Court File and Parties

Court File No.: FS-18-22525 Date: 2026/03/19

Ontario Superior Court of Justice

Between:

Jennifer Lynn Scharf Applicant

-- and --

Troy Stacey Crowder Respondent

Counsel:

William Abbott, for the Applicant

Self-Represented, for the Respondent

Heard: In chambers

Reasons for Decision on Costs

Wilcox, J.

Introduction

[1] My decision of February 5, 2026, invited costs submissions which have been received. They comprise the Applicant's submissions, the Respondent's response and the Applicant's reply.

[2] The Application, issued November 13, 2018, claimed for divorce and an array of corollary relief including custody, access, child support, spousal support, property equalization, and exclusive possession of the matrimonial home and its contents, and costs.

[3] The Answer/Claim by Respondent dated February 27, 2019, agreed with the claim for divorce, child support for one of the three children, Cole, and property equalization. It claimed joint custody of and access to Cole and exclusive possession of the matrimonial home and its contents, pending its sale, and costs.

[4] The Amended Application of February 24, 2023, updated the claims in view of the changes to the situation that had occurred over the intervening years. Custody and access, or decision-making responsibility and parenting time, as they became known as, were no longer relevant. The claims for spousal support and exclusive possession of the matrimonial home were also dropped. A claim that a second mortgage placed against the matrimonial home by the Respondent in favour of his parents was void was added as well as a claim for reimbursement for her personal belongings allegedly sold by the Respondent.

[5] The Respondent did not deliver an Answer to the Amended Application.

[6] The case went through a variety of pre-trial events. The trial consumed seven days, plus an eighth day for submissions.

[7] The Applicant filed in her costs submissions a Bill of Costs with full indemnity costs of $106,039.84 plus disbursement and taxes totalling $123,484.47. It covers the years from September, 2020 to the present. She sought full indemnity costs on the grounds that she was almost entirely successful, that she had met or exceeded her offers to settle and that the Respondent had conducted the litigation in bad faith.

[8] The Respondent filed costs submissions consisting of an Overview, a Form 57B Costs Outline, his affidavit, a "Cost Request" together with exhibits and an affidavit of February 26, 2026, of his mother, Mary Crowder, together with exhibits, totalling 200 pages! The Respondent's documents that are not handwritten, being the Overview and the Costs Request, comprise four pages of dense, single-spaced fine print. Clearly, this is not in keeping with the direction in my Reasons for Decision that costs submissions "shall not exceed five pages, double-spaced plus attachments including Bills of Costs and Offers to Settle". His Costs Outline shows fees paid to his previous lawyer of $12,000, fees as a self-represented litigant of $100 and an estimate of what lawyer's fees would have been if he had been represented through motions and trial of $100,000 plus disbursements of $2,220 for a total of $114,220 (sic). As pointed out in the Applicant's Reply Costs Submissions, the Respondent not only sought costs but also to appeal the trial decision using the costs submissions as an opportunity to re-litigate the case.

Law

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

[10] 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]

[11] 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]

[12] 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]

[13] 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, 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.[^7]

[14] A party who makes an offer in relation to a step in a case is, unless the court orders otherwise, entitled to costs to 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]

[15] Costs awards are discretionary but must apply the principles of proportionality and reasonableness[^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".[^10]

[16] 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.[^11]

Analysis

[17] There is no doubt that the Applicant was the successful party in the case. Consequently, the presumption is that she is entitled to her costs.

[18] In setting the amount of the costs, I will deal first with the Rule 24(14) considerations, beginning with behaviour.

[19] The Applicant, represented by counsel, proceeded methodically through the matter, following the laws and rules. The rules include the Family Law Rules and others, such as the rules of evidence.

[20] The Respondent had begun the case with legal representation, but lost that part of the way through. As a self-represented litigant, he was at a disadvantage in respect to the technical aspects of the matter. However, at some level, family law is fairly simple. It provides that, after separation, the property and debts are to be dealt with and the net family property equalized. Decision-making responsibility and parenting time with respect to the children are to be decided upon. Spousal and child support are to be calculated using the relevant guidelines. The financial disclosure required for this is to be produced initially when the case begins and then corrected and updated as need be, using the forms provided for the purpose. With complete, accurate disclosure the information is available on which to base decisions. Various conferences are provided for to assist litigants in organizing and resolving their cases. The present case was made less difficult than some by the fact that the children were young adults at the time of the proceedings, such that there was no contest over decision-making responsibility and parenting time. The issues were entirely financial. These laws and rules apply to all family law cases. Unfortunately, the Respondent proceeded as if they did not apply to him. This is illustrated by the following quote taken from an email of April 9, 2021, filed by the Respondent as part of his costs submissions, in which he wrote to the Applicant's counsel:

Secondly I refuse your proposal to settle that you have presented. I propose to Ms. Scharf that she take over the van payments and ownership. Give me back my skate sharpener and we will forever part ways. She will agree to never come back for any compensation from this point on. I will directly deal with my children and any extra school or life costs that I am financially able to. (sic).

[21] Inherent in that statement is an almost complete disregard for our family laws. After that, he implicitly refused to follow the rules and orders for disclosure. "The most basic obligation in family law is the duty to disclosure financial information. This requirement is immediate and ongoing."[^12] By the time of trial, his disclosure was incomplete, years out of date and inaccurate. He had not taken the steps necessary to be able to present evidence that he wanted to present at trial. In his submissions, he could not say what his position was on some issues and, generally, he did not relate the evidence to the legal issues preferring instead to focus on perceived wrongs by others against him throughout the case. This was a matter that could and should have been resolved, in whole or in part, at an earlier stage than trial, at a great saving in monetary and intangible costs.

[22] Looking at the time spent and the fees charged as set out in the Applicant's Bill of Costs, it is apparent that the Applicant's lead counsel, Mr. Abbott, delegated much of the work to junior counsel, articling students, and law clerks who charged significantly lower hourly rates. Unsurprisingly, a large proportion of the total involved Mr. Abott's preparation for and attendance at the eight days of trial. Those costs could have been significantly higher except that, at Mr. Abbott's suggestion and on consent, much of the trial was done by Zoom, thereby doing away with the need for the hours of travel that personal attendance would have entailed at additional cost.

[23] The Applicant submits that she made two comprehensive offers dated August 2, 2022, and January 20, 2023, respectively. Obviously, neither was accepted. The Respondent submitted that he was never served with the latter one and that only the earlier one should be admitted. Even if that is so, it is fair to say that the result obtained by the Applicant was as good as or better than either offer.

[24] The Family Law Rules provide that, if a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately. The Applicant's costs submissions refer to this and submit that the Respondent conducted the litigation in bad faith. The Ontario Court of Appeal in Scalia v. Scalia[^13] set out the legal test for bad faith in the family law context. "(T)he impugned behaviour must be shown to be carried out with "intent to inflict financial or emotional harm on the other party or persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court. In short, the essential components are intention to infict harm or deceive". Given the enormity of the Respondent's failure to, among other things, provide the necessary and required financial disclosure, despite the rules and orders for disclosure, on the balance of probabilities, I find that the Respondent acted in bad faith.

[25] In view of the above, I find that the Applicant is entitled to her costs. Further, she is entitled to full recovery of costs both on the basis that the decision met or exceeded the Applicant's offer to settle and that the Respondent acted in bad faith.

[26] I next turn to the consideration of whether the costs claimed are fair, reasonable and proportionate. A useful guide for determining this is the amount that the unsuccessful party paid for their own legal fees and disbursements in the matter. As the Respondent was a self-represented litigant throughout much of the case, he did not pay any legal fees beyond what he paid to the counsel that he had early on. However, as noted above, his costs outline indicated that he would have expected to pay $114,220 for the case. Consequently, and in view of the above mentioned steps taken by the Applicant's counsel to keep the costs lower than they otherwise would have been, I find that the costs sought by the Applicant are fair, reasonable and proportionate.

[27] In conclusion, I order that the Respondent pay to the Applicant costs, including fees, disbursements and taxes, of $123,484.47, to be paid to the extent possible out of the net proceeds of sale of the matrimonial home with any remaining balance to be a debt owed by the Respondent to the Applicant, as ordered in my decision of February 5, 2026, after the trial of the matter.

Wilcox, J.

Released: March 19, 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]: Beaver v. Hill, 2018 ONCA 840, at para. 4.

[^10]: Lupien v. Carmichael, 2017 ONSC 2929, at para. 9.