COSTS ENDORSEMENT
Part One – Introduction
[1] On May 20, 2025, the court released its reasons for decision after hearing a four-day trial about parenting and support orders regarding the parties’ 5-year-old son (the child). See: D.E.S.A. v. N.B., 2025 ONCJ 279.
[2] The parties were given the opportunity to make written costs submissions.
[3] The respondent (the mother) seeks costs of $129,308.
[4] The applicant (the father) asks that no costs be ordered. In the alternative, he claims that he was more successful at trial than the mother and seeks his costs of $44,300.
Part Two – General costs principles
[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) (all references in these rules are to the Family Law Rules).
[6] 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.
[7] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.
[8] 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, para 94.
Part Three – Did either party’s offer to settle attract the costs consequences set out in subrule 24(12)?
[9] 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 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.
[10] Subrule 24(13) sets out that the onus of proving that the order is as good as or better than the offer to settle is on the party who claims the benefit of subrule 24(12).
[11] The court is not required to examine each term of the offer as compared to the terms of the order and weigh with microscopic precision the equivalence of the terms. What is required is a general assessment of the overall comparability of the offer as contrasted with the order. See: Wilson v Kovalev, 2016 ONSC 163.
[12] Close is not good enough to attract the costs consequences of 24(12). The offer must be as good as or more favourable than the trial result. See: Gurley v. Gurley, 2013 ONCJ 482; Axford v. Axford, 2024 ONSC 2864.
[13] Both parties made severable offers to settle. The father’s offer to settle was dated February 4, 2025. The mother’s offer to settle was dated March 13, 2025. Neither offer came close to being as good as or better than the trial result of the person making the offer. The costs consequences set out in subrule 24(12) do not apply.
[14] Even if subrule 24(12) does not apply, 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). However, here, the offers added little value to the court’s analysis. They were very similar to the positions taken at trial. Further, the mother’s offer contained commentary about why she was seeking specific orders which is inappropriate in an offer to settle.
Part Four – Success
4.1 Legal considerations
[15] Subrule 24(3) sets out a presumption that the successful party is entitled to costs.
[16] To determine whether a party has been successful, the court should examine who was the successful party, based on the positions taken in the litigation. See: Lazare v. Heitner, 2018 ONSC 4861. This assessment includes the positions taken in the pleadings, and the specific relief sought at the hearing, if different. See: Kyriacou v. Zikos, 2022 ONSC 401. The court may also take into account how the order compares to any settlement offers that were made. See: Lawson v. Lawson, [2008] O.J. No. 1978 (SCJ); Todor v. Todor, 2021 ONSC 3463; G.E. v. J.E., 2023 ONSC 1743; Kyriacou v. Zikos, supra.
[17] Subrule 24(4) sets out that if success in a step in a case is divided, the court may apportion costs as appropriate.
[18] Divided success does not equate with equal success. It requires a comparative analysis. Most family cases have multiple issues. They are not equally important, time-consuming or expensive to determine. See: Jackson v. Mayerle, 2016 ONSC 1556, para 66.
[19] Where there are multiple issues before the court, the court should have regard to the dominant issue at trial in determining success. See: Firth v. Allerton, [2013] O.J. No. 3992 (SCJ); Mondino v. Mondino, 2014 ONSC 1102.
4.2 Analysis
4.2.1 Decision-making responsibility and incidents of parenting
[20] The parenting issues were the dominant issues at trial.
[21] The mother sought sole decision-making responsibility for the child. The father sought joint decision-making responsibility for the child, with the right to make final educational decisions, if the parties could not agree on a decision.
[22] The court found that the father’s claim for joint decision-making responsibility was unrealistic given the lack of communication and trust between the parties. It also determined he should not have final say over educational decisions. His claim was unsuccessful.
[23] The court also denied the mother’s request for sole decision-making responsibility for the child. She was also unsuccessful. The court set out its reasoning for making this decision at paragraph 76 as follows:
a) The mother often acts impulsively and without emotional regulation.
b) The mother sometimes demonstrates poor parenting judgment.
c) The mother has difficulty separating her own needs from the child’s needs.
d) There is a real risk that the mother will use the decision-making designation to marginalize the father, especially if he does anything to anger her.
[24] The court made orders regarding current major decisions and set up a mechanism to make future major decisions about the child. The court finds that neither party was more successful than the other on the over-arching decision-making responsibility issues.
[25] There were several issues within the fabric of the decision-making responsibility order that were determined by the court.
[26] The father asked for authority to enroll the child in French Immersion school in grade one. The mother wanted to keep the child in his present public school. She also wanted the freedom to move the child to a public school in her catchment area if she moved after the child completed senior kindergarten. The court ordered that the child shall attend his current public school through grade one. Starting in grade two, the child may go to a different school in the mother’s catchment area, if she moves. However, she is not permitted to move with the child outside of Toronto.[1]
[27] Time was spent at trial over the child’s poor school attendance and whether the mother could homeschool the child. The mother testified she was contemplating doing this. The court ordered that the mother may not homeschool the child and set out the reasons why it was making this order in paragraphs 90 and 91 of its decision.
[28] The mother was given final decision-making responsibility over any other major educational decisions regarding the child. However, the court wrote that this might need to be revisited if the child’s school attendance did not improve.
[29] Although there was divided success, the mother was slightly more successful than the father on the educational issues.
[30] The father sought an order changing the child’s doctor. This claim was dismissed. However, the court ordered that the child’s current doctor and dentist not be changed unless there is an agreement or court order, as the mother had acted unilaterally regarding the child’s medical treatment in the past.
[31] The evidence indicated that the mother had previously been resistant to vaccinating the child. The court ordered that she take the child for all government recommended vaccinations. If she failed to do so within 14 days, the father was given the authority to do this.
[32] The mother was given final decision-making responsibility over any other major health issue. Although there was divided success, the mother was slightly more successful than the father on the health issues.
[33] The father was successful in having the right to arrange extra-curricular activities for the child during his parenting time. He was also successful in obtaining an order that the mother not arrange extra-curricular activities for the child during his parenting time. The mother had asked that extra-curricular activities take precedence over the regular parenting schedule.
[34] The father sought an order changing the child’s name. The court set out its jurisdictional limitations in changing a child’s name at paragraphs 111 to 113 of its decision. It declined to give the father a right of decision-making responsibility regarding the child’s name. It also prohibited the mother from changing the child’s name. It expressed the concern that she might attempt to change the child’s name if she became angry with the father.[2] There was divided success on this issue. However, the mother was slightly more successful on this issue than the father.
[35] The mother sought an order to relocate with the child to Bulgaria in her amended answer/claim dated March 3, 2025. Relocation was a major issue in dispute for a long time in this case. Justice Melanie Sager, the case management judge, endorsed on April 29, 2025, that the mother had withdrawn that claim. At trial, the court ordered that the child’s residence shall not be removed from Toronto. The father was the successful party on this issue.
[36] The father was resistant to the mother traveling on vacation with the child to Bulgaria. The mother is from Bulgaria and had frequently traveled there to see her family. The father changed his position during the trial. The court ordered that the mother was permitted to travel internationally with the child, including to Bulgaria, on terms. The mother was the more successful party on this issue.
[37] The mother was resistant to the father traveling internationally with the child. The court ordered that the father may travel internationally with the child, on terms. The father was the successful party on this issue.
[38] Both parties sought the right to hold the child’s government documents. The court ordered that the mother would hold them and provide copies to the father. This was a minor issue. The mother was more successful on it.
[39] The court dismissed the mother’s request to dispense with the father’s consent to obtain or renew government documents for the child and to travel internationally with the child. The father was the successful party on this issue.
[40] The court found the mother was sending abusive communications to the father. It placed restrictions on these communications. The father was the successful party on this issue.
4.2.2 Parenting schedule and terms
[41] The father sought an equal-time parenting arrangement. The mother wanted to maintain the existing parenting schedule where the father had one overnight with the child in alternate weeks and each Monday evening.
[42] The court ordered that the child’s primary residence would remain with the mother. The mother was the successful party on the issue of the child’s primary residence.
[43] The court increased the father’s parenting time with the child to two out of every three weekends and ordered extensive holiday parenting time. The court also ordered that if the father is able to arrange his work schedule so that he is not working on Friday evening, he may elect to have his parenting time take place on two out of every three weekends from Friday, with pickup after school, until he returns the child to school on Monday morning.
[44] The mother sought orders that the father’s partner and the child’s maternal grandfather not be left alone with the child. The court dismissed that claim.
[45] The mother sought a right of first refusal if either parent was unable to care for the child for more than two hours. The court dismissed that claim.
[46] The mother was resistant to increasing the father’s parenting time during this case. The court wrote at subparagraph 54(e) of its decision that the mother was unreasonably trying to control the father’s parenting of the child. She was trying to control who could and could not take care of the child during his parenting time. The court found that the mother unjustifiably escalated her allegations about the father as the trial approached.
[47] A trial was required for the father to obtain orders to have meaningful parenting time with the child. Although he aimed too high by seeking an equal-time parenting arrangement and there was some divided success, the court finds he was slightly more successful on the parenting time issues than the mother.
4.2.3 Summary of success on parenting issues
[48] The mother was more successful, and sometimes just slightly more successful than the father, on the following parenting issues:
a) Primary residence of the child.
b) Major educational decisions for the child.
c) Major health decisions for the child.
d) Change of the child’s name.
e) Travel with the child to Bulgaria.
f) Holding government documents for the child.
[49] The father was more successful than the mother, on the following parenting issues:
a) The regular parenting time schedule.
b) The holiday parenting time schedule.
c) Whether his partner and the maternal grandfather could be left alone with the child.
d) Whether the other parent would have the right of first refusal if the other was unable to care for the child for more than two hours.
e) The arranging of extra-curricular activities for the child.
f) The ability to travel with the child internationally.
g) Requiring his consent for the mother to obtain or renew government documents for the child.
h) Requiring his consent for the mother to travel internationally with the child.
i) Requiring the child’s residence to remain in the City of Toronto.
j) Placing restrictions on the mother’s communication with him.
[50] The court finds that success on the parenting issues was equally divided. The parties shall bear their own costs on these issues.
4.2.4 Child support
[51] The parties mainly concentrated on the parenting issues at trial. However, child support was also an important issue.
[52] The father sought child support from the mother. This claim was dismissed. The mother was successful on this issue.
[53] At trial, the mother sought child support from the father retroactive to May 30, 2020, based on an annual imputed income to him of $55,000. She also asked him to contribute proportionally to the child’s section 7 expenses. In her amended answer/claim, dated March 3, 2025, she sought an order imputing an annual income to him of $75,000.
[54] The father opposed any claim for retroactive child support. He proposed paying ongoing child support to the mother based on an imputed annual minimum wage income to him of $35,776. He also proposed that the parties be responsible for any section 7 expenses they incur in the future and not seek a contribution from the other.
[55] The court ordered that child support start on October 1, 2021. The mother was more successful than the father regarding the start date of the support order.
[56] However, the court found that the parties had a shared parenting arrangement between May 1, 2023 and August 31, 2024. The existence of this arrangement was contested by the mother at trial. The father was not required to pay child support during this period. The father was more successful on this issue.
[57] The mother was unsuccessful in imputing income to the father for the years 2021 to 2023.
[58] The mother was successful in imputing income to the father for 2024. She sought to impute an income to him of $55,000. He declared income of just over $16,000. The court imputed his annual income at $41,600. However, this was not a significant issue in this case as the father was only required to pay support in 2024, starting on September 1, 2024.
[59] There was divided success on the imputation of the father’s income starting in 2025. The mother sought an imputation of annual income to him of $55,000. The father proposed an imputed annual income of $35,770. The court imputed an annual income of $41,600 to him for 2025 and on an ongoing basis.
[60] The court found the father owed the mother $3,081 for child support.
[61] The mother did not provide receipts of present section 7 expenses. The court ordered that each party shall pay for the extra-curricular activities or tutoring they arrange for the child. If any other section 7 expenses are incurred, they can return to court if they are unable to agree about payment of them.
[62] The court finds that there was divided success on the child support issues, with the mother being the slightly more successful party.
Part Five – Unreasonable conduct
[63] The mother is presumptively entitled to some costs because of her partial success on the child support issues. However, this presumption can be rebutted. The court finds that the presumption has been rebutted in this case.
5.1 Legal considerations
[64] 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
[65] Subrule 24(7) sets out that a successful party who has behaved unreasonably during a step in a case may be deprived of all or part of their costs or ordered to pay all or part of the unsuccessful party’s costs.
[66] Subrule 24(8) provides criteria for determining the reasonableness of a successful party’s behaviour in a case (a factor in subclause 24(14)(a)(i) above). It reads as follows:
DECISION ON REASONABLENESS
24(8) In deciding whether a successful 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;
(b) the reasonableness of any offer the party made; and
(c) any offer the party withdrew or failed to accept.
[67] The 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. The 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.
[68] Conduct 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).
[69] The reasonableness of litigation conduct must be gauged over the totality of the proceeding. A court can order increased costs to express disapproval of unreasonable conduct. The amount may be higher where a party has had to incur unnecessary added expense as a result of the other party’s unreasonable conduct. See: Rolfe v. Boneo, 2023 ONSC 2269; John v. John, 2020 ONSC 6437 (SCJ); O’Brien v. Chuluunbaatar, 2019 ONCJ 882 (OCJ); Habibi v. Aarabi, 2022 ONSC 240 (SCJ).
[70] 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.
5.2 Analysis
[71] The court finds that the mother engaged in unreasonable conduct as follows:
a) She unreasonably added to the time and expense of the case. She sought unreasonable restrictions to the father’s parenting time. She made many unsupported allegations against him to try and restrict his parenting time, including claims of family violence by him against her and the child. She escalated these allegations as the trial approached, unreasonably involving the Children’s Aid Society of Toronto and the police. The court did not accept these allegations at trial.
b) The court found that she often bombarded the father with dozens of text messages at a time, including late at night. Many of those messages were abusive and inappropriate. Many were laced with profanities. Some went on racist rants. The court found this was family violence as defined in the Children’s Law Reform Act. [3] The court placed restrictions on the mother’s communications with the father.
c) She filed emotionally charged material that did not assist the court (the father also did this, but not to the extent that the mother did).
d) She unreasonably made unilateral decisions regarding the child. She named the child, baptized the child, chose the child’s present school, changed the child’s doctor, changed the parenting schedule, enrolled the child in extra-curricular activities and obtained a passport for the child without the father’s consent. [4] She enrolled the child in a school in Bulgaria in September 2024, requiring him to come to court to obtain a non-removal order. [5]
e) She disregarded Justice Sager’s trial scheduling endorsement. She was permitted to file an affidavit for her direct evidence of up to 45 pages, together with 200 pages of exhibits. Instead, she served and attempted to file over 400 pages of exhibits. Her material was not accepted by the court and a court attendance was required to address the issue. [6]
f) Justice Sager gave the mother one week to serve and file an amended affidavit, within the page limits ordered. The mother did not comply with that court order. Another court appearance was held on April 29, 2025, and the mother was given another short filing extension. Costs of this step were reserved to the trial judge.
g) The mother served and filed her amended trial affidavit. The body of the affidavit was different than the first affidavit she had served on the father. She had represented to the court on April 29, 2025, that it was the same. The father claimed this was bad faith. The court is not making a finding of bad faith, as that requires a very high threshold, however, it finds this was unreasonable conduct.
h) The mother disregarded Justice Sager’s direction to serve and file a draft order for the trial. She did not produce her draft order until mid-way through the trial.
[72] The court finds that the mother’s unreasonable conduct unduly lengthened the time required for the trial. It added to the difficulty and complexity of the trial. It created extra time and expense for the father. His time to fully prepare for the trial was condensed because the mother did not comply with trial management directions.
[73] The court finds that any costs the mother is entitled to arising from her partial success on the child support issues are offset by her unreasonable conduct and costs this court would have awarded to the father arising from the April 2025 appearances before Justice Sager, where costs were reserved.
[74] The presumption that the mother is entitled to costs has been fully rebutted by the father.
Part Six – Additional costs considerations
[75] This case was important to the parties. It was made more complex and difficult because the parties, and particularly, the mother, filed irrelevant material.
[76] The amount claimed for costs by the mother was excessive and disproportionate.
[77] The mother claimed costs for prior steps in the case where costs were not determined or reserved by Justice Sager. There are no exceptional circumstances here that warrant ordering costs at this stage for those steps in the case. The case management judge was in a much better position than the trial judge to determine those costs. See: Cameron v. Cameron, 2018 ONSC 6823; Berge v. Soerensen, 2020 ONCJ 403.
Part Seven – Conclusion
[78] A final order shall go that neither party shall pay any costs to the other.
Released: June 18, 2025
Justice Stanley B. Sherr
[1] The mother testified at trial she has been contemplating a move to Hamilton, Ontario.
[2] The child’s middle name is the same as the father’s last name.
[3] See subparagraph 54(b) of the decision.
[4] See subparagraph 54(d) of the decision.
[5] The court also found the father made unreasonable unilateral decisions about the child – but not to the extent the mother did. The court also found the father engaged in some unreasonable conduct by videotaping parenting exchanges and in relation to his child support obligations.
[6] The father also exceeded page limits and portions of his trial affidavit were struck.