Ontario Court of Justice
Date: 2026-03-16
Court File No.: Woodstock D88/25
Between:
Katherine Alicia Tanner, Applicant
--- AND ---
Sean Mark Gerard Meade, Respondent
Before: Justice S. E. J. Paull
In Chambers
Reasons for Costs released March 16, 2026
Applicant appearing on her own behalf
Joel J.W.G. Szaefer, for the respondent
PAULL J.:
[1] Before the court is the issue of costs resulting from the dismissal of the application and urgent motion brought by Ms. Tanner.
[2] The respondent seeks full recovery costs in the amount of $7,242.17 (inclusive). The applicant submits that there should be no order as to costs.
[3] The applicant commenced an application with an urgent motion in the Ontario Court of Justice in Woodstock seeking orders regarding the parties' child. The motion requested, "Emergency motion for custody and access" and was returnable July 14, 2025.
[4] The respondent, with the assistance of counsel, brought his own urgent motion returnable on the same day seeking an order dismissing the motion and application on the basis that the child's habitual residence was in Sarnia. Further, there was a proceeding in the Superior Court of Justice in that jurisdiction that had been vetted and scheduled for hearing on July 31, 2025.
[5] The applicant did not file a reply affidavit.
[6] On July 14, 2025, the applicant's motion was dismissed without prejudice to her raising the same issues in the proceeding in the Superior Court of Justice in Sarnia, including the issue of the proper jurisdiction. As noted in the endorsement, the applicant's affidavit was largely devoid of factual underpinnings and was insufficient to establish urgency or that Woodstock was the proper jurisdiction. The issue of costs for the motion was reserved to the return date of the application on October 20, 2025.
[7] On October 20, 2025 the applicant was not present. The respondent and his counsel were in attendance remotely. Counsel advised that the matter in the Superior Court of Justice in Sarnia proceeded and a substantive order was made on October 9, 2025 by Justice Raikes, which included that Sarnia was the proper jurisdiction.
[8] As a result, the application was dismissed without prejudice to Ms. Tanner advancing similar claims in that proceeding if she had not already done so. The respondent sought costs and, as the applicant was not present, filing deadlines were set. Both parties filed costs submissions.
[9] The respondent seeks full recovery costs of $7242.17 inclusive, based on his success, his offer to settle, and the applicant's unreasonable behaviour in proceeding with this matter in Woodstock.
[10] The applicant submits there should be no order as to costs on the basis that she was self-represented and of limited financial means.
[11] 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). Mattina v. Mattina, 2018 ONCA 867.
[12] 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, 2002, S.C.C., supra, paragraph 25.
[13] 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. Sims-Howarth v. Bilcliffe, 2000 CanLII 22584 (ON SC), [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. Lawson v. Lawson, 2008 CanLII 23496 (ON SC), [2008] O.J. No. 1978 (SCJ); Reichert v. Bandola, 2024 ONSC 4573.
[14] 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. 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. Kyriacou v. Zikos, 2022 ONSC 401.
[15] 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.
[16] 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).
[17] The technical requirements of subrules 18 (4) and 24 (12) must be met to attract the costs consequences in subrule 24 (12). Sader v. Kekki, 2014, ONCJ 41; Jakubowski v. Kopacz-Jakubowski, [2008] O.J. No. 1442 (SCJ); Weber v. Weber, 2020 ONSC 6855; Clancy v. Hansman, 2013 ONCJ 702; Ajiboye v. Ajiboye, 2019 ONCJ 894; Balzano v. D'Alessandro, 2024 ONCJ 609.
[18] 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. C.A.M. v. D.M. [2003] CanLII 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.
[19] The respondent submits an offer to settle dated July 2, 2025. The offer meets the technical requirements of Rule 18(4) and 24(12). He offered that if the applicant withdrew her motion returnable July 14, 2025 there would be no order as to costs, and it would be without prejudice to her raising any issues in the matter returnable in the Superior Court of Justice in Sarnia which had already been vetted and scheduled for two weeks later.
[20] In the cover letter attached to the offer, counsel for the respondent alerted the applicant to the issue of jurisdiction by noting the requirement that a proceeding be brought in the jurisdiction where the child habitually resided.
[21] The applicant provided no offer to settle and chose to proceed with the urgent motion on July 14, 2025.
[22] Her motion was dismissed on July 14, 2025 with costs reserved for the return date. The application was dismissed on October 20, 2025 with the applicant not in attendance.
[23] The respondent was clearly the successful party. He achieved what he sought, and the result was what he offered on July 2, 2025.
[24] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. Beaver v. Hill, 2018 ONCA 840.
[25] 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.
[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. Weber v. Weber, 2020 ONSC 6855.
[27] Poor litigation decisions and advancing unreasonable claims or filing meritless and incomplete pleadings may also justify an elevated costs award. Hughes v. Hughes, 2024 ONSC 1119; Ali Hassan v. Abdullah, 2023 ONCJ 186, at para 61.
[28] The following behaviour of the applicant was unreasonable:
She brought a motion on an urgent basis which was not supported by the limited evidence she provided.
The evidence available at the motion was strongly suggestive that the habitual residence of the child was in Sarnia. Despite this, she chose not to file a reply affidavit and to proceed with her motion in Woodstock.
She ought to have accepted the respondent's offer that she withdraw the motion on a without costs basis and raise all of her issues in the matter already scheduled in Sarnia on July 31, 2025.
She did not make any effort to withdraw the application in advance of the first return date on October 20, 2025, including after the Superior Court of Justice in Sarnia made an order on October 9, 2025.
She failed to attend court on October 20, 2025.
[29] The applicant's unreasonable decisions resulted in the respondent incurring unnecessary legal fees.
[30] The respondent approached this matter reasonably. His offer was fair and appropriate. His counsel alerted the applicant that there was a jurisdictional issue in the cover letter when the offer was served. The offer remained open with sufficient time before the hearing on July 14, 2025 to permit her to consider the matter carefully and to seek legal advice, including from Duty Counsel. She also had the assistance of experienced Duty Counsel on the day of the motions.
[31] Subrule 24 (15) sets out that any claim for costs respecting fees or expenses shall be supported by documentation satisfactory to the court.
[32] The respondent provided a detailed Bill of Costs outlining total costs for preparation of materials and attendance at 2 court appearances (one in person and one virtual attendance) of $7,242.17 inclusive. The hourly rate of counsel was reasonable given his years of experience, as well as the time he spent on this matter. However, the rates charged for clerical support and the "one time administrative fee" of $300 were excessive.
[33] The court should take into consideration the ability of a party to pay costs. MacDonald v. Magel (2003), 2003 CanLII 18880 (ON CA), 67 O.R. (3d) 181 (Ont. C.A.). Difficult financial circumstances are a factor but are not always a reason to deprive a successful party of costs or to reduce the amount of costs. Beaulieu v. Diotte, 2020 ONSC 6787. Ability to pay will be less of a mitigating factor when the impecunious party has acted unreasonably, Gobin v. Gobin, 2009 ONCJ 278; D.D. and F.D. v. H.G., 2020 ONSC 1919.
[34] Those who can least afford to litigate should be most motivated to seriously pursue settlement and avoid unnecessary proceedings. Mohr v. Sweeney, 2016 ONSC 3338; Balsmeier v. Balsmeier, 2016 ONSC 3485.
[35] 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. Farjad-Tehrani v. Karimpour, 2009 CarswellOnt 2186 (S.C.J.) at para. 32, aff'd 2010 ONCA 326 at para. 4.
[36] 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.
[37] 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. Hackett v. Leung, 2005 CanLII 42254 (ON SC), [2005] O.J. No. 4888 (Ont. S.C.J.). 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. O'Brien v. O'Brien, 2017 ONSC 402.
[38] This case was clearly important to the parties. The evidence and legal issues were not extensive, complex or difficult.
[39] The applicant's position is that the imposition of a costs order would be an undue financial hardship. She submits that she is a single parent of two other children and is of limited means. She stated an annual net income of just over $18,000. She acknowledged she was in error for commencing her application in Woodstock.
[40] Overall, the respondent is entitled to costs. He approached this matter reasonably, was entirely successful, and obtained a result identical to his offer to settle.
[41] The applicant behaved unreasonably. She proceeded with an urgent motion seeking relief that was not supported by her evidence or brought in the proper jurisdiction. She did not seek to withdraw her application, even after an order was granted in the Superior Court of Justice and Sarnia. This required the respondent and his counsel to attend a further unnecessary court appearance in Woodstock.
[42] I have considered her limited financial means, but in the circumstances this is not a reason to deprive the respondent of a costs award. She was aware that costs were an issue, and failed to attend court, in person or remotely, on the return date of her own application.
[43] Self-represented litigants have the same obligations as those represented by counsel to follow the Family Law Rules and to make reasonable litigation decisions.
[44] Family law litigants are responsible and accountable for the positions they take in the litigation. Heuss v. Surkos, 2004 CarswellOnt 3317, 2004 ONCJ 141.
[45] The applicant should have reasonably expected to pay the costs that will be ordered if she was unsuccessful. The hardship of the costs order will be mitigated by a reasonable payment plan.
[46] Despite the respondent being presumptively entitled to full indemnity recovery as a result of his success and offer to settle, when the entirety of the circumstances are considered, I find that a fair and reasonable sum for costs is $4,500 (inclusive).
[47] These costs shall be payable at a rate of $300 per month commencing April 1, 2026. However, if the applicant is more than 30 days late making any payment, the entire amount of costs then owing shall immediately become due and payable.
[48] A final order shall issue as follows:
Costs payable by the applicant to the respondent in the amount of $4,500;
The applicant shall pay the costs at a rate of $300 per month commencing April 1, 2026.
If the applicant is more than 30 days late making any payment, the entire amount of costs then owing shall immediately become due and payable.
Approval of the order is waived.
Released: March 16, 2026
Signed: "Justice S. E. J. Paull"