McElroy v. Spence, 2025 ONSC 3433

Court and Parties

Court File No.: FC-23-74
Date: 2025/06/10
Court: Superior Court of Justice - Ontario

Applicant (Responding Party on Motion): Kristen McElroy
Respondent (Moving Party on Motion): Ryan Andrew Spence

Before: Anne London-Weinstein
Counsel:

• John Allan, for the Applicant
• Jill Addison, for the Respondent

Heard: In Writing

Costs Endorsement

[1] The Respondent seeks costs against the Applicant in this matter in the amount of $1,588.90.

[2] The matter proceeded to a motion on February 19, 2025. The motion was to reinstate the Respondent’s parenting time and to seek the appointment of the Office of the Children’s Lawyer (OCL) to provide an assessment.

[3] During the motion it came to light that child support had been long outstanding, as the Respondent was waiting for the payment mechanism to be set up by the Family Responsibility Office (FRO) prior to making payment.

[4] Subsection 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 preserves the overarching discretion of the court with respect to costs.

Subject to the provision of an Act or rules of the court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court and the court may determine by whom and to what extent the costs shall be paid.

[5] Rule 24(3) of the Family Law Rules, O. Reg. 114/99 sets out that there is a presumption that a successful party is entitled to the costs of a step in a case.

[6] Success on this motion was divided. While parenting time was reinstated, the court declined to involve the OCL in this matter, as the Respondent was capable of obtaining the records being sought.

[7] Further, the court ordered that child support be paid immediately to the Applicant as it was outstanding for over a year while waiting for the payment mechanism to be set up by the FRO. In my view this is an unconscionably long time for the Applicant to have had to wait to receive support which was outstanding.

[8] The court ordered the FRO not to penalize the Respondent for paying the outstanding support directly to the Applicant, rather than forcing the Applicant to wait a further period for the FRO to receive the payment and forward it to the Applicant.

[9] While outstanding child support was not the purpose of this motion, given the divided success on the motion regarding the court’s denial of the appointment of the OCL, no costs will be awarded in the circumstances of this case.

Anne London-Weinstein
Date: June 10, 2025