“For good reason, judges are reluctant, if not loath, to make an order as to costs when the parties settle the merits of their dispute: Blank v. Micallef, 2009 CanLII 60668 (ON SC), 2009 CanLII 60668 (Ont. S.C.J.) at para. 11. Any attempt to determine a “winner” or “loser” in a settlement is, in most cases, complex if not impossible.
In Davis v. Davis, 2004 CanLII 19156 (ON SC), 2004 CanLII 19156 (Ont. S.C.J.) Perkins J. observed that a party is only successful within the meaning of rule 24 of the Family Law Rules, if “declared” such by “a judge, after argument.” (para. 3)
Perkins J. was not stating an inviolate rule. There may be instances where settlement is a clear capitulation by one party in favour of another.”