Court File and Parties

Ontario Court of Justice

Date: August 18, 2025

Court File No.: FO-25-274-00

Between:

T.I. Applicant

— And —

C.B. Respondent

Before: Justice J. Harris

Heard: In Chambers

Reasons for Judgment on Costs

Counsel:

• Amanda Taerk and Madeleine Corwin, counsel for the Applicant/Father
• Stephen Kirby and Julia McArthur, counsel for the Respondent/Mother

Justice J. Harris:

Part One – Introduction

[1] On July 22, 2025, the court delivered written reasons for decision after an urgent motion concerning parenting time, T.I. v. C.B., 2025 ONCJ 392.

[2] The court ordered the following:

1. The Father's parenting time with the Child, as follows:

   a. Supervised by Toronto Family Therapy or any other mutually agreeable professional supervisor, on the following schedule:

   (i) Sundays 2:00 p.m. – 5:00 p.m.

   (ii) Tuesdays 9:00 a.m. – 12:00 p.m.

   (iii) Thursdays 9:00 a.m. – 12:00 p.m.

[3] The parties were unable to resolve the issue of costs and have asked the court to decide this issue. The parties were given permission to make written costs submissions. These are reasons on the issue of costs.

[4] The Mother seeks costs of $20,000, inclusive of HST and disbursements. The Mother submits that she incurred costs of $24,140.19.

[5] The Father submits this amount is disproportionate and unreasonable. The Father proposes that the court order costs for the Mother in the amount of $5,000, inclusive of fees, disbursements and HST. The Father incurred costs of $9,858.35.

[6] The Father further submits that a large costs award would significantly harm the Father, who is currently paying for supervised access visits and child support, and additionally that the Father would likely be unable to afford his supervised access costs if a substantial costs order were made.

Part Two – General Costs Principles

[7] The costs provisions in the Family Law Rules, O. Reg. 114/99 (the "Rules") were amended on August 6, 2025. The court will apply those amendments in this decision.

[8] Subrule 24(1) sets out that promptly, after dealing with a step in a case, the court shall, in a summary manner, determine who, if anyone, is entitled to costs in relation to that step and set the amount of costs or reserve the decision on costs for determination to a later step in the case.

[9] The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 set out that modern family 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.

[10] "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": British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71 at paragraph 25.

[11] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality: Beaver v. Hill, 2018 ONCA 840.

[12] 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: Berta v. Berta, 2015 ONCA 918, at paragraph 94.

Part Three – Offers to Settle

[13] The Father relies on a letter, dated June 6, 2025, which proposes a without prejudice temporary parenting time schedule including supervised access by a professional.

[14] On June 10, 2025, the Mother accepted the proposed without prejudice temporary parenting time.

Part Four – Success

[15] Subrule 24(3) sets out a presumption that the successful party is entitled to costs.

[16] The Father concedes that the Mother was the successful party and costs should be awarded to her.

Part Five – Amount of Costs

[17] The court considers subrule 24(14) when determining the amount of costs. Subrule 24(14) reads as follows:

Setting Costs Amounts

24(14) In setting the amount of costs in relation to a step in a case, the court may consider,

(a) the reasonableness and proportionality 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 licensed representatives 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.

[18] The issues were important to the parties and complicated by very serious allegations.

(i) Each Party's Behaviour

[19] 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 problematic litigation strategy: Weber v. Weber, 2020 ONSC 6855.

[20] The court made the following findings of fact:

a. Both parties engaged in demeaning name calling and inappropriate communication, and this causes the court to be concerned about how both parents will communicate to the Child about the other parent.

b. The court is concerned that the Father is making false allegations about the Mother for his own purposes separate from the Child's best interests, and that he does not support the Child's relationship with the Mother.

c. The Father was aggressive, controlling, and threatening towards the Mother. His evidence demonstrated little insight into this, and he deflects his conduct on to the Mother.

d. The Mother is willing to support the Father's relationship with the Child, although in a limited way connected to the Child's best interests. The Mother has concerns about the Father, including his mental health, his emotional regulation, anger and caregiving skills. The concerns appear, at this stage, to be justified and appropriate.

e. While both parties engaged in negative forms of communication and name-calling, the Father communications were categorically different and included threats and intimidation, even in response to the Mother's expressions about her concerns for her and the Child's safety.

f. The Father was emotionally abusive to the Mother during the conversation that was recorded by the Mother. The Father was enraged that the Mother would remove herself and the Child from the home for safety reasons, despite the fact that the Father had left that home months before.

g. The Father's approach to this litigation is highly aggressive and litigious.

h. The Father initially brought the motion ex parte, denying the Mother any opportunity to respond. The Father's motion included extremely serious allegations about the Mother's ability to care for the Child, which were not verified by the Catholic Children's Aid Society of Toronto involvement. The Father did not mention the Child's skull fractures, or the Father's mental health struggles and supports. The Father stated the Mother was emotionally abusive towards him using racist, homophobic and degrading comments, without any mention or insight into his own abusive, intimidating, and threatening communications. The Father then brought the motion urgently before a case conference. Finally, the Father objected on technical grounds to much of the Mother's evidence while declining to provide his version of events and relying on blanket denials.

i. There was no evidence that Father's counsel made a genuine effort to settle the issues before commencing the motion. Negotiation and problem-solving must come before litigation unless there is a serious safety concern for a child.

[21] The Mother acted reasonably with respect to her concerns for the Child's wellbeing and in accepting the Father's offer to settle.

[22] The Father did not act reasonably regarding the issues. Additionally, the Father failed to adequately consider the strength of his case.

[23] The Father's conduct hovered very close to bad faith.

(ii) Time Spent

[24] There is time claimed by the Mother that does not relate solely to the Motion in the amount of $1,543.00 which was time related to responding to the Father's 14B motion and drafting the Mother's Answer.

[25] Otherwise, the court finds that the time claimed on the issues is reasonable, given that this was a motion on parenting issues with serious and complex allegations.

[26] In reviewing the Mother's bill of costs, 55.30 hours were spent on the motion. There is no duplication of work between the lawyers who worked on the case.

[27] In comparison, Father's counsel spent 30.6 hours on the motion. While the Father submits the costs claimed by the Mother are inflated, it appears that no time was included in the Father's bill of costs for attending the motion.

[28] The materials prepared on the Mother's behalf were well drafted and compelling. The Mother was successful on that basis.

[29] The court finds that the time claimed by the Mother for the issues is reasonable, with minor exceptions, given the serious nature of the allegations made by the Father against the Mother, and the serious concerns the Mother had about the Father.

(iii) Written Offers

[30] The Father made an offer to settle, which was accepted by the Mother, but did not resolve the motion.

(iv) Legal Fees

[31] The rates claimed by the Mother's lawyer are reasonable. In reviewing the Mother's bill of costs, there is no duplication of work between the lawyers and law clerk who worked on the case.

[32] The rates claimed by the Father's lawyer are also reasonable.

Part Six – Reasonable Expectations

[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: Arthur v. Arthur, 2019 ONSC 938.

[34] In the case of Beaulieu v. Diotte, 2020 ONSC 6787, at paragraph 9 the Honourable Justice Mackinnon stated:

…the respondent's conduct and lack of success are such that costs should be fixed and payable now. Nor is this a case where he has established inability to pay. Assertions made in costs submissions will rarely if ever, be sufficient. And, difficult financial circumstances are a factor but not are always a reason to deprive a successful party of costs or to reduce the amount of cost: see C.A.M. v. D.M.; I.S. v. T.C., 2020 ONSC 5411.

[35] The court finds the Father should have reasonably expected to pay the costs that will be ordered if he was unsuccessful.

[36] The court finds that the Child's primary parent should not have the financial consequences of the Father's unsuccessful motion.

Part Seven – Costs Decision

[37] The court finds it reasonable and proportionate to order the Father to pay the Mother costs of $18,000.00 inclusive of disbursements and HST.

[38] A final order shall go as follows:

1. The Father shall pay the Mother costs fixed at $18,000. The costs are due and payable at a rate of $3,000 per month, beginning September 1, 2025. In the event of default, the entire amount shall become payable immediately.

Released: August 18, 2025

Signed: Justice J. Harris