In the recent Ontario Superior Court of Justice decision Singh v. Kaur, 2025 ONSC 4122, Justice Imran Kamal underscored that where litigation arises from the conduct of both parties and neither achieves a substantially better outcome, an award of no costs may be appropriate on account of that unreasonable conduct.

In its earlier decision on the merits, the court granted an interim parenting order establishing the father’s parenting time and imposed a non-disparagement condition, directing both parents to refrain from
speaking negatively about one another in the presence of the child.

Ultimately, Justice Kamal declined to award costs to either party, ordering that each party bear their own costs. This outcome emphasized the court’s discretionary and contextual approach to costs in family law matters,
particularly where success is divided, conduct is mixed, and the paramount consideration remains the best interests of the child.

Following the parenting order, the respondent mother sought costs on a substantial recovery basis. The applicant father argued that no costs should be awarded to either party, or alternatively, that he should receive partial recovery costs. To determine the issue of costs, the court engaged in a contextual analysis exercising statutory discretion, and considering common law principles, and the rules of the court.

The court began by reviewing the underlying principles governing cost awards in family law. The four purposes identified in Mattina v. Mattina, 2018 ONCA 867 frame the modern approach: (1) partially indemnifying the successful party, (2) encouraging settlement, (3) discouraging misconduct, and (4) ensuring cases are handled justly. These objectives. show that cost orders serve as both a compensatory and behavioural tool.

Section 131(1) of the Courts of Justice Act recognizes the court’s discretion in awarding costs. Such discretion is governed but not restricted by the Family Law Rules. Rule 24(1) for example, creates a presumptive entitlement to costs for the successful party however, this is restricted by the principles of proportionality and reasonableness as emphasized in Beaver v. Hill, 2018 ONCA 840. The court also noted that where both parties share partial success, Rule 24(6) allows for the costs to be apportioned accordingly. Rule 24(12) creates a requirement for the consideration of additional contextual factors. Bad faith under Rule 24(10) would require full-recovery costs payable immediately, however, in this matter, there was no such finding.

The court reinforced that assessing costs is not only a simple calculation. The court cited Delellis v. Delellis, [2005] O.J. No. 4345, and Justice David Aston’s guidance was relied on in that the award must be fair and reasonable in the circumstances, and not strictly a reflection of specific expenditures.

To make a costs decision, the court focused the analysis on three primary considerations: success, conduct of the parties and offers to settle.

First, the court found that neither party achieved success on the motion. The respondent mother’s positions changed significantly over time. Initially, she sought only supervised parenting, then she later agreed to unsupervised time, including overnights. In her May 30, 2025, affidavit, she proposed the exact schedule ultimately ordered by the court. However, by the time of the motion, she revised her position to alternate weekends and one weekly overnight, without providing an explanation for the shift.

The applicant father sought a 2-2-3 parenting schedule that was not adopted. The court did not implement a new schedule but instead maintained the pre-motion arrangement that was established in a previous urgent ruling. In determining success, the court emphasized that it is not a matter of keeping score of arguments won or lost. Instead, success must be assessed contextually as directed in Thompson v. Drummond,2018 ONSC 4762.

Secondly, conduct considerations affected both parties. The court had previously found urgency because the respondent was unilaterally dictating parenting time, which made intervention necessary. She adopted unreasonable positions, such as supervised parenting time, only to abandon them later with no justification. Her inability to make a decision regarding what she was seeking forced the father to seek relief.

At the same time, the father’s desired 2-2-3 schedule was rejected in part due to concerns about family violence perpetrated by his parents against the mother. The judge noted that the father remained a bystander to this harmful conduct and that the involvement from the father’s side risked undermining the mother’s relationship with the child.

The court characterized the case as unusual because neither party was successful due to their own conduct. The father failed due to legitimate concerns over family violence involving his parents, and the mother failed due to her unreasonable and vacillating positions. The parenting motion was necessary to bring stability to the child’s schedule, but neither party could claim full success regarding costs. As a result, the court ordered each party to bear their own costs.

This ruling illustrates the nuanced and discretionary nature of cost awards in family law. It reaffirms that costs are not automatic even when one party believes they have initiated necessary intervention
by the court. The decision highlights that unilateral actions, vacillating positions and failure to act reasonably can undermine a claim for costs, even when a party feels justified in bringing or defending a motion.

Furthermore, the ruling reinforces that success is assessed contextually and not merely by comparing endpoints. The overarching discretion of the court will be exercised to advance fairness ,proportionality and the best interests of the child, rather than to reward tactical advantage or formal claims of victory.

Michael Stangarone, partner, Jessica-Taylor Leaman, articling student, are with MacDonald & Partners LLP, where they practise exclusively family law.

The opinions expressed are those of the authors) and do not necessarily reflect the views of the author's firm, its clients, LexisNexis Canada, Law360 Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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