ONTARIO COURT OF JUSTICE

DATE: 2025-03-04
COURT FILE No.: Sudbury FO-296-18 ext. 2

B E T W E E N :

S.P.
Applicant

— AND —

D.P.
Respondent

Before Justice G. Jenner
Heard in writing
Reasons for Judgment released on March 4, 2025

Dale Brawn .................................................................................. counsel for the respondent
S.P., on her own behalf

JENNER J.:

COSTS ENDORSEMENT

I. Introduction

[1] On December 24, 2024, I dismissed the respondent father’s motion to change on his own motion for summary judgment: see 2024 ONCJ 665. I asked the parties to address the issue of costs in writing if they could not come to terms. Both parties have filed written submissions.

[2] The applicant, the successful party, was self-represented throughout the proceedings, and resides outside of the region. She asks the court to award costs and cites her missed work to attend court virtually and in-person, as well as her hotel and gas expenses. She asks for a total of $2,001.48.

[3] While the respondent concedes that he was not successful in his motion to change, he opposes a costs award. He submits he acted reasonably in pursuing the remedies sought. He claims the applicant was unprepared for several court appearances, that some of the dates claimed by the applicant were not court dates at all, and that the applicant has overestimated the time she was required to take off work to attend court.

II. Applicable Law

2.1 General Legal Framework

[4] Rule 24 of the Family Law Rules establishes the framework for awarding costs for family law cases in this court. Rule 24 (and relatedly r. 18) were recently amended effective January 22, 2025, but those changes are not retroactive. The germane elements of the rule as it previously read are as follows:

Costs

Successful party presumed entitled to costs

24. (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.

Successful party who has behaved unreasonably

(4) Despite subrule (1), a successful party who has behaved unreasonably during 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.

Decision on reasonableness

(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,
(a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

Absent or unprepared party

(7) If a party does not appear at a step in the case, or appears but is not properly prepared to deal with the issues at that step or otherwise contributes to that step being unproductive, the court shall award costs against the party unless the court orders otherwise in the interests of justice.

Bad faith

(8) If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.

Setting costs amounts

(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,
(iv) any legal fees, including the number of lawyers and their rates,
(vi) any other expenses properly paid or payable;
(b) any other relevant matter.

[5] In Mattina v. Mattina, 2018 ONCA 867, the Court of Appeal for Ontario articulated that modern costs rules are designed in furtherance of four fundamental principles:

(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 (pursuant to rule 2(2) of the Family Law Rules).

2.2 Successful self-represented litigants

[6] Successful self-represented parties are entitled to costs. This preserves courts’ abilities to encourage settlement and discourage inappropriate behaviour. It ensures that the opposing parties do not conduct the litigation from a position of ‘costs immunity.’ In determining costs, the court must continue to consider the objectives in r. 24. But calculating self-represented litigants’ entitlement to costs cannot be approached in the same manner as litigants who retain counsel. Courts often consider an ‘applicable hourly rate’, based on the party’s expectations as to the costs they would pay if unsuccessful. This rate can be informed by the hourly rate of the unsuccessful party’s lawyer, if applicable, and the costs the successful party would reasonably expect to pay if unsuccessful. A self-represented litigant’s lost income is another measure that may be considered, though the court must be careful not to equate costs with damages for lost income: see Browne v. Cerasa, 2018 ONSC 2242, at para. 31.

III. Analysis

[7] From my review of the continuing record, I agree with the respondent’s submissions as to the following:

• November 3, 2024 does not correspond with an event in this litigation. There is no basis for the lost wages claimed by the applicant in respect of this date.
• On November 9, 2023, the scheduled settlement conference could not proceed because the applicant had not filed a settlement conference brief. The applicant’s claim for costs is impacted by her unpreparedness on this date.
• On December 20, 2023, some court time was wasted as the applicant had not filed a settlement conference brief for that appearance, but ultimately the conference proceeded based on a brief that was late-filed for the November 9, 2023, appearance. The applicant’s claim for costs is impacted by some inefficiencies she is responsible for on this date.

[8] These discrete issues aside, I find that the applicant conducted herself reasonably and diligently during the summary judgment motion. She was not a source of delay or inefficiency.

[9] The applicant has chosen to frame her costs request in terms of lost income and travel disbursements rather than in terms of work performed to advance her position within the litigation. Lost income is one measure I can consider. While it would be preferable to have evidence before me as to the number of hours the applicant spent preparing, it is clear from the continuing record that she spent time and effort completing the tasks that the respondent delegated to counsel, including the preparation of pleadings, evidence, and conference briefs. I can infer as well that she spent time preparing for argument on the motion for summary judgment.

[10] I may also consider that the respondent’s legal fees on the motion to change totaled $5,536.38, inclusive of disbursements and HST, based on his counsel’s Legal Aid Ontario hourly rate of $150.54. This, like the lost income evidence (adjusted for its frailties), assists the court in determining an appropriate range of costs entitlement for the applicant.

[11] Rule 24(10) instructs the court to decide costs in a summary manner. Ultimately, there is no precise method to calculate a self-represented litigant’s costs. In many cases, it will be useful to fix an hourly rate for the party, but I do not consider it mandatory or helpful in this case. I must consider the information available and arrive at a fair amount in the light of the Mattina factors. I consider $2,000-$3,000 to be an appropriate range of valuation for the applicant’s time and disbursements.

[12] In applying a scale of recovery to that range, the respondent’s conduct looms large.

[13] While not rising to the level of bad faith, the respondent acted unreasonably by bringing this motion to change in the manner and form he did. As explained in greater detail in my reasons on the motion for summary judgment, at paras. 21-30, the respondent’s motion to change followed his earlier unsuccessful motion to change which covered identical issues over much of the same period. In taking a second bite at the cherry, and in overlooking, for a second time, the very same evidentiary problems clearly identified by the court during the first proceeding, the respondent acted unreasonably.

[14] It was inappropriate for the applicant to be dragged back into litigation of issues she had already defended successfully. The costs to be awarded must discourage the respondent’s approach and recognize the unfairness that the duplicative litigation visited on the applicant.

[15] In considering whether to award full indemnity costs, the court is not limited to those circumstances specified in the rules (e.g. bad faith, offer to settle consequences): see Arthur v. Arthur, 2019 ONSC 938, at para. 40. Here, the issues identified with respect to the bringing of this second flawed motion to change are significant aggravating factors which warrant a costs award approaching a full indemnity scale.

IV. Conclusion and Order

[16] Considering the flaws identified in the applicant’s cost claim, the information available to assist the court in calculating the value of the applicant’s time and efforts, and the parties’ conduct, I would fix the costs at $2,000.

[17] A final order shall go as follows:

The respondent shall pay the applicant her costs fixed at $2,000, inclusive of taxes. The costs are due and payable at a rate of $200 per month, beginning April 1, 2025. In the event of default on a payment, the entire amount shall become due immediately.

Released: March 4, 2025

Signed: Justice G. Jenner