CITATION: Versteegh v. Kerr 2026 ONSC 3357
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Mathew Bradley Versteegh, Applicant
AND:
Janet Bailey Kerr, Respondent
BEFORE: T. PRICE J.
HEARD: In Chambers on Written Submissions
Costs ENDORSEMENT
1The Applicant, Mathew Versteegh (hereinafter, Mr. Versteegh) brought a motion in which he sought an order requiring the Respondent, Janet Bailey Kerr (hereinafter, Ms. Kerr) to return with the parties’ two children to St. Thomas, Ontario, where she had been residing with them for 21 months following the parties’ separation.
2As I found, Ms. Kerr moved surreptitiously with the children to Woodstock Ontario without having first complied with the notice provisions set out in the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended (the CLRA). While I addressed the differences between notice of a change of residence and notice of a relocation, the latter of which has much more onerous provisions, I did not draw a firm conclusion as to which existed in this case because no notice of any sort had been given preceding the move and I concluded that Ms. Kerr’s act of moving the children to Woodstock was not in their best interests. As a result, I ordered her to return with them to St. Thomas.
3Once returned, and pending an agreement of the parties to the contrary, I ordered that the children would continue to remain in the primary care of Ms. Kerr and have alternating weekend parenting time with Mr. Versteegh, plus one after-school visit per week between the end of their school day and 7:00 p.m.
4I now address the issue of the costs of the motion.
5Mr. Versteegh seeks costs of $19,053.50, which is said to represent substantial indemnity equal to 90% of the full legal costs he incurred for the motion.
6Ms. Kerr requests that each party bear their own costs, failing which a determination of costs should be deferred until Mr. Versteegh complies with his obligation to provide complete financial disclosure. She also points to other failures on his part, such as his failure to comply with an order that I made on October 25, 2025 to amend his Form 35.1 to reflect all of his criminal history and outstanding charges, which he is said to have not yet done.
7The issue of Mr. Versteegh’s criminal charges was addressed both in the materials that Ms. Kerr filed on the motion and in my endorsement. I am concerned about the fact that she now informs me, in her submissions, that Mr. Versteegh was facing nine (9) criminal charges at the time the motion was argued, while she only referred to two incidents in her materials. She gave no further particulars of seven other alleged charges. Additionally, she now informs me that Mr. Versteegh incurred two breach charges after the motion was heard which, even if true, has no bearing on the issue of the costs of the motion.
Timing of a Costs Determination[^1]
8Rule 24(1) mandates that a court “promptly after dealing with a step in a case…shall, in a summary manner,” either:
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.
9Having had to address costs of a contested issue reserved from an earlier date in other cases, I am in full agreement with Justice A. Pazaratz, who wrote at paragraph 14 of Laidman v. Pasalic and Laidman, 2020 ONSC 7068, that, “A judge who has just completed a step in a case will usually be in the best position to evaluate all of the relevant Rule 18 and 24 considerations. Reserving costs to a future event -- often to a different judge -- can result in later confusion and controversy about what really happened at the earlier step.”
10Moreover, Ms. Kerr has other remedies available to her under Rule 1(8) if she is not satisfied that Mr. Versteegh has complied with his disclosure obligations. While the preamble wording to that Rule is broadly enough worded that I could defer the costs assessment, I am of the view that doing so would only lead to the result described by Justice Pazaratz in Laidman.
11As a result, I intend to determine costs at the present time.
Success on the Motion
12Rule 24(3) provides that, except as may otherwise be provided for in Rule 24, “there is a presumption that a successful party is entitled to the costs of a step in a case.”
13Given Mr. Versteegh’s success on the motion, he is presumptively the successful party and is, therefore, presumptively entitled to his costs in bringing the motion.
14The exceptions provided for in Rule 24 that could upset the presumption that Mr. Versteegh is entitled to his costs of the motion include cases of “divided success” (Rule 24(4)), child protection cases (Rule 24(5)), cases with a government agency as a party (Rule 24(6)), a case where a successful party behaves unreasonably (Rule 24(7)) and, conceivably, a case where a successful party is found to have acted in bad faith (Rule 24(10)).
15I find that none of those situations apply in this case. As a result, Mr. Versteegh is entitled to his costs of the motion. The next step involves the determination of the costs to which he is entitled.
Offers to Settle
16Rule 24(12) (formerly Rule 18(14).5) provides for elevated costs in favour of a party who makes an offer and who obtains an order that is as good as or better than that party’s offer. Other technical criteria also apply, such as the timing of the offer. Rule 18 sets out the formal requirements that must be met for an offer to meet the requirements of an offer for the purposes of Rule 24(12).
17Mr. Versteegh served one offer to settle. Ms. Kerr served none.
18Mr. Versteegh’s offer, which was served on the former solicitor for Ms. Kerr on November 28, 2025, sufficiently in advance of the date the motion was argued to meet the compliance requirements for being an offer to which Rule 24(12) can apply, was comprised of five different components, each of which was severable from the others and could be accepted without all or any of the others being accepted.
19The first component related to the children’s primary residence and the parties’ parenting time. Not surprisingly, it required that Ms. Kerr return the children to St. Thomas or Aylmer, on or before January 3, 2026, and that their primary residence would be with each of the parties equally. The parties would share parenting on a week-about schedule.
20There was also a provision relating to where the children would attend school, which included Mitchell Hepburn Public School, which is the school in which I ordered Ms. Kerr to re-enroll the children, and the provision that the children would not be further relocated without agreement by both parties, or an order of the court.
21My order provided for a longer period for Ms. Kerr to return to St. Thomas, an alternate place of relocation if she could not secure accommodations in the school attendance area for Mitchell Hepburn Public School, and accepted the status quo earlier agreed to by Mr. Versteegh that the children’s primary residence would be with Ms. Kerr.
22The second component of Mr. Versteegh’s offer provided that the parties would have joint decision-making for the children. My order proceeded on the basis that Ms. Kerr was presumptively entitled to continue to exercise decision-making for the children absent a court order to the contrary.
23The third and fourth components of the order addressed child support and s. 7 expenses, neither of which were addressed in the order. The fifth component addressed Christmas parenting time, which was also not addressed in the order.
24Accordingly, the only two components of the offer which I need to consider with respect to the effect of Rule 24(12) are the first and second.
25As for the second component, addressing decision-making responsibility, I find that the offer made by Mr. Versteegh did not meet or exceed to his benefit the order which I made in that respect.
26That leaves only the first component of the offer for consideration.
27At paragraph 66 in Jackson v. Mayerle, (2016), 2016 ONSC 1556, 130 O.R. (3d) 683 Justice Pazaratz wrote that "some success" may not be enough to impact on costs.”
28In paragraph 19 of her decision in Thompson v. Drummond, [2018] O.J. No. 4160, Justice Chappel wrote:
19 With respect to the requirement that the order obtained be as or more favourable than the Offer to Settle, 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. Rather, it must undertake a general assessment of the overall comparability of the offer as contrasted with the order that was ultimately made… Where the Offer to Settle is not severable, however, the costs consequences set out in Rule [24(12)] should only be applied if the judgment is found on a general, overall comparison to be as or more favourable on all issues… [Internal citations omitted]
29Based on those principles, which I accept, I find that, as to the first component of Mr. Versteegh’s Offer to Settle:
a. my order afforded Ms. Kerr more time to return the children to St. Thomas than Mr. Versteegh’s offer;
b. the children’s primary residence would continue to be with Ms. Kerr after returning to St. Thomas; and
c. Mr. Versteegh would not have week-about parenting time other than during the summer months without a further order of the court or agreement of the parties.
30Thus, while Mr. Versteegh did succeed on the primary issue of having the children return to St. Thomas, the overall content of the first component of his offer was less generous to Ms. Kerr than my order. As a result, I find that Mr. Versteegh is not entitled to rely upon the provisions of Rule 24(12) to seek enhanced costs of the motion.
31However, the first component of his offer to settle is entitled to further consideration when setting costs, as provided for by Rule 24(14)(a)(iii).
Rule 24(14) – Setting Costs
Rule 24(14)(a) – Importance and Complexity of the Issues
32Clearly, this motion was important to both parties. The issues, however, were not overly complex. The key question was whether or not Ms. Kerr complied with the notice provisions of the CLRA before moving with the children to Woodstock, which she acknowledged not doing.
33Consequently, when assessing the factors that follow in Rules 24(14)(a)(i) through 24(14)(a)(vi), I intend to do so through a lens of Mr. Versteegh’s motion being of the utmost significance, but average complexity.
Rule 24(14)(a)(i) – Each Party’s Behaviour
34The key factor on the motion was whether Ms. Kerr acted inappropriately and out of compliance with the law in moving with the children to Woodstock without having given prior notice to Mr. Versteegh.
35In my view, and as I found, the actions of Ms. Kerr were neither in the children’s best interests nor reasonable. Her unreasonable behaviour in moving with the children to Woodstock was partially addressed through the order requiring her to return with them to St. Thomas. It also remains a factor in the setting of costs.
36I do not agree with the submission of Ms. Kerr that collateral actions not taken by Mr. Versteegh [disclosure] or other actions allegedly taken by him [criminal behaviour] should be considered to the point of reducing to nil the amount to be awarded for costs to Mr. Versteegh. Ms. Kerr still has other ways of addressing the alleged failures of Mr. Versteegh to comply with other orders of the court. To the extent that one of those other orders required Mr. Versteegh to fully disclose the outstanding criminal charges against him, Ms. Kerr could have indicated in her written materials that there were multiple criminal charges against Mr. Versteegh relating to her but she did not do so. Accordingly, I cannot rely upon the failure of Mr. Versteegh to fully disclose his outstanding charges to limit his recovery when that information could have been provided by Ms. Kerr. He, however, has left himself open to other remedial claims in that regard by Ms. Kerr, should she elect to pursue them.
Rule 24(14)(a)(ii) – Time Spent by Each Party
37I only have information with respect to this factor from counsel for Mr. Versteegh. She provided me with a Bill of Costs. According to it, the principal lawyer representing Mr. Versteegh, Mr. Oldfield, devoted 1.9 hours to file. Ms. Lester, who carried the bulk of the duties on the file, including argument on the motion, noted that she spent 29.5 hours on preparation of materials and 11.3 hours in preparing for and attending at the motion. On the latter point, the motion was argued virtually. In my view, 40.8 hours devoted to preparation for and attendance to argue this motion was excessive. The amount awarded for costs will reflect my finding in that regard.
Rule 24(14)(a)(iii) – Any Written Offers to Settle, including those not complying with Rule 24(12) or Former Rule 18
38I have already addressed this factor earlier. The first component of Mr. Versteegh’s offer contained some provisions that, viewed objectively, and considered against my order, Ms. Kerr ought to have accepted but, given the order, there were other provisions that the result demonstrates she was prudent not to accept. In the result, Mr. Versteegh’s offer to settle will be taken into account in setting costs but it will not be a significant factor in setting the quantum.
Rule 24(14)(a)(iv) – Any Legal Fees, including the number of lawyers and their rates
39I have no objection to the involvement of two lawyers on this matter on behalf of Mr. Versteegh, particularly given that the vast majority of the time devoted to the file was provided by Ms. Lester.
40I also have no quarrel with the hourly rates noted for Mr. Oldfield or Ms. Lester.
Quantum of Costs - Case Law and Analysis
41In Scipione v. Del Sordo, 2015 ONSC 5982, [2015] O.J. No. 5130, Justice A. Pazaratz also addressed how a court should address what might be seen to be an unreasonably large claim for costs when he wrote:
113 … The Rules do not require the court to allow the successful party to demand a blank cheque for their costs. Slongo v Slongo 2015 ONSC 3327 (SCJ). The court retains a residual discretion to make costs awards which are proportional, fair and reasonable in all the circumstances. M.(C.A.) v. M.(D.) (2003) 2003 18880 (ON CA), 67 O.R. (3d) 181 (Ont. C.A.)
42Justice Epstein, writing on behalf of a unanimous Court of Appeal panel on a costs appeal in Davies v. Clarington, 2009 ONCA 722 at para. 52, held that the “overriding principle” when setting costs “is reasonableness.” Justice Epstein continued,
“If the judge fails to consider the reasonableness of the costs award, then the result can be contrary to the fundamental objective of access to justice. Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant. In Boucher, this court emphasized the importance of fixing costs in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding at para. 37, where Armstrong J.A. said, "[t]he failure to refer, in assessing costs, to the overriding principle of reasonableness, can produce a result that is contrary to the fundamental objective of access to justice."
43More recently, the Court of Appeal held that “proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs” in a family law case. (Beaver v. Hill, 2018 ONCA 840, [2018] O.J. No. 5412)
44In assessing proportionality, I am also required to give some consideration to the expectations of the unsuccessful party. That consideration was discussed by Justice Pazaratz in Scipione v. Del Sordo, where he wrote:
124 The issue of proportionality often becomes intertwined with another priority in fixing costs: Consideration of the reasonable expectation of the unsuccessful party, concerning the size of any costs claim they might face if they lost the case. These expectations are relevant, but not determinative of costs. Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] O.J. No. 4495 (ONT. C.A.); Moon v. Sher 2004 39005 (ON CA), [2004] O.J. 4651 (ONT. C.A.); Van Wieren v Bush 2015 ONSC 5615 (SCJ).
125 The unsuccessful party's "expectations" must usually be addressed inferentially…[o]ften the best evidence is comparative. How much did the unsuccessful party pay their own lawyer, in relation to the same case?
45However, Justice Pazaratz also noted, at paragraph 129, that “[t]he size of an unsuccessful party's legal bill does not in any way dictate that the successful party's legal bill is limited to the same amount.” I have no idea what Ms. Kerr was billed by her former solicitor for the motion.
46Additionally, I am also required to take into account the financial circumstances of the party who must pay the costs award. (F.K. v. A.K., [2020] O.J. No. 3456 (S.C.J.)) That factor seems to be more applicable in cases where the losing party also has child-care obligations, as is the case here.
47In this case, the children will remain in the primary care of Ms. Kerr. The issue of Mr. Versteegh’s non-payment of child support after February 2025 was discussed in my endorsement. As I noted, Mr. Versteegh claimed that he had overpaid child support based on the combination of his income and the shared parenting arrangements that he claimed the parties were following after that time. Since I have found that to not be the case, it is probable that, when he was not paying child support, Mr. Versteegh still had some obligation to do so. While I also rejected Ms. Kerr’s claim that the slight increase in her rent drove her to move because she was not receiving child support and noted that she could have claimed it in this proceeding, Mr. Versteegh’s failure to pay something when he might later be found to have been obliged to do so also cannot be ignored when setting costs, especially since Ms. Kerr will now incur costs to move back to St. Thomas.
48I also note that Ms. Kerr claims that the loss of the motion and the requirement that she return with the children to St. Thomas has resulted in her needing to make a proposal to her creditors under Bankruptcy and Insolvency Act, R. S. C. 1986, c. B-3.
49Other key points to be taken from F.K. v. A.K., pertinent to this case, and especially to Ms. Kerr’s claimed financial dire straits, are found as follows in paragraph 242:
a. A party's limited financial circumstances cannot be used as a shield against any liability for costs. Ability to pay will be taken into account regarding the quantum of costs. Snih v. Snih, 2007 20774 (SCJ); Dhillon v. Gill, 2020 ONCJ 68 (OCJ). But ability to pay will be less of a mitigating factor when the impecunious party has acted unreasonably, or where their claim was illogical or without merit. Gobin v. Gobin (2009), 2009 ONCJ 278, 71 R.F.L. (6th) 209 (OCJ).
b. Parties cannot expect to be immune from an order of costs based on their limited financial resources. If this were the case, parties would be free to conduct litigation as they wished without fear of reprisal in the form of adverse costs orders and this would be contrary to the philosophy and requirements of the Rules. Culp v. Culp, 2019 ONSC 7051 (SCJ); Mark v. Bhangari, 2010 ONSC 4638 (SCJ).
c. Ability to pay alone cannot, nor should it, over-ride the other factors in Rule [24(14)]. Peers v. Poupore, 2008 ONCJ 615 (OCJ).
d. Those who can least afford litigation should be the most motivated to seriously pursue settlement and avoid unnecessary proceedings. Mohr v. Sweeney, 2016 ONSC 3238 (SCJ); T.L. v. D.S., 2020 ONCJ 9 (OCJ); Balsmeier v. Balsmeier, 2016 ONSC 3485 (SCJ).
50I find that these latter comments are particularly applicable to Ms. Kerr’s actions which precipitated this motion. She knew or ought to have known that, if she was not successful, she would pay costs. Despite receiving an offer to back out of the fight that she had precipitated with her secretive move to Woodstock, she ignored it and pressed on, making no offer of her own.
51Lastly, I have applied the suggestion made by Justice Polowin at paragraphs 53-59 in Sommerard v. I.B.M. Canada Ltd., 2005 39896 (ON SC), [2005] O.J. No. 4633 (S.C.J.), distilled by Justice Chappel at paragraph 25 in Thompson v. Drummond, as follows:
The fixing of costs is not a mechanical exercise of calculating hours times hourly rates. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding. In doing so, I must stand back from the fee produced by the raw calculation of hours spent times hourly rate and assess the reasonableness of the counsel fee from the perspective of the reasonable expectation of the losing party.
52In making my decision, I have done the analysis, then “stood back” and assessed the reasonableness of the overall costs award against what I consider ought to have been Ms. Kerr’s reasonable expectations should she have lost Mr. Versteegh’s motion, which she did.
53Having done that, I find that the amount that I am ordering Ms. Kerr to pay meets all of the above criteria, and is both reasonable and proportional in the overall circumstances of the motion for which this costs order is being made.
Order
54The Respondent Janet Bailey Kerr shall pay costs to the Applicant Mathew Bradley Versteegh in the amount of $10,000.00, all inclusive.
Justice T. Price
Date: June 8, 2026
1 All references hereafter to a Rule are references to that Rule in the Family Law Rules, O. Reg. 114/99, as amended
2 The subparagraph lettering that follows in this paragraph is only for this endorsement and does not match that contained in F.K. v. A.K.