Court File and Parties
OTTAWA COURT FILE NO.: FC-22-1569
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sarah Beth Cummings, Applicant
AND
Michael Allan Matlock, Respondent
BEFORE: Mr. Justice Timothy Minnema
COUNSEL: Jeffrey Behrendt, for the Applicant
Shawn Duguay, for the Respondent
HEARD: December 8, 2025
DECISION ON COSTS
1This is a costs hearing. It relates to a Form 14 motion by the applicant dated January 21, 2025, that was heard by way of a Focussed Hearing including viva voce evidence on February 27 and 28, 2025, with subsequent written closing submissions. I delivered my written decision on July 3, 2025. The issue was the validity and effect of a Post Nuptial Agreement (“PNA”).
2The respondent was successful and is seeking full indemnity costs of $144,762.72 (including HST and disbursements) noting that this request includes “the procedural steps leading thereto, including but not limited to questioning, the settlement conference, two case conferences, the exchange of voluminous financial disclosure, and various procedural steps.” The disbursements are $10,841.80 related to “reporter fees, transcription fees, and the fees for the Respondent’s expert witness.”
3The respondent argues here should be no costs based on the policy laden nature of the issues, and in the alternative if costs are awarded, they should be limited to the Focussed Hearing. She also argues that the costs sought are unreasonable and not proportional, that the request for full indemnity costs based on the Offers to Settle should be denied because there was no obvious middle ground (the binary nature of the issue), and that the respective financial situation of each of the parties needs to be considered. The respondent indicates that as she has appealed the decision to which these costs relate, the awarding of costs should be deferred until after that appeal is dealt with (I was advised that the date for the hearing of the appeal has been set many months into the future) for the reason that immediate payment of a cost award would cause her irreparable harm and undermine her access to justice.
4To set the scope of my decision, in quick response to a number of these positions, I note the following:
Appeal/Enforcement
5There are practicalities in favour of waiting until the appeal is concluded before deciding costs, as the court’s time on the costs hearing and the decision could be wasted if costs are awarded against the appellant and then she is subsequently successful on her appeal. In that scenario, the expectation would be that the costs decision would also fall. However, that is not the law. The rules require the court to determine the issue of costs for each step promptly and in a summary manner.
6The applicant is of the view that enforcement of a cost award against her would leave her without the resources to conduct her appeal. It is agreed that I do have the discretion to temporarily stay the enforcement of a costs order, and I am inclined to do so to address her concern. Indeed, the respondent’s counsel was of the view that such a result might follow in any event from the appeal, and as such a stay was not opposed.
Which Costs I am Deciding
7As noted, the respondent wants me to decide the costs of many of the preliminary steps, most critically the past conferences in this proceeding namely a Case Conference before Justice Carter on March 20, 2023, a second Case Conference before Justice Blishen on December 1, 2023, and a Settlement Conference on April 12, 2024. Costs orders were not made or reserved for those appearances.
8Rule 24(1)(a) indicates that I shall determine who is responsible for the costs “in relation to” a step in the case (ie. the Focussed Hearing), and the respondent argues in effect that this “empowers” the court to include any previous attendances where the issues in relation to this step were addressed. Interestingly, he does not seek costs related to the pleadings, which of course also touched on those issues. This approach appears to be the one taken by Justice Doyle in Torgerstrud v. Lightstone, 2023 ONSC 1603 at para. 34, in somewhat similar circumstances (two day Focussed Hearing on the validity of a domestic contract). The distinguishing factors are that, unlike here, the costs there were being awarded against the party who had the most significant access to financial resources, and the stakes were much higher as that case involved a claim to an equalization payment following a 29-year marriage (paragraph 57).
9The applicant refers to Rule 17(18) which indicates that costs “shall not be awarded” at a conference unless a party’s conduct contributed to the attendance being unproductive or did not follow the Rules. She argues that the overall expectation is therefore no costs when the exceptions do not apply. The respondent, however, referred to