A.B. v. F.J.S., 2026 CanLII 49148 (ON SC)

CITATION: A.B. v. F.J.S., 2025 ONSC 2938

COURT FILE NO.: FC-21-419

DATE: 2026-05-25

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

A.B.

Applicant

– and –

F.J.S.

Respondent

Cheryl Hess

Self-represented

HEARD: March 18, 2026

reasons for decision

M. SMITH J

1On December 2, 2025, I rendered my trial decision.

2On December 5, 2025, I received a letter from Bryan Delaney, former trial counsel for the Respondent. In that letter, he writes, in part, the following:

The property division in this case was complicated by the mortgage refinance that occurred around the time of separation.

In your honour’s decision you correctly noted that the father withdrew the $210,000 from the parties joint TD Home Equity line of credit. You correctly noted that he paid the balance of the mortgage in the amount of $211,944.45.

You find that the TD Mortgage and HELOC is a joint debt to be shared equally.

Your decision however provides double recovery to the Applicant mother with the arithmetic provided. She is given the adjustment for the cash in the Respondent’s bank account and the benefit of half of the payment made towards the mortgage by the Respondent.

The necessary adjustment is the Applicant’s half of the payment made against the TD mortgage. 50% of $211,944.45 is $105,972.22. This is the amount that should be credited to the Respondent as part of your ruling.

The net is the equalization payment of $210,890.64 less $105,972.22 to the benefit of the applicant. That amount is $104,918.42.

3The trial coordinator scheduled an appearance before me on January 28, 2026.

4On December 18, 2025, I received the Applicant’s costs submissions.

5On January 16, 2026, I received the Applicant’s submissions regarding the issue raised by Counsel Delaney.

6On January 27, 2026, I received a request from the Respondent to adjourn the January 28, 2026 appearance. Counsel Delaney was no longer his counsel, and the Respondent required more time.

7On January 28, 2026, I granted the adjournment request. I directed the Respondent to file and serve his submissions on the issue raised by his former counsel, together with his response to the Applicant’s costs submissions, by no later than March 6, 2026.

8On March 6, 2026, the Responded filed and served his submissions on the issue raised by his former counsel. He did not address the trial costs in his submissions.

9On March 18, 2026, the parties appeared before me.

ISSUES

Issues

10This issues to be determined are:

a) What post-trial corrections should be made, if any?

b) Is the Applicant entitled to a costs award?

ANALYSIS

Analysis

Issue #1 – What post-trial corrections should be made, if any?

Respondent’s position

Issue #1 – What post-trial corrections should be made, if any?

11At the hearing, the Respondent advanced the position that there were four arithmetic errors in my judgment:

a) BMO Line of credit: the Court held that the Respondent is responsible for the $150,000 line of credit, together with all interests. Given that the Court has placed the entire liability on the Respondent’s “side of the ledger”, it must be implemented symmetrically. It is argued that valuation date cash represented by those same funds must also be recognized entirely on the Respondent’s side of the ledger.

b) TD HELOC revolving withdrawal: the Court held that on January 27, 2021, the Respondent withdrew $210,000 from the parties’ joint TD HELOC and deposited it into his BMO personal bank account. The Respondent’s exact figure is $210,009.95. The Court further held that the TD HELOC and mortgage are joint debts to be shared equally. The Respondent therefore seeks a credit of $105,004.97

c) TD mortgage: the Court held that on March 5, 2021, the Respondent paid the balance of the mortgage in the amount of $211,944.45. Given that the Court held that the TD mortgage and TD HELOC are joint debts to be shared equally, the Respondent therefore seeks a credit of $105,972.22.

d) TD HELOC interest: the Respondent argues that he is entitled to one-half of the interest paid between 2021 and 2025. The total interest paid amounts to $80,700.74, calculated as follows: $8,563.46 in 2021, $15,346.24 in 2022, $24,912.53 in 2023, $24,162.21 in 2024, and $7,716.30 in 2025. The Respondent therefore asks that the TD HELOC interest credit be fixed at $40,350.37.

The Applicant’s position

12The Applicant’s position is set out below:

a) BMO Line of credit: this is a new issue being raised by the Respondent. That said, the Respondent has been credited for this amount in the Net Family Property statement. The funds were included in both the asset and lability side.

b) TD HELOC revolving withdrawal and TD Mortgage: the Applicant recognizes that the Respondent paid the balance of the mortgage in the amount of $211,944.45 with the monies that he withdrew from the parties’ joint TD HELOC. However, the Applicant argues that if the debt is allocated to her side of the net family property calculations, the Respondent further benefits from his abusive actions. In the alternative, the Applicant seeks an unequal division of the net family property.

c) TD HELOC interest: the Applicant acknowledges that the Respondent is entitled to one-half of the interest paid between 2021 and 2025. According to the Applicant’s calculation, her share of the interest is $47,242.49 and not $40,350.37.

Discussion

BMO Line of Credit

13In terms of the BMO Line of Credit, I agree with the Applicant’s position. I do not find that there is an arithmetic error. It has been appropriately reflected on the Net Family Property Statement (“NFP”).

TD HELOC and TD Mortgage

14Regarding the issue concerning the TD HELOC revolving withdrawal and the TD Mortgage, I am of the view that the NFP is accurate as at the date of valuation (January 29, 2021). On January 27, 2021, the Respondent withdrew $210,000 from the HELOC and deposited the funds into his bank account. This withdrawal is properly reflected on the NFP.

15However, I failed to account in my calculation for the fact that the Respondent paid the mortgage on March 5, 2021, after separation. An adjustment is therefore required post-valuation date. Given my finding that the parties are equally responsible for the TD mortgage, the Respondent is entitled to credit for 50% of the payment made, being $105,972.22, from the total payment made of $211,944.45.

16The net equalization payment of $210,890.64 should be reduced by $105,972.22. The Respondent therefore owes the Applicant an equalization payment of $104,918.42.

17With respect to the Applicant’s alternative submission that the TD mortgage payment should be subject to an unequal division of net family property, this issue has already been determined. At paragraph 130 of my trial decision, I concluded that this liability should be equally shared, as the Applicant benefited from the payment.

TD HELOC interest

18Although the Applicant is prepared to accept the Respondent’s lower calculation of the interest payment, it would be inappropriate to do so. I accept the Applicant’s calculation in the amount of $47,242.49.

Issue #2 – Is the Applicant entitled to a costs award?

Issue #2 – Is the Applicant entitled to a costs award?

19In my trial decision, I encouraged the parties to have meaningful discussions regarding costs, failing which, to provide their costs submissions. The parties were unable to agree.

20The Applicant served and filed her costs submissions on December 18, 2025.

21The Respondent has not filed his costs submissions. He requests that any determination on this issue be deferred until the arithmetic clarification be resolved.

22There are no compelling reasons to defer the issue of costs. In determining the costs to be awarded to the Applicant, I will consider the outcome of the post-trial arithmetic calculations, on which the Respondent was partially successful.

Position of the Applicant

23The Applicant submits that this is an appropriate case for an award of full indemnity costs. She seeks costs in the total amount of $217,775.31, consisting of $89,744.45 incurred from the initial retainer to the Offer to Settle dated September 2, 2025, and $128,030.86 incurred from that date to the conclusion of the trial.

24The Applicant advances several arguments in support of her position that this is an appropriate case for an award of full indemnity costs. Some of those submissions are summarized below:

a) The Respondent acted unreasonably from the outset of the litigation. Prior to trial, there were more than 18 court appearances, and the proceeding was delayed and prolonged because of numerous delay tactics employed by the Respondent, including his refusal to comply with court orders.

b) Although the Respondent signed Minutes of Settlement at mediation and consented to an order requiring a parenting capacity assessment, he subsequently refused to retain or cooperate with the agreed-upon assessor. As a result, the Applicant was compelled to attend multiple court proceedings and incur significant legal expenses in efforts to secure the assessment and retain an appropriate professional. Ultimately, when it became apparent that the Respondent would not proceed with the assessment, the Applicant was forced to abandon those efforts.

c) The Respondent provided minimal financial disclosure. It took four years for the Applicant to obtain his 2020 personal and corporate income tax returns. As of the commencement of trial, financial disclosure continued to be produced at the eleventh hour, including on the Friday evening immediately preceding the Monday start of trial.

d) In addition, although the Respondent was ordered to pay child and spousal support, he did so for only 10 months. He subsequently unilaterally reduced the amount of support and, as of January 2023, ceased making payments altogether.

25Further, the Applicant submits that she served an Offer to Settle on September 2, 2025, and that the terms of the order she ultimately obtained are as favourable as, or more favourable than, that offer. In particular, she obtained an order granting her sole decision-making responsibility, retroactive child support, compensatory support, no change to parenting time, ongoing support, and an unequal division of net family property.

Legal principles

26Costs orders are at the discretion of the Court (section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43). The framework in awarding costs is set out at Rule 24 of the Family Law Rules, O. Reg. 114/99 (the “FLR”).

27Rule 24(3) of the FLR creates a presumption of costs in favour of the successful party. In setting the amount of costs, the Court shall consider the factors outlined in Rule 24(14) of the FLR, which includes the importance and complexity of the issues, the parties’ behaviour, the time spent, written offers, legal fees, expert witness fees and any other properly payable expenses.

28Modern 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 FLR: Mattina v. Mattina, 2018 ONCA 867.

29Proportionality and reasonableness are the touchstone considerations that need to be applied when fixing an amount of costs: see Beaver v. Hill, 2018 ONCA 840.

30Partial indemnity costs are the presumptive norm. A departure from this general rule to award elevated costs must be justified. Three exceptions permit such a departure: first, where a party obtains a result at least as favourable as an offer to settle that complies with r. 18 and 24(12) of the FLR; second, where a party has acted in bad faith (r. 24(10) of the FLR); and third, where a party has behaved unreasonably: Mattina, at para. 15.

Analysis

31The Applicant was the successful party at trial. She is presumptively entitled to her costs.

32The issues in this litigation were very important to the parties, and certain property matters were complex. The proceeding was further complicated by the Respondent’s unreasonable behaviour in the conduct of the case. The Applicant was forced to incur substantial legal costs.

33I have reviewed the Bill of Costs submitted by the Applicant’s counsel. Having regard to the issues in the case and the Respondent’s conduct throughout the proceedings, I find the time expended to be reasonable. Counsel’s hourly rate is likewise reasonable and commensurate with her level of experience.

34The Applicant made two Offers to Settle dated September 2, 2025, one addressing parenting and the other property. The result obtained was as favourable as the parenting offer, but not as favourable as the property offer. The parenting offer will be considered in awarding costs.

35Turning to the Respondent’s conduct in these proceedings, I agree with the Applicant’s position as set out in her costs submissions that he acted unreasonably and in bad faith. I find that he conducted himself in a manner intended to inflict harm upon the Applicant. The following findings from my trial decision demonstrate conduct warranting an award of costs on a full indemnity basis:

6I found the Father to be a much less credible and reliable witness. From his evidence at trial and his documented conduct throughout the entire proceedings, I formed an impression of the Father as a person that needs to be in control, and who must always be right. If someone opposes the Father, he will take all necessary steps to silence them. He wanted to give the impression during his testimony that he was child-focused, but his actions say otherwise. I did not find all his evidence to be genuine.

7During the Father’s cross-examination, he appeared at times to be evasive and argumentative, true to his oppositional behaviour, unwilling to agree to reasonable propositions. He lacked accountability, and seldom accepted responsibility for any wrongdoing, continuously blaming others for events that occurred during these lengthy proceedings.

11The procedural history is quite telling. It paints a picture of a litigious father, focused primarily on himself and failing to comply with Minutes of Settlement and/or court orders, contrary to the best interests of his children. The Mother coined the Father’s behaviour as “deny, deflect, disrupt, and destroy”, which I find to be an accurate description of his conduct.

27From the time that the parties entered into Minutes of Settlement in April 2021 up to and including this trial, the Father has refused to acknowledge that there was an interrelationship between the parenting schedule and the assessment. His refusal was deliberate and calculated. The Father was more invested in being successful at the various stages of litigation, as opposed to focusing on his children’s best interests. Proceeding with a s. 30 assessment would have been in the children’s best interests.

50In addition to the January 2021 incident, the Father has exhibited controlling and abusive behaviour during these legal proceedings. He has refused to listen and follow the directions of the court, he has not followed court orders, and his behaviour towards opposing counsel was unreasonable, continuously accusing her of wrongdoing throughout the litigation. Furthermore, the Father has refused to cooperate with professionals, even though these professionals were working for the benefit of his children.

56Having reviewed the events of the past several years, I believe that the Father has a strong need to control the narrative, the process, and others, all to advance his personal interests. If he does not have control, he will do what is required to take control, regardless of the repercussions of his actions. He does not appear to have any tolerance for those who disagree or criticize him. The evidence strongly supports the Mother’s description of the Father, one who is quick to deflect blame, one who will not take responsibility for his actions, and if opposed, one who will seek to destroy them.

36The Respondent’s inappropriate conduct must be discouraged and sanctioned. I conclude that the Respondent’s unreasonable and abusive behaviour was such as to justify awarding the Applicant full indemnity costs throughout these family proceedings.

37With respect to the issues arising post-trial, the Respondent was successful on the TD HELOC and TD mortgage issues, but not on the BMO line of credit. The interest relating to the TD debt was not in dispute. In the circumstances, the Respondent is entitled to a modest costs award. As a self-represented party, he is eligible to recover costs. In fixing the amount, the court must consider the time he devoted to the preparation and hearing of the matter, as well as any loss of income resolving from their involvement in the litigation.

38However, as noted earlier in this decision, the Respondent declined to make costs submissions. As a result, I have no evidence before me regarding the time he expended, the expenses he incurred, or any loss of income. The hearing lasted less than one hour, and the materials filed were limited. Given that the Respondent was successful on only one issue, I find that an award of $2,000 is reasonable and proportionate in the circumstances.

DISPOSITION

Disposition

39For the foregoing reasons, I make the following orders:

a) The net equalization payment of $210,890.64 that was ordered to be paid shall be reduced by $105,972.22. The Respondent therefore owes the Applicant an equalization payment of $104,918.42.

b) Costs payable by the Respondent to the Applicant in the amount of $215,775.31.

M. Smith J