Court File and Parties
Court File No.: FC-20-842 Date: 2025-08-11
Ontario Superior Court of Justice
Re: Paola Borba Amaral, Applicant And: Jason White, Respondent
Before: Carter J.
Counsel: John Summers, for the Applicant Respondent, Self-Represented
Heard: In Writing
Costs Endorsement
Background
1At the commencement of the trial, the parties were able to agree on a number of final orders with respect to parenting time (with the exception of one issue as to scheduling), a holiday schedule, ongoing child support, s. 7 expenses, and the property claims. The remaining issues to be resolved were as follows:
a. Whether the Mother or the Father should have the child Lucas on 2/2/5 schedule that has otherwise been agreed to;
b. Whether the Mother should have final decision-making responsibility for Lucas;
c. Whether the Father should be prohibited from attending the Mother's residence; and
d. Whether the Father's consent is required when the Mother travels with Lucas internationally and whether the Mother may order a passport for Lucas without the Father's consent.
e. Retroactive child support.
2Ultimately, I made orders that were largely in the Applicant's favour, although I accepted the Respondent's position on a few points with respect to travel issues.
3Counsel for the Applicant made brief submissions on costs at the conclusion of my oral decision. I gave the Respondent additional time to provide written submissions on costs. I have now received those and am in a position to make an order on costs.
Entitlement to Costs
4The first issue in addressing costs is to determine whether either party is liable to pay the other's costs. Pursuant to r. 24 (1) of the Family Law Rules, O.Reg. 114/99 as am., there is a presumption that a successful party is entitled to costs. Success should be measured by comparing the positions of the parties on the issues litigated with the orders made. Where success in a case is divided, the court may apportion costs as appropriate (r. 24(6)). Where success is divided equally or roughly equally, it is not uncommon for the court to make no order for costs (Saroli v. Saroli, 2021 ONSC 7491 at paras. 6 to 11).
5As noted above, the Applicant was successful on a majority of the issues, although the Respondent prevailed on a few points. I cannot say that success was evenly divided but as the Applicant was not entirely successful, I will apportion costs as appropriate.
Quantum of Costs
6I turn now to quantum.
7A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if certain conditions are met. The Applicant concedes that such conditions were not met and that such an order is therefore not appropriate.
8The FLRs expressly provide that a judge may increase or decrease what would otherwise be the appropriate quantum of costs awarded. Subrule 24(12) sets out the following list of factors the court must consider in setting the amount of costs:
(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:
(i) each party's behaviour,
(ii) the time spent by each party,
(iii) any written offers to settle, including offers that do not meet the requirements of rule 18,
(iv) any legal fees, including the number of lawyers and their rates,
(v) any expert witness fees, including the number of experts and their rates,
(vi) any other expenses properly paid or payable; and
(b) any other relevant matter.
9I have reviewed the costs outline of the Applicant. The legal fees, number of lawyers and rates were all reasonable. The expenses were reasonable. In addition, both parties made offers to settle that were reasonable.
10There is a problem, however, on the matter of the time spent. Counsel for the Applicant has not broken down time spent on the different issues. As a result, it is difficult to determine with any precision how much time was spent on the issues on which the Applicant was successful.
Conclusion
11The Applicant claims total fees $86,060.50 plus $2,500 for a previous costs order reserved to the trial judge. On a partial indemnity basis, the amount would be $36,924.20. Given that the Applicant was not successful on all issue at trial and that some of the time spent by counsel was on matters that resolved, in my view an appropriate costs award would be $18,500 payable by the Respondent to the Applicant.
Carter J.
Released: August 11, 2025