Costs Endorsement
Part One – Introduction
[1] On July 7, 2025, the court heard an uncontested trial regarding parenting and child support issues related to the parties’ 5-year-old child (the child). The court gave oral reasons for decision and made final orders including:
a) The child’s habitual residence is in Ontario.
b) The child’s primary residence shall be with the applicant (the mother).
c) The mother shall have sole decision-making responsibility for the child.
d) The mother may apply for all government documents for the child and travel internationally with the child without the respondent’s (the father’s) consent.
e) The father will have virtual parenting time with the child. He may seek a review of parenting time and seek supervised parenting time in Toronto supervised by a professional agency.
f) The father shall not remove the child from Toronto.
g) The father shall pay child support to the mother of $792 each month, starting on September 1, 2024, based on an imputed annual income of $85,000.
h) The father is restrained from coming within 300 meters of the mother or the child, except for the purpose of exercising scheduled parenting time.
[2] The mother sought and was given permission to make written costs submissions. She seeks costs of $26,229, in addition to two costs orders, for $4,500 and $2,000 that have previously been made against the father.
Part Two – Background
[3] The parties married in 2017. They physically separated in September 2024. The father moved that month to Portugal. The child remained with the mother in Toronto.
[4] On December 21, 2024, the mother traveled with the child to Portugal to visit her family. She arranged parenting time for the father in Portugal. She planned to return with the child to Canada on January 5, 2025.
[5] On January 4, 2025, the father refused to return the child to the mother after a visit.
[6] The mother issued this application on January 13, 2025. On the same day, on a without notice motion, this court made temporary without prejudice orders, including, finding Ontario to be the child’s habitual residence, ordering the immediate return of the child to the mother in Ontario and granting the mother temporary decision-making responsibility for the child. Costs of the motion and attendance were reserved.
[7] The mother served the father with the application materials and the court order on January 16, 2025. The father had 60 days to serve and file an Answer/Claim as he resided outside of Canada and the United States.
[8] The mother’s motion returned before Justice Carolyn Jones on January 27, 2025. The father did not attend court. Justice Jones continued the terms of the January 13, 2025 order, with prejudice. She also reserved the costs of the motion and the court attendance.
[9] The father resisted the enforcement of the Ontario orders.
[10] On January 30, 2025, after a hearing at the Judicial Court of the District of Porta, Portugal, that court ordered that the child be returned to Canada.
[11] The mother and the child returned to Canada on January 31, 2025.
[12] The next court appearance in this matter was on February 12, 2025. The father did not attend. The case was adjourned until March 24, 2025, as the time limit had not expired for him to serve and file his Answer/Claim. Costs of that appearance were reserved.
[13] The father did not serve and file an Answer/Claim by March 17, 2025, being the 60-day deadline. He did not contact the mother before that date, either personally or through counsel, to seek a filing extension.
[14] The mother served and filed a Form 23C affidavit for an uncontested hearing.
[15] The father then retained counsel who contacted the mother’s counsel on the weekend of March 22-23, 2025, informing her of his retainer. He sought a filing extension and an adjournment of the March 24, 2025 court attendance. The mother did not consent to this.
[16] At the court appearance on March 24, 2025, the father’s counsel sought an adjournment and a filing extension. He submitted that the father wanted to claim primary residence and decision-making responsibility for the child.
[17] After submissions, the court granted the father an extension, until April 24, 2025, to serve and file his Answer/Claim, Form 35.1 parenting affidavit, financial statement and disclosure required by the Automatic Order. It also adjourned the matter for a case conference. However, the court granted the request on terms, including terms that the father pay the mother temporary child support of $723 each month, starting on January 1, 2025, based on an imputed annual income to him of $77,595, and it would hear costs submissions.
[18] Both parties made written costs submissions. On March 26, 2025, the court ordered the father to pay the mother’s costs thrown away of $4,500. Costs were ordered due and payable by April 7, 2025. See: Magalhães de Araújo v. Torres, 2025 ONCJ 164.
[19] The father did not file his responding material by the April 24, 2025 deadline. He brought a Form 14B motion seeking another filing extension. This was opposed by the mother.
[20] The father filed a second Form 14B motion, on consent, adjourning the return date to June 12, 2025.
[21] The father filed a Form 4 Notice of Change of Representation on May 13, 2024. He indicated he would represent himself.
[22] The father did not attend court on June 12, 2025. The court heard further submissions on the father’s Form 14B motion. The mother asked the court to dismiss the motion.
[23] The court granted the father another extension until June 30, 2025 to serve and file his responding material, on terms. The father had not paid anything towards the prior child support or costs orders. The court required him to pay the mother $12,500 towards outstanding support and costs, as a pre-condition to filing his material. The court also ordered him to pay $2,000 costs for the Form 14B motions and made the return date peremptory on him.
[24] The matter returned to court on July 7, 2025. Again, the father did not attend. He had not filed his responding material. He had not paid anything towards the costs or child support orders. The court found him in default.
[25] The court proceeded with the uncontested hearing on July 7, 2025.
Part Three – General costs principles
[26] The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 set out that modern costs rules are designed to foster four fundamental purposes:
(1) to partially indemnify successful litigants;
(2) to encourage settlement;
(3) to discourage and sanction inappropriate behaviour by litigants; and
(4) to ensure that cases are dealt with justly under subrule 2(2).
[27] Costs can be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice. See: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, para 25.
[28] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.
[29] An award of costs is subject to the factors listed in subrule 24(14), subrule 24(7) pertaining to unreasonable conduct of a successful party, subrule 24(10) pertaining to bad faith, subrule 24(12) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party. See: Berta v. Berta, 2015 ONCA 918, para 94.
Part Four – Bad faith
4.1 Legal considerations
[30] The mother seeks her full recovery costs pursuant to subrule 24(10) that states:
Bad faith
24(10) If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.
[31] Subrule 24(10) requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made. See: Cozzi v. Smith, 2015 ONSC 3626; Scipione v. Del Sordo, 2015 ONSC 14971.
[32] There is a difference between bad faith and unreasonable behaviour. The essence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose. It is done knowingly and intentionally. See: S.(C.) v. S. (M.), 2007 ONSC 20279, 38 R.F.L. (6th) 315 (Ont. SCJ).
[33] Bad faith is not synonymous with bad judgment or negligence; rather, it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. Bad faith involves intentional duplicity, obstruction or obfuscation. See: Scipione, supra.
[34] A bad faith finding on some specific issue does not necessarily have a spill-over effect to other issues. See: Hunt v. Hunt, 2001 O.J. No. 5111 (SCJ); Kardaras v. Kardaras, 2008 ONCJ 616; R.A.K. v. M.Z., 2024 ONCJ 2.
[35] An award of full recovery costs does not necessarily mean that the applicant will receive the full amount of costs claimed. The claim must still be reasonable and proportionate. It must also reflect, to some extent, the reasonable expectations of the paying party. See: Tintinalli v. Tutolo, 2022 ONSC 6276.
4.2 Analysis
[36] The court finds that the father acted in bad faith by wrongfully retaining the child in Portugal and by not complying with this court’s order to return the child to Ontario. The mother incurred considerable expense to obtain the child’s return through this court, the Portugal court and with the assistance of the Portugal police.
[37] The court repeats what it wrote at paragraph 24 of Brown v. Pulley, 2015 ONCJ 238:
…Even more importantly, the court needs to send a strong message to parents that resorting to self-help and wrongfully removing children from their habitual residence is unacceptable. There will be significant costs consequences for doing this.
[38] This case is comparable to Mar v. Wu Wu, 2023 ONSC 1795, where Justice Andrea Himel made a finding of bad faith against a father who had wrongly retained the child in Mexico, requiring the mother to obtain the assistance of the Canadian and Mexican courts to secure the child’s return to Ontario.[^1]
[39] However, this finding of bad faith does not extend to the entire case. Unreasonable conduct does not necessarily equate to bad faith. And just because a party is found in default does not mean they have acted in bad faith. Much more is required. The high threshold required to establish bad faith was not met once the child was returned to Canada on January 31, 2025.
[40] The court will order full recovery costs to the mother for obtaining and enforcing the order to have the child returned to Canada. She will receive her costs for the balance of the case, as she was successful on all issues. The father did not rebut the presumption that the mother is entitled to her costs.[^2]
Part Five – Costs - Fees
5.1 Legal considerations
[41] Subrule 24(14) reads as follows:
24(14) In setting the amount of costs, the court shall consider,
a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:
(i) each party’s behaviour,
(ii) the time spent by each party,
(iii) any written offers to settle including offers that do not meet the requirements of rule 18,
(iv) any legal fees, including the number of lawyers and their rates,
(v) any expert witness fees, including the number of experts and their rates,
(vi) any other expenses properly paid or payable; and
b) any other relevant matter.
[42] The reasonableness of the parties’ positions, arguments and conduct are relevant to the issue of costs. An important function of costs is to uphold the integrity of our justice system. Costs are one way of ensuring the resources of the justice system are not unduly drained by clearly unreasonable claims and ill-advised litigation strategy. See: Weber v. Weber, 2020 ONSC 6855.
[43] The court may award elevated costs where one party's conduct has been unreasonable. See: Barrett v. Watson, 2024 ONSC 1118; Houston v. Houston, 2025 ONSC 2824.
[44] Conduct which unduly complicates or unduly lengthens and increases the cost of a proceeding constitutes unreasonable conduct under subrule 24(7). See: Goldstein v. Walsh, 2019 ONSC 3174; Hutchinson v. Peever, 2021 ONSC 4587; Jackson v. Mayerle, 2016 ONSC 1556.
[45] In considering the reasonableness of the parties’ conduct, the judge deciding costs should also address their mind to whether they have complied with court orders and the Rules during the proceeding. Rules 1(8)(a) and 1(8.1) provide that if a person fails to obey an order in a case or a related case or with the Rules, the court may deal with the failure by making an order for costs. See: M.A.B. v. M.G.C., 2023 ONSC 3748.
[46] The court should also take into consideration the ability of a party to pay costs. See: MacDonald v. Magel, 2003 ONCA 18880, 67 O.R. (3d) 181 (Ont. C.A.). Ability to pay will be less of a mitigating factor when the impecunious party has acted unreasonably, or where their claim was illogical or without merit. See: Gobin v. Gobin, 2009 ONCJ 278; D.D. and F.D. v. H.G., 2020 ONSC 1919.
[47] In determining the appropriate quantum, the court should consider the amount that the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation. See: Arthur v. Arthur, 2019 ONSC 938.
5.2 Analysis
[48] The mother acted reasonably during this case.
[49] The father acted in bad faith by wrongfully retaining the child in Portugal. He also acted unreasonably by:
a) Failing to file any financial disclosure despite participating in this case.
b) Failing to comply with the court’s orders, including orders to return the child to Ontario, to pay temporary child support, to provide the mother with financial disclosure and to pay two costs orders.
c) Failing to file responding materials despite seeking and obtaining two filing extensions.
[50] The issues in this case were important to the parties. They were made more complex and difficult because of the father’s conduct. The mother had to incur additional legal expenses to enforce the court’s order to return the child to her in Ontario.
[51] The hourly rate of $525 for the mother’s counsel is reasonable for a 1992 call to the bar.
[52] The mother did not claim costs for steps where costs were previously ordered.
[53] The court reviewed the mother’s bill of costs. The time claimed to prepare the court materials, attend at court, obtain orders for the return of the child to Canada, and to enforce the court’s orders was reasonable and proportionate. The time claimed for the balance of the work on the case was high, as the matter was uncontested and the mother had already been awarded costs for preparing for an uncontested hearing to take place on March 24, 2025.
Part Six – Costs - Disbursements
[54] An interesting aspect of the mother’s costs submissions is that she is seeking recovery of airfare costs she incurred to travel to Portugal to retrieve the child and return to Canada. These costs totalled $1,672.26.
[55] In cases started under the Hague Convention, airfare costs to retrieve a child who has either been wrongfully retained outside of Canada or wrongfully removed from Canada can be recovered under Article 26. Article 26 reads as follows:
Article 26
Each Central Authority shall bear its own costs in applying this Convention.
Central Authorities and other public services of Contracting States shall not impose any charges in relation to applications submitted under this Convention. In particular, they may not require any payment from the applicant towards the costs and expenses of the proceedings or, where applicable, those arising from the participation of legal counsel or advisers. However, they may require the payment of the expenses incurred or to be incurred in implementing the return of the child.
However, a Contracting State may, by making a reservation in accordance with Article 42, declare that it shall not be bound to assume any costs referred to in the preceding paragraph resulting from the participation of legal counsel or advisers or from court proceedings, except insofar as those costs may be covered by its system of legal aid and advice.
Upon ordering the return of a child or issuing an order concerning rights of access under this Convention, the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child, or who prevented the exercise of rights of access, to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child.
[56] In Lawrence v. Lawrence, 2017 ONCJ 431, Justice Carole Curtis ordered Article 26 costs to a parent to retrieve a child who had been wrongfully removed to Canada by the other parent. Justice Curtis set out the following:
a) Article 26 of the Hague Convention has three objectives:
i) to compensate the left behind parent for costs incurred in locating and recovering the abducted child;
ii) to punish an abducting parent; and
iii) to deter other parents from attempting to abduct their children.
b) The objectives of the Hague Convention would be defeated if the left behind parent were required to fund the process of locating the abducted child and obtaining that child's return.
c) The Convention anticipates that all necessary expenses incurred to secure the children's return will be shifted to the abductor, both to restore the applicant to the financial position he would have been in had there been no removal or retention, as well as to deter such conduct from happening in the first place:
[57] Here, the mother did not obtain the return of the child through the Hague Convention.[^3] Instead, she obtained orders from this court for the return of the child to Ontario and an order from the court in Portugal enforcing those orders. Does this mean she is not entitled to her travel costs because her claim for costs is under the Family Law Rules and not under Article 26 of the Hague Convention?
[58] Paragraph (vi) of subrule 24(14)(a) of the Family Law Rules authorizes the court to award “any other expenses properly paid or payable”. The court finds it is appropriate in these circumstances to liberally interpret this provision to include payment of the mother’s and the child’s airfare expenses for the following reasons:
a) The steps the mother took in this case to obtain the return of her child were analogous to the steps she would have taken under the Hague Convention.
b) Subsection 19(c) of the Children’s Law Reform Act states that one of the legislation’s purposes is to discourage the abduction of children as an alternative to the determination of decision-making responsibility by due process. This objective would be undermined if the left behind parent was required to fund the process of locating the abducted child and obtaining that child's return in non-Hague Convention cases.
c) The expenses were reasonable and necessary to complete the enforcement of orders made by this court for the return of the child to Ontario.
d) The court wants to deter such conduct from happening. An expansive interpretation of the costs rule is appropriate to achieve this objective.
[59] The balance of the disbursements claimed by the mother were reasonable.
Part Seven – Other costs considerations and the order
[60] The father can afford to pay the costs that will be ordered. He was able to retain counsel in both Canada and Portugal. The court imputed his annual income at $85,000.
[61] The father should have reasonably expected to pay the costs that will be ordered.
[62] The court orders that the father shall pay the mother costs in the amount of $18,965.55, inclusive of fees, disbursements and HST. This is broken down as follows:
a) The amount of $10,000, inclusive of fees and HST, representing her full recovery costs required to have the child returned to her in Ontario.
b) The amount of $7,000, inclusive of fees and HST, for the balance of her fees for this case. This is in addition to the costs orders of $4,500 and $2,000, previously made against the father.
c) $1,965.55 for her disbursements, inclusive of $1,672.26 for her airfare costs, and HST.
[63] The costs are due and payable immediately.
Released: July 28, 2025
Justice Stanley B. Sherr
[^1]: The one difference is that the Mar case was brought under the Convention on the Civil Aspects of International Child Abduction (Hague Convention).
[^2]: See: Subrule 24(3).
[^3]: The mother obtained permission from the Central Authority to start a Hague application. However, she did not have to follow through with this application once the child was returned to Canada.