CLARKE v. DENYES : Costs Awards in Protracted High-Conflict Family Proceedings

When family litigation becomes entrenched, costs can eclipse the issues themselves. In Clarke v. Denyes, 2025 ONSC 2936 (the “Costs Decision”), Justice Mathen’s May 16, 2025, endorsement following her March 17 2025 trial judgment in Clarke v. Denyes, 2025 ONSC 1894 (the “Trial Decision”) delivers a clear message: reasonableness governs, bad faith remains exceptional, and proportionality guides the court’s hand.

The father was awarded $400,000 in costs on a partial-indemnity basis—a substantial sum reflecting the six-year litigation’s complexity and imbalance of conduct (Costs paras. 24–25]). The decision underscores the Family Law Rules’ modern purposes: to encourage settlement, deter unreasonableness, and promote just outcomes, even when one party self-represents.

Factual Background and Trial Outcomes

The parties, Harry James Clarke (“James”) and Melissa Joy Denyes (“Melissa”), cohabited from 2012 to 2018 and share two children, born in 2014 and 2016 (Costs para. 2]). The litigation spanned six years and multiple motions, with both sides contributing to the acrimony, though Melissa bore greater responsibility for delay (Costs paras. 3–4]).

At trial, the Court:

• Dismissed the mother’s relocation request to Windsor, Nova Scotia ([Costs para. 1]; [Trial paras. 49–66]);
• Ordered shared parenting and sole decision-making to the father ([Costs para. 1]; [Trial paras. 67–111 (parenting), 112–173 (decision-making)]);
• Ordered set-off child support payable by Melissa ([Costs para. 1]);
• Denied spousal support and limited post-separation adjustments ([Costs para. 1]).

Justice Mathen noted Melissa’s lack of insight and “gatekeeping” behaviour that undermined the children’s relationship with their father ([Costs para. 5]; [Trial para. 107]). Expert Dr. Michael Saini defined gatekeeping as restricting contact “not because of protective issues, but because … it’s more about your needs than the needs of the child” ([Trial para. 78]).

Melissa chose to take a leave of absence from her job at Intact Insurance to self-represent, a deliberate decision rather than one of financial necessity ([Costs para. 6]). She then filed multiple written motions even after the trial was set, some during the trial itself ([Costs para. 6]). Her repeated refusal to follow educational recommendations for the parties’ son, who has autism and ADHD, also contributed to delay ([Trial paras. 122–142]).

The Parties’ Positions on Costs

Father (James Clarke)

James sought $577,121.62 in costs out of $651,670.25 incurred ([Costs paras. 8, 11]). He alleged Melissa acted “unreasonably, maliciously, and in bad faith” and rejected four Offers to Settle that were far more favourable than the final outcome ([Costs paras. 9–10]):

1. April 9 2021 (non-severable) – $1,240 monthly child support; equal section 7 sharing; $100,000 lump sum; no relocation.
2. Nov 17 2022 (non-severable) – $3,000 monthly fixed support; parenting coordinator; no relocation.
3. Dec 23 2022 (severable) – no relocation; 3-month parenting-coordination trial; 40% time to James; $3,000 monthly support; equal s. 7; trusts of $500,000 and $100,000 for the children; $50,000 to Melissa to resolve all finances.
4. Aug 8 2024 (withdrawn except parenting) – no relocation; decision-making to James (religion to Melissa); $1,307 set-off support; no retroactive support; $39,000 costs.

These substantial trust terms underscored the reasonableness of the father’s settlement posture and the unreasonable rejection of fair offers.

Mother (Melissa Denyes)

Melissa sought $120,000 in costs, asserting “substantial success” and alleging the father’s litigation misconduct—claims the court ultimately rejected ([Costs para. 13]).

Legal Framework and Analysis

Justice Mathen reaffirmed that costs in family proceedings serve four objectives:

1. indemnify successful parties,
2. encourage settlement,
3. deter inappropriate conduct, and
4. ensure proportional justice under Rule 2(2) ([Costs para. 14]).

Under Rule 24(5), reasonableness governs—offers and compliance matter ([Costs para. 15]). Under Rule 24(8), if a party acts in bad faith, the court “shall” order full recovery and “shall order the party to pay the costs immediately”—a mandatory quantum-and-timing rule that did not apply here ([Costs para. 16]).

Success and Conduct

James prevailed on the core issues—relocation, parenting, and decision-making ([Costs para. 18]) though he lost on some secondary points: a higher income imputed to him, denial of occupation rent, and partial s. 7 reductions ([Costs para. 17]).

Melissa’s claim of “substantial success” was dismissed as “puzzling” ([Costs para. 19]). She acted unreasonably by:

• Opposing shared parenting despite admitting she needed respite;
• Seeking to impute $250,000 income to James without evidentiary basis; and
• Rejecting expert and school recommendations for her son’s education, causing delay ([Costs para. 20]; [Trial paras. 122–142]).

However, the Court expressly declined to find bad faith:

“She was motivated by a desire to protect her children’s best interests … through misguided views” ([Costs para. 21]).

Her motivations were therefore genuine though mistaken, warranting significant but not punitive costs.

Quantum and Proportionality

Justice Mathen reviewed James’s detailed bill of costs and found the work and rates reasonable for what the litigation entailed, but the overall total “very high” ([Costs para. 23]). The father’s spouse had advanced $475,000 to fund litigation without documentation proving a loan ([Costs para. 22]).

The Court ultimately awarded $400,000 inclusive of HST and disbursements ([Costs paras. 24–25]). That figure—approximately 70% of the amount claimed—balanced success with proportionality. Justice Mathen acknowledged the “very high” fees yet deemed the outcome a “fair and proportionate result considering the difficult issues involved” ([Costs para. 24]).

Key Takeaways for Ontario Family Lawyers

1. Bad Faith Remains Exceptional: Persistent unreasonableness does not meet Rule 24(8)’s mandatory threshold without proof of intentional misconduct. Justice Mathen’s finding that Melissa’s motives were genuine though misguided delineates that line ([Costs para. 21]).

2. Reasonableness Defines Outcomes: Rule 24(5) remains the operative framework. Settlement posture, procedural conduct, and evidence-based positions drive both entitlement and quantum ([Costs paras. 15, 20]).

3. Offers to Settle Are Strategic Leverage: James’s detailed, multi-year offers—particularly the December 23, 2022 offer with $600,000 in children’s trusts—demonstrated reasonableness and strengthened his costs entitlement ([Costs para. 10]).

4. Self-Representation Is No Shield: Melissa’s intentional leave of absence to self-represent did not excuse procedural excesses. Courts hold self-represented litigants to standards of reasonableness and efficiency ([Costs paras. 6, 20, 24]).

5. Proportionality Is the Judicial Compass: While describing the fees as “very high,” Justice Mathen still awarded a large sum—illustrating the court’s effort to balance realistic indemnity with fairness ([Costs paras. 23–25]).

Conclusion

Clarke v. Denyes exemplifies modern Ontario costs jurisprudence: unreasonableness attracts serious financial consequences, but bad faith remains rare. The result—$400,000 in partial-indemnity costs, roughly 70% recovery—shows the court’s measured approach to accountability.

For family-law practitioners, Clarke underscores that reasonableness, documentation, and proportionality are the currency of successful costs advocacy. Every offer, every motion, and every tactical decision can echo in the final award.

Let’s continue to elevate the practice of family law in Ontario!

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Disclaimer: The information provided in this blog post is intended for general informational purposes only and should not be considered as legal advice. Consult with a qualified family law attorney for advice regarding your specific situation. Goldhart Mediation & Arbitration is not responsible for any actions taken based on the information presented in this blog.