CITATION: Bigras v. L’Abbe, 2026 ONSC 2599

COURT FILE NO.: FC-19-167

DATE: 2026/05/01

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jessica Bigras, Applicant

AND:

Bruce L’Abbe, Respondent

BEFORE: Justice Somji

COUNSEL: M. Peter Sammon, Counsel for the Applicant

Christopher Deeble, Counsel for the Defendant

HEARD: In Chambers

COSTS ENDORSEMENT

Introduction

[1] The Applicant mother seeks full indemnity costs in the amount of $9,808 following her success on a motion related to the Respondent father’s breach of the terms of a final parenting order: Bigras v. L’Abbe, 2026 ONSC 788.

[2] The Respondent father concedes the mother was the successful party on the motion but argues that I should either i) not award costs to the mother because she behaved unreasonably; ii) reduce costs to account for the father’s inability to pay; or iii) reserve costs for a later step.

[3] With respect to the father’s third argument, I disagree with reserving costs for a later step in the proceedings for two reasons: first, the general rule is that costs will follow each step in the proceeding; and second, it is unclear that the mother will seek a further step in this case. The mother’s reason for seeking a remedy under Rule 1(8) Family Law Rules to enforce compliance with the terms of a final parenting order was to minimize costs. Following six years of litigation, the parties signed Minutes of Settlement and consented to a Final Order on November 21, 2024. Within weeks of that Final Order being issued, the father commenced breaching the terms. The mother was successful in obtaining on the motion a further order that not only reinforces to the father the need to comply but delineates terms to facilitate his compliance. The mother hopes this will bring an end to incessant and costly litigation and that further steps will not be necessary.

[4] This leaves two issues to be decided: one, is the mother entitled to costs, and if so, what amount is fair and reasonable in the circumstances?

Issue 1: Is the mother entitled to costs?

[5] The mother was the successful party on the motion and is presumptively entitled to costs. I find there is nothing in her conduct that would disentitle her to a costs award.

[6] Entitlement and quantum of costs is in the discretion of the judge: Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[7] Rule 24 sets out the legal framework for cost orders in family cases: Family Law Rules, O. Reg. 114/99 as am (“FLR”); Mattina v Mattina, 2018 ONCA 867 at para 9.

[8] The starting point is that a successful party is presumptively entitled to costs. However, in assessing entitlement, judges must consider written offers to settle and any unreasonable behaviour or bad fait conduct on the part of the successful party: rr. 18(14); 24(3); 24(7), 24(8); 24(10) and 24(12) FLR.

[9] The father argues that the mother is disentitled to costs because she brought the motion on an urgent basis leaving the father limited time to respond. I disagree. At the first appearance on the motion, the court granted the father an adjournment with ample time to retain counsel and file responding materials which he proceeded to do.

[10] For reasons set out further below, I also disagree that the mother’s failure to accept the father’s proposals to settle certain issues disentitles her to a costs award.

Issue 2: What costs amount is fair and reasonable?

[11] In determining costs, the parties and court must consider that 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, as per r. 2(2), that cases are dealt with justly: Mattina at para 10.

[12] The assessment of costs is a not a mechanical exercise and involves more than a review of the lawyer’s docket: Boucher v Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), at para 26.

[13] In determining the quantum of costs, a judge is to consider: the conduct of the parties, offers to settle, complexity of the issues, time spent by each party, lawyer’s rates and billings, disbursements, ability to pay, and any other relevant factors: r. 24(14).

Conduct of the parties

[14] The mother argues that the father’s conduct in repeatedly breaching the Final Order and doing so within weeks of its issuance is bad faith conduct that warrants full recovery costs.

[15] The court may issue an elevated costs award over and above partial indemnity where one party’s conduct has been unreasonable. Unreasonable conduct includes conduct that is: 1) disrespectful of other participants or the court; 2) unduly complicates the litigation; or 3) increases the costs of litigation: Harper v Smith, 2021 ONSC 3420, at para 3, citing Beaver v Hill, 2018 ONSC 3352 (“Beaver v Hill (ONSC)”), at para 51, rev’d on other grounds, 2018 ONCA 840. Poor litigation decisions and advancing unreasonable claims or filing meritless and incomplete pleadings may also justify an elevated costs award: Ali Hassan v Abdullah, 2023 ONCJ 186, at para 61; Beaver v Hill (ONSC), at para 51.

[16] If a party’s conduct amounts to bad faith, the court may order full recovery costs: r. 24(10). However, there is a difference between bad faith and unreasonable behaviour. Bad faith is a high threshold. It is not synonymous with bad judgment or negligence; rather, it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. Bad faith involves intentional duplicity, obstruction, or obfuscation: Scipione v Scipione, 2015 ONSC 5982, at para. 96

[17] I find the father engaged in bad faith conduct by entering into Minutes of Settlement the terms of which I find he did not appear to intend to fully comply with. As noted at paragraphs 10 and 11 of my motion decision, the parties were involved in six years of litigation. The father entered into Minutes of Settlement with the benefit of counsel resulting in the issuance of the Final Order. However, not long after, the father stopped communicating with the mother and stopped facilitating their child’s participation in activities to the detriment of their child. Moreover, the father admitted that he was unwilling to communicate with the mother which begs the question of why he agreed to parenting terms that required him to do so. In addition, the father breached not one, but several terms of the Final Order. Deliberate and repeated breaches of a court order by a party has been found to be bad faith conduct within the meaning of Rule 24(10): Pereira v. Berezovsky, 2024 ONSC 1862 at paras 91 and 99; Ottewell v. Ottewell, 2012 ONSC 3976 at paras. 56 and 57; Wright v. Tolchard, 2025 ONSC 5505 at para. 70.

Offers to settle

[18] The parties did not exchange formal offers.

[19] The father did forward a letter dated November 14, 2025, which contained proposals for settlement. However, I find that while the letter invited discussion and resolution on issues concerning the father, it was not necessarily responsive to the issues in dispute on the motion. The letter focused on revisiting the amount of child support payable by the father which the mother had not raised. Except for some references to missed medical and dental appointments and managing the exchange of the son’s hockey equipment, the letter did not address the mother’s core concern which was the father’s failure to communicate with her on matters relating to the well-being of their child and his failure to facilitate the child’s participation in extracurricular activities they had agreed to.

[20] Furthermore, the parties had just a year earlier settled the issue of child support and the amounts payable by the father for ongoing and retroactive support. Counsel for the mother advised that the parties had also engaged in negotiations to arrive at an agreeable amount payable for s. 7 expenses and for which specific activities they would be payable. Given the protracted litigation history, it is understandable that the mother was not interested in renegotiating the terms of the Final Order; she just wanted the father to comply with it. If the father could no longer financially afford his obligations, the onus on him was to bring a Motion to Change which he failed to do.

Complexity and reasonableness of lawyer’s rates and billings

[21] I find the motion was necessary and important to convey to the father the necessity for compliance with court orders.

[22] Counsel for the mother has over 40 years of experience in family law. His rate of $250/hour is more than reasonable. Counsel billed 31 hours. Total costs were $9,808 which is comparable to the billings for the father’s counsel of $9,475. I find the billings to be reasonable having regard for the time needed to schedule, prepare for, and attend the mother’s motion and to respond to a jurisdictional question raised by the father. Upon review of the Bill of Costs filed, the total hours spent is reasonable and commensurate with the work performed.

Inability to pay

[23] Finally, I must consider the financial means of the parties, their ability to pay, and the effect of any costs ruling on the parties and children: Fyfe v Jouppien, 2012 ONSC 97, 10 R.F.L. (7th) 371, at para. 11; M.(A.C.) v M (D.) (2003), 2003 18880 (ON CA), 67 O.R. (3d) 181 (C.A.), at para. 45.

[24] The ability or inability to pay may affect the quantum of costs awarded and even time to pay, but it does not necessarily foreclose a costs award. The court should not deny a successful party their costs where there is no evidence that the unsuccessful party is impecunious.: Levan v Levan, 2006 63733 (ONSC) at paras 36 to 39.

[25] In this case, the father has not provided evidence that he is impecunious. However, as set out in my motion decision, I accept the father’s evidence that he has not been able to secure steady employment and has financial commitments, including support other children.

[26] Having been through lengthy litigation previously, I find the father would have been aware that non-compliance would result in additional legal costs to the mother.

Conclusion

[27] The overall objective in determining costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant: Boucher v Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), at para 26.

[28] Proportionality and reasonableness are the “touchstone considerations” in fixing the amount of costs: Beaver v Hill, 2018 ONCA 840

[29] Having considered that the mother was the successful party, the father’s bad faith conduct, complexity of the motion, the billings and rates, and the father’s ability to pay, I find that a costs award in the fixed amount of $8,000 is fair and reasonable in this case.

[30] Given the father’s financial challenges, the father shall have six months to pay costs and shall do so at a rate of $1,500/month.

Order.

[31] There will be an order that the father will pay the mother $8,000 within six months and in minimum installments of $1,500/month.

Judge N. Somji

Date: May 1, 2026