 2014.
[50] The disbursements claimed by the mother were reasonable.
[51] The court considered the father’s ability to pay costs. See: MacDonald v. Magel, 2003 ONCA 18880, 67 O.R. (3d) 181 (Ont. C.A.). However, difficult financial circumstances are a factor but 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.
[52] The court found the father was capable of earning $88,000 annually. He travels frequently and lives a very comfortable lifestyle. The court finds he can afford to pay the costs that will be ordered, particularly if he is given a reasonable payment plan.
[53] 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. The father deposed he has paid significant legal fees for his criminal and family law cases. He should reasonably have expected to pay the costs that will be ordered.
Part Six – Conclusion
[54] The court orders as follows:
a) The father shall pay the mother’s costs fixed in the amount of $36,000, inclusive of fees, disbursements and HST.
b) The father may pay the costs at $1,000 each month, starting on April 1, 2025. However, if he is more than 30 days late in making any payment, the entire amount of costs then owing shall immediately become due and payable.
Released: February 26, 2025
Justice Stanley B. Sherr
[1] This is a summary of the orders made. The complete order is set out in paragraph 220 of the trial decision.