ONTARIO COURT OF JUSTICE
DATE: 2025-07-09
COURT FILE No.: Woodstock D185/14
BETWEEN:
Frankie May Dey
Applicant
— AND —
Ryan David Cronk
Respondent
Before Justice S. E. J. Paull
In Chambers
Reasons for Costs released July 9, 2025
Nolan D.A. Wilson................................................................................ counsel for the applicant
Respondent..................................................................................... appearing on his own behalf
PAULL J.:
[1] Before the court is the issue of costs following a two-day trial which was focused on the respondent’s claim to extend his parenting time during the school week beyond one overnight. The parties were successful prior to and during trial to resolve all the other issues related to decision-making and the parenting time schedule. As outlined in the Reasons for Judgement (Dey v. Cronk, 2025 ONCJ 294), the court did not extend the parenting time during the school week as sought by the respondent.
[2] Due to the level of conflict and disrespect between the parties which became apparent during the trial, the court was also required to make orders to address the nature of the parents’ communication and interactions, and each parent’s ability to communicate with the child while in the other’s care.
[3] The applicant seeks costs in the amount of $15,000, based on her success at trial and her offer to settle. She submits that this quantum also reflects that the parties did resolve a majority of the issues.
[4] The respondent submits that there should be no order as to costs on the basis of the resolutions reached and based on his ongoing efforts to resolve the issues without the need for trial. His submissions which attempted to re-argue some of the issues at trial were not helpful and were not considered.
[5] 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) of the Family Law Rules. See Mattina v. Mattina, 2018 ONCA 867.
[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, 2002 SCC, paragraph 25.
[7] Subrule 24(3) of the Family Law Rules (the rules) creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. See Sims-Howarth v. Bilcliffe, [2000] O.J. No. 330 (SCJ-Family Court). To determine whether a party has been successful, the court should take into account how the order or eventual result compares to any settlement offers that were made. See Lawson v. Lawson, [2008] O.J. No. 1978 (SCJ); Reichert v. Bandola, 2024 ONSC 4573.
[8] 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.
[9] Subrule 24(12) of the Family Law Rules 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). See Gurley v. Gurley, 2013 ONCJ 482.
[13] Even if all the preconditions in subrule 24(12) are met, the court still has discretion not to apply the costs consequences in the subrule and not to order full recovery costs. See C.A.M v. D.M., [2003] 18880 (OCA); N.M.L. v. A.T.C., 2022 ONCJ 250; Snelgrove v. Kelly, 2017 ONSC 4625; F.S. v. N.J., 2024 ONCJ 276; Cullen v. Brennan, 2024 ONCJ 375.
[14] The applicant submits a severable offer to settle dated December 17, 2024. One of the severable sections addresses the issue of the regular midweek parenting time in which she offers one overnight during the week with the pickup and drop off at school. This was the position she maintained at the trial.
[15] The respondent sought additional overnights during the week. This represented the primary issue in the trial and the applicant was entirely successful in achieving the results she sought on this issue and outlined in her offer to settle.
[16] The respondent provided no formal offers to settle, but did submit a collection of correspondence outlining his efforts to resolve the matter.
[17] The Family Law Rules expressly provide that depending on the conduct of the parties and the presence or absence of offers to settle, a judge may increase or decrease what would otherwise be the appropriate quantum of costs awarded, although there is no obligation to make an offer to settle. See Beaver v. Hill, 2018 ONCA 840.
[18] The failure to make an offer to settle much earlier by either party is unreasonable behaviour. Subrule 2(4) imposes a duty on parties and their lawyers to promote the primary objective of the rules to deal with cases justly (Rule 2(2)). This includes taking appropriate steps to save time and expense. See Subrule 2(3). Offers to settle play an important role in saving time and expense by promoting settlements, focusing parties and often narrowing issues in dispute. See Laing v. Mahmoud, 2011 ONSC 6737. The failure to serve an offer to settle will be an adverse factor when assessing costs.
[19] While the respondent’s failure to provide a formal offer to settle is an adverse factor, it is not a significant factor in the circumstances given the parties’ ongoing efforts and success at narrowing the issues.
[20] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See Beaver v. Hill, 2018 ONCA 840.
[21] In making this decision the court has considered the factors set out in subrule 24(14) of the rules which 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.
[22] 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.
[23] Poor litigation decisions and advancing unreasonable claims or filing meritless and incomplete pleadings may also justify an elevated costs award. See Hughes v. Hughes, 2024 ONSC 1119; Ali Hassan v Abdullah, 2023 ONCJ 186, at para 61.
[24] There were aspects of both parties’ approaches to the issues in this litigation that were both reasonable and unreasonable. However, the respondent’s behaviour was at times particularly unreasonable.
[25] The applicant was reasonable in accepting that there had been a material change in circumstances since the making of the prior order and by agreeing to a liberal parenting plan which included alternate weekends, an overnight during the school week, and a holiday schedule which included a shared parenting arrangement during the school summer holiday on a two-week rotation.
[26] The respondent was reasonable in withdrawing his claim to vary the decision-making order, and in conceding that the primary residence of the child remain with the applicant.
[27] However, it was not reasonable of the respondent to proceed with the trial seeking additional overnights during the school week. The evidence that was available, particularly the Voice of the Child Report, was clear that the child did not support such a schedule that would amount to a shared parenting arrangement during the school week. It would have required the child to move back and forth between her parents’ homes every day. The court concluded that such a schedule would not be in the child’s best interests.
[28] It was also not appropriate that the respondent, without the applicant’s consent or a court order, and despite the lengthy status quo, unilaterally started doing pickups at school which involved taking the child out early on occasions before the applicant’s arrival. As noted in the Reasons, this was neither reasonable nor child focused.
[29] Further, and despite the progress they made in resolving many issues, the approach both parties took to communicating was not reasonable. As noted in the Reasons the evidence was abundantly clear that the parties are unable to communicate effectively or respectfully. Both appeared to communicate at times and in a way that seemed designed to withhold important information and to antagonize the other. The lack of mutual respect contributed to distrust and parental conflict, including at parenting exchanges, and was behaviour which undermined the child’s best interests.
[30] Subrule 24(15) sets out that any claim for costs respecting fees or expenses shall be supported by documentation satisfactory to the court.
[31] The applicant provided a Bill of Costs outlining total costs for trial preparation and attendance of $17,520.65, plus approximately $900 for disbursements (inclusive). The hourly rate of counsel was reasonable given his years of experience. Unfortunately, the Bill of Costs was a summary only and did not include a detailed breakdown of the time claimed. Without this information it was not possible to assess the reasonableness of the time spent, or to assess the amount of time spent on the unresolved issues as opposed to the time spent reaching resolution on the majority of issues. Given the limited scope of the evidence and the narrow issues at trial, the costs claimed are excessive.
[32] One of the considerations in an assessment of costs is to fix costs in an amount that is “fair and reasonable” for the unsuccessful party to pay in a particular proceeding. See Farjad-Tehrani v. Karimpour, 2009 CarswellOnt 2186 (S.C.J.), aff’d 2010 ONCA 326, 2010 O.N.C.A. 326 at para. 4.
[33] 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.
[34] Costs need to be proportional to the issues and amounts in question and the outcome of the case. Amounts actually incurred by the successful litigant may therefore not be determinative. See Hackett v. Leung, [2005] O.J. No. 4888 (Ont. S.C.J.).
[35] There should be a correlation between legal fees incurred (for which reimbursement is sought) and the importance or monetary value of the issues at stake. The rules do not require the court to allow the successful party to demand a blank cheque for their costs. See O’Brien v. O’Brien, 2017 ONSC 402.
[36] This case was important to the parties and the issues in dispute at trial were narrow. The evidence and legal issues were not complex or difficult.
[37] Overall, the applicant is entitled to costs. She was entirely successful on the primary issue which was whether there should be additional midweek parenting time to the respondent. On this issue she achieved the result she sought, and which was the subject of a severable offer to settle.
[38] However, most of the issues were resolved on consent and there were aspects of both parties’ behaviour, particularly the respondent’s, which were not reasonable at times. Given the evidence available it was ill-advised for the respondent to have proceeded to trial with his claim to extend his overnight parenting time during the school week.
[39] Family law litigants are responsible and accountable for the positions they take in the litigation. See Heuss v. Surkos, 2004 CarswellOnt 3317, 2004 ONCJ 141.
[40] Overall, while the applicant has satisfied the elements of Rule 24(12) and is presumptively entitled to full recovery on the primary issue, I find that this presumption has been rebutted when the entirety of the circumstances are considered.
[41] Balancing all the factors outlined herein the applicant is entitled to partial indemnity costs which shall be fixed at $4,500 (inclusive). The respondent should have reasonably expected to pay this level of costs if he was unsuccessful following a 2 day trial.
[42] A final order shall issue as follows:
- Costs payable by the respondent to the applicant in the amount of $4,500 payable forthwith.
- Approval of the order is waived.
Released: July 9, 2025
Signed: “Justice S. E. J. Paull”