ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-20-0000170-0000

DATE: 2026-03-02

BETWEEN:

GRAEME RUSSELL Applicant – and – EVA VOLANSKA Respondent

Gemma Dingwall, for the Applicant

Lynn Cayen, for the Respondent

HEARD: In Writing

DECISION ON COSTS

Cullin j.

[ 1 ] On January 19, 2026, I released my reasons for decision following a focused hearing to determine whether and when the parties cohabited as common-law spouses. In the decision, the parties were invited to make submissions regarding costs within 30 days.

[ 2 ] Both parties have now filed submissions. Below are my written reasons regarding the issue of costs.

[ 3 ] The Court’s ability to award costs is conferred upon it in s.131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Although awarding costs is discretionary, the Court is guided in its exercise of discretion by procedural rules. In the case of a family law proceeding, those procedural rules are provided in Rule 24 of the Family Law Rules .

[ 4 ] The costs provisions of the Family Law Rules are designed to foster several important principles: (1) To indemnify successful litigants for the cost of litigation; (2) To encourage settlement; (3) To discourage and sanction inappropriate behaviour by litigants; and (4) To ensure that cases are dealt with justly: Mattina v. Mattina , 2018 ONCA 867 .

[ 5 ] Pursuant to Rule 24(3) of the Family Law Rules , there is a presumption that a party is entitled to costs when they are successful at a step of the proceeding. The amount of costs awarded must be fair and reasonable having regard to the disputed issues and the result: Forrester v. Dennis , 2016 ONCA 214 .

[ 6 ] In awarding costs, the fact that a party may be in receipt of legal aid assistance is not relevant to determining the hourly rate at which costs should be awarded. Pursuant to s. 12 of the Legal Aid Services Act, 2020 , S.O. 2020, c.11, Sched. 15, costs are awarded to litigants in the same manner, whether they are in receipt of legal aid assistance, or not: Alvarez v. Smith , 2008 10047 (ON SC) , at para. 17 .

[ 7 ] The Family Law Rules do not speak to costs on either a partial or substantial indemnity scale. The Court may grant awards ranging from nominal to full indemnity costs.

[ 8 ] No “special circumstances” are necessary to award full indemnity costs: Sordi v. Sordi , 2011 ONCA 665 , at para. 21 . The Family Law Rules provide, however, for two specific circumstances in which the court is required to consider full indemnity costs. One is where a party acts in bad faith. The other is where a party fails to accept an offer to settle and an order is subsequently granted which is the same or better than the offer.

[ 9 ] In awarding costs for steps beyond the hearing at issue, the Court should be mindful of whether the issue of costs was addressed at the time of those steps and, if not, why it was not addressed: Islam v. Rahman , 2007 ONCA 622 , at para. 2 .

[ 10 ] In the present case, neither the applicant nor the respondent made offers to settle in advance of the focused hearing.

[ 11 ] The applicant has submitted a bill of costs supporting a request for full indemnity costs in the amount of $26,787.02, inclusive of fees paid to prior counsel on the file. The costs claimed are not limited to the focused hearing but rather span the entire proceeding to date.

[ 12 ] In support of their position regarding costs, counsel for the applicant submits that the respondent’s position was unreasonable. They submit that the focused hearing required significant advance preparation by counsel, including the compilation of numerous documents. They also note that several conferences were conducted in advance of the focused hearing. No submissions were made regarding costs awards made (or not) during prior steps in the proceeding.

[ 13 ] The respondent submits that any costs award should be nominal or significantly lower than that requested by the applicant. She submits that such an order is warranted by her limited means, as well as the applicant’s unreasonable conduct during his evidence, which she submits lengthened the hearing.

[ 14 ] While a litigant’s financial resources do not shield them from costs, it is a relevant consideration in assessing the quantum of costs: L.C.M. v. C.A.V. , 2003 1994 (ON SC) , at paras. 5-6 . The Court must ensure that the threat of burdensome costs consequences does not interfere with access to justice: Ricketts v. Ricketts , 2024 ONSC 1403 , at para. 10 .

[ 15 ] The applicant’s bill of costs discloses that the costs incurred specifically for the focused hearing totalled $13,357.73 on a full indemnity basis.

[ 16 ] While the respondent was unsuccessful in this focused hearing, her decision to proceed with the hearing was not wholly unreasonable. This hearing was a credibility contest and, as I noted in my decision, both of the parties were challenging witnesses.

[ 17 ] While I declined to rely upon the parties’ income tax filings and other documents in making my finding regarding the parties’ marital status, it was not wholly unreasonable for the respondent to have relied on them in deciding to proceed with the hearing. Those documents were not prepared by the respondent alone, and the applicant must bear some of the consequences of placing himself in a position where his marital status was a subject of debate.

[ 18 ] In my view, partial indemnity costs, fixed in the amount of 60% of the full indemnity costs incurred for the focused hearing, is a reasonable disposition of the issue of costs. For the sake of clarity, this results in a costs award $8,014.64, inclusive of HST.

[ 19 ] I am also mindful of the fact that this focused hearing addressed one issue in this proceeding, albeit a pivotal one. The issue of what relief will flow from this decision, if any, remains to be determined. In the circumstances, I am ordering that the costs will be payable in any event of the cause rather than ordering them payable forthwith.

Disposition

[ 20 ] For the reasons given:

a. The respondent shall pay costs of this proceeding to the applicant, which costs shall be fixed in the amount of $8,014.64, inclusive of HST. Costs shall be payable in any event of the cause.

Cullin, J.

Released: March 2, 2026