CITATION: Jogina v. Jogina, 2026 ONSC 3058

COURT FILE NO.: FS-17-91119-0000

DATE: 2026 05 25

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

JOGINA, KELLY KERSI

Armandeep Gill, for the Applicant

Applicant

• and -

JOGINA, DILNAWAZ

Natacha Reis Leite, for the Respondent

Respondent

HEARD: In writing

COSTS ENDORSEMENT

Emery J.

1In Reasons for Decision dated January 20, 2026 (the “decision”), I made an order granting the motion of the applicant Kelly Jogina to set aside the administrative dismissal of his application. In the same decision, I made an order granting the motion of the respondent Dilnawaz Jogina to strike Kelly’s application, but on terms.

2At para. 80 of the Reasons for Decision, I invited the parties to make submissions on costs of the two motions if they were unable to resolve any claim for costs between them.

3Dilnawaz now seeks her costs for both motions on a full indemnity basis in the amount of $34,152.56, and payable forthwith. She seeks those costs at that level because she submits that she achieved the same result from the court she offered in an Offer to Settle dated August 11, 2025 and served. She also relies upon the ground that Kelly has behaved in bad faith in the positions he took and evidence he filed on the motions in support of her claim for costs.

4Kelly opposes the claim Dilnawaz is making for costs. He submits that each party should bear their own costs. He does not specify the grounds on which he relies for this position. I would presume he is seeking a no-costs order under FLR 24(4) on the basis that success was divided and it would be appropriate for the court to apportion costs so that no amount is owing to or by either party. He may also be relying on FLR24(7) to argue that Dilnawaz should be deprived of costs for acting unreasonably even if she is considered by the court to be the successful party.

5In the alternative, Kelly seeks his costs of the motions on a full recovery basis in the amount of $6,951.41. For this alternate position, Kelly submits that Dilnawaz was given the opportunity at a Settlement Conference on March 20, 2025 to consent to setting aside the dismissal order. He argues that Dilnawaz was acting in bad faith when she refused to provide her consent, bringing FLR 24(10) into play. FLR 24(10) allows the court to award full recovery costs immediately if bad faith is found.

6In support of both positions, Kelly submits that he was the successful party on the two motions. He makes this submission as the court set aside the dismissal of his application on his own motion and made an order allowing him to participate at trial to address parenting time issues despite striking his pleadings. Kelly therefor submits that he was successful on Dilnawaz’s motion as well.

General principles about costs

7The authority of the court to award costs in a proceeding and for any step in a proceeding is found in s. 131 of the Courts of Justice Act. The power of the court to award costs is discretionary, subject to the “rules of court”. For immediate purposes, “rules of court” include the Family Law Rules that apply in family law cases.

8There are also numerous cases, notably from the appellate courts, that provide guidance to judges exercising their discretion when awarding costs.

9The Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 confirmed that the modern rules for costs that apply in family law cases are designed to satisfy three fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants. The Court in Mattina has added a fourth purpose: to deal with cases justly. This fourth purpose reflects the primary objective of the Family Law Rules under FLR 2(2).

10In Chomos v. Hamilton, 2016 ONSC 6232, Pazaratz J. stated the court should focus on “success” and on “reasonableness” when awarding costs in a family law case. Considerations of fairness and proportionality must also be kept at the forefront of any determination of costs. See Beaver v. Hill, 2018 ONCA 840. The court must keep in mind the nature of the issues, the difficulty with proving facts on the balance of probabilities, and the proportionality of the amounts claimed for fees relative to the interests at stake.

11It is a fundamental principle that the amount the court awards for costs must be fair and reasonable: Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (Ont. C.A.).

12These broad statements of principle set the defining objectives to determine the three general issues relevant to any costs award: which party is entitled to costs, if any; at what scale or level should those costs be awarded; and the amount the court is setting for those costs.

Entitlement

13The successful party of a step in a proceeding is presumed to be entitled to the costs of that step under FLR 24(1). This would include a motion or, as in this case, those motions heard at the same time.

14The determination of which party has been successful in a family law case is the starting point to any analysis: Sims-Howarth v. Bilcliffe, 2000 22584 (SCJ). Whether a party has been successful may be determined by measuring the positions taken by the parties involved on a particular motion against the results achieved on that motion in court. Success may also be measured by the one party achieving a result from the court that is more favourable to that party than the terms of an offer to settle they served on the other side.

15In this case, I made findings to grant Kelly’s motion to set aside the administrative dismissal of his application after applying the evidence to the factors set out in Reid v. Dow Corning Corp., 2001 CarswellOnt 2213. After analyzing the evidence and the success rate of the parties under the Reid factors in paras. 47-57 of the decision, I made what I considered to be a close call when I concluded that Kelly took steps to revive the application just in time. I found on the evidence that the dismissal could have been avoided if Kelly had been able to schedule a settlement conference before the dismissal date.

16Even though Kelly was technically successful on his motion, I do not consider that the presumption of entitlement to costs under FLR 24(1) applies to him. I may have ruled in his favour on the motion, but I found that Kelly did not provide a satisfactory explanation for his delay in proceeding with the application. Kelly did not make the request for a settlement conference of his own volition but contacted the court only because he had received the Form 39 Notice of Approaching Dismissal. I also found that Kelly had failed to discharge the onus upon him to file evidence to rebut the presumption that Dilnwaz has suffered prejudice caused by his delay in moving the case forward, or that the reinstatement of the application will not cause her prejudice. These findings rebut the presumption to any entitlement to costs.

17In summary, Kelly was not successful in persuading the court on the substantive merits of his motion. He should not be awarded costs for attempting to schedule a hearing after he had been prompted by an administrative notice that his case would be dismissed for delay if he did not.

18I am of the view that Dilnawaz was the successful party on Kelly’s motion because she offered to have the dismissal order set aside as a term of the offer to settle she served. Consistent with that term of her offer, Dilnawaz took a neutral position on Kelly’s motion and filed evidence she considered necessary to correct the record before the court.

19Dilnawaz was also successful on her motion to have Kelly’s application struck, except for those claims he is making with respect to parenting. This term was also forecast in her offer.

Scale

20Dilnawaz obtained an order on her motion that was as good as the offer she made to Kelly. As Kelly did not accept that offer, and as the offer otherwise complies with the conditions in FLR 24(12), Dilnawaz is entitled to costs on a full recovery basis. Given this finding, I do not propose to determine categorically whether Kelly acted in bad faith on these motions.

Quantum (amount)

21The law of costs requires that any amount the court awards must be fair and reasonable to the party paying those costs. They should not be measured by what the successful party would be required to pay her or his lawyer: Boucher v. Public Accountants Council for the Province of Ontario. This is a general and long-standing principle.

22The courts have also held over the years that costs should be measured with reference to what amount the other party could reasonably expect to pay for costs if he or she was unsuccessful.

23I find that the decisions made by Dilnawaz to incur the legal fees to oppose Kelly’s motion and to bring her own motion were reasonable. Since the chronology of events and the legal issues were relevant to both motions, I consider the time and expense for the preparation and attendance to argue those motions to be intertwined. I therefore conclude the amount of the costs claimed for the two motions shall be treated as one.

24I have reviewed the bill of costs filed by Dilnawaz and weighed the factors in FLR 24(14) when setting the amount to award. I have also considered the principles discussed in cases such as Boucher and Beaver v. Hill. Of the factors in FLR(14)(a) the court is to consider when assessing the reasonableness and proportionality of the amount to set for costs, two factors stand out that apply to the costs Dilnawaz is claiming.

25The first factor is the behavior of Kelly throughout the case. Kelly’s behavior led to the orders I made for the reasons given for each of them in the decision. His conduct towards Dilnawaz, his delay or refusal to participate in the legal process especially after the OCL released its report in December 2018, and his failure to abide by court orders for disclosure and the preservation of assets provided the evidentiary basis to grant the relief she sought. The facts in evidence about Kelly’s conduct all support a finding that he has acted unreasonably. As a result of this unreasonable behavior, the legal expense Dilnawaz incurred was justifiably higher because the motions required an extensive record to respond to Kelly’s evidence and to support her own motion.

26The second factor is the amount of the legal fees Dilnawaz incurred to deal with both motions. The materials her counsel assembled for these motions were significant in terms of detail and volume. The issues were of utmost important to her. They were relatively complex, requiring a proper legal and factual foundation for the court to hear and decide them.

27Dilnawaz incurred costs to defend herself from spurious allegations made by Kelly designed to impugn her character and injure her case. Counsel for Dilnawaz properly incurred time and fees to address Kelly’s evidence that Dilnawaz had acted in bad faith towards him. This involved a considerable amount of time assembling the evidence to answer these allegations.

28In the final analysis, I found no evidence of bad faith conduct on the part of Dilnawaz of the sort described in Scalia v. Scalia, 2015 ONCA 49. In Scalia, the Court of Appeal described the legal test for bad faith in para. 68, stating in short that “the essential components are intention to inflict harm or deceive.”

29I have reviewed the bill of costs filed by Dilnawaz for the adjournment on August 15, 2025 and the attendance September 10, 2025 to argue the long motion. I find that hours claimed by Ms. Leite and Ms. Yektaeian of 33.7 and 25 hours respectively for the work done on both motions is reasonable. However, I am reducing the hourly rates of Ms. Leite as senior counsel to $400 an hour, and $$300 an hour for Ms. Yektaeian as an associate lawyer, which I consider to be reasonable under all the circumstances.

30I am not allowing any costs for the appearance on August 15, 2025 to seek an adjournment of the motions as that adjournment was requested by the respondent’s side.

31The legal fees of Ms. Leite in the amount of $13,480 and of Ms. Yektaeian of $7,500, plus HST are approved. The time billed by the law clerk Nydia Mercado, while no doubt invaluable to counsel, should be considered part of the overhead that the legal fees of counsel are intended to recover.

32This compares equitably with the amount that Kelly should have expected to pay in costs if he was unsuccessful on the two motions. His claim for costs of $6,951.41 on a full recovery level is shown on his bill of costs as based on the legal aid rate of $126.35 an hour for 42.05 hours of legal work. When the hourly rate for counsel is adjusted to $350 an hour as the mid point between the rates permitted to Ms. Leite and Ms. Yektaeian, the amount for fees totals $14,700 plus HST of $1,911.

33I do not accept Kelly’s argument that he has little income and overwhelming debt as an excuse not to pay costs. In Stewart and Bernard v. Fuhgeh, 2020 ONSC 4850, Justice Shelston of this court held that “family law litigants are responsible and accountable for the positions they take in the litigation.”

34This view is reflected in Derziyan v. Shebarin, 2021 ONCJ 17, where the court stated that the (financial) means of the unsuccessful party may not be used to shield that party from liability for costs, particularly when he or she has acted unreasonably. The court in Derziyan concluded that all parties must understand that court proceedings are not designed to give individual litigants a forum for carrying on in whatever manner they may choose, oblivious to the impact on the other side and to mounting costs. See also Hodgson v. Hodgson, 2021 ONSC 1357 at paras. 12-13, and Da Silva v. Quevedo, 2025 ONSC 2012, at para. 47.

35I agree. Kelly has made decisions throughout this case that have culminated in the orders made on these motions and for the reasons given. He must now face the costs consequences for making those decisions.

36On that basis, I award costs to Dilnawaz in the amount of $20,980 for both motions, plus HST of $2,727.40. I consider this amount to be fair, reasonable and proportionate, and an amount that satisfies the purposes for costs described in Mattina.

Costs Awarded

37Costs of the motion heard on September 10, 2025 are therefore awarded to Dilnawaz Jogina in the amount of $23,707.40 all inclusive. These costs are payable by Kelly Jogina within 30 days.

Emery J.