COURT FILE NO.: FC-23-2041
MOTION HEARD: 2025-08-25
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Manjinder Singh, Applicant
- and –
Hardeep Kaur, Respondent
BEFORE: Associate Justice Kamal, in writing
COUNSEL: Julie Gravelle, for the Applicant
Winifred Stow-Wilson, for the Respondent
REASONS FOR DECISION
Introduction
On July 9, 2025, I released an interim parenting decision (reported at Singh v. Kaur, 2025 ONSC 4122) in which I granted an interim parenting order that the Applicant’s parenting time shall be every weekend from Friday at 4:00 p.m. to Sunday at 6:00 p.m. and every Wednesday from 4:00 p.m. to 7:00 p.m. I also ordered that neither parent shall speak negatively about the other parent in the presence of the child, nor shall they allow anyone else to do so. The location and specifics of the parenting time exchanges shall be as agreed upon between the parties.
I am now required to determine costs of this motion.
For the reasons that follow, there will be no costs payable by either party to the other. The parties shall bear their own costs.
Positions of the Parties
The Respondent seeks costs on a substantial indemnity basis in the amount of $1,899.04
The Applicant’s position is that there should be no costs payable by either party, or in the alternative, the Respondent pay the Applicant’s costs on a partial indemnity scale as per his Bill of Costs in the amount of $4,500.
Guiding Legal Principles
- Modern costs awards are designed to foster four general purposes, as set out in Mattina v. Mattina, 2018 ONCA 867 at para. 10:
a) To partially indemnify successful litigants for the costs of the litigation.
b) To encourage settlement.
c) To discourage and sanction inappropriate behaviour by litigants.
d) To ensure that cases are dealt with justly, in accordance with Rule 2(2).
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.
The case-law has also made it clear that costs awards must be reasonable and proportionate. Beaver v. Hill, 2018 ONCA 840.
Rule 24(1) creates a presumption of costs to the successful party, but must be read with Rule 18 and Rule 24(6) on divided success. Proportionality and reasonableness are “touchstone considerations” see Beaver v. Hill, 2018 ONCA 840 at para. 12. Rule 24(6) provides that where success in a step in a case is divided, the court may exercise its discretion to order and apportion costs as appropriate.
Although consideration of success is the starting point in determining costs, the successful party is not always entitled to costs. As noted by the Ontario Court of Appeal in Mattina v. Mattina:
An award of costs is subject to: the factors listed in r. 24(12), r. 24(4) pertaining to unreasonable conduct of a successful party, r. 24(8) pertaining to bad faith, r. 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party: Berta v. Berta, 2015 ONCA 918, at para. 94.
Rule 24(10) also provides that, where a party has acted in bad faith, the Court “shall” decide costs on a full-recovery basis and order them payable forthwith.
Assessing costs is “not simply a mechanical exercise”. See: Delellis v. Delellis and Delellis, 2005 CanLII 36447 (ON SC). In that case, Justice Aston indicated as follows at para 9:
Costs must be proportional to the amount in issue and the outcome. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant.
There must be flexibility in examining the factors in subrule 24 (12).
I must consider all the circumstances of this case. In the circumstances of this motion, my analysis focuses on the following factors:
a. Success;
b. Conduct of the parties; and
c. Offers to Settle.
Success
As mentioned in my motion decision, the Respondent mother’s proposal for the Applicant’s parenting time changed over the course of the motion. At the determination of urgency, the Respondent was only agreeable to supervised parenting time by the father. On her own initiative, she backed away from that position and started providing the Applicant father unsupervised parenting time, including overnights. In her affidavit dated May 30, 2025, the Respondent proposed that the Applicant’s parenting time be every weekend from Friday at 4:00 p.m. to Sunday at 6:00 p.m. and every Wednesday from 4:00 p.m. to 7:00 p.m.
At the motion, the Respondent’s position was that the child primarily reside with her and the Applicant father’s parenting time should be as follows:
a. Alternate weekends, from Friday at 4:00 p.m. until Sunday at 7:00 p.m.; and
b. One weekday overnight visit per week, from Wednesday at 4:00 p.m. until Thursday at 8:00 a.m.
There was no explanation provided for the Respondent’s most recent change in position, particularly a decrease from her previous position.
The Applicant’s position was that a 2-2-3 parenting arrangement be granted.
As explained in Thompson v. Drummond, 2018 ONSC 4762 at para. 12, divided success is not determined by a mathematical tally of issues won or lost. It requires a "contextual analysis" of the importance of the issues litigated and the resources devoted to them. Where success is divided, the court may award costs to the party more successful overall or on the primary issue, with adjustments for lack of success on secondary issues and consideration of the litigation history (Gomez-Pound v. Pound, [2009] O.J. No. 4161; Boland v. Boland, 2012 ONCJ 239).
Neither party’s proposed schedule was adopted. The result maintained the pre-motion arrangement that was put in place only after the Court’s urgent intervention in May.
In my view, the motion was necessary to bring about stability to the parenting time arrangement for this family.
In my view, neither party was successful in this motion as neither parenting plan was accepted by the Court.
Another way to consider it is that success was divided. The father was required to bring this motion because of the mother’s unilateral behaviour, but the father’s position of a 2-2-3 schedule was not accepted. Similarly, the mother resisted the motion and was not successful in her positions of either supervised parenting time or alternative weekends. Therefore, the success was divided.
Conduct of the Parties
On May 20, 2025, when the matter returned before me, I determined that the matter met the test for urgency under Rule 14(4.2) of the Family Law Rules, finding that the Respondent was unilaterally dictating parenting time and that Court intervention was required to provide a structured schedule.
The Applicant was forced to bring this motion. The Respondent mother’s proposal for the Applicant’s parenting time changed over the course of the motion, and she was often unilaterally dictating the parenting time schedule. She often took unreasonable and unjustified positions, such as supervised parenting time, and then changed her position without any explanation.
In considering the conduct of the parties, I also consider that the father was unsuccessful in his position on the motion because of the family violence inflicted on the mother by his parents. I expressed concerns that the Applicant and his parents would undermine the relationship between the child and the Respondent.
As a result of the conflict between the Applicant’s parents and the Respondent (to which the Applicant remained a bystander), I found that it is not in the child’s best interests for the Applicant to have a 2-2-3 parenting schedule.
Intervention of the court was required to ensure that both parents are being considered fairly and equally with regard to parenting time.
Offers to Settle
The Applicant’s Offer to Settle proposed a phased shared schedule with evening and overnight parenting time.
The Respondent made no formal offer. Her informal July 7, 2025 proposal was for alternate weekends and one mid-week overnight.
The result of the motion was not close to either parties’ Offer to Settle.
I characterize this as neither party was successful, especially when considering this through the lens of the Offers to Settle.
Conclusion
This is an unusual case. Neither party was successful because of their own conduct. The father was unsuccessful because of the family violence inflicted on the mother by his parents (to which the Applicant remained a bystander). The mother was unsuccessful because of the unreasonable positions and the unjustified vacillating position throughout this motion.
Therefore, there will be no costs payable by either party to the other. The parties shall bear their own costs.
Associate Justice Kamal
DATE: August 25, 2025