CITATION: Kupfer v. Kupfer, 2026 ONSC 4494
COURT FILE NO.: FS-26-26163
DATE: 20260804
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Joseph Lawrence Karl Kupfer
Applicant
– and –
Melissa Kupfer
Respondent
James B.C. Edney and Sajila Nudrat, for the Applicant
Cheryl A. Hodgkin, for the Respondent
HEARD: In Writing
ENDORSEMENT ON COSTS
[1] The applicant issued an application in Manitoba, which he says is forum conveniens, and then commenced an application in Ontario. On June 3, 2026, I heard a motion brought by the applicant for interim parenting time. The respondent brought a cross-motion seeking a variety of relief including contact for the applicant, a declaration that Ontario is forum conveniens and staying the proceedings commenced in Manitoba.
[2] On June 3, 2026, I assumed jurisdiction under s. 40 of the Children’s Law Reform Act, R.S.O. 1990 c. C.12, only for the purpose of making a without prejudice interim parenting time or contact order. I declined to consider or decide any other issue given the principles of judicial comity and the first-to-file doctrine. I did not address costs in my unreported written endorsement, however, at the hearing I advised the parties that costs could be dealt with following my decision.
[3] The applicant filed written cost submissions seeking costs for these motions in the all-inclusive amount of $82,452.71 on a full-indemnity scale. He argues that costs on a full indemnity scale are appropriate because (i) the applicant was substantially successful on his motion, (ii) the respondent’s cross-motion was not granted and (iii) the respondent did not behave reasonably and her conduct unnecessarily prolonged the proceedings and caused the applicant to incur unnecessary costs. Essentially, the applicant argues that the respondent should have acceded to his requests for parenting time without a fight and that he should have never been put to the expense of a motion. The applicant does not rely on any offers to settle in support of his position or an argument that he has made any efforts to resolve the matter.
[4] In response, the respondent argues that she has made genuine attempts to resolve the whole of the litigation, including financial issues. The respondent also argues that the time spent by the applicant’s counsel team was excessive and that there was no need for a junior lawyer at the argument of the motion. She identifies the significant disparity in her lawyer’s hourly rate versus the applicant’s lawyer, both of whom are the same year of call. Finally, the respondent argues that she is in a far less advantageous financial position than the applicant and a significant costs award would interfere with her ability to care for the child and to participate in the legal proceedings.
[5] Rule 24 of the Family Law Rules, O. Reg. 114/99 (“Rules”), governs costs in family proceedings. The applicant was mostly successful on his motion, the respondent was not granted the relief she sought, and the order made was closer to the applicant’s position than the respondent’s. The applicant is entitled to his costs of his motion: r. 24(3) of the Rules.
[6] On the appropriate scale of costs, full indemnity costs are generally only awarded where there has been reprehensible, scandalous or outrageous conduct, or bad faith by one of the parties: Hamilton v. Open Window Bakery Ltd., 2004 SCC 3 at para. 26; Net Connect Installation Inc. v. Mobile Zone Inc., 2017 ONCA 766, at paras. 8-9; S(C) v. S(M), 2007 CanLII 20279 (ON SC), at paras. 16-26; r. 24(10) of the Rules.
[7] Similarly, substantial indemnity costs are reserved for exceptional cases, such as where there is reprehensible conduct or misconduct by a party or counsel, or where proceedings are vexatious, frivolous, or an abuse of process: Davies v. Clarington (Municipality), 2009 ONCA 722, at para. 40; Lewis v. Lewis, 2019 ONCA 690 at para. 17. “Substantial indemnity costs is the elevated scale of costs normally resorted to when the court wishes to express its disapproval of the conduct of a party to the litigation”: Net Connect, at para. 8; Pinder Estate v. Farmers Mutual Insurance Company (Lindsay), 2020 ONCA 413, at paras. 147, 150 and 153.
[8] I see no basis on the facts of this case to award a full indemnity, substantial indemnity, or a punitive costs award against the respondent. In contrast, there is nothing reasonable, fair or proportionate about the costs that Mr. Kupfer seeks. His request for costs of over $80,000 for what should have been a straightforward motion for interim parenting time or contact could potentially be classified as one made in bad faith. While I am not prepared to make such a finding based on the cost submissions alone, I am concerned that such a request for costs – without a foundation to support a finding of bad faith or reprehensible conduct by the respondent – signals that the applicant will use the apparent financial disparity between the parties as a weapon in this litigation. I hope that I am wrong.
[9] This concern is further supported by the added complexity to the legal proceedings that was created by the applicant commencing proceedings in both Manitoba and Ontario. I am conscious that the jurisdiction issue must be resolved by the court of first filing under the principles of judicial comity, including the first-to-file doctrine. But, to simplify matters and keep costs down, the proceedings could have been commenced in Ontario only. This should not be taken as a finding that Manitoba does not have jurisdiction. However, had the proceedings been commenced in Ontario only, the respondent would not have needed to move for an order that Ontario is forum conveniens and there would be no added jurisdiction issue.
[10] The reality is that the applicant’s motion for interim parenting time or contact would generally be heard on a regular Friday family motions day in Windsor, where costs of more than $5,000 are rarely awarded, but for the added complexity of the jurisdiction issue. The respondent cannot be criticized for addressing the jurisdiction issue in response and by her own motion. She likely would have prejudiced her position in the Manitoba proceedings had she not. If the goal was to obtain parenting or contact time with the child as quickly as possible, the motion and the proceedings should have proceeded as simply as possible.
[11] The applicant also further complicated the motion by relying on an affidavit of a counsellor who apparently revealed confidential information without the consent of the respondent. I refused to consider the affidavit as part of the evidence on the motion. It remains unclear to me what benefit the applicant believed he would achieve by relying on such material, but it forced the respondent to reply to the allegations raised and argue that the affidavit was improper.
[12] Finally, the applicant criticized the respondent for proceeding with questioning prior to the motion arguing that she obtained no benefit from it. I disagree. The questioning proceeded as quickly and as efficiently as possible and any additional costs created by it were minimal at best.
[13] Any costs award must be reasonable and proportionate. In this case, I find that the costs sought by the applicant are disproportionate, on their face, to an interim motion in a family matter: Beaver v. Hill, 2018 ONCA 840, at para. 19.
[14] Considering the factors outlined in r. 24(14), including the behaviour of each party, the time spent and the legal fees, and that the respondent appears to have attempted to take steps to resolve the dispute whereas the applicant made no efforts, a reasonable and proportionate award of costs for an interim parenting time motion is $2,500, all-inclusive, payable by the respondent to the applicant. A costs award should not jeopardize the respondent’s ability to participate in the proceedings. Accordingly, the costs are not payable until the completion of the litigation by way of a final order, whether that final order be made in Ontario or Manitoba.
[15] I again remind both parties that they should be guided by what is in the best interests of the child and not by what they want.
_______________________
Jacqueline A. Horvat
Justice
Date: August 4, 2026