Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO FAMILY COURT
RE: Lindsay Scorgie-Porter, Applicant
AND:
Dennis Bernard Porter, Respondent
BEFORE: TOBIN J.
COUNSEL: Salim J. Khot, for the Applicant
Respondent, self-representing
HEARD: in Chambers, in writing
ENDORSEMENT
1Following a 14-day trial, this court released Reasons for Judgment on May 28, 2026.
2All issues pertaining to parenting were resolved just before the start of the trial.
3The applicant (wife) was ordered to pay the respondent (husband) $48,231.06 on account of an equalization payment after crediting the wife for an advance payment that had been made.
4Child support was ordered to be paid by the wife starting December 2021, based on a shared parenting arrangement.
5At the trial, income was imputed to the husband. The parties were directed to calculate the child support owed from the start date, based on the court’s findings.
6The parties were invited to make submissions on the amount of child support owed from the start date to the trial, prejudgment interest, and costs.
1. Child Support Calculation
7The parties filed their respective calculations on the amount of child support owing from December 2021 until May 2026. Based on the monthly amounts ordered by the court to be paid, and having regard to the amounts actually paid, the child support owing by the wife to the husband to May 2026 is $5,824.
2. Prejudgment Interest
8The husband argues that he should be awarded prejudgment interest on the equalization payment in the amount of $10,952.83, and on account of child support in the amount of $306.75. He submits that the wife did not provide timely disclosure.
9The wife asks that the husband not be awarded any prejudgment interest on the equalization payment nor on the child support award. She makes this request on the basis of the husband’s failure to provide disclosure in a timely manner. She argues that the non-disclosure made it impossible to determine, before trial, what equalization payment, if any, was payable. As well, without disclosure, the wife was unable to determine what amount of income would be reasonable to impute to the husband and, consequently, what amount of child support should have been paid under s. 9 of the Child Support Guidelines.
Legal considerations
10Section 128(1) of the Courts of Justice Act provides as follows:
128 (1) A person who is entitled to an order for the payment of money is entitled to claim and have included in the order an award of interest thereon at the prejudgment interest rate, calculated from the date the cause of action arose to the date of the order.
11This section creates a legislative presumption in favour of awarding prejudgment interest. The presumption applies to an equalization payment owing to a payee spouse: Muraven v. Muraven, 2021 ONCA 657, para. 16. This encourages settlement of equalization claims: Burgess v. Burgess (1995) O.R. (3d) 547 (Ont. C.A.), at para. 23.
12However, under the Courts of Justice Act s. 130, the court has the discretion to disallow prejudgment interest where it considers it just to do so.
13Section 130 provides as follows:
130 (1) The court may, where it considers it just to do so, in respect of the whole or any part of the amount on which interest is payable under section 128 or 129,
(a) disallow interest under either section;
(b) allow interest at a rate higher or lower than that provided in either section;
(c) allow interest for a period other than that provided in either section.
Same
(2) For the purpose of subsection (1), the court shall take into account,
(a) changes in market interest rates;
(b) the circumstances of the case;
(c) the fact that an advance payment was made;
(d) the circumstances of medical disclosure by the plaintiff;
(e) the amount claimed and the amount recovered in the proceeding;
(f) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding; and
(g) any other relevant consideration.
14A party’s entitlement to prejudgment interest may be displaced, in the court’s discretion, if there was conduct that impeded the progress of the case.
Prejudgment Interest on the Equalization Payment
15In Muraven, supra, the court made reference to certain exceptions to the presumptive rule at para. 16, as follows:
Exceptions arise “where, for various reasons, the payor spouse cannot realize on the asset giving rise to the equalization payment until after the trial, does not have the use of it prior to trial, the asset generates no income, and the payor spouse has not delayed the case being brought to trial”: Burgess v. Burgess (1995), 1995 CanLII 8950 (ON CA), 24 O.R. (3d) 547 (C.A.), at p. 552; Fielding v. Fielding, 2015 ONCA 901, 129 O.R. (3d) 65, at para. 43.
16In this case, I exercise my discretion not to award the husband prejudgment interest on the equalization payment ordered.
− The significant asset owned by the wife was the matrimonial home. After the matrimonial home was sold in July 2020, advances of funds were made to both parties. The balance remained held in trust by the real estate lawyer who acted on the sale of the property to abide the outcome of this case.
− Aside from the advances from trust made by the real estate lawyer, the wife did not have access to the funds, nor were they earning interest for her benefit.
− The husband did not provide all relevant disclosure with respect to his income or his net family property until the trial started. He sought an adjournment at the beginning of the trial so that he could better prepare, including providing required disclosure. When called for trial, the case had been outstanding for over 2,000 days.
− The lack of relevant disclosure meant that the wife was not able to make a reasoned offer to settle the issue of the equalization payment based on the evidence that eventually was presented at trial. It was not until after the trial started that the husband advised of his position on the various components of the parties’ respective net family properties and his income for the last three years.
− The husband asserts that the wife caused delay by reason of her non-disclosure. With respect, I do not agree that the schedule of the wife’s disclosure caused significant delay in the resolution of this case.
Prejudgment Interest on the Child Support Claim
17I exercise my discretion and decline to award the husband prejudgment interest in respect of the child support found to be owing.
18The same considerations related to disclosure, as described above, apply to the husband’s claim for prejudgment interest on child support found owing by the wife to the husband.
19The husband claims $306.75 in prejudgment interest on child support owing in the amount of $5,824.
20I agree with the wife’s position that no prejudgment interest should be ordered on this sum because of the husband’s failure to provide disclosure of his income in a timely manner.
21As the parties shared parenting of their child, reliable evidence of the husband’s income was necessary to determine each party’s child support obligation to the other on a year-to-year basis. It was not possible for the parties to calculate the husband’s child support obligation until he provided meaningful disclosure of his income. This did not happen until the trial was about to start. The husband provided his 2022 income tax return on January 21, 2026, five days before the trial started. He did not provide tax returns for 2023, 2024, or 2025. Evidence about his income during those years was provided during the trial.
Postjudgment Interest
22The husband is entitled to postjudgment interest from the date of the judgment until payment of the amounts ordered, calculated in accordance with section 129 of the Courts of Justice Act.
3. Costs
23The wife asks for costs in the amount of $86,380.16 on a partial indemnity basis.
24The husband claims he should be entitled to costs as a self-represented litigant in the amount of $27,102.50. In the alternative, he asks that no costs be awarded based on “mixed” success.
Legal Considerations
25Subject to the provisions of an Act or the rules of court, costs are in the discretion of the court, pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43.
26Modern family law costs rules are based on broad objectives. These objectives are to partially indemnify successful litigants; to encourage settlement; to discourage improper behaviour by litigants; and to ensure cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867, at para. 10.
27Costs awards are discretionary. In the exercise of discretion, the court must consider two important principles: proportionality and “the ‘reasonableness’ evaluation of the ultimate award”: Beaver v. Hill, 2018 ONCA 840, at para. 4.
28Rule 24 of the Family Law Rules, O. Reg. 114/99, sets out the framework for awarding costs in family law cases decided in this court.
29An award of costs is subject to the factors listed in r. 24(14), r. 24(7) pertaining to unreasonable conduct of a successful party, r. 24(10) pertaining to bad faith, r. 24(12) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party: Berta v. Berta, 2015 ONCA 918, at para. 94.
30Rule 24(3) creates a presumption of costs in favour of a successful party. Consideration of relative success is the starting point in determining costs. See: Sims-Howarth v. Bilcliffe 2000 CanLII 22584 (ON SC), [2000] O.J. No. 330 (SCJ-Family Court).
31In measuring success, the court can look at the positions of both parties and the relief ordered.
32Where success is divided, the court may look to the issues to determine if one party has enjoyed greater success. The court will look at the primary or the more important issues to determine if one party was more successful than the other.
33Where success is divided, the court may apportion costs as appropriate: r. 24(4).
34In addition to success, the court must also consider the reasonableness of the parties’ behaviour.
35A successful party may be deprived of all or part of their costs if they behaved unreasonably: r. 24(4) and (5).
36According to the Rules, an indication of reasonable behaviour is the delivery of an offer to settle: r. 24(8).
37Rule 24(14) sets out factors that are relevant to setting the amount of costs as follows:
(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.
38The Court must also be mindful of the parties' relative ability to pay costs. As stated by the Ontario Court of Appeal in Harrington v. Harrington, [2009] O.J. No. 827 (Ont. C.A.), at para. 8:
We acknowledge that the Respondent's offer to settle was much closer to the actual award than the Appellant's. At the same time, we bear in mind other principles respecting the award of costs in family law matters such as ability to pay and the relative means of each party to bear his or her own costs.
39In determining the appropriate quantum, the court should consider the amount that the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation. See: Arthur v. Arthur, 2019 ONSC 938, para. 28.
40The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant: Scipione v. Del Sordo, 2015 ONSC 5982, at para. 23.
Offers to settle
41In Saroli v. Saroli, 2021 ONSC 7491, at paras. 14–17, the court wrote as follows with respect to offers to settle:
14 Offers to settle (or the absence of an offer to settle) can impact both the issue of liability for costs and the amount of costs awarded when liability is found.
15 Subrule 18(14) sets out the cost consequences of a failure to accept an offer to settle that complies with the requirements of r. 18:
A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:
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 favourable as or more favourable than the offer.
The burden of proving that a court order is as favourable as or more favourable than an offer to settle is on the party who claims the benefit of this rule: r. 18(15).
16 To determine whether an order is as or more favourable than a settlement offer, 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, what is required is a general assessment of the overall comparability of the offer as contrasted with the orders that were ultimately made: Wilson v. Kovalev, 2016 ONSC 163, at para. 25. Where the offer to settle is not severable, however, the costs consequences set out in r. 18(14) should not be applied unless judgment is more favourable on all issues: Coscarella, at para. 7.
17 When the court determines liability for costs, it may take into account any written offer to settle, the date it was made and its terms, even if r. 18(14) does not apply: r. 18(16).
42To trigger full recovery costs a party must do as well or better than all the terms of any offer (or a severable section of an offer). See: Paranavitana v. Nanayakkara, 2010 ONSC 2257, [2010] O.J. No. 1566 (SCJ); Rebiere v Rebiere, 2015 ONSC 2129 (SCJ); Scipione v Scipione, 2015 ONSC 5982 (SCJ).
Discussion
Entitlement to costs
43In this case, neither party had a monopoly on success. Each achieved some measure of success and loss on the many issues that were argued.
44On the issue of the adjournment request, the wife was wholly successful.
45On the issue of equalization, based on the disclosure provided before trial, the wife acknowledged that she owed the husband an equalization payment of $84,087.89. As she had already given him an advance payment towards the equalization payment of $73,000, the wife’s position was that all she had left to pay was $11,087.89.
46The husband argued that he was owed an equalization payment of $208,612.25 less the credit of $73,000.
47In order to calculate the equalization payment, the values of nine assets and debts had to be determined. The wife was successful on seven of these nine issues. The equalization payment ordered was $121,231.06. The amount to be paid by the wife to the husband after giving her credit for the $73,000 already paid is $48,231.06. This amount is closer to the claim made at trial by the wife. She was the more successful party on the equalization issue.
48Neither party was successful on their respective 5(6) claim.
49On the issue of child support, the court was required to consider s. 9 of the Child Support Guidelines. Section 9 provides the statutory basis for determining the amount of child support when parenting time is shared.
50The significant issue that had to be decided with respect to child support and spousal support was the husband’s income: what amount of income, if any, was to be imputed to the husband?
51The husband asked that no income be imputed to him. Instead, he asked that the child support claim he made be based upon his estimate of his income, as set out in para. 132 of the Reasons for Judgment.
52The wife asked that the husband’s income be imputed in an amount similar to hers. This would result in there being no setoff amount of child support payable by either party to the other. That was her goal.
53In the Reasons for Judgment, income was imputed to the husband for the purposes of both child support and spousal support in an amount higher than he proposed and less than requested by the wife.
54However, the wife was successful in having income imputed to the husband.
55Neither party was successful in achieving the child support payment they sought. However, the husband was successful in having an amount of child support ordered for the period prior to trial. He sought a payment of $20,665.37. The wife wanted the amount to be set at $0.00. The sum actually found to be owing is $5,824.
56The ongoing child support was ordered to be $600 per month. The husband sought $986.40 per month in child support going forward. The wife asked that the setoff of child support be set at $0.00.
57The husband was the more successful party with respect to the amount of child support to be paid.
58On the issue of spousal support, the wife was wholly successful.
59The issue of parenting was settled before trial. The agreement reached by the parties saw the wife accede to the husband’s long-outstanding proposal for shared decision-making responsibility and parenting time.
60When all of these issues are considered, I find that it is the wife who was the more successful party in this litigation. However, when determining the amount of costs to be paid, apportionment will be based on the relative success each party achieved.
61I am not persuaded by the husband that the wife’s behaviour was in any way unreasonable such that she should be deprived of all or part of her costs. She served a number of offers to settle. She provided timely and reasonable disclosure proportionate to the issues raised in the case.
Amount of Costs
62The husband claims costs with respect to the parenting issue on the basis that he spent 27 days on this issue. Consequently, he was not able to work as a director of photography and lost the ability to earn $1,050 per day. He claimed 90% of this loss, or $25,515, in costs. The matter of parenting settled in accordance with the many offers he made with respect to this issue.
63The wife made no submissions on the issue of costs related to the parenting issue.
64The husband also requests costs of $3,000 on account of success with respect to the child support issues.
65The wife requests costs in the amount of $86,380.16 apportioned as follows; $3,600.18 for the adjournment request, $20,539 for the equalization issue, $20,539 for the child support issue, and $41,601.10 for the spousal support issue.
66I have had regard to r. 24 (4) and (14) in determining the appropriate amount of costs in this case.
67The issues in this case were of the utmost importance to the parties. In addition to the property issues, the parties addressed the relationship they are to have going forward with respect to their child on the issues of parenting and child support. The issue of spousal support was also of considerable importance to the parties.
68These issues were complex. They were made more complex by the number of issues that had to be addressed, and the amount of disclosure provided and not provided. The determination of the husband’s income for child support and spousal support purposes was complex for the same reasons as well as the involvement of expert evidence relied upon by the wife and challenged by the husband.
69I reviewed the many offers to settle provided by the parties in their respective briefs.
70The wife’s offers to settle the issues argued in this matter constitute reasonable attempts to resolve this case.
71The husband acted unreasonably in not making any offers to settle the issues that were argued at trial.
72I also take into consideration the unreasonable behaviour of the husband in not providing meaningful and focused disclosure essential to the determination of property and support issues until trial. I do so while keeping in mind the reason for the accommodations he required.
73As stated above, I am not persuaded by the husband that the wife delayed this case due to failure to provide disclosure or resolving the parenting issue when she did.
74On the issue of time spent, the husband did not provide any basis for his assertion that he spent 27 days on parenting issues before the trial.
75It would have been helpful had the wife’s counsel provided an indication of the time spent in relation to the parenting issue.
76The wife’s costs submissions detail time spent from September 29, 2025 to the conclusion of the trial. This start date appears to coincide with the preparation for the trial management conference. No request for legal costs was made for costs incurred in the years prior, while this case was outstanding.
77I find that the legal fees and the use of a senior and junior lawyer on behalf of the wife were reasonable given the volume, timing and complexity of the evidence provided.
78The hourly rate charged by Mr. Khot, an experienced family law lawyer, was most generous to his client.
79The expert witness fees were necessarily incurred and reasonable having regard to the issues in this case. These expert witness fees totaled $15,920.45. This included the preparation of the Davis Martindale report and the attendance of Louise Poole at trial.
Conclusion
80When I take all of these factors into account, including the apportionment of costs based on the divided success, I find that the fair, reasonable and proportionate amount of costs to be paid by the husband to the wife is $50,000 inclusive of all disbursements and applicable taxes.
81This amount of costs is commensurate with what the husband ought to have reasonably anticipated in connection with this 14-day trial as the less successful party.
82Costs to be paid to the wife by the husband may be credited against any monies owing by the wife to the husband under the order made pursuant to the Reasons for Judgment released in this case.
"Justice Barry Tobin"
Justice Barry Tobin
Released: July 9, 2026