Court File and Parties

Court File No.: FS-23-0028-00 Date: 2025-09-03

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

VANESSA DANIELLE THERIAULT

Peter Howie for the Applicant

Applicant

- and -

CLINTON GRAY

Michael Cupello for the Respondent

Respondent

HEARD: in writing

Madam Justice R.A. Lepere

Decision on Costs

Introduction

[1] Following the hearing of the motions in this proceeding on June 30, 2025 and my reasons found at 2025 ONSC 4213, counsel filed written submissions on the issue of costs.

[2] Costs from several attendances were before me for determination:

a. March 6, 2025 (Parenting Time Motion);

b. March 27, 2025 (Parenting Time and Child Support Motion);

c. April 17, 2025 (Child Support Motion);

d. June 30, 2025 (Parenting Time Motion, Child Support Motion and Respondent's Motion).

[3] I will take some time to set out some details about each attendance for which costs are to be determined and the positions of the parties.

A. March 6, 2025 Attendance for Parenting Time Motion

[4] The Applicant brought this motion seeking interim orders regarding parenting time and decision making. This was heard by Wojciechowski J. on March 6, 2025 wherein an interim Order was made regarding parenting time and decision making. The Order essentially confirmed the arrangements that had been in place between the parties since March 2024.

[5] The Applicant seeks costs of $1,800.00, inclusive of HST and disbursements for this attendance. The Applicant asserts that the motion was necessary as the Respondent was attempting to disrupt the status quo that had been in place for a year and was providing confusing and inconsistent information to the children's school and day care.

[6] The Respondent asserts that there was no reason for this motion as he had just retained a new lawyer, the litigation had been dormant for a year prior despite the recommendation of the Case Conference judge in February 2024 that the parties should proceed to trial as soon as possible and while the Respondent was asking for more parenting time in and around this time he was permitted to do so.

[7] Respondent asserts that a global cost award should be payable to the Applicant for all attendances relating to the Parenting Time Motion, the Child Support Motion and the Respondent's Motion which were heard on June 30, 2025 in the amount of $2,500.00, inclusive of HST and disbursements.

B. March 27, 2025 Attendance for Parenting Time and Child Support Motion and April 17, 2025 Attendance for Child Support Motion

[8] The Applicant seeks costs for these attendances in the amount of $3,600.00, inclusive of HST and disbursements.

[9] On March 27, 2025 the Parenting Time Motion was back before the Court to schedule a date for the hearing of same. Same was adjourned to June 30, 2025. In addition, the Applicant had filed a further motion defined as the Child Support Motion requesting financial disclosure and an order for temporary child support that was also returnable on March 27, 2025.

[10] On March 27, 2025 the Child Support Motion was not heard. The financial disclosure issues had been resolved between the parties and the Child Support Motion was adjourned to April 10, 2025, peremptory on the Respondent.

[11] The Child Support Motion did not proceed on April 10, 2025 as the Applicant failed to file a Confirmation Form. It was put over to April 17, 2025. On April 17, 2025, it was agreed that the Child Support Motion would be heard on a limited basis and the balance of the issues would be adjourned to June 30, 2025 to be heard with the Parenting Time Motion as the two issues interrelated. Only the issue of what the Respondent was obligated to pay between then and the June 30, 2025 return date was determined.

[12] An order was made following the April 17, 2025 attendance on the Child Support Motion increasing the Respondent's child support obligation until the motions to be heard on June 30, 2025 were determined.

[13] The Applicant asserts that she is entitled to costs for the Child Support Motion as she was the successful party. She had made requests for financial disclosure on January 22, 2025 and February 11, 2025 that went unanswered. A further request for the disclosure was made on February 27, 2025 when the Respondent retained new counsel. A deadline was imposed of March 14, 2025 failing which a motion would be brought. Furthermore, based on the Respondent's income it was clear that his child support obligation should be increased, and he was refusing to do so.

[14] The Respondent argues that there should be no costs associated with the requests for financial disclosure as all issues were resolved without court intervention. While there was some delay, upon his new lawyer being retained the disclosure issues were resolved relatively quickly, albeit not as quickly as the Applicant wanted. Given the fact new counsel had been retained, more time should have been given to comply prior to incurring the costs of a motion.

[15] The Respondent does not make submissions regarding the costs claimed for the balance of the Child Support Motion which was heard on April 17, 2025. It appears, it is the position of the Respondent that any costs for this attendance should be included within the global cost award he has suggested.

C. June 30, 2025 Attendance for All Motions

[16] The Applicant seeks substantial indemnity costs in the amount of $6,300.00, inclusive of HST and disbursements for this attendance as the successful party.

[17] The Applicant asserts that costs should be awarded on a substantial indemnity basis because the Respondent filed limited evidence, did not file any case law and failed to provide the court with an updated Form 35.1 Affidavit. The Applicant also asserts that one business day before the hearing, the Respondent served an updated Financial Statement deposing that his income was $79,576.80 which the Applicant asserts was false and misleading.

[18] The Respondent acknowledges that the Applicant was the party primarily successful on the June 30, 2025 motions. He states that costs of $2,500.00, inclusive of HST and disbursements should be awarded as he had some success. He goes on to assert that these motions were only necessary due to the Applicant's failure to move the litigation to trial in a timely manner and the OCL has now released a report (which I did not have the benefit of having at the motions) providing that it is in the best interests of the children to spend equal time with each parent which was the position taken by the Respondent at the motion.

Analysis and Disposition

[19] There is a useful summary of the approach to costs in family law proceedings by the Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 at paras. 9-18 which I have considered.

[20] Rule 24(1) of the Family Law Rules creates a presumption of costs in favour of the successful party on a motion. As such, consideration of success is the starting point for determining costs. With that being said, an award of costs is still subject to the other factors found in the Rules: see Mattina at paras. 12 and 13.

[21] I am not prepared to order costs for the March 6, 2025 attendance on the Parenting Time Motion for the following reasons:

a. the order made simply confirmed the status quo between the parties;

b. while the Respondent was requesting more parenting time in and around this time, I do not have evidence to support the allegation of the Applicant that he was actively trying to disrupt the status quo to any extent wherein an order was required; and

c. the Applicant should have taken steps to move this matter towards to trial as recommended a year prior instead of focusing on motions for interim orders.

[22] I will, however, consider any time associated with the preparation of the Parenting Time Motion, when I consider the costs of the June 30, 2025 attendance.

[23] I am not prepared to order costs for the March 27, 2025 attendance for the following reasons:

a. this attendance was primarily procedural in nature in that it simply adjourned both the Parenting Time Motion and the Child Support Motion to future dates to be argued;

b. the financial disclosure requested in the Child Support Motion was resolved prior to the attendance without court intervention;

c. while there was some delay in the Respondent providing the requested disclosure several of the requests were made while he was self-represented and during a period of time when he had just retained a lawyer so additional time should be given for compliance prior to commencing a motion;

d. there was no urgency as the litigation had been dormant for a year prior to March 2025; and

e. the Respondent had partially complied with the disclosure requests by the deadline imposed by the Applicant, but she still proceeded with a motion to seek the balance of the financial disclosure.

[24] With respect to the April 17, 2025 attendance for the Child Support Motion I order that the Respondent shall pay costs in the amount of $1,000.00, inclusive of HST and disbursements to the Applicant for the following reasons:

a. the Applicant was the successful party in that she had the Respondent's child support obligation increased on a temporary basis further to his updated income information;

b. the Respondent opposed the motion on the basis that the parties had a shared parenting schedule when the evidence before the Court did not support such a finding;

c. the Respondent's position that his recent income information was not reflective of his actual income was not supported by the evidence and was unreasonable;

d. the issue could have waited to be determined at the June 30, 2025 hearing (2.5 months away) saving all of the parties time and money;

e. there is no basis for urgency to suggest that the motion was necessary as the litigation had remained dormant for a year prior to March/April 2025;

f. the hourly rate charged by the Applicant's lawyer was reasonable in the circumstances;

g. there is no basis for an award of substantial indemnity costs; and

h. the partial indemnity costs claimed for in the Applicant's Cost Outline have been reduced to take into account the fact that no award was made for the March 27, 2025 attendance and the portions of the Child Support Motion related to the disclosure issues.

[25] With respect to the June 30, 2025 attendance for the three motions I order that the Respondent shall pay costs in the amount of $2,500.00, inclusive of HST and disbursements to the Applicant for the following reasons:

a. the Applicant was the successful party and while the Respondent had some limited success on discrete issues this does not give rise to divided success;

b. there is no evidence of any offers to settle exchanged between the parties relevant to the issue of costs;

c. there is no evidence of unreasonable conduct by the Applicant;

d. these motions could have been avoided and the parties could have moved this matter to trial instead and had the issues decided on a final basis;

e. there is no evidence of bad faith by the Respondent despite the arguments made by the Applicant for the following reasons:

i. at the motion the Respondent conceded that if the current parenting time schedule was maintained it was not a shared parenting situation and the parties effectively agreed on what the Respondent's child support obligation would be based on his income;

ii. the Respondent at the motion agreed with the Applicant's position on his annual income; and

iii. I dealt with the issue of the Respondent not filing an updated Form 35.1 in my previous reasons on the motion and do not find that same amounts to bad faith;

f. the hourly rate charged by the Applicant's lawyer was reasonable in the circumstances;

g. there is no basis for an award of substantial indemnity costs;

h. the partial indemnity costs claimed for in the Applicant's Cost Outline have been reduced to take into account the following:

i. a consideration of the overall reasonableness of the amount claimed when you consider the issues and the length of the motion;

ii. there is time claimed for the questioning of the parties which is useful to the overall issues before the parties not just the issues on these motion so those costs should be claimed as part of the overall costs of the application, not this motion; and

iii. there is time noted for two attendances, yet costs are only being awarded for the June 30, 2025 attendance.

[26] In addition to the above, I have also taken in consideration the principle that a more tempered approach should be used in cases involving parenting issues so as to not discourage adjudication of matters affecting the best interests of the children: see Wallegham v. Wallegham, 2015 ONSC 8066 at para. 23.

Conclusion

[27] I fix the Applicant's costs for the Parenting Time Motion, the Child Support Motion and the Respondent's Motion at $3,500.00, inclusive of HST and disbursements.

The Hon. Madam Justice R.A. Lepere

Released: September 3, 2025