Superior Court of Justice – Ontario

Court File No.: 1088/23
Date: May 8, 2025

RE: Scott Gregory Houston, Applicant
AND: Sharon Ann Houston, Respondent

Before: Alex Pazaratz
Counsel: Self-Represented Applicant; Self-Represented Respondent

Costs Endorsement

Introduction

[1] Houston, we have a problem.

[2] If you won your support motion by convincing a judge your income is low, your costs submissions probably shouldn’t include a large claim for “lost wages”.

Procedural History

[3] My March 10, 2025 motion endorsement included the following deadlines:

a. Father’s written submissions by March 31, 2025.
b. Mother’s written submissions by April 11, 2025.
c. Father’s reply (if any) by April 18, 2025.
d. If father didn’t initially request costs, Mother’s reply (if any) by April 25, 2025.

[4] Only the father filed written submissions.

Background and Recap

[5] A brief re-cap:

a. This was an oral hearing of a motion to change child support relating to an adult disabled child.
b. The father’s September 5, 2023 motion sought to change a May 29, 2012 order, to reduce child support from the $462.00 per month to zero.
c. The father’s May 3, 2024 Amended Motion to Change modified his position: Rather than asking that child support be reduced to zero, he requested that it be reduced to $200.00 per month.
d. The mother’s June 21, 2024 Amended Response to Motion to Change requested retroactive support back to 2015 based upon an imputed income of at least minimum wage, plus at least a $27,000.00 gross-up (similar to an earlier order imputing income).
e. There were a lot of issues when the parties scheduled their three-day trial at a Trial Scheduling Conference on October 29, 2024. But by the time they reached trial in March 2025 they weren’t so far apart.
f. At the outset of the trial the father stated he would be asking that child support be reduced to zero. However, he soon adopted the position in his Amended Motion, that his ongoing child support should be $200.00 per month.
g. Similarly, in his opening statement at trial the father requested reimbursement of an overpayment of child support fixed at $26,000.00. But it quickly became evident that the mother was bound by the provisions of the father’s Request to Admit which she had not responded to. Accordingly, the amount of the father’s overpayment was quickly fixed at $8,458.00.
h. As well, at trial the father conceded that income should be imputed to him in the sum of $30,000.00. (The mother proposed a number of $34,000.00, but the father’s number prevailed.)
i. Perhaps most importantly, at trial the father acknowledged that the adult disabled child continued to be entitled to support (he had originally disputed this).
j. Ultimately, the father’s numbers prevailed. He would pay $200.00 per month ongoing child support based upon an imputed income of $30,000.00. He could deduct $50.00 per month as reimbursement for his $8,458.00 overpayment.

The Father’s Position

[6] The father’s position:

a. He was wholly successful in relation to ongoing support and the overpayment of support.
b. The mother’s litigation behaviour was unreasonable. She ignored court orders. She refused to provide disclosure. She overstated expenses and lied in sworn materials.
c. He relies on his October 15, 2024 Offer to Settle which he says entitles him to full indemnity costs.
d. Although he was self-represented at trial, he is claiming $7,302.82 in costs ($5,352.82 paid to two law firms who assisted him along the way, plus $1,950.00 in lost wages at the rate of $39.00 per hour (30 hours preparation plus 10 hours per day for each of two days of trial).

Application of Costs Law

[7] Although the mother did not file costs submissions, I must still apply the law of costs to the facts as I know them.

[8] Costs rules are intended to foster four fundamental purposes:

a. To partially indemnify successful litigants;
b. To encourage settlement;
c. To discourage and sanction inappropriate behaviour by litigants; and
d. To ensure that cases are dealt with justly pursuant subrule 2(2) of the Family Law Rules.

See Mattina v. Mattina, 2018 ONCA 867; Serra v. Serra, 2009 ONCA 395.

[9] Costs awards are discretionary. In exercising that discretion, the court should be mindful of two touchstone considerations: reasonableness and proportionality. See Beaver v. Hill, 2018 ONCA 840.

[10] Costs are an important tool to promote the efficient use of judicial resources and the orderly administration of justice. Access to the justice system by individuals must be balanced with the need to ensure that the resource is available for all those who need it. Costs can be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. See British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71; Peladeau v. Charlebois, 2020 ONSC 6596; Pugsley v. Adamantidou, 2021 ONCJ 590; N.P. v. D.H., 2023 ONCJ 2; F.K.T. v. A.A.H., 2023 ONCJ 185; Ali Hassan v. Abdullah, 2023 ONCJ 186; Enyedy-Goldner v. Goldner, 2024 ONSC 2727.

Presumption and Determination of Success

[11] Consideration of success is the starting point. Rule 24(3) creates a presumption of costs in favour of the successful party. See Sims-Howarth v. Bilcliffe.

[12] Apart from comparing the end result to any offers which were filed, a broader determination of success entails a comparison of what each party sought in the litigation, and what each party achieved.

a. 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.
b. As this court stated in Scipione v. Del Sordo, 2015 ONSC 5982, it often comes down to a simple question: Who got what they asked for? See also E.M.B. v. M.F.B., 2020 ONSC 3721; Natale v. Crupi, 2020 ONSC 8007; Hmoudou v. Semiali, 2020 ONSC 1330; DeSantis v. Hood, 2021 ONSC 5496; Grujicic and Grujicic v. Trovao, 2023 ONSC 1518.

[13] One factor in determining success – or the magnitude of success – is to compare how the order or eventual result compares to any settlement offers that were made. See Lawson v. Lawson; Ajiboye v. Ajiboye, 2019 ONCJ 894; Reichert v. Bandola, 2024 ONSC 4573.

[14] Rule 24(12) sets out cost consequences where a party fails to accept an offer which the other party then meets or exceeds at trial. In that case, the successful party is entitled to costs until the offer was served, and "full recovery" of costs from that date.

[15] Rule 24(13) sets out that the party seeking elevated costs pursuant to Rule 24(12) has the onus of proving that the order obtained at the motion or trial is as favourable as or more favourable than the terms set out in the offer to settle (or the relevant section[s] in a severable offer). See Neilipovitz v. Neilipovitz [2014] O.J. No. 3842 (SCJ); Saroli v. Grette, 2022 ONSC 3560; Fenton v. Charles, 2023 ONCJ 74; Angle v. Angle, 2024 ONSC 1758; Ricketts v. Ricketts, 2024 ONSC 1403.

[16] Even if subrule 24(12) does not apply, the court may take into account any written offer to settle, the date it was made and its terms when assessing the reasonableness of a party under sub-clause (iii) of subrule 24(14)(a).

[17] The scope of the comparison between the eventual outcome and any offers filed is broad and discretionary:

a. 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; Grant v. Runciman, 2025 ONSC 857.
b. Offers need not be exactly the same as the order obtained. 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; Leclerc v. Grace, 2020 ONSC 6722; Peladeau v. Charlebois, 2020 ONSC 6596.
c. 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. See Jackson v. Mayerle, 2016 ONSC 1556; Chomos v. Hamilton, 2016 ONSC 6232.
d. When comparing an offer to the eventual result, the court may consider financial equivalency. For example, a payor’s offer of lump sum spousal support may trigger Rule 18 consequences where the net benefit to the recipient would have exceeded the time limited periodic support which was ordered at trial. See Lennox v. Kaye, 2022 ONSC 4061.
e. But “close” is not good enough to attract the costs consequences of Rule 24(12). The offer must be as good or more favourable than the order obtained. See Thomas v. Saunchez, 2022 ONCJ 532; Grujicic and Grujicic v. Trovao, 2023 ONSC 1518; Thomas v. Charles, 2024 ONCJ 138; F.S. v. N.J., 2024 ONCJ 276; Uwaezuoke v. Uwaezuoke, 2025 ONCJ 89.

[18] The father is quite correct that his October 15, 2024 Offer included terms which the mother should have seriously considered accepting. But while this offer was a reasonable effort to settle the case, it does not identically match or surpass the outcome at trial.

a. The father offered $225.00 per month as ongoing child support, which is more than the $200.00 I ordered. But his offer included an automatic reduction of that sum to $125.00 per month as of July 1, 2029. The eventual order included no such future reduction.
b. The father proposed that disclosure would not be required by either party effective October 15, 2024. This term was not included in the final order (and indeed the Child Support Guidelines would make it impossible for the court to make such an order dispensing with disclosure, even if the parties had agreed).
c. The father offered to forgive any support overpayment between 2011 and August 2024. This should have been tempting for the mother. But notably, even if the mother had accepted this offer, she still would have been subject to the father’s overpayment claims between August 2024 and the March 2025 trial.
d. The father’s Offer does not trigger full recovery costs.

Divided Success and Reasonableness

[19] Rule 24(4) provides that where success in a step in a case is divided, the court may exercise its discretion to order and apportion costs as appropriate.

[20] In this case, during the extended period leading up to trial, each party advanced positions which were unsupported by the evidence and had little chance of success. Notably this aggressive overreaching coincided with periods when each of the parties had lawyers (either on the record or behind the scenes).

[21] However, once the trial got underway, both self-represented parties jettisoned many of their unreasonable claims. With respect to the narrowed list of issues actually dealt with at the two-day trial, the father’s position prevailed.

[22] So there was an element of divided success in relation to the claims as originally set out in the pleadings. At the trial itself, the father was more successful (although in the end the parties weren’t that far apart).

Determining the Amount of Costs

[23] Once entitlement to costs is established, the court must determine the amount – if any – to be paid. Rule 24(14) sets out some of the considerations:

[24] 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; Uwaezuoke v. Uwaezuoke, 2025 ONCJ 89. The court may award elevated costs where one party's conduct has been unreasonable. See Barrett v. Watson, 2024 ONSC 1118.

[25] Rule 24(14) provides criteria for determining the reasonableness of a party’s behaviour in a case. The court must examine the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle. Many factors must be considered:

a. The reasonableness of litigation conduct must be gauged over the totality of the proceeding. A court can order increased costs to express disapproval of unreasonable conduct. The amount may be higher where a party has had to incur unnecessary added expense as a result of the other party’s unreasonable conduct. See John v. John, 2020 ONSC 6437; O’Brien v. Chuluunbaatar, 2019 ONCJ 882; Habibi v. Aarabi, 2022 ONSC 240
b. Unreasonable behavior “in relation to the issues” includes behavior that: (1) is disrespectful of other participants or the court; (2) unduly complicates the litigation, (3) increases the cost of litigation. See Harper v. Smith, 2021 ONSC 3420; T.I. v. F.I., 2023 ONSC 3435; Rastkar v. Soltani, 2024 ONSC 2460
c. There must be some causal connection between the offensive behaviour and the conduct of the litigation, resulting in unnecessary steps or increased costs. See Kisten v. Kosewski, 2020 ONSC 3380; Freitas v. Christopher, 2021 ONSC 5233
d. Poor litigation decisions and advancing unreasonable claims or filing meritless and incomplete pleadings may also justify an elevated costs award. See Hughes v. Hughes, 2024 ONSC 1119; Ali Hassan v. Abdullah, 2023 ONCJ 186
e. Conduct which unduly complicates or unduly lengthens and increases the cost of a proceeding constitutes unreasonable conduct under Rule 24(7). See Goldstein v. Walsh, 2019 ONSC 3174; Hutchinson v. Peever, 2021 ONSC 4587; Jackson v. Mayerle, 2016 ONSC 1556
f. A high or full recovery costs award may be justified where a party persists in advancing unreasonable claims or arguments. See Lawrence v. Lawrence, 2017 ONCJ 431; M.A.B. v. M.G.C., 2023 ONSC 3748; Thomas v. Charles, 2024 ONCJ 138; Perreault v. Goudreau, 2024 ONCJ 130; Churchill v. Elliot and Ward, 2024 ONSC 2757

Reasonableness and Success

[26] “Reasonableness” and “success” are distinct considerations:

a. Lack of success will not, in itself, attract enhanced costs. Being unsuccessful is not necessarily the same as being unreasonable. But an unsuccessful party pursuing an unreasonable legal position may be liable for enhanced costs. See Climans v. Latner, 2020 ONCA 554; Nour v. Youssef, 2021 ONSC 5539; S.W.-S. v. R.S., 2022 ONCJ 11; Wauthier v. McAuliff, 2019 ONSC 5302; Rebujio v. Rosario, 2022 ONCJ 452; Kerr v. Moussa, 2023 ONCJ 82; F.K.T. v. A.A.H., 2023 ONCJ 185; Enyedy-Goldner v. Goldner, 2024 ONSC 2727
b. Conversely, Rule 24(7) sets out that a successful party who has behaved unreasonably during a step in a case may be deprived of all or part of their costs or ordered to pay all or part of the unsuccessful party’s costs.

[27] 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; Uwaezuoke v. Uwaezuoke, 2025 ONCJ 89.

[28] In this respect, I note that the mother failed to produce court-ordered disclosure, and she failed to file an updated sworn financial statement. This undermined opportunities for resolution.

Claims for Costs

[29] Notably, the father seeks costs under two headings:

a. He seeks reimbursement for fees he paid to lawyers who assisted him “behind the scenes” without going on record.
b. He also seeks costs for his own time as a self-represented litigant.

[30] The father claims reimbursement for $4,513.70 he paid to Nussbaum Law.

a. He attached a one-page Client Ledger listing various entries between November 7, 2024 and March 12, 2025.
b. The total amounts showing are just under $4,000.00.

[31] The father also claims reimbursement for $839.03 he paid to Laurel Family Law for a single consultation on March 7, 2024.

[32] Few particulars of the legal services are set out in the Nussbaum account, and no particulars are set out in the Laurel account.

[33] Speaking plainly, it is unclear how much of any trial success the father can attribute to the legal fees he incurred.

a. On the one hand, the father made very effective use of a Request to Admit, and this is specifically referred to in the Nussbaum account. On that topic, he got some good advice and used it well.
b. On the other hand, during most of the time the father was working with lawyers, he was advancing unreasonable positions which he only begrudgingly abandoned once he was at trial and representing himself.
c. For example, for an extended period the father opposed any imputation of income. His long-standing request that the court accept his extremely modest reported income ($5,892.00 in 2023) never had any possibility of being accepted.
d. Similarly, for an extended period (including the period covered by the Laurel account) the father took the position that he should pay no child support. Indeed, even at the commencement of trial he submitted that child support should be zero. He seemed quite unclear about the consequences of having filed an Amended Motion to Change on May 3, 2024.
e. So to a large extent the father has been unable to establish much of a correlation between the money he paid to lawyers and reasonable litigation conduct on his part.

Self-Represented Litigant Costs

[34] Costs claimed by self-represented litigants can be a complicated issue. Even more complicated where, as here, the litigant also seeks legal fees for his own time spent on the case.

a. The court must guard against potential overlap between reimbursement for the lawyer’s services, and compensation for the self-represented litigant’s own time.
b. Presumably, the more the lawyer did, the less there was for the self-rep to do.

[35] Justice George Czutrin reviewed considerations for determining costs for self-represented litigants in Jordan v. Stewart, 2013 ONSC 5037 as follows:

a. A self-represented litigant does not have an automatic right to recover costs. The matter remains fully within the discretion of the trial judge. Moreover, self-represented litigants, be they legally trained or not, are not entitled to costs calculated on the same basis as those of the litigant who retains counsel. The self-represented litigant should not recover costs for the time and effort that any litigant would have to devote to the case. Costs should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer to conduct the litigation, and that as a result, they incurred an opportunity cost by foregoing remunerative activity;
b. Parties who litigate against a self-represented person should not be able to ignore the potential for costs. The court retains the discretion to fashion an award of costs that is fair and reasonable in the circumstances of the case before it;
c. Where one party is represented by a lawyer and the other is not, the hourly rate that the represented litigant's lawyer is entitled to claim on an assessment of costs should inform the reasonable expectations of both parties as to the costs that they will likely be required to pay if unsuccessful. Otherwise, litigants represented by lawyers would be less circumspect with regard to their conduct and their response to the opposing party's efforts to settle because that party is a self-represented litigant.
d. It is nearly impossible to come up with an objective way of fixing an in-person party's hourly rate or the amount of time they spent, not at the court, doing what we might otherwise consider lawyer's work.
e. Ultimately, the overriding principle in fixing costs is "reasonableness".

[36] Justice Laura Fryer added the following considerations in Browne v. Cerasa, 2018 ONSC 2242:

a. Determination of costs for self-represented litigants should take into account all of the objectives which costs orders should promote. Rules 18 and 24 apply. Otherwise the resulting amount can render the entitlement to costs illusory; undermine access to justice by self-represented litigants; and frustrate the administration of justice.
b. If a self-represented litigant, in performing the tasks that would normally have been performed by a lawyer, lost the opportunity to earn income elsewhere, this may be a relevant factor. But costs for self-represented parties are not the same as damages for lost income. Remunerative loss is not a “condition precedent” to an award for costs.
c. To require proof of lost income would disqualify litigants who are homemakers, retirees, students, unemployed, unemployable and disabled; and deprive courts of a tool required re administration of justice. Lost income may be one measure. But even if no income was lost, the self-represented party’s allocation of time spent working on the case may still represent value. The fact that a self-represented litigant is not a lawyer who charges a standard and commonly accepted hourly rate makes it more difficult – but not impossible – to assess their costs. However, the difficulty in valuing the time and effort of the lay litigant is not a good reason to decline to value it.
d. An applicable hourly rate should be taken into account when quantifying even a self-represented lay litigant’s costs. But the appropriate hourly rate, once determined, is only one of several factors to be considered.
e. In considering the hourly rate, the court should consider what the lay litigant’s reasonable expectations were as to the costs he or she would pay if unsuccessful.
f. As with counsel, the appropriate hourly rate may be affected by the level of indemnification or recovery deemed to be appropriate, given all of the rule 18 and 24 considerations.

[37] In determining an hourly rate to apply when determining costs for a self-rep, Justice Sherr in P.I. v. R.O., 2022 ONCJ 184 stated:

Several courts have fixed hourly rates for self-represented litigants in assessing costs. In Jahn-Cartwright v. Cartwright, 2010 ONSC 2263, an hourly rate of $200.00 was applied, which was approximately two-thirds of what the husband's lawyer would have been entitled to claim. In Cassidy v. Cassidy, 2011 ONSC 791, an hourly rate of $150 was applied. In Agmon v. James, 2018 ONCJ 240, Anyumbe v. Kebe, 2018 ONCJ 865 and in Ferlisi v. Boucher, 2021 ONCJ 103, this court used an hourly rate of $125 in assessing costs for a successful self-represented litigant. This amount was also recently applied by Justice Mandhane in Ahluwalia v. Ahluwalia, 2022 ONSC 2169. In Izyuk v. Bilousov, 2011 ONSC 7476, the court fixed the self-represented party's hourly rate at $100 per hour. This amount was followed in Browne v. Cerasa, 2018 ONSC 2242.

[38] Here, the father seeks “personal fees for wages lost” totalling $1,950.00, calculated $39.00 per hour for 50 hours.

a. 20 of those hours are for time spent in court for the two-day trial. This is time the father would have had to devote to his own trial anyway, so no costs are appropriate.
b. The father provides insufficient information to explain what the remaining “30 hours of preparation” entailed, particularly given the fact that he says he also spent significant time with lawyers.

[39] Particularly in child support cases, self-represented litigants should be careful to reconcile the hourly rate they are seeking as costs, compared to representations they previously made about their actual income.

a. $39.00 per hour, based on a 40-hour week, works out to $81,120.00 per year.
b. But during most of this litigation the father insisted his income was less than $6,000.00 per year.
c. And even at trial, the father only begrudgingly consented to having his income imputed at $30,000.00.
d. It would be ironic if a sudden revelation of undisclosed income during costs submissions amounted to fresh evidence, causing the case to be re-opened.

Assessment of Costs

[40] Determining costs requires more than a simple mathematical totalling of how much the successful party paid their lawyer.

a. The amounts actually incurred by the successful litigant are not determinative. The court’s role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees: See Aprile v. Aprile, 2016 ONCJ 678; Kommineni v. Guggilam, 2022 ONCJ 191; Bell v. Placidi, 2023 ONSC 6701; Enyedy-Goldner v. Goldner, 2024 ONSC 2727
b. The overall objective is to fix an amount that is fair and reasonable from the unsuccessful party’s perspective. This includes considering the amount the unsuccessful party could reasonably have expected to pay if they were unsuccessful in the litigation. See Boucher v. Public Accountants Council of Ontario; Arthur v. Arthur, 2019 ONSC 938; Kerr v. Moussa, 2023 ONCJ 82; Swaby v. Foreshaw, 2024 ONCJ 111; Churchill v. Elliot and Ward, 2024 ONSC 2757; Sain v. Shahbazi, 2024 ONSC 1198; Uwaezuoke v. Uwaezuoke, 2025 ONCJ 89

[41] The financial implications of legal fees – and costs orders – must form part of the costs analysis. But this can be a complicated issue.

a. A costs order should take into consideration the ability of a party to pay costs. See MacDonald v. Magel.
b. The financial means of the parties, their ability to pay a costs order, and the effect of any costs ruling on the parties and on any children are relevant considerations in reaching a determination on the issue of costs. See Fyfe v. Jouppien, 2012 ONSC 97; Volgemut v. Decristoforo, 2022 ONSC 2520

[42] However, ability to pay is only relevant with respect to amount of costs to be ordered:

a. A party's financial circumstances cannot be used as a shield against any liability for costs. See Derziyan v. Shebarin, 2021 ONCJ 17.
b. Ability to pay will be taken into account regarding the quantum of costs. See Snih v. Snih; Dhillon v. Gill, 2020 ONCJ 68; Enyedy-Goldner v. Goldner, 2024 ONSC 2727
c. Difficult financial circumstances are a factor to be considered. But they do not always justify depriving a successful party of costs, or reducing the amount of costs. See Beaulieu v. Diotte, 2020 ONSC 6787; Pugsley v. Adamantidou, 2021 ONCJ 590; N.P. v. D.H., 2023 ONCJ 2; Uwaezuoke v. Uwaezuoke, 2025 ONCJ 89

[43] In this case both parties are of modest means, and the mother continues to assume primary responsibility for the adult disabled child.

[44] I have considered all of the factors, with emphasis on the touchstone considerations of reasonableness and proportionality.

Disposition

[45] The mother shall pay to the father costs fixed in the sum of $2,000.00 inclusive of HST and disbursements.

Alex Pazaratz
Date: May 8, 2025