COSTS ENDORSEMENT
Part One – Introduction
[1] On June 12, 2025, the court delivered written reasons for decision on cross-motions brought by the parties regarding parenting, child support and relocation about their two young children (the children), Gomez v. Isaza, 2025 ONCJ 324.
[2] The court made temporary orders including:
a) The children shall have their primary residence with the applicant (the mother), and she shall have sole decision-making responsibility for them.
b) The children’s residence shall remain in the City of Toronto, pending further court order. The respondent’s (the father’s) claim to have the children returned to St. Catharines was dismissed and the mother’s claim for temporary relocation of the children to the Philippines was dismissed.
c) The father shall have his parenting time fully supervised by a professional supervised parenting time program, such as APCO, Renew Supervision Services or Braydon Professional Services and pay all costs charged by the professional parenting time program.
d) The father shall pay child support to the mother in the amount of $543 each month, starting on June 1, 2025. This was based on an annual income attributed to him of $35,770.
[3] The parties were given the opportunity to make written costs submissions. The mother seeks costs of $8,640 plus HST.
[4] The father asks that no costs be ordered for the two motions. He also seeks costs of $2,260 arising out of a Form 14B motion brought by the mother.
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).
[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 para 94.
Part Three – Did the mother’s offer to settle attract 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 an offer to settle dated April 28, 2025. Wisely, she made each part of the offer severable.
[10] The father did not enclose an offer to settle with his submissions.
[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] 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).
[13] 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.
[14] Close is not good enough to attract the costs consequences of 24(12). The offer must be as good as or better than the trial result. See: Gurley v. Gurley, 2013 ONCJ 482; Axford v. Axford, 2024 ONSC 2864.
[15] The mother obtained orders that were as good as or better than her severable offers on the following issues:
a) Primary residence of the children.
b) Decision-making responsibility for the children.
c) The father’s parenting time with the children.
[16] The father did not rebut the presumption that the costs consequences set out in subrule 24(12) should apply to these issues.
[17] The mother’s offer to settle was too vague on the issue of child support to find that it was as good or better than the court order. She proposed that the father pay child support in accordance with the Child Support Guidelines. She did not set out what income she wanted assessed to the father for the purpose of this calculation. The costs consequences set out in subrule 24(12) do not apply to this part of the mother’s offer to settle.
[18] The mother did not obtain an order that was as good or better than her offer to settle the travel and relocation issues. Her offer was considered under sub-clause (iii) of subrule 24(14)(a).
Part Four – Success on the remaining issues
[19] Subrule 24(3) 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 ONSC 22584, [2000] O.J. No. 330 (SCJ- Family Court).
[20] 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 ONSC 23496, [2008] O.J. No. 1978 (SCJ); Todor v. Todor, 2021 ONSC 3463; G.E. v. J.E., 2023 ONSC 1743; Kyriacou v. Zikos, supra.
[21] Subrule 24(4) sets out that if success in a step in a case is divided, the court may apportion costs as appropriate.
[22] 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.
[23] 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.
[24] The father was successful in dismissing the mother’s temporary motion to relocate with the children to the Philippines. This was the issue that took the most time on the motions.
[25] The mother was successful in resisting the father’s request for the mother to move with the children back to St. Catharines.
[26] There was divided success on the support issue. The court ordered the amount sought by the mother at the hearing on an ongoing basis. However, it did not order support prior to June 1, 2025, as she had requested. The father did not propose an income to use for support purposes on the motion.
Part Five – Conclusion on entitlement to costs
[27] The mother is entitled to costs up until April 28, 2025 and full recovery costs after April 28, 2025, regarding the issues of primary residence of the children, decision-making responsibility for the children and the father’s parenting time with the children.
[28] The costs will be reduced because the father was successful on the important issue of temporary relocation to the Philippines. The court took into consideration that the mother successfully resisted the father’s request for her to return with the children to St. Catharines in determining the amount of that reduction.
Part Six – Amount of costs and order
[29] 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
(b) any other relevant matter.
[30] Even where the "full recovery" provisions of the Rules are triggered – either by an offer which meets subrule 24(12) requirements, or by a finding of bad faith – quantification of costs still requires an overall sense of reasonableness and fairness. See: Goryn v. Neisner, 2015 ONCJ 318.
[31] The Rules do not require the court to allow the successful party to demand a blank cheque for their costs. See: Slongo v. Slongo, 2015 ONSC 3327. The court retains a residual discretion to make costs awards which are proportional, fair and reasonable in all the circumstances. See: M.(C.A.) v. M.(D.), 2003 ONCA 18880, [2003] O.J. No. 3707; Scipione v. Scipione, 2015 ONSC 5982, [2015] O.J. No. 5130 (supra). See: Jackson v. Mayerle, 2016 ONSC 1556.
[32] This case was important to the parties. It had some difficulty and complexity. A mini-hearing was held and the parties were both cross-examined. There were three separate appearances for submissions. The submissions were put over the first time because the mother was due to give birth to the parties’ second child. The parties agreed it made sense to include claims for that child in their motions. The parties were brought back a third day to make additional submissions because the Ontario Divisional Court released its decision in Diallo v. Bah, 2025 ONSC 2106. That case altered temporary relocation law.
[33] 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.
[34] Both parties have acted unreasonably. The court found that neither presented as reliable or credible witnesses.
[35] The mother did not include important evidence in her affidavits. She did not disclose that she had attempted to remove the oldest child from Canada without the father’s consent or that she had been intoxicated while breastfeeding that child when the father was charged with assault.
[36] The father breached the temporary court order by driving off with the oldest child when his parenting time was supposed to be supervised. He failed to pay any child support. He did not make an offer to settle.
[37] The mother improperly sought substantive relief in a Form 14B motion just five days before the motions were scheduled for argument. The court adjourned the mother’s request to the hearing date. Some additional work was required for the father to respond to this motion and the mother’s costs award will be discounted for this work.
[38] The rates of $225 per hour claimed by the mother’s lawyer are reasonable for a 2022 call to the bar.
[39] The mother submitted that her claimed costs of $8,460 represent 80% of her actual costs.
[40] The mother did not submit a bill of costs. Counsel should always have a bill of costs prepared if they plan to seek costs at any stage of a case – whether it is at the end of a trial or at the end of a motion. Without a bill of costs, it becomes very difficult for the court to assess what work was done before and after an offer to settle is made. This is important, as subrule 24(12) sets out different scales of costs for pre-offer and post-offer work claimed. It also becomes difficult for the court to assess what work was attributable to this step in the case. See: Nguyen v. Khookrathok, 2017 ONCJ 783; Damphouse Nolan v. Leal, 2023 ONSC 802.
[41] The third court appearance for submissions was entirely attributable to the relocation issue to the Philippines.
[42] 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.). The father was attributed with a very modest income for support purposes. 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.
[43] Those who can least afford to litigate should be most motivated to seriously pursue settlement and avoid unnecessary proceedings. See: Mohr v. Sweeney, 2016 ONSC 3338; Balsmeier v. Balsmeier, 2016 ONSC 3485. The father’s request for sole decision-making responsibility and primary residence of the children was ill-considered.
[44] 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 court finds that the father should have reasonably expected to pay the amount of costs that will be ordered if he was unsuccessful.
[45] The court finds that the father can afford to pay the costs that will be ordered, if a reasonable payment plan is ordered.
[46] The court orders as follows:
a) The father shall pay the mother’s costs of the motions fixed in the amount of $3,900, inclusive of fees, disbursements and HST.
b) The father may pay the costs at $300 each month, starting on August 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: July 11, 2025
Justice S.B. Sherr