Court File and Parties
Date: October 1, 2025
Court File No.: D43409/23
Ontario Court of Justice
Between:
K.H.S. Applicant
- and -
K.S. Respondent
Counsel:
- Ari Rubin, for the Applicant
- The Respondent Acting in Person
Heard: September 29, 2025
Justice: S.B. Sherr
Costs Endorsement
Part One – Introduction
[1] On August 25, 2025, the court delivered written reasons for decision after a focused trial of the support issues concerning the parties' two children. See: K.H.S. v. K.S., 2025 ONCJ 436.
[2] The court fixed the respondent's (the mother's) child support arrears at $19,045. It ordered her to pay child support to the applicant (the father) of $597 each month, starting on September 1, 2025. This is the Child Support Guidelines table amount for two children based on an imputed annual income to her of $40,000. The court permitted her to pay the support arrears at $200 each month, starting on January 1, 2026.
[3] The parties were given permission to make written costs submissions. The father made submissions and sought his costs of $26,791. The mother did not make written costs submissions. However, the court permitted her to make oral submissions at a court appearance on September 29, 2025. She submitted that she cannot afford to pay costs in addition to her ongoing and arrears child support payments.
Part Two – General Costs Principles
[4] 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:
- to partially indemnify successful litigants;
- to encourage settlement;
- to discourage and sanction inappropriate behaviour by litigants; and
- to ensure that cases are dealt with justly under subrule 2(2) (all references in this decision to rules are to the Family Law Rules).
[5] 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, paragraph 25.
[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 paragraph 94.
Part Three – Did the Father'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 father made a severable offer to settle dated July 2, 2025.
[10] The mother did not make an offer to settle.
[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] Here, the father's offer to settle was very close to the trial result. However, no severable part of his proposal was as good as or better than the trial result.
[16] The father proposed in his offer that arrears be fixed at $23,919. They were fixed at $19,045. The father proposed that arrears be paid at $661 each month starting immediately. The court ordered them paid at $200 each month, starting on January 1, 2026. The father proposed that ongoing support be paid at $755 each month. It was ordered at $597 each month.
[17] The court finds that the costs consequences set out in subrule 24(12) do not apply to the father's offer to settle. His offer to settle and proposed consent were considered under sub-clause (iii) of subrule 24(14)(a).
Part Four – Success
[18] 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.
[19] 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: Reichert v. Bandola, 2024 ONSC 4573; Todor v. Todor, 2021 ONSC 3463; G.E. v. J.E., 2023 ONSC 1743; Kyriacou v. Zikos, supra.
[20] Subrule 24(4) sets out that if success in a step in a case is divided, the court may apportion costs as appropriate.
[21] Divided success does not equate with equal success. It requires a comparative analysis. See: Jackson v. Mayerle, 2016 ONSC 1556, paragraph 66.
[22] The father was the more successful party at trial. However, he wasn't completely successful. He took a more aggressive position on imputing income to the mother at trial than he did in his offer. In particular, for the period from October 2023 until December 2024, he asked the court to impute annual income to her of $220,000. The court imputed annual income of $75,000 to the mother for this time frame.
[23] The mother took the position at trial that she should pay child support based on an annual income imputed to her of $15,800. This was not close to the final result.
[24] The mother did not rebut the presumption that the father is entitled to his costs.
Part Five – Analysis
[25] Subrule 24(14) reads as follows:
Setting the Amount of Costs
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, any legal fees, including the number of lawyers and their rates,
(iv) any expert witness fees, including the number of experts and their rates,
(v) any other expenses properly paid or payable; and
b) any other relevant matter.
[26] 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; Houston v. Houston, 2025 ONSC 2824.
[27] Conduct which unduly complicates or unduly lengthens and increases the cost of a proceeding constitutes unreasonable conduct under subrule 24(7). See: Goldstein v. Walsh, 2019 ONSC 3174; Hutchinson v. Peever, 2021 ONSC 4587; Jackson v. Mayerle, 2016 ONSC 1556.
[28] In considering the reasonableness of the parties' conduct, the judge deciding costs should also address their mind to whether they have complied with court orders and the Rules during the proceeding. Rules 1(8)(a) and 1(8.1) provide that if a person fails to obey an order in a case or a related case or with the Rules, the court may deal with the failure by making an order for costs. See: M.A.B. v. M.G.C., 2023 ONSC 3748.
[29] The father acted reasonably. He made a reasonable offer to settle.
[30] The mother did not act reasonably. At trial, the court found that she:
a) Misrepresented her income to the court.
b) Hid income.
c) Did not provide timely, complete or comprehensible financial disclosure.
d) Paid no child support until ordered to do so on July 24, 2025, despite paying large monthly amounts for vehicles and earning substantial income.
e) Paid no child support after the final parenting orders were made on April 28, 2025.
[31] The mother also did not make an offer to settle.
[32] This case was important to the parties. It was not complex. It was made more difficult because the mother did not provide timely or comprehensible financial disclosure.
[33] The court considered the rates and time claimed by the father and reviewed his bill of costs. The court recognizes that additional time was spent pursuing and reviewing financial disclosure that was received incrementally. However, it finds that the total amount of time claimed was excessive and not proportionate.
[34] The father also claimed time for prior steps in the case where costs were awarded, that also involved parenting issues or where costs were not reserved. No exceptional circumstances exist to award costs for that work at this time. See: Laidman v. Pasalic and Laidman, 2020 ONSC 7068; Berge v. Soerensen, 2020 ONCJ 265.
[35] Costs accrued from activity not specifically related to a prior step in a case can be ordered at the end of a case. Activity not requiring judicial intervention is often better dealt with at the end of the case and not by the motions judge. See: Houston v. Houston, 2012 ONSC 233; Walts v. Walts, 2014 ONSC 98; F.S. v. M.B.T., 2023 ONCJ 144. Here, this would include time for obtaining and reviewing financial information from the mother and attempts to resolve the support issues.
[36] The court considered the mother's ability to pay costs. See: MacDonald v. Magel. However, 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 costs. See: Beaulieu v. Diotte, 2020 ONSC 6787.
[37] Ability to pay will be less of a mitigating factor when the impecunious party has acted unreasonably, or where their claim was illogical or without merit. See: Gobin v. Gobin, 2009 ONCJ 278; D.D. and F.D. v. H.G., 2020 ONSC 1919. Impecuniosity does not grant a litigant the right to unrestricted access to the courts. Such access has to be exercised responsibly and reasonably. See: G.W.S. v. C.S., 2018 ONCJ 378.
[38] 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.
[39] The mother presently has limited financial circumstances. She was imputed an annual income of $40,000. However, she is not presently working. She faces significant child support arrears. The court also considered that she increased the cost of this litigation through her unreasonable conduct. She is not insulated from costs consequences.
[40] 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 the mother should have reasonably expected to pay the costs that will be ordered in this decision if she was unsuccessful.
[41] The court will address the mother's financial circumstances by permitting her to pay them in reasonable monthly instalments. It will also defer payment of them until January 1, 2026.
Part Six – Conclusion
[42] The court orders as follows:
a) The mother shall pay the father's costs fixed in the amount of $10,000, inclusive of fees, disbursements and HST.
b) The mother may pay these costs at $200 each month, starting on January 1, 2026. However, if the mother is more than 30 days late in making any of these payments, or any of the ongoing or arrears support payments after this date, the entire amount of costs then owing shall immediately become due and payable.
Released: October 1, 2025
Justice Stanley B. Sherr
[1] This was the return of the father's motion to change the mother's parenting time with the children.