Citation: Romain v. Kennedy, 2026 ONSC 2649

Court File No.: FS-21-77 Date: 2026-05-04

Ontario Superior Court of Justice

Between: Sherri Lynn Romain, Applicant – and – Walter Kennedy, Respondent

Counsel: Self-represented, for the Applicant K. Klein, for the Respondent

Heard: In writing

Reasons for Decision on Costs

Ellies J.

OVERVIEW

[1] For reasons released on February 6, 2026, I dismissed Mr. Kennedy's claim for a proprietary interest in a home located on Nipissing First Nation (“NFN”) land under the Nipissing First Nation Matrimonial Real Property Law (the “MRPL”) and found, instead that he was owed the sum of $44,747.98 by Ms. Romain as damages for unjust enrichment, together with prejudgment interest: Romain v. Kennedy, 2026 ONSC 732.

[2] I invited the parties to make written submissions on the issue of costs if they were unable to agree on the issue. I have now received and reviewed those submissions.

THE PARTIES’ POSITIONS

[3] Mr. Kennedy seeks full indemnity costs in the amount of $10,642.67. In support of his request, he relies on his success at trial, an offer to settle he made prior to trial, and what he describes as Ms. Romain's unreasonable behaviour during the litigation.

[4] Ms. Romain resists Mr. Kennedy's request for costs. Instead, she asks not only that I award her costs, but also asks that I award her spousal support, as well as damages. She alleges that Mr. Kennedy's lawyer, Ms. Klein, conspired with her former lawyer, Mr. Leckie, to prolong the case so that they could charge more in fees than they would if the case had resolved earlier, as Ms. Romain says she tried to do.

THE LAW

[5] Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court. The court's discretion in family proceedings is guided by the provisions of r. 24 of the Family Law Rules, O. Reg. 114/99 (“the rules”), relating to costs and r. 18 of the rules relating to offers to settle.

[6] The court's discretion is also guided by the fundamental purposes that the costs rules are designed to foster in family cases, namely:

(1) to partially indemnity 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: Mattina v. Mattina, 2018 ONCA 867, at para. 10.

[7] In achieving these purposes, the two fundamental principles guiding the court are the “touchstone considerations” of reasonableness and proportionality: Beaver v. Hill, 2018 ONCA 840, at para. 12, additional reasons 2019 ONCA 156. In determining the reasonableness and proportionality of a costs award, r. 24(12) sets out a non-exhaustive list of factors to be considered by the court in the context of the importance and the complexity of the issues in a proceeding, including, of relevance to this proceeding: (1) each party's behaviour; (2) the time spent by each party; (3) any legal fees, including the lawyers’ hourly rates; and (4) any written offer to settle, including offers that do not meet the requirements of r.18.

[8] Under r. 24(1), the presumption is that a successful party is entitled to his or her costs, which in family proceedings are ordinarily awarded only on a partial indemnity basis, and not on a full or close to full indemnity basis: Beaver, at para. 13.

[9] There are three exceptions to the rule that only partial indemnity costs are recoverable in family proceedings. The first is where a party obtains a result at least as favourable as an offer to settle that complies with r. 18(14). The second is where a party has acted in bad faith: r. 24(8). The third is where a party has behaved unreasonably: Mattina, at para. 15.

[10] In deciding whether a party has behaved reasonably or unreasonably, r. 24(5) directs the court to examine:

(a) the party's behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

(b) the reasonableness of any offer made; and

(c) any offer the party withdrew or failed to accept.

[11] Unreasonable behaviour “in relation to the issues” has been held to include behaviour that: (1) is disrespectful of other participants or the court, (2) unduly complicates the litigation, or (3) increases the cost of litigation: Beaver v. Hill, 2018 ONSC 3352, at para. 51, reversed on other grounds, Beaver v. Hill, 2018 ONCA 816; Harper v. Smith, 2021 ONSC 3420, at para. 6.

[12] Finally, the financial situation of the party paying costs can be taken into account to lower the amount of costs the party might otherwise be ordered to pay: Beaver, at para. 18.

[13] I turn now to my analysis of the party's positions. I will begin with that of Ms. Romain.

ANALYSIS

Ms. Romain's Position

[14] I categorically reject Ms. Romain's allegation of collusion between Ms. Klein and Mr. Leckie.

[15] As I will come to, Ms. Klein did make efforts to resolve the case, or at least narrow the issues, but they were thwarted by Ms. Romain. As for Mr. Leckie, his compassion for his client was obvious with every court appearance he made on her behalf. Although Mr. Leckie was careful to preserve Ms. Romain's privacy, it was obvious that she was dealing with certain health issues throughout much of the time that Mr. Leckie was on the file.

[16] Even after he was dismissed by Ms. Romain, Mr. Leckie's work on her behalf continued to benefit her. I relied on some of his submissions from Mr. Kennedy's summary judgment motion on the property issue in dismissing Mr. Kennedy's claim to a proprietary remedy at trial.

[17] In my view, Ms. Romain's allegations against the lawyers have absolutely no merit.

[18] I also reject Ms. Romain's request for spousal support and damages. Cost submissions are not the forum in which to determine issues that were not before the court: A. v. S., 2021 ONSC 7541, at para. 6. That is especially true with respect to Ms. Romain's claim for spousal support, which was recently dismissed by Wilcox J. following a successful summary judgment motion brought by Mr. Kennedy.[^1]

Mr. Kennedy's Position

[19] Although I reject Ms. Romain's position completely, I do not fully accept that of Mr. Kennedy, either. While I agree that Ms. Romain's behaviour relating to the costs issue can easily be called unreasonable, I do not agree that her behaviour relating to the trial should result in an award of full indemnity costs throughout. Before I get to the effect of Ms. Romain's behaviour on the quantum of costs, however, I will deal with the issue of Mr. Kennedy's entitlement to them.

[20] In my view, Mr. Kennedy was the successful party here, although his success was not complete. His claim had two parts. First, he sought an order that he had contributed to the costs of building the home in question and quantifying the amount of that contribution. Second, he wanted a declaration that he had a proprietary interest in the home, as a result. He succeeded only on the first claim. He was also not completely successful on the second claim. He sought the sum of $73,461; he was awarded only $44,747.98. Still, he received a lot more than Ms. Romain was prepared to give him, which was nothing. For this reason, I find that Mr. Kennedy is entitled to his costs under r. 24(1). The question is how much?

[21] In support of his argument that Ms. Romain behaved unreasonably at trial, Mr. Kennedy relies on the following behaviours by Ms. Romain:

(a) her failure or refusal to fulfill undertakings;

(b) her failure or refusal to attempt to agree on facts about one month prior to trial;

(c) her failure to meet with Ms. Klein a few days prior to trial to discuss the same;

(d) her failure to accept an offer to settle made by Mr. Kennedy the day before trial;

(e) her unpreparedness for trial; and

(f) her act of reporting Ms. Klein to the Law Society of Ontario following the trial, including her recent claim for a review of the Society's dismissal of the complaint.

[22] I will address these behaviours in the order listed.

Failure to fulfill undertakings

[23] While I am prepared to accept that the failure or refusal to fulfill undertakings might amount to unreasonable behaviour, I do not have enough information here to make that finding. I do not know, or cannot remember if I knew at trial, which undertakings were unfulfilled. Nor do I know why no effort was made to compel compliance before trial.

[24] Without this information, I cannot determine whether Ms. Romain's failure was purposeful in all cases. Nor can I determine if the failure led to increased litigation costs.

Failure to attempt to meet about or agree on facts or issues

[25] Given their similarity, I can deal with (b) and (c) listed above at the same time.

[26] Again, I am prepared to accept that it can be unreasonable for a party to fail or refuse to agree on facts or to attempt to narrow the issues for trial. Agreeing to do these things can lead to less complicated proceedings and litigation cost savings.

[27] However, it must be borne in mind that Ms. Romain was self-represented in the month or more leading up to trial. I do not find it unreasonable for a self-represented litigant to be skeptical that the lawyer for an opposing party would try to act in both party's best interests, even though I have no doubt that this is what Ms. Klein was attempting to do.

[28] It must also be borne in mind that we are not talking here about unreasonable behaviour that merely increases the amount sought for costs because more time was spent on behalf of the successful party. Instead, we are talking about behaviour that is so unreasonable as to justify a costs award amounting to full indemnity for all time spent.

[29] I am not persuaded that the failure or refusal of a self-represented individual to meet with opposing counsel or to agree to facts proposed by opposing counsel is unreasonable enough to result in an award of full indemnity costs, alone or in combination with any other unreasonable behaviour in this case.

Failure to accept an offer to settle

[30] On July 28, 2025, one day before the trial began, Mr. Kennedy offered to settle the case for payment by Ms. Romain to him of the sum of $53,000, with both parties bearing their own costs. This offer does not attract the cost consequences of r. 18(14) because it was not made at least seven days prior to trial. Nonetheless, it should be taken into consideration under rr. 24(5) and (12).

[31] On behalf of Mr. Kennedy, Ms. Klein submits that her client did at least as well at trial as he offered to settle for prior to trial. She submits that, if Mr. Kennedy is awarded the full indemnity costs he seeks, the total amount payable, including prejudgment interest, will exceed $53,000.

[32] I have some difficulty with this argument. To me, it seems circular. Mr. Kennedy can only beat his offer if he is awarded his full indemnity costs. However, Mr. Kennedy can only be awarded his full indemnity costs if he beats his offer.

[33] Even if I am wrong about the nature of the argument, I am unable to agree that Ms. Romain's failure to accept the offer amounts to unreasonable conduct capable of supporting an award of full indemnity costs. The offer was only delivered the day before trial. It seems anomalous to me that, under r. 18(14), Mr. Kennedy would be entitled to full indemnity costs only from the day of the offer but, if I accept the argument advanced by Mr. Kennedy, failure to accept the offer would generate full indemnity costs throughout.

Unpreparedness to deal with support

[34] I have lumped two related issues raised on behalf of Mr. Kennedy under this heading. Both relate to Ms. Romain's unpreparedness at trial.

[35] As I indicated in my reasons for decision, Ms. Romain showed up at trial with a mass of documents relating to her claim for support, many of which were not admissible. This had two consequences. One of them was that I bifurcated the trial. The other was that Ms. Klein, in the best traditions of her profession, offered to and did assist Ms. Romain to organize her evidence.

[36] With respect to the bifurcation of the issues, Ms. Romain has already paid a steep price. Because she had failed to take advantage of numerous opportunities given to her to prepare her materials, Wilcox J. granted Mr. Kennedy's motion for summary judgment and dismissed her claim for support entirely.

[37] With respect to the efforts Ms. Klein made, I am prepared to make an award of costs that takes her efforts, made at Mr. Kennedy's expense in terms of time, into account.

Reporting opposing counsel to the Law Society

[38] Notwithstanding Ms. Klein's acts of professional kindness, following the trial but before my reasons were released, Ms. Romain complained about Ms. Klein's conduct to the Law Society of Ontario. After the complaint was dismissed, Ms. Romain sought a review of the Society's decision, which is still pending.

[39] I am not aware if Ms. Klein was required to do anything in response to the complaint. If so, she has not charged Mr. Kennedy for her work. Nor am I aware of the nature of the complaint. Certainly, it was not justified by any of Ms. Klein's conduct in my presence during the trial.

[40] Given that the complaint was dismissed, I am prepared to assume that it was without merit. I find, therefore, that Ms. Romain's act of making the complaint showed disrespect for one of the participants in the trial. As a result, it was unreasonable.

CONCLUSION

[41] Taking all of the circumstances listed above into account, I am unable to conclude that Ms. Romain's behaviour was such as to justify awarding Mr. Kennedy full indemnity costs throughout. However, it was such as to justify an enriched award of partial indemnity costs, as was awarded in Mattina.

[42] In fixing the amount of costs, I bear in mind the fundamental purposes of a costs award in family proceedings and the overriding principles of reasonableness and proportionality set out above. I have also considered the time spent by Ms. Klein as reflected in the bill of costs submitted on Mr. Kennedy's behalf and the rates charged, both of which I find to be quite reasonable. Finally, I have considered Ms. Romain's ability to pay, as reflected in the fact that she qualified for Legal Aid.

[43] In my view, bearing all of these things in mind, an appropriate award for costs in this case is the sum of $7,500, all-inclusive, and I therefore order Ms. Romain to pay this sum to Mr. Kennedy in respect of the trial.

M.G. Ellies J.

Released: May 4, 2026

[^1]: Endorsement of Wilcox J. dated January 23, 2026.