Court File and Parties

Court File No.: FC-16-219 Date: 2025-08-21 Superior Court of Justice, Family Court – Ontario

Re: Lisa Ann Jeffrey, Applicant And: Casey McNab, Respondent

Before: The Honourable Mr. Justice Robert B. Reid

Counsel: J. Singer, Counsel, for the Applicant A. Turner and K. Morris, Counsel, for the Respondent

Heard: May 20, 2025; Costs submissions due July 16, 2025

Decision on Costs of Motions

Introduction

[1] In advance of the trial in this application, which was set to be heard during the sittings at St. Catharines that commenced May 12, 2025, the applicant ("Ms. Jeffrey") moved for an order that the matter proceed as if the respondent's acceptance of the applicant's offer to settle dated April 7, 2025 had not occurred. She requested that funds paid to her, purportedly pursuant to the accepted offer, be paid into court.

[2] The respondent ("Mr. McNab") made a cross-motion for summary judgment to enforce the terms of settlement as per the accepted offer to settle, and for an order that any required rescheduling of the matter be marked peremptory to the applicant. In the alternative, if the offer was not found to be binding, he asked for a return of the funds.

[3] On June 9, 2025, for the reasons contained in the decision of that date, 2025 ONSC 3109, both motions were dismissed as to the substantive relief claimed. The motion of Ms. Jeffrey was dismissed on the merits and the cross-motion of Mr. McNab was dismissed except as to the issue of costs thrown away.

Claims for Costs

[4] Two discrete costs claims are made by Mr. McNab. The first is for costs thrown away resulting from Ms. Jeffrey's unsuccessful motion and the consequential failure of the matter to proceed to trial during the 14-day trial sittings (May 12 - 30, 2025) for which his counsel had prepared. The second is for costs of the motions themselves.

Costs Thrown Away

[5] It is axiomatic that a party who causes a matter not to proceed as scheduled, without proper justification, should be responsible to the other party for that party's wasted costs of preparation.

[6] In this case, the matter was originally projected to require 14 days of trial time on two issues: support and joint family venture/unjust enrichment. However, a second trial scheduling conference was convened on May 5, 2025, after the parties purported to settle the joint family venture claim. The new time estimate was eight days. When the motions were heard on May 20, 2025, (and including that day) there remained nine days in the trial sittings. One counsel was not available on May 23 and the other was not available on May 30. Counsel for Mr. McNab suggested that an order for written submissions could reduce the trial time by one day.

[7] Had the motions not been brought, and if the trial had proceeded as scheduled, it could only have been concluded within the available time if the written submissions order was made, since there were only seven days on which counsel were available.

[8] After the day on which the motions were heard, eight days remained in the sittings of which counsel were not available on two.

[9] The success of Mr. McNab's request to have the final submissions made in writing cannot be assumed. As a result, I cannot conclude that the unsuccessful motion of Ms. Jeffrey caused the matter not to be heard in the trial sittings, and therefore there will be no order for costs thrown away.

Costs of Motions

[10] It is uncontroversial that the court's discretion to award costs derives from s. 131 of the Courts of Justice Act, R.S.O. 1990 c. C.43, and that the exercise of that discretion is guided by the provisions of rule 24 of the Family Law Rules, O. Reg. 114/99, (the "rules") pursuant to which success is a presumptive factor.

[11] Mr. McNab seeks costs on a full recovery basis fixed at $29,103.83, or in the alternative on a partial indemnity basis to May 15, 2025, and thereafter on a full indemnity basis considering his offer to settle of May 16, 2025, (made pursuant to r. 18 of the rules) for a total of $22,912.56. He submits that Ms. Jeffrey acted in bad faith in seeking an increased amount for settlement of the joint family venture issue after she concluded that the April 7 settlement was void, and on that basis justifies his claim for full indemnity costs throughout.

[12] Ms. Jeffrey does not deny that some order for costs against her is appropriate based on her lack of success in her motion. However, she denies bad faith in that there was no evidence of "intentional duplicity, obstruction, or obfuscation", or "the intentional doing of a wrong because of dishonest purpose or moral obliquity" which were established as bases for such a claim by Chappel J. of this court in J.M.M. v. C.R.M., 2025 ONSC 3631 at para. 23.

[13] Ms. Jeffrey denies that the Offer to Settle of May 16, 2025 was met or exceeded by the terms of the motion decision, and further denies that the amount claimed is reasonable and proportional, which is a factor subsumed under the provisions of sub-rule 24(11) of the rules. She notes that her counsel's bill of costs reflects a full indemnity amount of $14,855 for senior counsel, which is about half of the amount claimed by Mr. McNab.

[14] I find that Mr. McNab is entitled to costs, based on his success in opposing Ms. Jeffrey's motion. His cross-motion was essentially a simple response to her motion, in which he requested confirmation of the partial settlement. I dismissed Mr. McNab's cross-motion as unnecessary, which in the circumstances does not diminish his success overall. However, based on my conclusion, he should not be entitled to costs incurred to bring that motion.

[15] As to the bad faith claim, I am not satisfied on the evidence that such conduct was established on the part of Ms. Jeffrey. She certainly appears to have amended her position about the quantum of settlement of the joint family venture issue, assuming the previous accepted offer was void, but I cannot presume an intention to inflict financial and emotional harm by doing so, as is submitted by Mr. McNab. Therefore, that conduct will have no bearing on the costs award.

[16] I have carefully reviewed the offer to settle by Mr. McNab dated May 16, 2025. It called for a withdrawal of both motions, the retention by Ms. Jeffrey of the amount paid pursuant to the purported settlement, with the trial to proceed "on Tuesday, May 20, 2025, or as soon thereafter as the court will hear it." Each party was to bear the costs of their own motions.

[17] Although Ms. Jeffrey submits that the offer required the trial to start on May 20, which was beyond counsel's authority to direct, I am satisfied that inclusion of the "or as soon thereafter" term meant that both parties would be ready to proceed with the trial, when and if called, from May 20 onward. The start date was not fixed in the offer. Rather the offer showed readiness to proceed on the remaining issue of support as scheduled.

[18] As a result, Mr. McNab is entitled to the benefit of sub-rule 18(14) to have an order for costs on a partial indemnity basis up to the date of service of the offer (May 16), and thereafter costs on a full-indemnity basis.

[19] The final issue is the matter of proportionality. As noted, the amount claimed by Mr. McNab is dramatically higher that that shown in Ms. Jeffrey's bill of costs. Two counsel attended on Mr. McNab's behalf on the motion. While the trial may justify that deployment, on these relatively straightforward motions it is unreasonable for an unsuccessful party to be responsible for that level of legal assistance. As I have already noted, some of the costs claimed relate to the preparation and submissions on Mr. McNab's motion. While the time required on his motion was not substantial, it should not be the basis for costs payable by Ms. Jeffrey.

[20] In the result, Mr. McNab is entitled to partial indemnity costs incurred before May 16 and full indemnity costs thereafter but reduced by the costs related to his cross-motion and the costs of attendance by a second counsel. Therefore, there will be a costs award, inclusive of HST and disbursements in favour of Mr. McNab in the amount of $19,000.

Conclusion

[21] For the foregoing reasons, costs are awarded to Mr. McNab payable by Ms. Jeffrey fixed in the all-inclusive amount of $19,000.

[22] There is no order as to costs thrown away.

Reid J.

Date: August 21, 2025