ONTARIO COURT OF JUSTICE
DATE: 2025 07 14
COURT FILE No.: Sudbury D-389-14-0002
BETWEEN:
KRISTA HUDDER
Applicant
— AND —
BRAD COURCHESNE
Respondent
Before Justice G. Jenner
Heard in Chambers
Reasons for Judgment released on July 14, 2025
Réjean Parisé .................................................................................. counsel for the applicant
Lance Talbot ............................................................................... counsel for the respondent
JENNER J.:
Costs Endorsement Re: Rule 1(8) Motion to Strike Pleadings
I. Introduction
[1] On June 9, 2025, I heard the applicant mother’s motion to strike the respondent father’s motion to change, on the basis that he breached the court’s previous final order by failing to pay child support and failing to provide annual income disclosure. The father effectively admitted the alleged non-compliance, but opposed the relief sought.
[2] In reasons released June 10, 2025, reported at 2025 ONCJ 318, I found the father to have breached the court’s previous final order. I declined to strike the father’s pleadings but ordered that the father serve and file the outstanding financial material within 90 days. I further precluded the father from obtaining any relief relating to child support, ongoing or retroactive, in this or any related proceeding until he has provided the outstanding material. I granted permission for a previously scheduled focused hearing on an issue relating to parenting time to proceed as scheduled on August 19 and 22, 2025.
[3] As to costs, I received written submissions and bills of costs from both parties. Each party seeks their costs from the other. The father seeks his full costs of $9,752.17, inclusive of tax, disbursements, and the cost of preparing costs submissions. The mother seeks her costs, which would be $5,698.03 at full recovery, inclusive of tax and disbursements.
II. Legal Framework
[4] Rule 24 of the Family Law Rules, O. Reg. 114/99, establishes the framework for awarding costs for family law cases in this court. The elements of that framework which are germane to this matter are as follows:
Costs Deciding Costs
24. (1) Promptly after dealing with a step in a case, the court shall, in a summary manner,
(a) determine who, if anyone, is entitled to costs in relation to that step and set the amount of any costs; or
(b) expressly reserve the decision on costs for determination at a later step in the case.
Entitlement to costs, presumption
(3) Except as otherwise provided in this rule, there is a presumption that a successful party is entitled to the costs of a step in a case.
Divided success
(4) If success in a step in a case is divided, the court may apportion costs as appropriate.
Unreasonable behaviour by successful party
(7) A successful party who has behaved unreasonably during a step in 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.
Same
(8) In deciding whether a party has behaved 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 did not accept.
Failure to accept offer
(12) A party who makes an offer in relation to a step in a case is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date to the conclusion of the step, 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.
Same, burden of proof
(13) The burden of proof that the order is as good as or better than the offer to settle is on the party who claims the benefit of subrule (12).
Setting costs amounts
(14) In setting the amount of costs in relation to a step in the case, the court may consider,
(a) the reasonableness and proportionality of each of the following factors, as applicable, as they relate to the importance and complexity of the issues in the step:
(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 conditions set out in subrule (12) or the requirements of rule 18,
(iv) Any legal fees, including the number of lawyers and their rates,
(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).
[6] The mother urges the court to consider, in addition to r. 24, the basis for a costs award in s. 22(2) and 24(d) of the Child Support Guidelines, O. Reg. 391/97. Section 21 of the Guidelines provides that a parent applying for or responding to an application for child support must provide certain financial disclosure. Where a parent fails to comply with s. 21, another party may apply pursuant to s. 22(1) of the Guidelines to have the matter set down for hearing (s. 22(1)(a)), in which case an adverse inference may be drawn against the non-compliant party (s. 23), or for an order requiring the disclosure (s. 22(1)(b)). Section 22(2) permits a court making an order under s. 22(1) to make an order requiring the non-compliant parent to pay costs up to an amount that fully compensates the other party. Pursuant to s. 24, where a disclosure order is made pursuant to s. 22(1)(b), and the order is not satisfied, the court may, among other things, strike the non-compliant party’s pleadings or award costs in favour of the other party up to a fully-compensatory amount.
[7] Here, the mother pursued an enforcement motion under r. 1(8) of the Family Law Rules. She did not apply for relief under s. 22 of the Guidelines, either explicitly or implicitly. In my view the appropriate costs framework to be applied is that in the Family Law Rules.
[8] I would not, in any event, view the costs provisions of the Guidelines as materially altering the principles to be applied. Both instruments permit costs orders which may, in appropriate circumstances, rise to full recovery. Both vest discretion in the court to determine the appropriate amount. The provisions in the Guidelines are less detailed and would in any event be supplemented by r. 24 and the Mattina principles.
III. Analysis
[9] I will focus my analysis on the key factors addressed by the parties in their submissions.
Success
[10] The father characterizes the mother’s motion as an all-or-nothing attempt to end four years of litigation encompassing parenting issues on the eve of a focused hearing, with no proposed alternative relief. Though the motion raised several issues, the key animating issue was whether the father’s pleadings should be struck. As the mother failed in that regard, the father suggests, she is the unsuccessful party.
[11] The mother focuses not on the relief sought or obtained in the motion, but on the mischief sought to be addressed: the father’s unexplained failure to make necessary income disclosure. Because the court made an order for that outstanding disclosure, the mother says she is the successful party on that issue. The mother concedes, however, that success was divided.
[12] I agree success was divided. It does not necessarily follow that costs should be balanced equally: Jackson v. Mayerle, 2016 ONSC 1556, at paras. 66-67. While the mother succeeded in demonstrating the father’s non-compliance, that question of fact was not seriously contested. And while the court did sanction the father’s non-compliance with a disclosure order and conditional stay of the child support aspects of the motion to change, that relief was likely obtainable short of bringing the motion to strike pleadings. As indicated in my reasons on the motion, I was troubled that the mother had not raised her concerns with the father’s non-compliance at an earlier case management step of these proceedings, but instead waited to just months before a focused hearing on a parenting issue. Had the complaint been canvassed earlier, a consent timeline for compliance could have been discussed, and failing that the court could have made an order without resort to a motion. Costs could have issued to compensate the mother for lost time and wasteful appearances.
[13] The key issue animating the motion was indeed the question of relief. On that question, the father was the successful party, having successfully defended against the striking of his pleadings, either wholly or partially. This factor, in isolation, tends to support a costs award in favor of the father.
Offer(s) to Settle
[14] On May 15, 2025, the father proposed that the mother have until May 20, 2025, to withdraw her motion to strike on a without costs basis. The offer does not meet the strictures of r. 24(12) and so does not attract the consequences of that subrule. Quite apart from r. 24(12), given the offer said nothing about the father’s plans to remedy his non-compliance with the court’s previous final order, especially with respect to financial disclosure, I give this offer no weight in my analysis.
(Un)reasonableness of Conduct
[15] The father argues that by seeking the extreme relief of pleadings being struck, the mother engaged in unreasonable conduct that forced him to incur needless expense. I agree that the mother’s decision to pursue a striking of pleadings, including with respect to parenting issues, was, at this late juncture in the proceedings, unreasonable. Parties should be discouraged from laying in the weeds only to pursue extreme and overbroad relief on the eve of trial.
[16] I am, however, concerned at the father’s own unreasonable conduct. As indicated in my reasons on the motion to strike pleadings, it is difficult to fathom why the father’s basic information is not available in 2025, some four years after the father initiated his own motion to change. It was dissatisfactory that no detailed explanation for the delay was contained in the evidentiary record. It was also dissatisfactory that, in the face of the mother’s motion, no offer was made which set out a plan or timeline to make the necessary disclosure. The father’s unreasonable conduct provides a compelling basis to deprive him of some or all the costs he might otherwise be entitled to.
Other factor(s)
[17] On the motion to strike, I ordered the father to provide disclosure and I set out certain limitations on his ability to pursue relief related to support. I did not make an order for costs, though it would have been permitted under r. 1(8). In the particular circumstances of this case, it would be unjust to allow the father to escape a cost consequence under r. 1(8) but benefit from a costs order against the mother. I give this some weight despite that it may also be accounted for at a later time if and when costs of the motion to change itself are being assessed.
IV. Conclusion
[18] Considering (i) the parties’ degree of success; (ii) the parties’ conduct in relation to this step in the litigation; and (iii) the remedies granted and withheld on the motion to strike itself; and mindful of the Mattina principles, I conclude that neither party shall be granted costs in relation to this motion. Unnecessary as the motion to strike pleadings was, the parties share responsibility.
Released: July 14, 2025
Signed: Justice G. Jenner