Court File and Parties

CITATION:, Dion v. Etel, 2026 ONSC 3001

COURT FILE NO.: FS-25-45

DATE: 2026/05/22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DENIS DION

Applicant

– and –

STEPHANIE ETEL

Respondent

Casandra Gravel, for the Applicant

J. Richard Forget, for the Respondent

HEARD: By written submissions

The Honourable Mr. Justice David J. Nadeau

ADDENDUM ON COSTS

[1] Pursuant to the Temporary Orders I made on April 9, 2026, the following was indicated to Counsel for these parents:

“If the parties cannot agree on the issues of costs for these two Motions, this Court will entertain written submissions dealing with all aspects of the award of costs. Any party claiming costs shall serve and file written submissions and a bill of costs no later than 20 days from the date of this Order. Any responding submissions shall be served and filed within 15 days thereafter.”

[2] I have considered the Costs Submissions and the Bill of Costs of the Applicant father, both dated April 27, 2026. The Applicant is seeking for the Respondent mother to pay his partial recovery costs and full recovery costs totaling $15,102.45, all inclusive, given the Applicant’s overall success with respect to his Offers to Settle, and the Respondent’s unreasonable conduct.

[3] I have also considered the Respondent’s Response to Cost Submissions dated May 3, 2026. It is the submission of the Respondent in essence that costs awarded to the Applicant in this matter ought to be in an amount closer to partial recovery than full recovery. Counsel for the Respondent “states that only $3,000 in costs is warranted because Mr. Dion’s conduct is far from being encouraged by the court.” I will not repeat in detail their written submissions on costs from these Counsel.

[4] The starting point in addressing the issue of costs is section 131 of the Courts of Justice Act, which provides that subject to the provisions of an Act or rules of Court, costs are within “the discretion of the Court, and the Court may determine by whom and to what extent the costs shall be paid.”

[5] Rule 24 of the Family Law Rules (FLR) addresses the issue of costs, and subrule 24(3) states that expect “as otherwise provided in this rule, there is a presumption that a successful party is entitled to the costs of a step in a case.”

[6] 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 that cases are dealt with justly under subrule 2 (2) of the Family Law Rules: Mattina v. Mattina, 2018 ONCA 867.

[7] The justice system is a precious public resource. Access to the justice system by individuals must be balanced with the need to ensure that the resource is available for all those who need it. This is one of the purposes of Rules 2: Lawrence v. Lawrence, 2017 ONCJ 431, at para. 52.

[8] Parties to litigation must understand that Court proceedings are expensive, time-consuming and stressful for all concerned. They are not designed to give individual litigants a forum for carrying on in whatever manner they may choose, oblivious to the impact of that conduct on the other side and, perhaps most importantly for the purposes of this case, oblivious to the mounting costs of the litigation: Lawrence v. Lawrence, supra, at para. 54.

[9] Modern costs rules accomplish various purposes in addition to the traditional objective of indemnification. An order as to costs may be designed to penalize a party who has refused a reasonable settlement offer. Costs can also be used to sanction behaviour that increases the duration and expense of litigation or is otherwise unreasonable or vexatious. In short, it has become a routine matter for Courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice; Lawrence v. Lawrence, supra, at para. 31.

[10] Recently RULE 18: OFFERS TO SETTLE of the Family Law Rules was revised by revoking Rules 18(14) to (16) and adding the following Rule;

“Costs consequences

(12.1) The making, withdrawal, acceptance and rejection of offers are subject to the costs consequences provided for under rule 24.”

[11] Also, RULE 24: COSTS was substantially revised, including the following revisions;

“Deciding costs

(1) Promptly after dealing with a step in a case, the court shall, in a summary manner,

(a) determine who, if anyone, is entitled to costs in relation to that step and set the amount of any costs; or

(b) expressly reserve the decision on costs for determination at a later step in the case.

Same

(2) The failure of the court to act under subrule (1) in relation to a step in a case does not prevent the court from awarding costs in relation to the step at a later step in the case.

Entitlement to costs, presumption

(3) Except as otherwise provided in this rule, there is a presumption that a successful party is entitled to the costs of a step in a case.

Divided success

(4) If success in a step in a case is divided, the court may apportion costs as appropriate.

Unreasonable behaviour by successful party

(7) A successful party who has behaved unreasonably during a step in a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs.

Same

(8) In deciding whether a successful party has behaved unreasonably, the court may consider,

(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 the party made; and

Absent or unprepared party

(9) If a party is required to appear at a step in the case but does not do so, or appears but is not properly prepared to deal with the issues at the step or otherwise contributes to the step being unproductive, the court shall award costs against the party unless the court orders otherwise in the interests of justice.

Bad faith

(10) 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.

Representative at fault

(11) If a party’s representative has run up costs related to a step in a case without reasonable cause or has wasted costs, the court may, on motion or on its own initiative after giving the representative an opportunity to be heard, make one or more of the following orders:

That the representative shall not charge client fees or disbursements for work specified in the order.
That the representative must repay any money that the party has already paid toward costs.
That the representative must repay the party any costs that the party has been ordered to pay another party.
That the representative must personally pay the costs of any party.
That a copy of the order be given to the party.

Failure to accept offer

(12) 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 the following conditions are met:

If the offer relates to a motion, it is made at least one day before the motion date.
If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
The offer does not expire and is not withdrawn before the hearing starts.
The offer is not accepted.
The party who made the offer obtains an order that is as good as or better than the offer.

Same, burden of proof

(13) The burden of proof that the order is as good as or better than the offer to settle is on the party who claims the benefit of subrule (12).

Setting costs amounts

(14) 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.

Supporting materials

(15) Any claim for costs respecting fees or expenses shall be supported by documentation satisfactory to the court.

Same, opposing party

(16) A party who opposes a claim for costs respecting fees or expenses shall provide documentation showing the party’s own fees and expenses to the court and to the other party.

Requirement for parties to confer

(17) Before each step in a case, each party shall confer or make best efforts to confer orally or in writing with every other party with a view to settling costs, including the amount of costs, unless the party is prohibited from such communication by a court order or there is a risk of domestic violence by a party who is not represented by a licensed representative.

Requirement for parties to prepare submissions

(18) For the purposes of subrule (1), each party shall, for each step in a case, be ready to,

(a) make an oral submission as to costs in relation to that step; and

(b) provide the court with the documentation required by subrules (15) and (16) as applicable.

If court requires written submissions

(19) If the court requires the parties to provide written submissions on costs with respect to a step in the case, the following rules apply, unless the court orders otherwise:

Each party shall serve and file a written submission on costs no later than 15 days after the court requires the written submissions.
A party may serve and file a responding written submission on costs, no later than 30 days after the court requires the written submissions.
A written submission shall be no longer than three pages or, if it relates to costs of a trial, five pages, not including the documentation required by subrules (15) and (16).”

[12] In Boucher v. Public Accountants Council (Ontario) 2004 14579 (ON CA), [2004] O.J. No. 2634 (Ont. C.A.), 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 costs of the successful litigant".  A "fair and reasonable amount" is that amount which the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation: Lupien v. Carmichael, 2017 ONSC 2929, at para. 9.

[13] One measure of what is “fair and reasonable” to pay in costs may be arrived at by looking at what the unsuccessful party paid for their own legal fees: Mohr v. Sweeney, 2016 ONSC 3238, at footnote 5.

[14] A successful party in a family law case is presumptively entitled to costs, subject to the factors set out in Rule 24 FLR. As indicated in Beaver v. Hill, 2018 ONCA 840 at paras. 9 and 10;

“judges are not constrained to the normal scales of costs found in the Rules of Civil Procedure, since no scales of costs are mentioned in the Family Law Rules. Also, the Family Law Rules expressly provide that, depending on the conduct of the parties and the presence or absence of offers to settle, a judge may increase or decrease what would otherwise be the appropriate quantum of costs awarded.

[10] Second, the respondent's assertion that this court's decision in Berta v. Berta (2015), 128 O.R. (3d) 730, [2015] O.J. No. 6844, 2015 ONCA 918 supports the "full recovery" approach to costs in family matters also reflects a failure to read the decision closely. What this court endorsed in that case was the principle that "a successful party in a family law case is presumptively entitled to costs" (at para. 94) subject, though, to the factors set out in Rule 24. This caveat is an important one since, as this court pointed out in Frick v. Frick (2016), 132 O.R. (3d) 321, [2016] O.J. No. 5625, 2016 ONCA 799, the Family Law Rules "embody a philosophy peculiar to a lawsuit that involves a family" (at para. 11), arising from that the Family Law Rules were enacted to reflect the fact that litigation in family law matters is different from civil litigation. The family rules provide for active judicial case management, early, complete and ongoing financial disclosure, and an emphasis on resolution, mediation and ways to save time and expense in proportion to the complexity of the issues. In the rare instance when a matter is not adequately covered by the family rules, the court may decide the issue with reference to the civil rules. This is contained in Rule 1(7) of the Family Law Rules.”

[15] Again, from Beaver v. Hill, the Ontario Court of Appeal outlines the following:

“[11] There is no provision in the Family Law Rules that provides for a general approach of "close to full recovery" costs. Rather, rule 24(12) sets out the appropriate considerations in fixing the quantum of costs. It reads:

(12) In setting the amount of costs, the court shall consider,

(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

(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 requirements of rule 18,

(iv)  any legal fees, including the number of lawyers 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.

[12] As the wording of the rule makes clear, proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs.

[13] Further, a "close to full recovery" approach is inconsistent with the fact that the Family Law Rules expressly contemplate full recovery in specific circumstances, e.g., bad faith under rule 24(8), or besting an offer to settle under rule 18(14).” (now see new subrule 24(12)).

[16] Determining the amount of costs is not simply a mechanical exercise. Costs must be proportional to the amount in issue and the outcome:  Lawrence v. Lawrence, supra, at para. 64. Historically, in cases involving custody and access claims, a more tempered approach to costs may have been appropriate depending on the circumstances of the case. The rationale for this is that parties should not be discouraged from advancing bona fide parenting order claims that are meritorious out of fear of possible deleterious financial consequences. Both parents here advanced quite different parenting orders.

[17] However, family law litigants are responsible for and accountable for the positions they take in the litigation. New subrule 24(12) sets out the costs consequences of failure to accept an Offer to Settle.

[18] From new 24(13), “The burden of proof that the order is as good as or better than the offer to settle is on the party who claims the benefit of subrule (12).”

[19] When the Court exercises its discretion over costs, it may take into account any written offer to settle, and the date it was made and its terms, even if 24(12) FLR does not apply.

[20] The Court is not required to examine each term of the offer as compared to the terms of the Order and weigh with microscopic precision the equivalence of the terms. What is required is a general assessment of the overall comparability of the offer as contrasted with the Order: Wilson v. Kovalev, 2016 ONSC 163.

[21] Rule 24(4) FLR provides that where success in a step in a case is divided, the Court may exercise its discretion to order and apportion costs as appropriate. However, the determination of whether success was truly “divided” requires a contextual analysis that take into consideration the importance of the issues that were litigated and the amount of time and expense that were devoted to the issues that required adjudication: Lippert v. Rodney, 2017 ONSC 5406, at para. 14.

[22] From Lippert v. Rodney, at para. 34;

“34 The Ontario Rules of Civil Procedure refer to three “scales” or “ranges” for costs award, namely “partial indemnity costs”, “substantial indemnity costs” and “full indemnity” costs.  The Family Law Rules do not make reference to these scales, but adopt the phrase “full recovery” costs as being the appropriate award in certain situations.   There has been some discussion about whether this phrase refers to the full amount which a party claims, subject to adjustments based on reasonableness, or something between the full amount claimed and the concept of “substantial indemnity.” (See Mary Jo Maur and Nicholas Bala, “Re-thinking Costs in Family Cases:  Encouraging Parties to Move Forward,” paper presented at the National Family Law Program, July 2014, Whistler, British Columbia.). In my view, the term “full recovery” refers to the full amount which the party has claimed, subject to any adjustments that the court considers appropriate based on the reasonableness and proportionality of the costs claimed.  In other words, it means the total reasonable and proportional amount that a court determines the party should have spent in dealing with the case (Jackson, at para. 91).  This conclusion accords with the case-law in the civil context which has interpreted the phrase “full indemnity costs.” (Toronto Standard Condominium Corporation v. Baghai Development Ltd., [2012] O.J. No. 2746 (C.A.)). While the Family Law Rules outline certain circumstances in which full recovery costs are appropriate, the court is not limited to making a full recovery award in those specified situations (Sims-Howarth). It is ultimately a matter of the court’s discretion to determine whether full recovery is appropriate having regard for the particular circumstances of the case.”

[23] While Rule 24(14)(b) FLR does permit the consideration of ability to pay (under the umbrella of “any other relevant matter”), it is given significantly less prominence than the presumption that costs will follow success: Lawrence v. Lawrence, supra, at para. 33.

[24] Ability to pay alone cannot, nor should it, over-ride the other factors in Rule 24(14): Lawrence v. Lawrence, supra, at para. 35.

[25] The financial means of the unsuccessful party may not be used to shield them from liability for costs, particularly when they have acted unreasonably: Lawrence v. Lawrence, supra, at para. 36.

[26] Those who can least afford to litigate should be most motivated to seriously pursue settlement, and avoid unnecessary proceedings: Mohr v. Sweeney 2016 ONSC 3338 at para. 17.

[27] To determine whether a party has been successful, the Court should take into account how the Order compares to any settlement offers that were made. The position each party took in the case should also be examined: Lawrence v. Lawrence, supra, at para. 41.

[28] Recently, in Hmoudou v. Semiali, 2020 ONSC 1330, Swartz J. endorsed the opinion of Justice Pazaratz in Scipione v. Scipione, 2015 ONSC 5982, noting that “who got what they asked for?” is the primary question in every costs decision. In Hmoudou at para. 21 the Court elaborated:

“It is completely unreasonable to not get what you ask for, and then argue that somehow success was divided or that you were in fact successful. There are situations where there is divided success, or where in examining a comprehensive settlement it may be impossible to unravel who got what and whether it was valuable to them or not. Caution must be exercised in situations where a settlement has been presented to a Court, and then the Court is asked to assess costs. Where there are allegations of unreasonable behaviour, bad faith, or where the minutes of settlement are so intricate as to be enmeshed in a global structure, this initial caution may lead to a refusal to order costs in such circumstances. There will clearly be compromises made and settlements reached, where the motivation and considerations are unknown. It may then be impossible to determine who was successful, to assess reasonableness and reach a just and equitable order of costs.”

[29] Family Law Rule 24(14) sets out the factors the Court shall consider in setting the amount of costs. These include the importance or complexity of the issues, the lawyer’s rates, the time spent and the expenses paid or payable. As stated earlier, the Court shall also ensure reasonableness, fairness and proportionality in the cost assessment.

[30] Offers to settle are a significant part of the landscape in family law in Ontario. They are important to the possible resolution of cases. In addition, they are important to determining costs. Parties and their lawyers have a positive obligation to behave in ways which enable the Court to move cases forward to resolution. Rule 2(4) imposes a duty on parties and their lawyers to promote the primary objective of the rules to deal with cases justly (Rule 2(2)). This includes taking appropriate steps to save time and expense (Rule 2(3)). Offers to settle play an important role in saving time and expense by promoting settlements, focusing parties and often narrowing issues in dispute. Offers to settle are important and can be the yardstick by which to measure success. They are significant in determining both liability for costs and quantum. In deciding whether a party has acted reasonably or unreasonably in a case, the Court shall examine the reasonableness of any offer the party made. To determine whether a party has been successful, the Court should take into account how the order compares to any settlement offers that were made. The position each party took in the case should also be examined.

[31] However, as clearly outlined by Justice Chappel recently in J.M.M. v. C.R.M., 2025 ONSC 3631:

“11 Rule 24 of the Rules sets out several factors relevant to the preliminary issue of liability for costs. Rule 24(3) stipulates that except as otherwise provided in Rule 24, there is a presumption that a successful party is entitled to the costs of a step in a case. Consideration of each party’s level of success is therefore the starting point in determining costs (Sims-Howarth v. Bilcliffe, 2000 22584 (S.C.J.); White v. White, 2022 ONCJ 45 (O.C.J.), at para. 6; M.A.B. v. M.G.C., 2023 ONSC 3748 (S.C.J.), at para. 34). The presumption set out in Rule 24(3) may be rebutted having regard for all relevant considerations and the operation of other Rules, as discussed below.

15 In cases involving parenting issues, the measure of success in the litigation must also be assessed from the child’s perspective, since the child’s success is the object of the proceeding (S. v. A., 2022 ONSC 55 (S.C.J.), at para 46). Accordingly, assessing overall success in the case requires the court to consider which party best demonstrated an ability and willingness to foster the child’s overall safety, security and well-being (S. v. A., at para. 46).”

[32] For my reasons indicated in my Decision on Motions dated April 9, 2026, I determined that the Applicant father best demonstrated an ability and willingness to foster Clarke’s overall safety, security and well-being. And I agree with Counsel for the Applicant in their submission that the Respondent mother sought to argue a temporary motion for relocation and change the status quo quite dramatically before a trial. Case law is clear that mobility issues and issues of relocation are triable issues, and that Courts should limit the disruption of the status quo on temporary motions. And the primary focus of the success analysis pursuant to Rule 24 is what each party actually sought during the litigation. The Applicant’s position during the Motions and throughout his pleadings has been consistent in that relocating Clarke, on a temporary basis pending a trial, would not be in the best interests of Clarke.

[33] The Respondent submits that “Ms. Etel is on legal aid,” and “the claim for costs by Ms. Gravel is extremely excessive even with the offers to settle.” It is further submitted by Counsel for the Respondent that the reason she “seeks costs of $3000 only because this ought to have remained in the end a short motion based on the facts written in the decision.”

[34] However, the case law is well settled that the receipt of legal aid is not a factor in determining costs. See: Ramcharitar v. Ramcharitar, (2002), 2002 53246 (ON SC), 62 O.R. (3d) 107 (S.C.J.); Alvarez v. Smith, 2008 10047 (ON SC), [2008] O.J. No. 941; Loncar v. Pendlebury, 2015 ONSC 4673; S.G. v. A.S., 2015 ONSC 1882; F.K.T. v. A.A.H. [2023] O.J. No. 1810; Alumari v. Ali [2024] O.J. No. 872.

[35] With respect to the Respondent’s argument that the quantum claimed is extremely excessive”, I note that Counsel for the mother has not put their bill of costs before this Court for these Motions in support of its submission. As Winkler J. (as he then was) stated in Risorto v. State Farm Mutual Automobile Insurance Co. 2003 43566 (ON SC), [2003] O.J. No. 990;

“[10] The attack on the quantum of costs, insofar as the allegations of excess are concerned, in the present circumstances is no more than an attack in the air. I note that State Farm has not put the dockets of its counsel before the court in support of its submission. Although such information is not required under Rule 57 in its present form, and the rule enumerates certain factors which would have to be considered in exercising the discretion with respect to the fixing of costs in any event, it might still provide some useful context for the process if the court had before it the bills of all counsel when allegations of excess and “unwarranted over-lawyering” are made. In that regard, the court is also entitled to consider “any other matter relevant to the question of costs”. (See rule 57.01(1)(i).) In my view, the relative expenditures, at least in terms of time, by adversaries on opposite sides of a motion, while not conclusive as to the appropriate award of costs, is still, nonetheless, a relevant consideration where there is an allegation of excess in respect of a particular matter”.

[36] In Apotex Inc. v. Eli Lilly Canada Inc., 2022 ONCA 587, the Court of Appeal for Ontario explained:

“[71] In assessing what was reasonable, fair, and proportionate for the losing party to pay in the particular circumstances of this case, the motion judge properly considered the relevant factor of the reasonable expectations of the parties. He also noted that Apotex had not revealed costs it had incurred and inferred from this that its legal fees were similar to those incurred by Eli Lilly. While the lack of disclosure of Apotex’s costs is not dispositive of the issue of reasonableness, the amount of its own costs is nevertheless a relevant factor that informs the reasonableness of the parties’ expectations as to the amount the losing party could reasonably be expected to pay.”

[37] Also in this regard, the Respondent has not complied with Rule 24(16) FLR by not providing “documentation showing the party’s own fees and expenses to the court and to the other party.”

[38] With respect to the Respondent’s suggestion that costs awarded to the Applicant father be limited to $3000 since these Motions ought to have remained a short motion, I note the case management endorsements by Justice MacDonald as well as the endorsements of Justice Tysick dated December 11^th, 15^th and 22^nd, 2025. And upon hearing these two Motions resulting in my Decision on Motions dated April 9, 2026, with reasons outlined in 57 paragraphs over 28 pages, I am in total agreement with Justice Tysick that these two Motions required a long motion date.

[39] In the end analysis, the father was clearly the successful party for my determination of these two Motions which included the mother’s request to change Clarke’s status quo by his relocation to Rouyn, Québec. The mother did not rebut the presumption that the successful father is entitled to costs. As well, the unreasonable approach to this family litigation taken by the mother, including the tone and the manner demonstrated by the negotiations between Counsel, had the effect of prolonging and complicating these Motions. As such, the mother cannot shield herself from the costs consequences from her repeated refusals to accept any reasonable temporary offers to settle or to even make a valid offer of compromise in the best interests of Clarke.

[40] As a result, having considered all applicable principles to the circumstances presented for these Motions including those as set out in the Family Law Rules, and in the exercise of my discretion, including as set out in section 131 of the Courts of Justice Act, I have determined that it is fair, reasonable, just and proportionate to award the Applicant costs set in the amount of $10,000.00 all-inclusive, to be payable by the Respondent to the Applicant within 60 days.

D. J. Nadeau J.

Date: May 22, 2026