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Family - Costs. 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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