ONTARIO COURT OF JUSTICE

CITATION: C.B.Z. v. A.R.J., 2026 ONCJ 230

DATE: 2026-04-23

COURT FILE No.: Woodstock D74/24

BETWEEN:

C.B.Z.

Applicant

— AND —

A.R.J.

Respondent

Before Justice S. E. J. Paull

Reasons on Costs

Released April 23, 2026

Upasana Kang...................................................................................... counsel for the applicant

W. Gerald Punnett............................................................................ counsel for the respondent

PAULL J.:

[1] Before the court is the issue of costs following the trial which took place over four days dealing with decision-making, primary residence, parenting time, child support, and police assistance with respect to the parties’ two children.

[2] Each party sought sole decision-making and primary residence with parenting time to the other. Both parties sought to impute income on the other for the purposes of child support, and C.B.Z. sought a police enforcement clause.

[3] The final order granted primary residence to A.R.J. with joint decision-making with A.R.J. having the authority to make decisions regarding health and education. C.B.Z. was granted liberal parenting time and was required to pay ongoing child support on an imputed income of $21,000. His request for a police assistance clause was dismissed.

[4] The court invited written submissions on costs which both parties filed. Unfortunately, the brief submissions provided were not particularly helpful.

[5] A.R.J. appears to seek full indemnity costs of $18,343.29, or alternatively partial indemnity costs of $12,228.86, based on her success. C.B.Z. appears to seek partial indemnity costs of $17,877, despite A.R.J.’s succuss, on the basis of her unreasonable conduct.

[6] 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.

[7] 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.

[8] 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 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 23496 (ON SC), [2008] O.J. No. 1978 (SCJ); Reichert v. Bandola, 2024 ONSC 4573.

[9] The failure to make an offer to settle much earlier by either party is unreasonable behaviour. Subrule 2(4) imposes a duty on parties and their lawyers to promote the primary objective of the rules to deal with cases justly (Rule 2(2)). This includes taking appropriate steps to save time and expense. See: Subrule 2 (3). Offers to settle play an important role in saving time and expense by promoting settlements, focusing parties and often narrowing issues in dispute. Laing v. Mahmoud, 2011 ONSC 6737. The failure to serve an offer to settle will be an adverse factor when assessing costs.

[10] 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:

1. If the offer relates to a motion, it is made at least one day before the motion date.

2. 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.

3. The offer does not expire and is not withdrawn before the hearing starts.

4. The offer is not accepted.

5. The party who made the offer obtains an order that is as good as or better than the offer.

[11] 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).

[12] The Rules expressly provide that depending on the conduct of the parties and the presence or absence of offers to settle, a judge may increase or decrease what would otherwise be the appropriate quantum of costs awarded, although there is no obligation to make an offer to settle. Beaver v. Hill, 2018 ONCA 840.

[13] C.B.Z. submits an offer to settle dated August 12, 2025 which included:

1. Parallel decision-making with C.B.Z. making final decisions regarding health and education with A.R.J. making decisions on religion, culture, and sports.

2. Primary residence with C.B.Z. with liberal parenting time to A.R.J..

3. A.R.J. to pay child support in an amount that was not specified.

[14] A.R.J. did not submit any offers to settle.

[15] 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. Jackson v. Mayerle, 2016 ONSC 1556, paragraph 66, per Justice Alex Pazaratz.

[16] A.R.J. was clearly the more successful party. She was granted the order she sought on primary residence, which was the central and most important issue in dispute, and was granted the authority to make final decisions regarding health and education. She also obtained a child support order on an imputed income.

[17] While it was reasonable that C.B.Z. made the effort to provide an offer to settle, the order granted did not meet or exceed the offer.

[18] There was some degree of divided success on the issue of decision-making, as the court ordered joint decision-making. However, A.R.J. was more successful on that issue as she was given final authority on the issues of health and education. C.B.Z. was unsuccessful on the remainder of his claims, including the request for police enforcement.

[19] While A.R.J. was clearly the successful party and largely achieved the order she sought, she did not provide any offers to settle which was not reasonable given how long this matter was outstanding and the number of issues involved.

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

[21] 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.

[22] Subrule 24 (8) provides criteria for determining the reasonableness of a successful party’s behaviour in a case (a factor in clause 24( 14)(a) (1) above). It reads as follows:

DECISION ON REASONABLENESS

24 (8) In deciding whether a successful party has behaved reasonably or unreasonably, 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 failed to accept.

[23] 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.

[24] 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.

[25] Both parties engaged in unreasonable behavior including the following:

1. As noted in the Reasons, the high level of conflict was the responsibility of both parties. Neither party took responsibility nor showed insight into their own actions which contributed to the conflict that put their children at risk.

2. C.B.Z. maintained a position throughout this lengthy matter that was not successful, except on the issue of decision making where he had some limited divided success.

3. A.R.J. failed to provide an offer to settle.

4. A.R.J. withheld parenting time from C.B.Z. for several months in 2024.

5. As noted in the Reasons, there were concerns with the credibility of both parties’ evidence at times, particularly the evidence of C.B.Z..

6. Neither party provided clear or fulsome financial disclosure to support their claims and as required by the Rules.

7. Both parties continued to make unfounded allegations about the other to police and the CAS.

8. Despite the court encouraging the parties to discuss and agree on the issue of costs, it does not appear there was any communication outside the service of each parties’ costs submissions.

9. The cost submissions filed by both parties, particularly those of A.R.J., were, apart from the Bill of Costs, largely devoid of any meaningful information or analysis.

[26] However, the court also found that both parties, with the considerable support they each receive, were capable of putting forward a reasonable plan for the children’s primary care. It was also reasonable that the parties consented in 2024 to a temporary order for shared parenting, and that they were able to maintain this arrangement largely uninterrupted until trial in January 2026.

[27] Subrule 24 (15) sets out that any claim for costs respecting fees or expenses shall be supported by documentation satisfactory to the court.

[28] Both parties provided detailed Bills of Costs. The hourly rate of both counsel was reasonable given their years of experience, as was the time spent on this matter.

[29] The court should take into consideration the ability of a party to pay costs. MacDonald v. Magel (2003) 2003 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.

[30] No submissions were provided by either party on the ability to pay or the impact of any costs ordered. The Reasons for Judgment noted that both parties were of modest means and relied heavily on others for both financial and practical support.

[31] 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.

[32] 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.

[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] 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 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.

[35] This case was clearly important to the parties. There were a large number of issues in dispute and the parties offered dramatically opposing evidence. Despite this, the evidence and legal issues were not particularly complex or difficult.

[36] Overall, A.R.J. is entitled to costs. She was more successful on all the issues. There were aspects of both parties’ approach with were reasonable and unreasonable.

[37] I have considered these factors and C.B.Z.’s limited financial means, but in the circumstances these are not a reason to deprive A.R.J. of a costs award.

[38] Family law litigants are responsible and accountable for the positions they take in the litigation. Heuss v. Surkos, 2004 CarswellOnt 3317, 2004 ONCJ 141.

[39] C.B.Z. should have reasonably expected to pay the costs that will be ordered if he was unsuccessful. The hardship of the costs order will be mitigated by a reasonable payment plan.

[40] I find that a fair and reasonable sum for costs is $3,000 (inclusive).

[41] These costs shall be payable at a rate of $200 per month commencing June 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.

[42] A final order shall issue as follows:

1. Costs payable by the applicant to the respondent in the amount of $3,000;

2. The applicant shall pay the costs at a rate of $200 per month commencing June 1, 2026.

3. 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.

Released: April 23, 2026

Signed: “Justice S. E. J. Paull”