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Family - Costs. Senos v. Senos
In Senos v. Senos (Ont CA, 2026) the Ontario Court of Appeal partially allowed a family law appeal, this brought against orders "which finally resolved the issues of spousal support, child support, and special/extraordinary expenses".
The court considered the setting aside of earlier interlocutory trial costs awards, here in the final trial order [considering FCR 25(19)(a) - 'Changing order — fraud, mistake, lack of notice']:2. The trial judge erred in cancelling the Impugned Costs Orders
[25] The trial judge “cancelled” the Impugned Costs Orders on the basis that “[h]ad [the appellant] been forthcoming with the court, those costs orders would not have been made”. No other explanation or authority is cited for setting aside the Impugned Costs Orders.
[26] In K.K. v. M.M., 2025 ONCA 446, 16 R.F.L. (9th) 1, at paras. 69-80, this court considered the circumstances in which a prior court order can be set aside on the basis of r. 25(19) of the Family Law Rules. One such circumstance is where an order was obtained by fraud: r. 25(19)(a).
[27] Here, the trial judge made factual findings that strongly suggested the appellant obtained the Impugned Costs Orders by fraud. The appellant was found to have repeatedly misled the court and these false representations were the basis upon which the Impugned Costs Orders were issued. However, there are a number of insuperable difficulties with upholding the trial judge’s “cancellation” of the Impugned Costs Orders on the basis of r. 25(19)(a).
[28] First, the trial judge makes no reference to r. 25(19)(a), but merely stated that the Impugned Costs Orders were “cancelled” because they would not have been made had the appellant been forthcoming with the court. While this statement explains what the trial judge did, it does not indicate her legal basis for doing so. Meaningful appellate review can only occur when the trial judge clearly articulates the logical connection between the “what” (the order made) and the “why” (the basis for the order): R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 17. Although in this case the trial judge’s reasons meet the standard of factual sufficiency, they do not meet the standard of legal sufficiency, being the “legal basis of the decision”: see R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at paras. 71-75. Here, we have no way of knowing the legal authority that the trial judge relied on to cancel the Impugned Costs Orders – whether r. 25(19) of the Family Law Rules, or some other legal basis. This impedes the appellant’s ability to meaningfully exercise her right of appeal: see R. v. Sheppard, 2025 SCC 29, 507 D.L.R. (4th) 78, at para. 47.
[29] Second, in order to establish fraud within the meaning of r. 25(19)(a), the party alleging fraud has the burden of proving on a balance of probabilities that the other party made a false representation of fact (i) with knowledge of its falsehood, (ii) without belief in its truth, or (iii) recklessly careless whether it is true or false, and in any event, with the intention that it should be acted upon, and inducing the person to whom it is made to act upon it: Sonia v. Ratan, 2022 ONSC 6340, at paras. 26-30, aff’d 2024 ONCA 152, 171 O.R. (3d) 677, at paras. 45-51; see also Hutter v. Hutter, 2024 ONSC 785, at para. 51, citing Howard v. Howard (14 July 2023) Kitchener 20-56237 (S.C.), at paras. 21-22.
[30] Like in K.K. v. M.M., the party seeking to set aside the prior costs orders (in this case, the respondent), did not expressly argue that the orders should be set aside on the basis of fraud, even if the factual matrix might suggest that fraud occurred: see K.K. v. M.M., 2024 ONSC 1092, 98 R.F.L. (8th) 391, at paras. 105-6. Since the respondent was not making this argument at trial, he could not have met his burden of proving those orders were obtained by fraud, and the trial judge did not have authority to set them aside.
[31] Finally, the trial judge made apparently inconsistent findings as to whether the appellant deliberately misled the court. At various points in her reasons the trial judge describes the appellant as having acted in this improper manner, but the trial judge also stated that she was “unable to conclude whether [the appellant] has deliberately misled the court or whether she suffers from some cognitive impairment or mental illness”. This statement is puzzling and difficult to square with statements elsewhere in the trial judge’s reasons. Nevertheless, it may provide an explanation as to why the trial judge did not expressly rely on r. 25(19)(a) in setting aside the Impugned Costs Orders.
[32] The appellant does not suggest any basis, apart from r. 25(19)(a), upon which the cancellation of the Impugned Costs Orders could be justified. Since the trial judge did not rely on r. 25(19)(a), I would set aside this element of the Final Order and reinstate the $38,500 in prior costs orders. . Lang-Newlands v. Newlands [leave unnecessary where appeal varies trial order]
In Lang-Newlands v. Newlands (Ont CA, 2026) the Ontario Court of Appeal considers a family law appeal, here brought against a final order which determined a support order and the NFP treatment of trust interest.
Here the court holds that CJA 133b leave to appeal cost awards is unnecessary when the appeal results in variation of the substantive trial orders:[102] Section 133(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that leave is required where the appeal is only as to a discretionary costs order. However, when "the disposition on appeal changes the decision under appeal, leave to appeal from a costs order is not necessary": Climans v. Latner, 2020 ONCA 554, 152 O.R. (3d) 369, at para. 84; Tadayon v. Mohtashami, 2015 ONCA 777, 341 O.A.C. 153, at para. 70; see also Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519, at para. 2, leave to appeal refused, [2019] S.C.C.A. No. 82. . Blau v. Blau
In Blau v. Blau (Ont CA, 2026) the Ontario Court of Appeal considered family law costs:[7] The trial judge ordered costs on an elevated basis due to the fact that the appellant acted with an element of bad faith. He found that there was a history of abusive and threatening correspondence from the appellant to both the respondent and her counsel, and a concerted effort on the appellant’s part to refuse or delay disclosure of his finances. Given these factual findings, it was appropriate for the trial judge to award costs on an elevated basis, in accordance with r. 24(8) of the Family Law Rules, O. Reg. 114/99.[1] . Ataei v. Kalantari
In Ataei v. Kalantari (Ont CA, 2026) the Ontario Court of Appeal allows a costs appeal, this in relation to an appeal of the dismissal of a motion "to set aside a separation agreement (the “Agreement”) on the basis that it was obtained by duress, pursuant to s. 56(4)(c) of the Family Law Act".
The court considers costs in family law matters, here under FLR s.24(3) ['Entitlement to costs, presumption'] (which are under the CJA):[8] The application judge acknowledged that the respondent was presumptively entitled to his costs in accordance with r. 24(3) of the Family Law Rules, O. Reg. 114/99.[1] In determining the quantum of costs, she noted that the appellant incurred approximately $65,000 in legal fees while the respondent incurred approximately $133,000 in legal fees during the applicable time period (i.e., following a bifurcation order which narrowed the scope of the trial which is the subject of this appeal). She reasoned that a $30,000 costs award in favour of the respondent was appropriate since it would reduce the respondent’s net costs to approximately $103,000 and increase the appellant’s net costs to approximately $95,000. The application judge regarded this result to be fair and proportionate, since it “would put the parties in a comparable position in terms of costs”.
[9] This “cost equalization” methodology fails to give effect to the presumption in r. 24(3) of the Family Law Rules. It also ignores the purpose of a costs award, which is not to equalize the parties’ respective legal expenditures but to: (i) partially indemnify successful litigants; (ii) encourage settlement; (iii) discourage and sanction inappropriate behaviour by litigants; and (iv) ensure that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867, at para. 10, leave to appeal refused, [2018] S.C.C.A. No. 392.
[10] Because the application judge’s comparative cost methodology failed to take into account the relevant legal principles, it constitutes an error in principle. This is therefore one of the rare cases where appellate intervention on costs is warranted and requires this court to determine afresh the appropriate costs award in respect of the proceeding below. . Hui v. Chan
In Hui v. Chan (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a family law appeal, here brought against "the appellant’s application for a lump sum retroactive payment of spousal support".
In this family law appeal the court takes a novel liberal approach to the awarding of costs for self-presenting parties:[41] There are no categorical rules relating to self-represented litigants that either prevent recovery of costs or provide for an automatic right of recovery. The matter remains fully within the discretion of the court. In this appeal, the respondent was the successful party. It is evident that he devoted some time and effort to this appeal. It is reasonable that he be awarded costs of $750 in the context of this appeal. . K.K. v. M.M.
In K.K. v. M.M. (Ont CA, 2025) the Ontario Court of Appeal considered the CJA s.106 stay authority, here in a family law discretionary cost order context:[74] Section 106 of the CJA provides:A court, on its own initiative or on motion by any person, whether or not a party, may stay any proceeding in the court on such terms as are considered just. [75] There is no question that the trial judge was entitled to raise the possibility of a stay under s. 106. Moreover, it is clear that the trial judge acted in a procedurally fair manner by permitting the parties to make submissions prior to granting the stay. The question on appeal is whether the trial judge erred in exercising her discretion to grant the stay.
[76] It is well established that the court will not set aside an exercise of discretion to grant a stay under s. 106 of the CJA unless it is based upon a wrong principle, a failure to consider a relevant principle or a misapprehension of the evidence: see e.g., Mobile Mini Inc. v. Centreline Equipment Rentals Ltd. (2004), 2004 CanLII 22309 (ON CA), 190 O.A.C. 149 (C.A.), at para. 2; BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 518, at para. 3. The court will also set aside a stay if the stay would bring the administration of justice into disrepute: see Phillion v. Ontario (Attorney General), 2014 ONCA 567, 121 O.R. (3d) 289, at para. 56, leave to appeal refused, [2014] S.C.C.A. No. 411.
[77] This court held in Peerenboom that the ability to stay a proceeding under s. 106 of the CJA extends to execution of a judgment by a judgment creditor, but only in rare circumstances. Peerenboom concerned the enforcement of a writ of execution against the parties’ matrimonial home obtained by the husband’s father. Although the father had a valid judgment against the husband, there was no question that his objective in enforcing it was to defeat the wife’s equalization claim. In staying the father’s writ of execution, this court held that a stay of the execution of a judgment may be granted where the conduct of the judgment creditor is oppressive or vexatious or an abuse of process of the court, provided the stay would not cause an injustice to the plaintiff: at para. 34. However, there is no authority supporting the exercise of the court’s discretion under s. 106 of the CJA to stay the enforcement of a costs order made in the same proceeding, as is the case here.
[78] With respect, the trial judge erred in principle by failing to consider a relevant principle, namely that promptly after each step in the proceedings, the presiding judge shall decide costs and, in general, costs orders are payable forthwith. See e.g., Olaveson v. Olaveson (2007), 2007 CanLII 45917 (ON SC), 45 R.F.L. (6th) 437 (Ont. S.C.), at para. 7; D.L. v. H.L., 2008 ONCJ 150, at para. 19; Weidenfeld v. Weidenfeld, 2018 ONSC 5930, at para. 17, aff’d 2019 ONCA 415, leave to appeal refused, [2019] S.C.C.A. No. 430; Mark M. Orkin, The Law of Costs, loose-leaf, 2nd ed. (Toronto: Thomson Reuters, 1987), at §4:3. Had the wife complied with her obligation to pay the costs orders promptly, there would have been nothing for the trial judge to stay. Having failed to pay the costs orders as required, she should not be rewarded by having their enforcement stayed years later.
[79] An order permanently staying unpaid costs orders would encourage litigants to defer paying costs orders made against them. Such an incentive has no place in litigation – especially in family law proceedings, which are designed to promote the most expedient and least costly resolution of disputes in the very difficult context of matrimonial breakdown.
[80] It is no answer to this concern to say that the decision to grant a stay can be reserved to rare or even egregious circumstances. To use the stay power to undo the costs decisions of different judges on prior motions is to undermine basic precepts and expectations of civil procedure. It would also expand considerably the narrow range of circumstances in which the Family Law Rules contemplate the varying of orders. Bad faith falls considerably short of fraud, which is required under r. 25(19) to vary an order. Unless the motion judge reserves the issue of costs to the trial judge, any costs award made at a particular stage must be understood as appropriate at the time it was made unless demonstrated otherwise under r. 25(19). . K.K. v. M.M.
In K.K. v. M.M. (Ont CA, 2025) the Ontario Court of Appeal considers typical family law cost practice:[70] The starting point in considering this argument is the recognition that in family law proceedings, as in civil proceedings generally, costs are typically awarded following each step in the proceedings, as the judge conducting the motion is best placed to determine costs. The Family Law Rules currently provide as follows:[4]Deciding costs
24.(1) Promptly after dealing with a step in a case, the court shall, in a summary manner,
(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. O. Reg. 10/25, s. 4.
Same
(2) The failure of the court to act under subrule (1) in relation to a step in a case does not prevent the court from awarding costs in relation to the step at a later step in the case. ....
[72] The trial judge had authority under the Family Law Rules to change orders made previously within the proceeding, but that authority was limited. Rule 25(19) of the Family Law Rules provides that, on a motion, the court may change an order that:(a) was obtained by fraud;
(b) contains a mistake;
(c) needs to be changed to deal with a matter that was before the court but that it did not decide;
(d) was made without notice; or
(e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present. . Jurrius v. Rasulli
In Jurrius v. Rasulli (Div Court, 2024) the Divisional Court considered 'costs' in a family law case, here in an appeal focussing on parenting:[37] The trial judge found that the Mother had been the successful party. He considered her prior offers to settle, undertaking a detailed review of the prior offers to settle pursuant to Rule 18(16) of the Family Law Rules O. Reg. 114/99. He concluded that the time spent by her counsel was reasonable given the issues, the experience of counsel and the quality of representation. He also found that the Father had filed no evidence regarding the amount paid to his counsel to challenge his reasonable expectations of the cost of representation, and although the Father also sought his costs after the trial judge rendered his judgment on the trial issues. These are findings of fact and there is no basis to interfere with them.
[38] Further, the trial judge also found that the Father had acted in bad faith. Rule 24(8) of the Family Law Rules authorizes the court to decide costs on a full recovery basis where a party has acted in bad faith. Courts have found bad faith where a party attempted to deceive the other party or the Court. A party can be found to be acting in bad faith when their conduct increased costs to such an extent “that they must be taken to know their behaviour is causing the other party major financial harm without justification”: Scalia v. Scalia, 2015 ONCA 492, 126 O.R. (3d) 241, at para. 68; Benzeroual v. Issa and Farag, 2017 ONSC 6225, 97 R.F.L. (7th) 111, at para. 20. . LeGrand v. LeGrand
In LeGrand v. LeGrand (Div Court, 2023) the Divisional Court upheld an appeal against a family costs award:Costs of the Second Contempt Hearing
[74] Costs decisions are discretionary and attract significant deference. They should only be set aside on appeal if the court below “has made an error in principle or if the costs award is plainly wrong”: see Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27; and Sun Indalex Finance, LLC v. United Steelworkers, 2013 SCC 6, [2013] 1 S.C.R. 271, at para. 247. As set out in Fielding v. Fielding, 2015 ONCA 901, costs in a family law matter attract even greater deference given the enhanced desire to promote finality.
[75] Here, the motions judge applied the considerations set out in Rule 24(12) in her April 21, 2023 endorsement, made a finding of bad faith pursuant to Rule 24(8), which permits a full recovery of costs, and she referenced comparative costs decisions to satisfy herself that the amount sought by the mother was reasonable and proportionate in the circumstances of the case. I see no basis to disturb the award of costs.
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