Superior Court orders costs of $99K against father based on unreasonable behaviour

The Ontario Superior Court of Justice deemed it inappropriate to find no costs flowing from either party in a family law case, considering how the mother’s counsel anticipated all legal issues and shouldered the brunt of the work. 

Sud v. Sud, 2025 ONSC 5979, involved a cost endorsement arising from a decision in a family law dispute between the parties. On May 29, Justice Jennifer Breithaupt Smith of the Superior Court made the following findings: 

• The respondent father’s trust and ownership claims against the former matrimonial home were statute-barred 
• However, the relevant statute did not bar his equalization payment claim 
• His occupation rent claim lacked any legal foundation because the matrimonial home no longer served as such since the divorce date 
• He has paid no child support since April 2012 
• The applicant mother should have attempted to recover the father’s contribution to the carrying costs of the jointly owned vacation timeshare when negotiating its sale in 2022 
• She deserved spousal support from the father from the separation date until she became stable and self-sufficient 

The judge calculated the father’s child support obligation and proportionate contribution to the mother’s out-of-pocket expenses for the children’s post-secondary education, based on an imputed income for specific years. The judge concluded that the father owed the mother the sum of $103,533.29. 

The mother requested $113,826.40 in substantial indemnity costs, representing 80 percent of the total incurred. The father countered that the costs sought were excessive. 

Costs sought reduced

The judge of the Ontario Superior Court of Justice ordered the father to pay the mother’s litigation costs fixed at $99,000. The court ordered the director of the Family Responsibility Office to enforce the entire cost award. 

The judge acknowledged that the parties made efforts to reach three statements of agreed facts, which helped decrease trial time. The judge accepted that she might have determined that neither party deserved costs due to the divided success in the outcome. 

However, the judge said making such a finding would be inappropriate because: 

• Only the mother had counsel, who had to do the bulk of the work because the father failed to prepare sufficiently 
• Her lawyer anticipated every legal issue and helped her make four offers to settle, while the father presented no offers 

Regardless of the father’s success on the discretionary issue of the limitations period for his equalization claim, the judge considered his behaviour unreasonable because he failed to: 

• fully disclose his financial information during the protracted litigation, including the trial 
• properly consider the mother’s settlement offers or make counteroffers 
• prepare for the trial, such that he “seemed frequently surprised as the evidence unfolded, even during his own testimony” 

The judge addressed the father’s arguments. First, the judge agreed that the issues were neither novel nor complex, as he had alleged. 

However, the judge deemed this lack of complexity a mark against the father, who was self-represented in the litigation. The judge explained that the mother’s lawyer had to do all the legal work to help the trial proceed smoothly. 

Second, the father argued that the mother’s requested costs were disproportionate to her settlement offers. The judge considered this argument confusing, since it brought attention to the father’s failure to accept the mother’s offers. 

The judge pointed out that the father could have accepted $280,000 in cash, but instead found himself owing $103,533.29. 

The judge noted that the mother sought costs at 30 percent of $383,500, the approximate difference between those two figures. The judge added that a 30 percent exposure rate made sense in this contested litigation that went all the way to a 10-day trial. 

However, exercising her discretion, the judge found it reasonable to grant a modest reduction from the costs requested, given that she could reduce some billings when computing the final figure. 

In granting the reduction, the judge clarified that she did not consider the billings of the mother’s counsel inappropriate or inconsistent with reasonable and honourable dealings in the legal services marketplace.