Court File and Parties

Court File No.: FC-21-449 Date: 2025-10-03 Ontario Superior Court of Justice

Between: Jasmine Raad Hasan Ali, Applicant – and – Arthur William Timothy White, Respondent

Counsel:

• Martin Tweyman, Counsel, for the Applicant
• Kristy A. Maurina, Counsel, for the Respondent

Heard: In-Writing

Before: The Honourable Justice S. J. Woodley

Decision on Costs

Overview

[1] On May 30, 2025, on the third day of the trial, the parties reached a consent agreement with respect to all outstanding issues regarding the decision-making responsibility for their child, Violet Reign White ("Violet").

[2] The only issue left undetermined was the issue of costs. Therefore, this decision is about costs.

[3] All references to the rules in this decision are to the Family Law Rules, O. Reg. 114/99.

Facts

[4] The applicant, Jasmine Raad Hasan Ali ("Ms. Ali"), and the respondent, Arthur William Timothy White ("Mr. White"), met in college. The parties dated for approximately one year and were married on August 29, 2016. Ms. Ali and Mr. White had one child born of their relationship, Violet, born on July 16, 2017.

[5] Following the birth of Violet, Ms. Ali and Mr. White experienced difficulties in their relationship. They separated in April 2020, amidst allegations of infidelity and verbal, physical, sexual, and emotional abuse.

[6] Ms. Ali commenced family law proceedings on March 24, 2021.

[7] As the parties had implemented equal parenting time, the focus of the family law proceedings was decision-making responsibility.

[8] On December 29, 2021, the parties attended mediation. At the conclusion of mediation, Ms. Ali and Mr. White agreed to joint decision-making responsibility for Violet, and in the event of any future disagreement, they agreed that they would return to mediation.

[9] A consent order reflecting their agreement was mutually executed on March 2, 2022 and filed with a 14B dated March 23, 2022.

[10] The 14B motion was reviewed by Justice Finlayson on April 11, 2022. By endorsement of the same date, Justice Finlayson declined to sign the Final Court Order incorporating the parties' signed consent citing "significant concerns of family violence" and "other concerns + sexual violence". These concerns were required to be considered by His Honour when determining the best interests of the child pursuant to ss. 21(2) and 67(1) of the Children's Law Reform Act, R.S.O. 1990, c. C.12.

[11] The parties did not appeal the April 11, 2022 endorsement, nor did they seek to file further materials or request a re-consideration of the decision. Instead, Ms. Ali and Mr. White resumed the family law proceedings.

[12] A Case Conference was held before Justice Fryer on June 8, 2023. At that time, the parties agreed to request that the Office of the Children's Lawyer ("OCL") open an investigation pursuant to s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43. By Her Honour's endorsement of the same date, Justice Fryer expressed that she would not grant an order for shared parenting without a better understanding of the impact, if any, of the (alleged) domestic violence on the parenting arrangement.

[13] On November 27, 2023, the OCL Clinician, Vadewattie Jenny Singh-Akalu, MSW, completed the s. 112 investigation and recommended in an accompanying report that Ms. Ali be granted final decision-making responsibility and that she consult with Mr. White regarding major decisions concerning Violet, such as medical or academic decisions. Should the parties be unable to make decisions together, Ms. Ali was to have final decision-making responsibility for Violet. Within the report, the OCL Clinician opined that Ms. Ali would be "marginalized" if Mr. White were granted primary decision-making responsibility.

[14] Mr. White objected to the OCL report and provided additional information to the Clinician. By letter dated February 6, 2024, the OCL advised that none of the additional information would cause the OCL to change their recommendations or the content of their report.

[15] The trial commenced before me on May 27, 2025.

[16] The following individuals attended at trial to provide evidence: Ms. Ali, the OCL Clinician, Ms. Ali's mother, Ms. Ali's sister, and Mr. White.

[17] Following Mr. White's testimony and prior to him calling any further witnesses, Ms. Ali initiated settlement discussions which resulted in a consent agreement, that inter alia, provided:

a. Ms. Ali and Mr. White shall have joint decision-making responsibility, shall consult with one another, and shall make all major decisions jointly;

b. Day-to-day decisions will be made by the party who has control of the child;

c. The child will continue to attend her current school until grade 8, unless the parties agree otherwise in writing.

d. In the event of a disagreement, the parties will consult with a relevant professional and strongly consider the professional's recommendation.

e. If the parties remain unable to agree, they will attempt to resolve the issue through mediation, arbitration, a parenting coordinator, or by returning the matter to court, with costs of all non-court matters shared equally.

[18] On May 30, 2025, the parties advised the court that they had resolved the issues in dispute.

[19] Having heard and considered the evidence of the parties, the OCL, and the two fact witnesses, I determined that the consent agreement was in the best interests of the child, Violet, and signed the Final Order dated May 30, 2025, which concluded all disputes between the parties, excepting costs.

Positions of the Parties

[20] Mr. White submits that he was entirely successful in obtaining the result sought and meeting his Offer to Settle served on June 14, 2024. As the successful party, he submits that he is entitled to his costs pursuant to r. 24(3).

[21] Mr. White submits that the costs provisions apply equally to parenting cases, noting that the court has discretion in ordering costs pursuant to the Family Law Rules and s. 131 of the Courts of Justice Act.

[22] In support of his request for costs, Mr. White included a Bill of Costs, including a Bill of Costs from his former counsel, without including court attendances which were previously settled on a no-costs basis: see r. 24(3); Courts of Justice Act, s.131; Mattina v. Mattina, 2018 ONCA 867, at para. 12.

[23] Ms. Ali submits that there should be no costs awarded as the only issue to be determined was decision-making responsibility. She submits that she did not act unreasonably or in bad faith, she is a single mother without assets or ability to pay any costs awarded, and the circumstances surrounding the rejection of the parties' December 29, 2021 consent agreement warrant a departure from any order for costs.

The Law and Analysis

[24] Section 131(1) of the Courts of Justice Act, provides that cost orders are in the discretion of the court.

[25] Rule 24 sets out a framework for awarding costs for family law cases in the Family Court of the Superior Court of Justice, in the Superior Court of Justice and in the Ontario Court of Justice.

[26] The Court of Appeal for Ontario has held that modern family cost rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement, and; (3) to discourage and sanction inappropriate behaviour by litigants: Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, at para. 8; Fong v. Chan (1999), 46 O.R. (3d) 330 (C.A.), at para. 22.

[27] According to Mattina, at para. 10, r. 2(2) adds a fourth fundamental purpose: to ensure that cases are dealt with justly.

[28] Rule 24(1) creates a presumption of costs in favour of the successful party of a motion, case, or appeal: Berta v. Berta, 2015 ONCA 918, 128 O.R. (3d) 730, at para. 89.

[29] The presumption that a successful party is entitled to costs applies equally to custody and access cases: Britt v. Britt, [2000] O.J. No. 5981 (S.C.), at para. 9.

[30] Rule 24(14) sets out a list of factors the court may consider in determining an appropriate amount of costs:

(a) the reasonableness and proportionality of each of the following factors, as applicable, as they relate to the importance and complexity of the issues in the step:

(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 conditions set out in subrule (12) or the requirements of rule 18.

(iv) Any legal fees, including the number of licensed representatives 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.

[31] Rule 18(12.1) states that "[t]he making, withdrawal, acceptance and rejection of offers are subject to the cost consequences provided for under rule 24." Therefore, r. 24(14) sets forth the factors that may be considered within context of the factual matrix in this proceeding.

[32] Notably, the facts are rather unusual.

[33] Ms. Ali and Mr. White initially resolved all issues regarding decision-making responsibility approximately four years ago at mediation on December 29, 2021.

[34] Unusually, however, the parties' mediated agreement was not accepted by the court.

[35] As neither Ms. Ali nor Mr. White sought reconsideration upon filing further material, nor did they appeal the Endorsement dated April 11, 2022, they were required to continue the family law proceedings.

[36] On November 27, 2023, the OCL released their report, pursuant to s. 112 of the Courts of Justice Act, which strongly favoured Ms. Ali's position. Despite Mr. White's formal dispute, the OCL did not amend their report and remained strongly in favour of Ms. Ali's position regarding decision-making responsibility for Violet.

[37] On May 29, 2025, the OCL Clinician attended at trial and testified. Again, despite being cross-examined, and being provided with additional information, the Clinician remained steadfast in her support of the report which strongly favoured Ms. Ali's position.

[38] However, notwithstanding the OCL support at trial, Ms. Ali agreed mid-trial, to resolve the issues with Mr. White, on consent, and in accordance with terms that he had proposed in his Offer to Settle dated June 14, 2024.

[39] Mr. White takes the position that, although the matter ultimately resolved on consent, it should have resolved far earlier. Mr. White notes that costs rules are designed to foster the following purposes: (a) indemnification for successful litigants; (b) to encourage settlements; (c) to discourage and sanction inappropriate behavior; and (d) to deal with cases justly. The two touchstone considerations to be applied to costs decisions are proportionality and reasonableness: see Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519, at para. 12.

[40] I agree with much of Mr. White's submissions. However, the lens with which I view his submissions differs greatly from the lens that he has proposed I use.

[41] First, r. 24(1) does not require that a costs award be made. While the presumption contained in r. 24(1) marked a new approach to awarding costs in family law cases as "no costs" awards were thought to encourage unmeritorious and expensive litigation, there remains discretion to make no costs awards: see Murray v. Murray (2005), 79 O.R. (3d) 147 (C.A.).

[42] In my view, the circumstances surrounding the within proceedings, including both Justice Finlayson's rejection of the December 2021 consent agreement and the OCL report and testimony provided in support of Ms. Ali's position, compelled Ms. Ali to proceed with the family law litigation.

[43] The fact that Ms. Ali remained steadfast in her position in view of the external support of her position is to be expected. What was not expected was that Ms. Ali was able to prioritize Violet's best interests, despite what appeared to be compelling external support of her position.

[44] Costs are, in part, designed to encourage settlement, discourage inappropriate behaviour, and deal with matters justly.

[45] The situation in which Ms. Ali and Mr. White found themselves was extraordinary and not necessarily the making of either of the parties. I find their circumstances to be akin to the factual matrix found in Ruffudeen-Coutts v. Coutts, 2012 ONCA 263, 15 R.F.L. (7th) 35.

[46] In my view, neither party acted unreasonably. Both parties appeared compelled by external forces to proceed to trial and, despite everything, they were able to resolve all issues between them while considering only the best interests of the child Violet amid the stress and uncertainty of a trial.

[47] If costs were awarded in these circumstances, it would not encourage settlement.

[48] If costs were awarded in these circumstances, it would not discourage inappropriate behaviour.

[49] If costs were awarded in these circumstances, it would lead to an unjust result.

[50] Ms. Ali is a single mother on a fixed income. A cost order would have devastating financial consequences to Ms. Ali and would directly affect Ms. Ali's ability to support Violet.

[51] In my view, in the circumstances of this case, a cost award would financially harm Ms. Ali's ability to support Violet and would be contrary to Violet's best interests.

Conclusion and Order

[52] When considering the unusual circumstances of this case, the rules and principles that guide cost decisions, and the overall best interests of the child, I find that this is one of those unusual cases where it is appropriate to make no order as to costs.

[53] For the foregoing reasons, each party shall bear their own costs.

The Honourable Justice S. J. Woodley

Released: October 3, 2025