Court File and Parties

Court File No.: FS-22-22546 Date: 2025-07-28 Superior Court of Justice - Ontario

Re: R.J.P., Applicant And: L.A.K., Respondent

Before: Kalajdzic J.

Counsel: Brian Ludmer, for the Applicant Tamara Stomp, for the Respondent

Heard: Written Submissions

Endorsement

[1] On June 17, 2025, I held a two-hour mid-trial motion for interim orders related to parenting time and fall school enrolment.

[2] The applicant was successful in obtaining an interim order permitting the children, F.P. (DOB: redacted) and T.P. (DOB: redacted), to attend Lakeview Montessori School pending the final trial decision. I also made an order for summer parenting time that was a compromise of the schedules suggested by the parties.

[3] Further to my decision released on June 26, 2025 and reported at 2025 ONSC 3828, I invited the parties to make costs submissions if they could not come to an agreement. I received their submissions. This is my endorsement on the issue of costs.

Positions of the Parties

[4] The applicant seeks costs on a substantial indemnity basis of $5,863.34, inclusive of fees, disbursements, and HST, on the basis that he was entirely successful on the school issue and substantially successful on his summer parenting time request.

[5] The respondent requests that no costs be ordered against her because of the vast disparity of incomes between the parties and to avoid upsetting the restorative mode in which the parties, who have been more cooperative lately, currently find themselves. In the alternative, the respondent asks that costs be determined in the cause. In the further alternative, she requests costs be awarded to her.

Law and Analysis

[6] Rule 24(3) of the Family Law Rules, O. Reg. 114/99, provides a presumption that the successful party is entitled to the costs of the case. Subrule (14) sets out the factors to be considered in setting the amount of costs, including the importance of the issues, the reasonableness of each party's behaviour, and time spent on the matter. Rule 24(4) provides that costs may be apportioned where success in a step of the proceeding is divided.

[7] The Court of Appeal has 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, 143 O.R. (3d) 519, at para. 12.

[8] It is not at all clear on what basis the respondent submits she is entitled to costs. Her costs submissions in large part relitigate the merits of the motion and thus are not as helpful as they could have been.

[9] It is equally unclear on what basis the applicant submits he is entitled to costs on a substantial indemnity scale. He refers to the respondent's unreasonable behaviour in not agreeing to the relief that he sought. If losing a motion was the metric for "unreasonableness", every losing party would be required to pay substantial indemnity costs. However, substantial indemnity is not the usual standard for costs awards.

[10] Moreover, Kirby v. Kirby, 2017 ONSC 6695, on which the applicant relies for elevated costs, is entirely distinguishable from the case at bar. In Kirby, the losing party "behaved very badly" at the hearing of the motion and had to be frequently admonished by the court (para. 11). She was observed by court staff physically bullying opposing counsel during a break and engaging in conduct that required the attendance of police officers. On the basis of this extreme conduct, the judge awarded substantial indemnity costs. There are no parallels to the conduct of the respondent in the case before me.

[11] I also do not agree with the applicant that he was the successful party on the parenting time motion. He asked for four extended weekends, the applicant suggested two extended weekends, and I awarded three. I also granted the respondent her requested dates. Neither party is entitled to costs for this portion of the motion.

[12] Both parties were reasonable on the issue of school enrolment, a matter that was of obvious importance to each of them.

[13] In assessing proportionality, I am required to give some consideration to the expectations of the unsuccessful party. Here, Ms. Stomp spent approximately the same amount of time on the motion as did Mr. Ludmer and his paralegal.

[14] According to the applicant's bill of costs, Mr. Ludmer spent 7.2 hours on the motion, including preparing the costs submissions, while his paralegal, Ms. Azma, spent 5.1 hours. I find that Mr. Ludmer delegated appropriate work to Ms. Azma in order to mitigate costs and that the amount of time spent was reasonable.

[15] Because roughly half of the motion was spent on the issue of fall school enrolment, I will assume that half of the time claimed, or approximately $2,200 on a partial indemnity scale, is attributable to the school issue.

[16] Case law directs that the exercise of judicial costs determinations, although to be conducted in a summary manner, should not occur without considering various factors other than just accepting a successful party's bill of costs: see C.A.M. v. D.M. (2003), 67 O.R. (3d) 181. I am obligated, for example, to also consider the parties' ability to pay, although this factor alone cannot over-ride the other factors in r. 24: Peers v. Poupore, 2008 ONCJ 615, 61 R.F.L. (6th) 453, at para. 42.

[17] As the respondent points out in her material, there is a considerable difference in income between the parties. I also note, however, that the evidence at trial to date shows that the applicant has significant debt. Neither party appears to be on a solid financial footing.

[18] One of the purposes of a cost award is to encourage settlement. This is particularly so with family law litigants of modest means: Balaban v. Balaban, at para. 7.

[19] While I am encouraged by the increased cooperation between the parties that the respondent describes in her submissions, it is not a basis on which to depart from the usual costs rules. The reality is that the parties continue to litigate, as opposed to negotiate and cooperate. The cost of that reality must be visited on them.

[20] For this reason, I do not adopt the reasoning of the Supreme Court of British Columbia in Cordukes v. Cordukes, 2009 BCSC 1655, in which Crawford J. declined to award costs in order to avoid "upsetting the balance achieved in the award." That case has not been followed in Ontario in any event.

[21] In the result, having regard to the r. 24 presumption and factors, and the fact that the applicant was successful on one of the two issues in the motion, I order that the respondent shall pay to the applicant costs of the motion fixed in the sum of $2,000, inclusive of fees, disbursements, and HST. This amount shall be payable in four equal instalments commencing 30 days from the date of this order.

Jasminka Kalajdzic Justice

Date: July 28, 2025