Court File and Parties
Court File No.: FS-25-58-000 Date: 2025-09-15 Superior Court of Justice - Ontario
Re: Christina Fox, Applicant And: Paul Fox, Respondent
Before: Justice Catrina Braid
Counsel:
- Kendra Swallow, for Applicant
- Scott DeGroot, for Respondent
Heard: By written submissions
Costs Endorsement
I. Overview
[1] Christina Fox and Paul Fox were married and subsequently separated. They have two daughters together. In these reasons, I shall refer to the parties as "the mother" and "the father."
[2] The mother brought an urgent motion seeking primary residence, sole decision-making, and other relief. For oral reasons given on June 27, 2025, I declined to make an order for primary residence, but I made orders for parenting time and counselling, among others.
[3] I must now determine costs of the motions. For the reasons set out below, I order that the father pay costs to the mother in the amount of $20,000.
II. The Mother Is Entitled to Costs
a) The Mother Made Offers to Settle That Were Similar to the Result
[4] Rule 24 of the Family Law Rules, O. Reg. 114/99 sets out principles to guide the court regarding costs. Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, grants broad discretion to the court regarding costs. The court may determine by whom and to what extent costs shall be paid: C.A.M. v D.M. (2003), 67 O.R. (3d) 181 (C.A.).
[5] I find that the mother is entitled to costs, for the following reasons:
[6] When I delivered my oral reasons, I initially advised the parties that there was divided success on the motion, and I would not order costs unless the parties could demonstrate that they had achieved the same result or better than an offer to settle. Counsel for the mother asked for an opportunity to provide copies of offers to settle and make submissions. I have received and carefully reviewed the submissions of both parties.
[7] I agree with and adopt the mother's written submissions setting out the terms of her two formal offers to settle and the results on the motion:
November 5, 2024 Offer
| Terms | Did the Mother Beat her Offer? |
|---|---|
| Parenting Terms (paragraph 9): Parenting time for a minimum of 2 hours of "therapeutic" parenting time, 3 times a week. | Yes, the mother obtained a better parenting schedule from both Justice Hilliard and Justice Braid. |
| Cost of Therapy Terms (paragraph 7): The mother shall solely be responsible for therapy, subject to reapportionment at a later date. | Yes, Justice Braid ordered that therapy costs be shared equally, dating back to separation. |
April 2, 2025 Offer
| Terms | Did the Mother Beat her Offer? |
|---|---|
| Parenting Terms (paragraph 8): The mother offered a six-month step-up schedule leading to a week-about schedule. (This offer remained open for acceptance with cost consequences up until the motion on June 23). | Yes, both Justice Hilliard and Justice Braid ordered a better parenting schedule than that offered (although the schedule for the next six months is not yet established). |
| Cost of Therapy (paragraph 6): The cost of therapy shall be shared equally between the parties. | The mother matched this offer. |
[8] Unless the court orders otherwise, a party who makes an offer to settle is entitled to costs to the date the offer was served and full recovery of costs from that date, if certain conditions are met. In this case, the mother made two formal offers that were withdrawn on April 4, 2025, the day that the parties were before Justice Hilliard. These offers did not remain open for acceptance until the hearing started before me, as required by Rule 18(14). In addition, in a letter dated February 21, 2025, the mother made an informal offer to settle in accordance with the recommendations of the counsellor.
[9] Some of the mother's offers also included terms for financial penalties payable by the father if parenting time did not proceed. The court declined to order financial penalties, but the offers were otherwise similar to the orders made by the court.
[10] I find that the mother attempted to have meaningful discussions with the father and delivered several reasonable proposals to resolve the matter. Pursuant to Rule 18(16), I have taken these written offers to settle into account, even though they do not fully comply with the rules.
b) The Mother Was More Successful on the Motions
[11] Because there was no viva voce evidence on the motion, I was unable to determine whether the father alienated the children. However, I found that the father's behaviour has not been supportive of the mother and has created barriers to reunification between the mother and the children in the following ways:
In court, the father submitted that a graduated schedule was best because the children do not want to see their mother. However, he did nothing to facilitate a graduated schedule, other than consenting to nine visits under court order as terms of two adjournments after the mother brought an urgent motion. The father did not agree to the mother having any parenting time prior to the first court date.
Prior to court involvement, the father did not encourage the children to contact the mother. Instead of supporting pathways for telephone, virtual or in-person contact between the mother and the children, the father stated that the children did not want contact with their mother. The father placed sole responsibility on the children to choose whether they have a relationship with their mother, which was unfair and inappropriate.
The father refused to allow any parenting time with the mother in the fall of 2024, despite CAS recommending and arranging a visit that he cancelled and did not reschedule. He did not allow any visits until approximately eight months after separation, and the visits were a term of the adjournment.
The father states that he has been amenable to individual counselling for the children since November 2024. However, he took insufficient steps to enroll the children in counselling, even though the children were primarily in his care.
The father picked up the children early during the first parenting time with the mother, despite the order stating that the mother was supposed to drive them back. He acknowledged that he should not have done this.
The father required the children to return birthday and Christmas gifts from the mother. He provided no explanation for this shocking behaviour.
The father isolated the children from extended family members, whom they would normally see consistently. He acknowledged that he refused any contact between the children and any members of the mother's extended family.
The father admitted that he previously told his own family that they would be "dead to me" if they spoke to the mother. His counsel said that this happened in the heat of the initial separation, but there is no evidence that the father did anything since then to remedy this issue.
The father exposed the children to adult conflict between the parties. He permitted the children to read messages exchanged between the parties and letters from their lawyers. The children were told about the details of the mother's mental health crisis, despite not being present during most of it. The father shared text messages exchanged between the parties, including serious disparaging remarks that he made about the mother.
The father called the police on the mother unnecessarily and involved the children in those scenarios.
[12] Although the court did not grant the mother's motion to change primary residence and decision making, orders were made for structured parenting time with the mother. The mother made two formal offers to settle and one informal offer to settle in advance of the motion being argued before me, and the mother was more successful on the parenting time and the cost of therapy, as set out above. The father did not make any offers to settle.
[13] The father denied the mother any parenting time until it was court ordered, which is unacceptable. The father's conduct necessitated the urgent motion, and he should pay the mother's costs of that motion. Although the mother did not succeed in having primary residence changed, she was still the more successful party on the motions and is entitled to her costs.
III. Quantum of Costs
[14] The mother submits that she is entitled to partial indemnity costs of $19,599.57. The father argues that each party should bear their own costs, and that some of the costs claimed by the mother are not related to the motion.
[15] Counsel for the mother has filed a bill of costs that sets out two different calculations of total fees. This appears to differentiate between 100% of costs incurred on the motion ($39,199.14) and costs on the entire file ($46,677.14). I accept that the mother is not claiming costs for work unrelated to this motion. The parties appeared before Justice Hilliard and Justice Wood on prior occasions, and the mother obtained temporary orders for parenting time at those appearances. The mother incurred significant legal fees in order to obtain parenting time orders when the father unreasonably withheld consent prior to court involvement.
[16] I have already determined that the mother is entitled to costs. In determining the appropriate quantum of costs, I have considered the reasonable expectations of the parties; the complexity and importance of the proceeding; and the conduct of the parties in litigation: Family Law Rules, Rule 24(14) and Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40.
[17] Modern costs rules are designed to foster four fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants; and (4) to ensure that cases are dealt with justly under Rule 2(2) of the Family Law Rules: see Mattina v. Mattina, 2018 ONCA 867, at para. 10.
[18] The parties filed a significant amount of material in support of these motions. The factual and legal issues in the motions were of moderate complexity. The proceeding was of high importance to the parties.
[19] The mother seeks partial indemnity costs of 50% of the actual costs incurred. Partial indemnity costs typically range from 40% to 60% of a successful party's actual legal fees, though the exact amount is not strictly defined. I find that the father rejected very favourable settlement offers and failed to provide his own offers to settle. His unreasonable behaviour, as set out above, unduly complicated and lengthened these proceedings. In the circumstances of this case, I would have awarded more than 50% of the mother's costs if she had asked for it, as her request is extremely reasonable. I have therefore rounded up the amount.
[20] I have considered the principles in Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.). The fixing of costs should reflect what the court views as a fair and reasonable amount to be paid, rather than any exact measure of the actual costs to the successful litigant. In this case, the father has not filed a Bill of Costs, so I am unable to determine what his own costs were and whether the amounts claimed by the mother were within the expectation of the father. I find that a fair and reasonable amount of costs to be paid by the father is $20,000.
IV. Conclusion
[21] For all of these reasons, this court orders that the respondent father shall pay costs of these motions to the applicant mother, in the amount of $20,000, inclusive of taxes and disbursements. These costs shall be paid by October 14, 2025.
Date: September 15, 2025
Braid J.