Court File and Parties

Court File No.: FS-21-77 Date: 2026-03-17

Ontario Superior Court of Justice

Between:

Sherri Lynn Romain Applicant

– and –

Walter Kennedy Respondent

Self-represented for the Applicant

Kathleen Klein, for the Respondent

Heard: In chambers

Reasons for Decision on Costs

Wilcox, J.

Introduction

[1] On January 23, 2026, I heard and granted the Respondent's Motion for Summary Judgment, dismissing the Applicant's claim for spousal support. Costs submissions were invited from the Respondent, followed by the Applicant's response. These have been received.

[2] The matter went to trial on July 29 and 30, 2025, with Ellies J. The property issues were dealt with but spousal support could not be reached. Ellies J. released his decision on the property issues on February 6, 2026, and invited costs submissions. Those costs are a separate matter, one for Ellies J. to decide upon. Here, I am only dealing with the costs of the January 23, 2026, Motion for Summary Judgment with respect to spousal support.

Law

[3] The awarding of costs in family law cases is governed in part by the Family Law Rules, especially rule 24.

[4] The costs rules are designed to serve four 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 subrule 2(2) of the Family Law Rules.[^1]

[5] There is a presumption that a successful party is entitled to the costs of a step in a case, except if the successful party has behaved unreasonably[^2]. The court determines whether a party has been successful based on the positions taken in the litigation.[^3] This assessment includes the positions taken in the pleadings and the specific relief sought at the hearing, if different.[^4]

[6] Inappropriate behaviour includes behaviour that increases the duration and expense of litigation or is otherwise unreasonable or vexatious.[^5] It is distinguished from bad faith which is a separate consideration.[^6]

[7] In setting the amount of costs in relation to a step in a case, the court may consider:

(a) the reasonableness and proportionality 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.

(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.[^7]

[8] A party who makes an offer in relation to a step in a case is, unless the court orders otherwise, entitled to costs on the date the offer was served and full recovery of costs from that date to the conclusion of the step, if certain conditions are met.[^8]

[9] "In the case of Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) (Ont. CA), the Ontario Court of Appeal indicated that a costs award should be a "fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual cost of the successful litigant". A "fair and reasonable" is the amount which the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation".[^9]

[10] Self-representation cannot be used to shield or insulate a litigant from a costs award. That would create a two-tier system. Any such consideration is outweighed by the need to ensure that the objective of discouraging or penalizing inappropriate behaviour is met. Costs sanctions apply equally whether parties have counsel or not.[^10]

Analysis and Conclusion

[11] The Application, issued May 13, 2021, included a claim for spousal support which was opposed by the Respondent in his June 10, 2021, Answer. The Respondent's Offer to Settle dated July 28, 2025, sought, among other things, that the spousal support claim be withdrawn. After several years, the parties proceeded to trial on July 29 and 30, 2025, on what was supposed to be all of the issues, including the Applicant's claim for spousal support. The Respondent contends that he was prepared and ready to argue spousal support because that was what was discussed and endorsed in the trial management conference. However, on the date of trial, Ellies J. decided that, as a result of a lack of medical evidence or witnesses from the Applicant, the trial would be bifurcated, and the spousal support issue would be dealt with subsequently.

[12] As set out in my January 23, 2026, endorsement, it appears that Ellies J. made some directions regarding the spousal support issue at the time. The Respondent's submissions on costs indicate that the Applicant was instructed that, if she planned to rely on medical information, she required clinical notes, records and reports from professionals which needed to be served on the Respondent's counsel. It had been found by Ellies J. that proper notice had not been given to the Respondent of the medical records that the Applicant planned to rely on. The Applicant did not produce any medical witnesses at the trial, and His Honour advised that the reports would need their interpretation to understand them. The Applicant was told to give proper notice if she was looking to rely on medical records. She was also ordered to file a revised Trial Scheduling Endorsement Form by August 29, listing her witnesses and any other evidence that she planned to rely on, together with will say statements for lay witnesses and for the nurse practitioner involved.

[13] The endorsement of Ellies J. of August 29, 2025, indicates that the Applicant failed to submit her Trial Scheduling Endorsement Form (TSEF). The matter was adjourned to the October 31, 2025, assignment court and the Applicant was given a further thirty days within which to serve and file her TSEF and all documents on which she hoped to rely at the trial.

[14] He made a further endorsement on November 14, 2025, indicating that he had reviewed a substantial list of documents uploaded to Case Center by or on behalf of the Applicant since July 30, 2025. He evidently was not satisfied with these as he said that a Trial Management Conference was obviously required. The matter was adjourned to the November 27, 2025, assignment court with the order that the Applicant was not to serve, file or upload anything further. The records show that there had also been an assignment court appearance and adjournment on October 31, when it went to November 27, 2025. The matter ended up on the January 16, 2026, assignment court list when it was put to January 23 for the Respondent's Motion for Summary Judgment.

[15] The Respondent sought full indemnity costs of $3,457.80 in the circumstances. I note from the Bill of Costs that these costs accrued from August 6, 2025, to and including February 23, 2026. Importantly, there is no overlap with the issues dealt with by Ellies J. up to and including the July, 2025 trial.

[16] By way of costs submissions, the Applicant filed a binder of material far in excess of the seven double-spaced pages plus Bill of Costs allowed by my January 23, 2026, endorsement. Much of it appears to relate to other issues. There was one document entitled "Applicant's Response Submission on Cost" which was within the allowed size. In it, the Applicant submits that the Respondent's claim for costs should be rejected as vexatious in that the Offer to Settle was presented only on the eve of trial in violation of the rules. This submission overlooks the fact that the Motion for Summary Judgment with respect to spousal support was heard nearly six months later, by when there had been ample time to respond. The balance of the document is largely a series of complaints against others including her former lawyer who she accuses of bad faith, ignoring her instructions and colluding with the Respondent and his counsel. The document appears to be aimed generally at the property issue heard by Ellies J. as well as the spousal support proceedings. In any event, it does not take issue with any specific aspects of the Respondent's costs submissions.

[17] Taking into account the purpose of and rules around the awarding of costs, the result of the Motion for Summary Judgment, the Respondent's Offer which was matched by the result, the Applicant's conduct which prolonged the proceedings, the case law regarding costs awards and the Respondent's quite modest Bill of Costs, I find the Respondent's request for full indemnity costs to be reasonable, proportional and fair. The Applicant is ordered to pay the Respondent's costs of $3,457.80, inclusive of disbursements and taxes, within thirty days.

Wilcox, J.

Released: March 17, 2026

[^1]: Mattina v. Mattina, 2018 ONCA 867.

[^2]: Family Law Rule 24(3) and (7)

[^3]: Lazare v. Heitner, 2018 ONSC 4861.

[^4]: Kyriacou v. Zikos, 2022 ONSC 401.

[^5]: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003, SCC 71 at para. 25

[^6]: Family Law Rule 24(10) and Caira v. Caira, 2023 ONSC 3624

[^7]: Family Law Rule 24(14).

[^8]: Family Law Rule 24(12).

[^9]: Lupien v. Carmichael, 2017 ONSC 2929 at para. 9.

[^10]: M.A.L. v. R.H.M., 2018 ONSC 2542 at para. 100 and Barran v. Schanck, 2019 ONCJ 218.