Court File and Parties

Court File No.: FC70/22
Date: 2025/06/23
Court: Superior Court of Justice – Ontario

Applicant: Ngoc Quynh-Lan Nguyen
Respondent: Helge Gottfried Hollmeyer

Before: T. Price, in Chambers, on written submissions
Counsel:

• E. Fisher – Counsel for the Applicant
• Respondent – Self-represented

Heard: In Chambers, on written materials

Costs Endorsement

Overview

[1] In my decision dated March 7, 2025 (Nguyen v. Hollmeyer, 2025 ONSC 1682), I encouraged the parties to settle the issue of costs. They were unable to do so. My order contemplated that possibility, and provided details about written submissions on costs, including filing deadlines.

[2] Both took advantage of their opportunity to file both written submissions with respect to their own claim for costs, and to respond to the submissions of the other.

[3] Before I address the issues that I considered in reaching my decision, I want to make clear those that I did not.

Events About Which the Parties Claim Costs

[4] In his submissions, the Respondent, Mr. Hollmeyer, seeks costs not only with respect to the motion that I heard on February 21, 2025, but also for appearances before Justice Campbell on December 23 and 31, 2024, and a conference before Justice Korpan on January 16, 2025.

[5] In addition to the motion heard by me on February 21, 2025, the Applicant, Ms. Nguyen, seeks costs with respect to the appearance before Justice Korpan on January 16, 2025, and another on January 31, 2025.

Events Occurring Before February 21, 2025

[6] The appearance on December 23, 2024 before Justice Campbell related to a motion that had been brought by Mr. Hollmeyer after the parties’ daughter L. refused on two separate occasions within the preceding days to board a plane with Mr. Hollmeyer at Pearson Airport. That motion was initiated by a specific Notice of Motion that sought an order seeking to ensure that L. travelled to Europe that day with Mr. Hollmeyer. Justice Campbell articulated his reasons for not proceeding that day, and adjourned the motion to December 31, 2024.

[7] In the period between December 23, 2024 and December 31, 2024, Ms. Nguyen filed a motion returnable December 31, 2024 seeking to dismiss Mr. Hollmeyer’s motion returnable December 23, 2024, and other orders including that the parties retain a qualified parenting assessor.

[8] On December 31, 2024, having concluded that the motions would likely take more than one hour to be heard, Justice Campbell adjourned them to February 21, 2025 for argument. He also required that the parties appear before the court on January 16, 2025 for a conference at which a Certificate of Readiness for a Special Appointment motion was to be completed. He further directed that the Certificate indicate the issues to be addressed at the motion.

[9] On January 16, 2025, Justice Korpan held a settlement conference with the parties, likely with respect to the pending motions. With the input of counsel, she then completed the Certificate and, with their consent, signed it on their behalf. The certificate noted that the motion that was to proceed on February 21, 2025 was Mr. Hollmeyer’s “motion for compliance.” At that point, the only Notice of Motion before the court addressing that issue was Mr. Hollmeyer’s urgent motion returnable originally on December 23, 2024. The majority of that notice of motion was geared towards the events that had happened in December 2024, with the only clause extending beyond that seeking an order that Ms. Nguyen exercise all parental authority to ensure L.’s compliance with the terms of “the court order” concerning parenting time and contact. At that time, there was no Canadian “court order,” and it is clear from the Notice of Motion that the “court order” referred to in Mr. Hollmeyer’s Notice of Motion was one made by a court in Switzerland.

[10] During the conference on January 16, 2025, the parties informed Justice Korpan that they had agreed that they would seek a consent order, by means of a Form 14B Motion Form, for the appointment of a family therapist to conduct a s. 30 CLRA assessment. Ms. Fisher, counsel for Ms. Nguyen, informed Justice Korpan that she would not seek to delay the motion returnable February 21, 2025 on the basis that the s. 30 assessment would, by then, not yet be in hand. Thus, the new issue raised in Ms. Nguyen’s motion first returnable on December 31, 2024 was settled by the parties, and not addressed before me.

[11] Mr. Hollmeyer then served and filed a new Notice of Motion, dated January 24, 2025, with respect to the motion returnable February 21, 2025.

[12] In that Notice of Motion, he requested that the Ontario Superior Court recognize the Swiss court order as binding in Canada and, if it did so, that the Ontario Superior Court set:

a. parenting time in accordance with the terms of that order; and
b. conditions for L. to travel.

[13] In his new Notice of Motion, Mr. Hollmeyer also requested that the Ontario Superior Court:

a. find Ms. Nguyen to be in breach of the Swiss order and parenting schedule and order that she thereafter strictly comply with them;
b. order that Ms. Nguyen exercise all parental authority to ensure compliance by L. with the parenting arrangements under the Swiss court order,
c. impose a number of other terms that would govern the behaviour of the parties and L.;
d. order make-up parenting time with respect to Mr. Hollmeyer’s missed Christmas 2024 parenting time;
e. impose a penalty on Ms. Nguyen for each day of the schedule that she failed to ensure that L. was in Mr. Hollmeyer’s care;
f. order that Mr. Hollmeyer be reimbursed for the costs he incurred relating to the failed Christmas 2024 parenting time, together with any other expenses that he had incurred between 2021 and 2024, and
g. order that the parties participate in reconciliation therapy.

[14] Given the nature of some of the relief sought by Mr. Hollmeyer in his Notice of Motion dated January 24, 2025, at the request of Ms. Fisher, the parties again appeared before Justice Korpan on January 31, 2025. In her endorsement of that date, after noting that she had given oral reasons that were not available to me, Justice Korpan ordered Mr. Ludmer, counsel for Mr. Hollmeyer at the time, to remove a number of heads of claimed relief from the Notice of Motion dated January 24, 2025, the primary ones of which related to request for an order for reconciliation therapy.

[15] Mr. Ludmer complied with that order, and a revised Notice of Motion was served and filed by him on or about February 7, 2025. It was that Notice of Motion which defined the issues about which the parties made submissions on February 21, 2025.

[16] In her draft Bill of Costs, Ms. Fisher, has included a claim for costs in relation to the appearances before Justice Korpan on both January 16 and 31, 2025.

[17] It appears that on all of the appearances that I have referred to this far, from the one before Justice Campbell on December 23, 2024 to and including the one before Justice Korpan on January 31, 2025, no order for costs was either made or reserved.

Events for which Costs are Being Ordered

[18] While my initial inclination was to only address the issue of costs of preparation for, and the appearance before me on, February 21, 2025, I have decided to also assess and assign costs for the appearance before Justice Korpan on January 16, 2025 in relation to the preparation of the Certificate for the special appointment, since it related to the motion heard by me on February 21, 2025.

[19] The appearance before Justice Korpan on January 31, 2025 will also be addressed later in the endorsement.

[20] Each party, however, will have to bear his or her own costs for the appearances before Justice Campbell. In my view, those appearances related to a different motion brought by Mr. Hollmeyer. By the time that Mr. Hollmeyer’s revised motion was heard by me on February 21, 2025, it was fundamentally different. The events that led to that motion will be addressed when I consider the parties’ behaviour.

Family Law Rule 24(3)

[21] Subrule 24(3) creates a presumption that a successful party is entitled to the costs of a step in a case unless some other provision contained within Rule 24 provides otherwise.

[22] Not surprisingly, each of Mr. Hollmeyer and Ms. Nguyen have declared themself to be the successful party.

[23] I begin, therefore, with an assessment of whether there was one successful party in respect of the motion heard on February 21, 2025, or whether success was divided.

[24] In order to do so, I “should take into account how the order or eventual result compares to any settlement offers that were made.” [2]

The Parties’ Offers to Settle

[25] Mr. Hollmeyer did not serve a settlement offer for the motion heard February 21, 2025. In his initial submission, he cited the decision of the Court of Appeal in Beaver v. Hill, 2018 ONCA 840, where Justice Nordheimer noted that there are some cases where there are only two choices before the court and the parties positions’ are polarized. In those cases, Justice Nordheimer noted that a settlement offer would be ineffective because, for one to be accepted, one of the parties would have to abandon their position in the litigation.

[26] Mr. Hollmeyer sees this as one of those cases. In his view, either Ms. Nguyen was going to abide by the status quo parenting plan, being that which was put in place by the Swiss court, and facilitate L.’s travel with Mr. Hollmeyer or she was not.

[27] Ms. Nguyen, on the other hand, did file an offer to settle the motion. Her offer was indivisible and made after the parties told Justice Korpan on January 16, 2025 that they had agreed to an order for the appointment of a family therapist to conduct a s. 30 CLRA assessment. In her offer, Ms. Nguyen proposed that if Mr. Hollmeyer accepted it:

a. pending the commencement of March break, he and L. would engage in weekly sessions with a qualified therapeutic professional, to be selected by L., experienced in working with the children of divorce;
b. he would exercise his regular March break parenting time with L. in Canada for a period of seven days;
c. L. would remain in his care, in Canada, for a further period of ten days immediately following the conclusion of his March break parenting time, subject to some conditions about L. completing school assignments; and
d. the additional parenting time would be without prejudice to Mr. Hollmeyer’s right to claim that, going forward, his summer and Christmas parenting time with L. would occur in Europe, in accordance with the Swiss court order.

[28] In his Reply submission, Mr. Hollmeyer noted that, in advance of the Notice of Motion dated January 24, 2025, he had filed an offer which was intended to resolve all issues in the litigation. While noting that the offer was subsequently withdrawn, he submitted that, had that offer been accepted, the motion heard by me on February 24, 2025 would have been unnecessary as the litigation would have already ended.

Family Law Rule 24(4) – Divided Success

[29] Subrule 24(4) provides that the court may apportion costs “as appropriate” if success in a step in a case is divided.

[30] Justice D. Chappel articulated the court’s task at this point at paragraph 14 of Arthur v. Arthur, [2019] O.J. No. 3494 (S.C.J.) :

The determination of whether success was truly "divided" does not simply involve adding up the number of issues and running a mathematical tally of which party won more of them ( Brennan v. Brennan, 2002 CarswellOnt 4152 (S.C.J.) ). Rather, it requires a contextual analysis that takes into consideration the importance of the issues that were litigated and the amount of time and expense that were devoted to the issues which required adjudication ( Jackson v. Mayerle, 2016 ONSC 1556 (S.C.J.); Slongo v. Slongo, 2017 ONCA 687 (C.A.)) Where the court concludes that success was in fact divided, it may award costs to the party who was more successful on an overall global basis or on the primary issue, subject to adjustments that it considers appropriate having regard for the lack of success on secondary issues and any other factors relating to the litigation history of the case ( Gomez-Pound v. Pound, [2009] O.J. No. 4161 (O.C.J.) ; Boland v. Boland, 2012 ONCJ 239 , [2012] O.J. No. 1830 (O.C.J.))

Analysis Regarding Success on the Motion

[31] I begin by noting my disagreement with Mr. Hollmeyer about the applicability to this motion of the comments made by Justice Nordheimer in Beaver v. Hill about cases where an offer to settle would be ineffective. As my order demonstrated, the position advanced on the motion by Mr. Hollmeyer was capable of being modified to address issues that appeared to underlie some of L.’s resistance to travelling with him. He could have made an offer addressing those underlying issues but did not.

[32] That noted, the key issue on the motion, as I see it, was whether conditions could be crafted which would reduce or eliminate L.’s resistance to traveling with Mr. Hollmeyer so that he could exercise his parenting time with her.

[33] The key issue did not exist in isolation, however. It brought into play the preliminary issue of the source of the court’s authority to even address whether it needed to craft such conditions. This required an examination of the source of the court’s authority to require that L. travel with Mr. Hollmeyer for his parenting time.

[34] On this point, Ms. Fisher correctly noted that I rejected Mr. Ludmer’s submission that I could apply Rule 1(8) to compel Ms. Nguyen’s compliance with the Swiss court order because it had not been recognized by a Canadian court as having effect in Canada.

[35] Instead, I found that the parties had settled upon a voluntary, informal parenting time arrangement which mirrored the Swiss court order. Moreover, Ms. Nguyen conceded for the purposes of the motion that Mr. Hollmeyer’s parenting time for March break 2025 should again be in accordance with the terms of the Swiss order by which the parties had been conducting their affairs in respect of when Mr. Hollmeyer’s parenting time would occur.

[36] On these two issues, it is readily determined that Ms. Nguyen was the successful party on the preliminary issue, since I held that Mr. Hollmeyer could not obtain an order enforcing the Swiss court order in Ontario at the time of the motion.

[37] However, it is equally readily determined that Mr. Hollmeyer was the successful party on the key issue. As I put it in my Reasons:

[81] Given the statements in these authorities, and others like them, I could not accept Ms. Nguyen’s request that her obligations to ensure that L. attended her parenting time with Mr. Hollmeyer extended only to “encourag[ing] L. to travel with [Mr. Hollmeyer] as scheduled” and “deliver[ing] L. to [Mr. Hollmeyer]” at Pearson Airport “3 hours prior to any flight departure time”, then “ immediately vacat[ing] the premises, leaving [Mr. Hollmeyer] alone with L. from that point forward.”

[82] Ms. Nguyen’s proposal lacked any hint of a consequence for L. for resisting travel to see Mr. Hollmeyer, which the cases make clear is required as a component of exercising parental authority. It is for that reason that I did require that Ms. Nguyen do more than she proposed, including imposing consequences on L. if she refused to travel so that Mr. Hollmeyer could exercise his parenting time with her.

[83] While I acknowledged the absence of an enforceable order in Ontario before I released the interim order herein, it is a fact that the parties did have and adhered to their voluntary, informal parenting-time arrangement about when Mr. Hollmeyer’s parenting time would occur. Ms. Nguyen did not seek on this motion to change that. She proposed, in fact, that it continue in accordance with the parties’ arrangement. In those circumstances, I felt it quite appropriate to impose on her some of the same conditions that would be imposed on someone bound by an order.

[38] While the preliminary issue was important to the case sought to be made by Mr. Hollmeyer, and equally important for Ms. Nguyen to resist in the result, the key issue was at the heart of Mr. Hollmeyer’s motion – seeking an order that, as much as possible, ensures that L. is made available to him in a meaningful way to travel for parenting time with him, and ensuring that she is subject to meaningful consequences imposed by Ms. Nguyen if she fails to do so.

[39] While success was divided, I propose to determine costs available to Mr. Hollmeyer in respect of his success on the key issue. They will then be adjusted to account for his lack of success on the preliminary issue.

[40] Thereafter, the costs of the court appearances before Justice Korpan on January 16 and 31, 2025 will be determined, with the costs award to Mr. Hollmeyer being further adjusted accordingly, all as suggested by Justice Chappel in Arthur v. Arthur.

As to Mr. Hollmeyer’s Success

Family Law Rule 24(7): Did Mr. Hollmeyer engage in unreasonable behaviour?

[41] On behalf of Ms. Nguyen, Ms. Fisher submits that he did. His unreasonable behaviour was said to have consisted of failing to comply with “directions and restrictions imposed on materials served and filed per the Certificate of Readiness and Practice Directions.” These included:

a. serving and filing more affidavits than permitted, then not withdrawing the extra affidavits without concessions from Ms. Nguyen about the facts alleged therein;
b. filing materials which failed to comply with the Provincial Practice Direction as to font size and page margins;
c. filing a factum that exceeded the maximum page length and cited in excess of 150 cases; and
d. uploading “visual aids” not permitted by the Certificate or an order.

[42] Ms. Fisher also referred specifically to Mr. Ludmer leaving in place an expansive motion that had to be narrowed on a further appearance before Justice Korpan on January 21, 2025. As I have noted, that issue will be addressed separately.

[43] Rule 24(7) is about “a successful party who behaved unreasonably…” The complaints made by Ms. Fisher are not about the behaviour of Mr. Hollmeyer.

[44] Instead, it seems to me that Ms. Nguyen’s complaints about process and procedure are directed at Mr. Ludmer and his staff, for whom he is responsible. Such complaints do not fall within the ambit of unreasonable behaviour by the successful party.

[45] Rule 24(11) is intended to address issues of improper behaviour by legal counsel. However, Ms. Fisher did not directly raise either Rule 24(11) or the actions of Mr. Ludmer as an issue in her submissions on behalf of Ms. Nguyen.

[46] I am supported by my interpretation of Rule 24(7) by the specifically enumerated factors list in Rule 24(8) that a court may consider when deciding whether a successful party behaved unreasonably. These consist of:

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 made by the party; and
c. any offer that the party withdrew or did not accept.

[47] Of these, the only factors that might bear on whether Mr. Hollmeyer acted unreasonably would have to lie in the following actions:

a. he did not make an offer specifically targeted to the motion as finally constituted when, in my view, he could have;
b. he withdrew his more comprehensive offer related to the entire proceeding, which clearly went beyond the issues being addressed in the motion; and
c. he failed to accept Ms. Nguyen’s offer which, the result demonstrates, was a reasonable move on his part.

[48] I do not agree that, overall, Mr. Hollmeyer acted unreasonably in the circumstances of this motion. It was the result of a failed Christmas visit when L. appeared to be driving the process with her refusal to board a plane with Mr. Hollmeyer for his Christmas parenting time and Ms. Nguyen failed to exercise appropriate parental authority to ensure that L. went with him.

[49] I find that there was one area in respect of which Mr. Hollmeyer could be said to have behaved unreasonably “in relation to the issues from the time they arose.” That was in his failure to acknowledge that L. had matured beyond being the child she had been when he was originally granted specific parenting time. Had he done so, he might have extended to L. some of the concessions relating to her needs as a maturing young person that were imposed on him by the order.

[50] That noted, it is still likely that the motion would have had to proceed because of the parties’ dispute over the extent to which Ms. Nguyen might be required to exercise parental authority over L. about her visits with Mr. Hollmeyer.

Family Law Rule 24(10): Did Ms. Nguyen act in bad faith?

[51] Mr. Hollmeyer claims that she did. In essence, he claims that “the litigation” was caused by Ms. Nguyen’s “bad faith motive to terminate [L.’s] relationship with [Mr. Hollmeyer], and essentially her ties to Europe and the paternal family.”

[52] With all due respect to Mr. Hollmeyer, I can hardly conclude on the facts underlying this motion that Ms. Nguyen was seeking to terminate L.’s “ties” to Europe or the paternal family. There was no evidence that suggested that L. had developed some sort of dislike of or animosity toward Europe as a place or to any member of her extended paternal family. Those are allegations better raised at the end of a trial, after the court has heard all of the evidence intended to be relied upon by Mr. Hollmeyer to support such a sweeping assertion.

[53] Mr. Hollmeyer further points to representations said to have been made to the court by Ms. Nguyen in November and December 2024 that L. would travel to Europe at Christmas, when L. failed to do so.

[54] Interestingly, he also points to L. travelling with Mr. Hollmeyer for March break after the release of my order as evidence that the root cause of L.’s failure to travel before my order lay in the bad faith acts of Ms. Nguyen.

[55] With respect, that is an over-simplification of a complex problem. Perhaps L. travelled after my order was made because it recognized her need for some autonomy by treating her as the young, maturing teenager that she has become, with friends and opinions that might challenge her father, instead of the younger child that her father appears to perceive her to be. I do not know. That is, presumably, why the parties agreed to retain an expert to delve into the reasons for L’s reluctance to travel to Europe with Mr. Hollmeyer for extended periods.

[56] As Mr. Hollmeyer points out in his submissions, the Ontario Court of Appeal noted in Scalia v. Scalia, 2015 ONCA 492 that:

68 …The legal test for bad faith in the family law context, as set out in S. (C.) v. S. (M.) (2007), 38 R.F.L. (6th) 315 (S.C.J.), at para. 17, aff'd 2010 ONCA 196, 262 O.A.C. 225, is that the impugned behaviour must be shown to be carried out with "intent to inflict financial or emotional harm on the other party…, to conceal information relevant to the issues or to deceive the other party or the court." In short, the essential components are intention to inflict harm or deceive.

[57] After reviewing the findings upon which the application judge in Scalia found a party to have been acting in bad faith, Justice Epstein, writing for a unanimous Court of Appeal panel, held that the findings “do not rise to the level of wrongdoing, dishonest purpose or moral iniquity the test for bad faith requires.”

[58] Mr. Hollmeyer pointed to a number of acts that he claimed, in total, amounted to bad faith behaviour on the part of Ms. Nguyen with respect to the failed Christmas 2024 visit. At their core, he alleged, was Ms. Nguyen’s intent to “take every opportunity to prevent [Mr. Hollmeyer] from exercising his parenting time.”

[59] Mr. Hollmeyer’s submission seems to clearly be at odds with the following comments that I made in my reasons on the motion:

[68] As I have noted, the evidence broadly suggests that the parties have been attempting to adhere to the terms of the June 2020 order with respect to Mr. Hollmeyer’s parenting time, although that process has not occurred without a number of difficulties.

[69] In fact, despite the events of December 2024 that ultimately resulted in L. not traveling to Europe with Mr. Hollmeyer and his accusation that Ms. Nguyen was entirely responsible for the loss of his parenting time on that occasion, Ms. Nguyen’s position on the motion included a request that, instead of the punitive relief sought by Mr. Hollmeyer, the court should set rules for what she must do to try to ensure that L. complies with the parties’ efforts to follow the terms of the Swiss order, a process that I earlier referred to as their voluntary, informal parenting-time arrangement.

[70] Instead of the more encompassing set of rules that Mr. Hollmeyer sought to impose on her, particularly about the exchanges of L. for travel, she sought a much looser set of rules, with a provision that, if she complied with them, she would be deemed to have done all that she was required to do to ensure that L. would travel with Mr. Hollmeyer and would not be subject to sanctions under any future Rule 1(8) order if L. refused to go.

[71] With that being her position, Ms. Nguyen made clear that she was not seeking an order terminating Mr. Hollmeyer’s parenting time.

[60] I do not find that, for the purposes of this motion, based on the limited set of facts that I considered to support my order, Ms. Nguyen acted in bad faith with respect to whether or not L. travelled with Mr. Hollmeyer. If he wishes to make that submission at the end of trial, he may have a more complete evidentiary record on which to base it. Until then, his submission is rejected.

As to Ms. Nguyen’s Success

Family Law Rule 24(7): Did Ms. Nguyen engage in unreasonable behaviour in respect of her successful claim that there was no order to enforce in Canada?

[61] I find that she did not. While I held that there was no order to enforce in Canada, Ms. Nguyen did agree that Mr. Hollmeyer would have parenting time with L. over the March break. It was not a part of her offer, but it was implicit in the positions that she took on the motion, despite there being no enforceable order. Moreover, Rule 24(14)(iii) allows me to consider any offer to settle, even if it does not comply with either Rule 24(12) or Rule 18.

Family Law Rule 24(10): Did Mr. Hollmeyer act in bad faith?

[62] Ms. Fisher made no such claim on behalf of Ms. Nguyen.

Family Law Rule 24(12)

[63] Family Law Rule 24(12) now encompasses what used to be Rule 18(14). It allows for enhanced costs if the circumstances set out therein have been met unless the court orders otherwise.

[64] The enhanced costs consequences of Rule 24(12) do not assist Mr. Hollmeyer because his only offer had been withdrawn before the motion was heard.

[65] Ms. Nguyen is also not assisted by the enhanced costs consequences of Rule 24(12) because of subrule 24(12).5, which requires that, as a condition of receiving enhanced costs, the party making an offer must obtain “an order that [from that party’s perspective] is as good as or better than [their] offer.” In other words, to obtain enhanced costs, Ms. Nguyen’s offer has to meet or exceed the relief awarded to Mr. Hollmeyer under the order.

[66] While certain aspects of Ms. Nguyen’s offer - such as parent/child counselling pending March break and additional parenting time in Canada immediately thereafter - might be said to have afforded Mr. Hollmeyer a possible better result than did the terms of my order if accepted, these terms highlight the difficulty in applying Rule 24(12).5 in the circumstance of this case, where the issue was how to ensure that Mr. Hollmeyer received the parenting time with L. to which the parents had agreed he was entitled, regardless of the reason for their agreement.

[67] Under the terms of her offer, success for Ms. Nguyen in respect of counselling and extra time for Mr. Hollmeyer after March break would necessarily have meant the loss of opportunities for him to repair his relationship with his daughter. Since the parties had already agreed on involving a therapist, I cannot conclude that a short-term loss to Mr. Hollmeyer, in the face of that agreement, should be characterized as a win for Ms. Nguyen.

[68] Were these to be the only factors at play on this motion, I probably would have exercised my discretion and found that Ms. Nguyen is not entitled to enhanced costs with respect to her success in respect of the preliminary issue.

[69] However, Ms. Nguyen’s offer said nothing about her being subject to any obligations to ensure that L. would accompany Mr. Hollmeyer for his parenting time, whereas the order set out a code intended to ensure that very result. Since Ms. Nguen’s offer was silent on this key issue, the fact that such terms were included in the order benefitted Ms. Hollmeyer, which means that, on this issue, the order was not better for Ms. Nguyen than the silence on the issue in her offer.

[70] Ms. Nguyen’s offer was indivisible, which means that, for enhanced costs pursuant to Rule 24(12), the order of March 7, 2025 had to be as good as or better for Ms. Nguyen, than all components of her offer. ( Osmar v. Osmar, [2000] O.J. 2504) It was not. As a result, Ms. Nguyen is also not entitled to the benefit of the enhanced costs provisions of Rule 24(12) with respect to her success on the preliminary issue.

Law

[71] Justice Epstein, writing on behalf of a unanimous Court of Appeal panel on a costs appeal in Davies v. Clarington, 2009 ONCA 722 at para. 52, held that the “overriding principle” when setting costs “is reasonableness.” Justice Epstein continued,

“If the judge fails to consider the reasonableness of the costs award, then the result can be contrary to the fundamental objective of access to justice. Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant. In Boucher, this court emphasized the importance of fixing costs in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding at para. 37, where Armstrong J.A. said, "[t]he failure to refer, in assessing costs, to the overriding principle of reasonableness, can produce a result that is contrary to the fundamental objective of access to justice."

[72] More recently, the Court of Appeal held that “proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs” in a family law case. ( Beaver v. Hill, 2018 ONCA 840, [2018] O.J. No. 5412.

Setting Costs: Mr. Hollmeyer

[73] With the recent change to Rule 24, the factors which the court was previously mandated to consider when setting costs has now become more permissive.

Family Law Rule 24(14)(a) – Reasonableness and Proportionality

[74] I agree with Mr. Hollmeyer that, while the motion was of critical importance to him, the underlying issues were not complex.

Family Law Rule 24(14)(c) - Time Spent by Mr. Ludmer and staff

[75] Looking only at the time expended by Mr. Ludmer and his paralegal, Ms. Azma, for the motion heard on February 21, 2025, Mr. Ludmer devoted 24.6 hours to the endeavor and Ms. Azma, 22.4 hours.

[76] These expenditures of time are reasonable for a motion of such importance to Mr. Hollmeyer and, as will be seen, they represent approximately 37% of the time that I have attributed to Ms. Fisher and her staff for the same endeavour.

[77] Included in Mr. Ludmer’s time estimates were 3.0 hrs work on the factum by Mr. Ludmer and 4.0 hours by Ms. Azma. It is to be recalled, however, that these times included work on both the preliminary issue and the key issue.

[78] Given concern expressed by Ms. Fisher about the detail in Mr. Ludmer’s factum, particularly the number of cases cited, I have also reviewed the factum against one filed by Mr. Ludmer in 2022 when he argued a similar case before me. While there are areas of overlap in respect of the law in both factums, I cannot say that the time expended in totality by Mr. Ludmer and Ms. Azma in preparing a factum for this case was excessive. In fact, it appears that the factum which they filed is a living document that is expanded on a case-by-case basis. While the law may remain consistent, the facts of each case will vary. I did not get the sense that Mr. Ludmer was looking to recoup his costs for assembling an immense number of authorities for this motion, work which has undoubtedly been undertaken over time and across a number of cases.

[79] However, since part of the factum related to the enforcement of orders, which pertained to the preliminary issue about which Mr. Hollmeyer was unsuccessful, there will be some reduction in the time (and costs) claimed for the preparation of the factum.

Family Law Rule 24(14)(iv) – Legal Fees, including number of lawyers and rates

[80] Mr. Ludmer who, at the time that his Bill of Costs was submitted, had 38.5 years of experience at the bar, charged out his time at a rate of $670.00/hour, a figure which Mr. Hollmeyer claimed to be “lower than that of his peers in this area of litigation.”

[81] Ms. Azma, Mr. Ludmer’s paralegal, is said to also hold an LLB in common law. She is said to have 20.5 years’ experience, although it is not indicted for how many of those years she also held a law degree. Her work was charged at an hourly rate of $320.00.

[82] While Mr. Ludmer’s hourly rate is undoubtedly high for the Southwest Region, which includes St. Thomas, I accept his submission about his experience leading to greater efficiency and the comparative values of his hourly rate and the hourly rate of Ms. Fisher when times expended in preparation for the motion by both counsel are factored in.

[83] I also have regard to, and adopt, the view recently expressed by Justice F. Kristjanson in Kuang v. Young, [2024] O.J. No. 574, where she wrote, at para. 5, “Ultimately, reasonableness and proportionality are the touchstone considerations in setting costs, not the fees charged by solicitors.”

[84] While I find that Ms. Azma’s rate seems excessive, I am not reducing it due to her years of experience and her law degree.

[85] According to the materials provided by Mr. Hollmeyer, the total unreduced amount of legal fees he incurred in relation to the motion of February 21, 2025 amounted to $23,650.00, net of HST. Adding HST brings the amount to $26,724.50.

Family Law Rule 24(14)(vi) – Expenses properly paid or payable

[86] Mr. Ludmer’s Bill of Costs included disbursements over the period between January 14, 2025 and February 10, 2025 for translations of various documents from German and French to English totalling $3,425.03, inclusive of HST. The amounts expended were reasonable and necessarily incurred.

Totals potentially claimable for costs by Mr. Hollmeyer

[87] Focusing only on the motion heard on February 21, 2025, the amounts claimable by Mr. Hollmeyer for legal fees amounts to $26,724.20, all inclusive, and $3,425.03, all inclusive, for disbursements, for a claim that would amount to $30,149.23, all inclusive, if costs were to be awarded to Mr. Hollmeyer on an all-inclusive, full reimbursement basis for the motion of February 21, 2025.

Setting Costs: Ms. Nguyen

Family Law Rule 24(14)(c) - Time Spent by Ms. Fisher and staff

[88] The “Bill of Costs” submitted by Ms. Fisher was, in reality, a print-out of the bill sent to Ms. Nguyen. It covered all work done on the file by four persons and covered the period between January 16, 2025 and February 21, 2025. The four persons who worked on the file in that period were Ms. Fisher, an associate lawyer, a “student at law” and a law clerk.

[89] The document presented by Ms. Fisher was vague and confusing. It did not delineate between the motion heard February 21, 2025 and other work on the file. The entries of all four persons appear to encompass work related to both appearances before Justice Korpan in January 2025 and the consent motion for the appointment of a therapist.

[90] Ms. Fisher’s time was the easiest to assign between the motion heard on February 21, 2025 and other work on the file.

[91] I have calculated from a review of the document presented by Ms. Fisher that:

a. Ms. Fisher docketed 39.8 hours for what appears to be work on only the motion heard on February 21, 2025;
b. her associate docketed 37.8 such hours;
c. the “student at law” docketed 28 such hours; and
d. the law clerk docketed 22.5 such hours. Some of the time not included appeared to be more in the nature of secretarial work, which is part of a firm’s overhead, and not recoverable as costs. ( Martinuk v. Graham, [2016] O.J. No. 3102 at para. 22(d) (S.C.J.) )

[92] The total time expended on behalf of Ms. Nguyen for the motion of February 21, 2025 by the four identified persons therefore appears to have amounted to 128.1 hours. Included in the time records were entries that suggest excessive time was spent researching the law pertaining to the issues.

Family Law Rule 24(14)(iv) – Legal fees, including number of lawyers and their rates

[93] Ms. Fisher, who had been a lawyer for 13 years at the time of the motion, charged her time at a rate of $390.00/hour. Her associate’s time was charged at $213.68/hour. The “student at law’s” time was charged at $180.00/hr. and the law clerk’s time was charged at $190.00/hr.

[94] While I also find that the law clerk’s rate seems excessive, as was the case with Ms. Azma, I will not be reducing it.

[95] Based on the hours that I have assessed as being related to the motion of February 21, 2025, the hours expended by each of the four persons noted, and their rates, I have determined that the total amount that was invoiced to Ms. Nguyen, not including HST, for legal services for the motion of February 21, 2025 amounted to $32,914.00. Adding in HST brings the figure to $37,192.82.

[96] Ms. Fisher, however, reduced the amount invoiced to Ms. Nguyen by approximately 45.5%. If I apply that same percentage reduction to the total amount that I have attributed to legal fees, net of HST, for services rendered in relation only to the motion of February 21, 2025, the net amount becomes $17,938.13. When HST is added, the figure becomes $20,270.09.

[97] Ms. Fisher, however, proposed that, if Ms. Nguyen were to be found to have been fully successful, Mr. Hollmeyer would pay costs of$15,000.00, all inclusive.

Family Law Rule 24(14)(vi) – Expenses properly paid or payable

[98] According to the invoice that she presented, Ms. Fisher incurred disbursements on behalf of Ms. Nguyen in the amount of $727.79, including HST, for translations, printing and copying. These figures were reasonable and necessarily incurred.

Totals potentially claimable for costs by Ms. Nguyen

[99] As I summarized in Paragraphs 93-96, the all-inclusive amount claimable by Ms. Nguyen for legal fees, disbursements and HST relating to only the motion of February 21, 2025 amounts to $20,270.09, while Ms. Nguyen was prepared to accept $15,000.00, all inclusive.

Arthur v. Arthur Analysis

[100] Mr. Hollmeyer has presented the court with three different amounts that might be awarded to him for costs. While the amounts would be different because I have limited the claim for costs, initially, to the motion of February 21, 2025, the three options are: full costs, 80% of full costs and 60% of full costs.

[101] Applied to the figures that I have determined, leaving disbursements and HST as a fixed amount, Mr. Hollmeyer’s claim for costs would now amount to: $30,149.23 at 100% reimbursement, $24,804.49 at 80% reimbursement, and $19,459.55 at 60% reimbursement.

[102] I have already concluded that this is not a case for full reimbursement of costs.

[103] In my view, a reasonable and proportional amount to allow for costs payable to Mr. Hollmeyer, were he to have been fully successful on the motion, would have been $22,000.00, all inclusive. However, he was not fully successful.

[104] Having regard to the process set out by Justice Chappel in Arthur v. Arthur, having found Mr. Hollmeyer to have been the more successful party, I next reduce the amount that he is to receive for costs by an amount that I “consider appropriate having regard for the lack of success on secondary issues and any other factors relating to the litigation history of the case.”

Lack of Success on Enforcement of the Swiss order (The Preliminary Issue)

[105] Ms. Nguyen was successful on the preliminary issue. In achieving that partial success, I have determined that she incurred legal fees and disbursements of $20,997.88. That figure, as noted, was already reduced from the amount that Ms. Fisher might have claimed had she not reduced her bill by 45.5%. I would not further reduce the overall amount.

[106] Had I determined Ms. Nugyen to have been the successful party in respect of both aspects of the motion heard on February 21, 2025, which she was not, Ms. Nguyen was prepared to accept $15,000.00, all inclusive.

[107] If the two issues on the motion had been of equal importance, I would have reduced the amount to which Mr. Hollmeyer is entitled by one-half of the costs incurred by Ms. Nguyen in achieving success on the preliminary issue. However, in my view, the issues were not of equal importance. This can be seen in the fact that, despite being the successful party on the preliminary issue, Ms. Nguyen was still ordered to exert parental authority over L. in an effort to get her to attend March break parenting time with Mr. Hollmeyer should L. have continued to refuse, and to have ensured that L. suffered meaningful consequences if she did not go with him.

[108] Given that conclusion, I have decided that the appropriate amount to reduce Mr. Hollmeyer’s costs award in respect of Ms. Nguyen’s success on the preliminary issue is equal to one-quarter of the $15,000.00 that Ms. Nguyen was prepared to accept for costs if she had been found to be the sole successful party. That amounts to $3,750.00. That leaves Mr. Hollmeyer entitled to costs of the motion in the amount of $18,250.00.

Any Other Factors Relating to the Litigation History of the Case

[109] At the outset of this decision, I indicated that I would address costs relating to two other matters. They are the court appearances before Justice Korpan on January 16, 2025 and January 31, 2025.

January 16, 2025

[110] Mr. Hollmeyer claimed legal fees for this appearance, net of HST, in the amount of $2,775.00

[111] Ms. Fisher claimed legal fees for this appearance, net of HST, in the amount of $1,053.00.

[112] This was a settlement conference where the focus was on the preparation of the Certificate of Readiness for the motion to be heard on February 21, 2025.

January 31, 2025

[113] This appearance was necessitated by the fact that Mr. Ludmer had left in his Notice of Motion for February 21, 2025 a number of heads of relief that Justice Korpan had determined on January 16, 2025 would not be proceeding.

[114] Mr. Ludmer made no mention of this court appearance in his Bill of Costs.

[115] Ms. Fisher claimed legal fees for this appearance, net of HST, in the amount of $1,1014.00.

Assessment

[116] I am allowing Mr. Hollmeyer costs in the amount of $1,500.00 for January 16, 2025 and zero for January 31, 2025.

[117] I am allowing Ms. Fisher costs of $1,000.00 for January 16, 2025 and $750.00 for January 31, 2025.

[118] In the result, for these two appearances, Mr. Hollmeyer owes costs of $250.00 to Ms. Nguyen, which will be set off against the costs otherwise owed by Ms. Nguyen to Mr. Hollmeyer.

Conclusion and Order

[119] Based on the foregoing, this court orders that:

1. Ms. Nguyen shall pay costs to Mr. Hollmeyer for the appearances before Justice Korpan on January 16 and 31, 2025, including all preparation related thereto, and the motion heard on February 21, 2025, including all preparation related thereto, in the amount of $18,000.00, all inclusive.

Justice T. Price
Date: June 23, 2025

[1] Nguyen v. Hollmeyer, 2025 ONSC 1682

[2] Jackson v. Mayerle (2016), 2016 ONSC 1556, 130 O.R. (3d) 683 at para. 22 (S.C.J.)

Cited Cases

Legislation

• Family Law Rules, O Reg 114/99

Case Law

• Beaver v. Hill, 2018 ONCA 840
• Jackson v. Mayerle, 2016 ONSC 1556, para 22
• Slongo v. Slongo, 2017 ONCA 687
• Boland v. Boland, 2012 ONCJ 239
• Scalia v. Scalia, 2015 ONCA 492
• S. (C.) v. S. (M.), para 17
• S. (C.) v. S. (M.), 2010 ONCA 196
• Osmar v. Osmar
• Davies v. Clarington, 2009 ONCA 722, para 52
• Nguyen v. Hollmeyer, 2025 ONSC 1682
• Martinuk v. Graham, 2016 ONSC 3102, para 22(d)