Court File and Parties
Court File No.: FC-21-0000365-0000
Date: 2025-04-07
Ontario Superior Court of Justice
Between:
Katherine Churchill, Applicant
– and –
Christopher David Elliott, Respondent
– and –
Sandra Ward, Respondent (Self-Represented, Noted in Default)
Applicant Counsel: Brent Balmer
Respondent Counsel: Jonathan Krashinsky
Sandra Ward: Self-Represented, Noted in Default
Heard: In Writing
Justice: D. Piccoli
Costs Endorsement
The court heard a 13.5-day trial. Following the release of its decision, the court invited submissions on costs and received same.
This is the court's decision related to costs.
Ms. Churchill seeks partial indemnity costs in the amount of $52,325 plus HST ($6,802.25). She also seeks disbursement of $1,666.18 plus HST ($210.10) for a total of $1,876.28. She seeks a total of $61,003.53. She indicates that although success may have been divided, Mr. Elliott’s behaviour throughout these proceedings was such that she had little option but to proceed to trial. Ms. Churchill maintains that Mr. Elliott was inflexible throughout and, in particular, regarding the central questions of parenting time and decision making. She maintains that although she was not successful as it relates to her offer dated June 1, 2024, such shows a willingness to be reasonable. She maintains that, differently, the Respondent’s offer of settlement, given that it was not severable, left her with no choice but to proceed to trial on all issues.
The Respondent indicates that his costs amounted to $139,416.89 but submits that he should only be awarded $40,000. His reasons for this request include that Ms. Churchill “pursued a strategy of aggressive litigation with little consideration of the cost consequences”, that he was successful on what he indicates are three of the seven issues, and that a significant amount of time was devoted to the question of spousal support at the request of Ms. Churchill despite its dismissal by this court. He also questions whether the Applicant has standing to seek costs given that, at the commencement of the trial, she had not complied with a costs order and her bill of costs is deficient.
For the reasons that follow, this court orders that the Respondent, Mr. Elliott, pay to the Applicant, Ms. Churchill, the sum of $15,000 in costs forthwith.
The Law on Costs
It is trite law that costs provisions set out in the Family Law Rules, O. Reg. 114/99, are intended to foster four important principles: (1) to partially indemnify successful litigants for the cost of litigation, (2) to encourage settlement, (3) to discourage and sanction inappropriate behaviour by litigants, and (4) to ensure that cases are dealt with justly under r. 2(2) of the Family Law Rules: see Serra v. Serra, 2009 ONCA 395, para. 8; Mattina v. Mattina, 2018 ONCA 867, para. 10.
The determination of costs is a two-stage process. First, the court must decide whether any party is liable for costs. Second, if costs liability is established, the court must then determine the appropriate amount of the costs award: see M.A.B. v. M.G.C., 2023 ONSC 3748, para. 33.
The cost rules, under the Family Law Rules, were changed on January 22, 2025. Parties are required to confer in advance and be prepared to argue costs at each stage in a case: see rr. 24(17) and (18). Costs are also to be dealt with in a summary manner at every stage of a case: see r. 24(1).
Rule 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, paras. 1-2.
A successful party who has behaved unreasonably during a case may be deprived of costs: see r. 24(7), Family Law Rules. In deciding whether a party has behaved reasonably or unreasonably, the court shall examine the party’s behaviour in relation to the issues from the time they arose, the reasonableness of any offer the party made, and any offer the party withdrew or failed to accept: see r. 24(8), Family Law Rules.
If success is divided, the court may apportion costs as appropriate: see r. 24(4), Family Law Rules. This was clearly a case of divided success and both parties acknowledge this.
Rules 24(12) and (13) establish the cost consequences of failing to accept an offer to settle. In this case, while neither party beat his or her offer to settle, the Applicant’s offer showed more promise as it was severable. This is the case even though, within the severable portions, she was not fully successful.
Analysis
The Respondent’s offers to settle of October 13, 2023, January 15, 2024, and June 5, 2024, were all non-severable offers. This is problematic in that none of the issues could move forward to resolution when all the issues were tied together. In this case there were issues that would likely have settled had the Respondent’s offers been severable. The court agrees with the Applicant that the Respondent’s offer, as it related to the parenting schedule not being severable from other issues, left the Applicant with no choice but to move forward to trial. The Respondent’s offer to settle parenting schedule offered the Applicant less time with the child N. than she has pursuant to the last interim order. This was not a reasonable offer. Despite that, the court’s order of costs must also reflect the fact that the Applicant was not successful even on the severable portions of her offer; had she been, the costs award in her favour would have been higher.
The court does not agree that a significant amount of time was spent on the issue of spousal support; in fact, one of the Respondent’s arguments was that there was insufficient evidence on the issue. The bulk of the time was spent on parenting issues and, although neither party was successful as it relates to decision making, the Applicant was successful in that the court ordered an equal time parenting schedule.
Also, and despite the Applicant having not paid the costs order at the commencement of the trial, this is not a situation where r. 1(8) of the Family Law Rules would disqualify her from seeking costs at the end of a 13-day trial that encompassed mostly child-focused issues.
Finally, the court disagrees with the Respondent that costs should not be ordered in a case where it is unclear what amounts the Applicant will pay to her lawyer. The Applicant lawyer’s generosity in reducing his fees is not to result in the Respondent having reduced liability for costs. Financial arrangements between a solicitor and their client are not determinative of the entitlement to, or quantum of, costs payable: see Zeleny v. Zeleny, para. 10; and Bergen v. Sharpe, para. 75.
The Family Law Rules emphasize the importance of reasonableness and proportionality in the court’s approach to setting of costs: see Mattina v. Mattina, 2018 ONCA 867, para. 10; Beaver v. Hill, 2018 ONCA 840, para. 4.
Determining the fair and reasonable amount is not a mechanical exercise; it is more than adding up the lawyers’ dockets: see Jackson v. Mayerle, 2016 ONSC 1556, para. 17.
In this case, the court finds that it is fair, reasonable, and proportionate that the Respondent, Mr. Elliott, pay to the Applicant, Ms. Churchill, the sum of $15,000 in costs forthwith.
Justice D. Piccoli
Released: April 7, 2025