Court File and Parties
Court File No.: FS-25-00000073-0000 Date: 2025-09-26 Superior Court of Justice – Ontario 491 Steeles Avenue East, Milton ON L9T 1Y7
Re: Christopher Michael Wright, Applicant And: Robin Elizabeth Tolchard, Respondent
Before: Kurz J.
Counsel:
- J. Brown Mackenzie, for the Applicant
- Robin Tolchard, Self-Represented
Heard: September 19, 2025, videoconference
Endorsement
Introduction
[1] This is an urgent motion by the Applicant Father (the "Father") for, among other relief, the return of the parties' seven-year-old child, C. (or the "child") to his primary care pursuant to the order of Justice E. ten Cate of May 6, 2024. The child has been withheld by the Respondent mother (the "Mother") since September 1, 2025. The Father was seeking other relief, including the requirement that the Mother's parenting time be supervised at a supervised parenting centre for the following three months.
[2] As a result of the Mother's withholding of C. he has not yet attended school this term, has missed a dental appointment and been out of the Father's care for 18 days.
[3] During the course of argument of the motion, the Mother ultimately agreed to return the child to the Father and did so. However, it remains necessary to consider the remainder of the relief sought by the Father.
The Mother's Participation in this Motion
[4] The Mother is self-represented in this motion as she was in the proceedings set out below. She was first informed about the impending argument of this motion on September 11, 2025 when she was served by email with the endorsement of Chang J. of September 10, 2025 along with the notice of motion and the Father's first affidavit. In his endorsement, Chang J. found that this motion is urgent and would be added to the September 18, 2025 triage court list. On that date I also noted the urgency of the matter, particularly in light of the clear breach of the ten Cate J. parenting order, the fact that the child had not been to school this term and had missed a dental appointment. Agreeing with the finding of urgency, I put the matter over to myself the following day, on September 19, 2025.
[5] On September 19, 2025, the Mother attended at the motion, which was conducted by Zoom. She had not filed any materials. She asked for time to do so. I asked her to explain her rationale for withholding the child despite the clear court order of ten Cate J. She offered the justifications set out below, none of which related to the child's best interests. Considering the urgency of the matter, I chose to proceed. During the course of discussions, I managed to persuade the Mother to return the child to the Father. After some delay, the child was returned to the Father.
Brief History of this Litigation
[6] The parties were engaged in lengthy and protracted legal proceedings regarding parenting of C. and support.
[7] Orders were granted by Hebner J. on June 18, 2020 and by Cook J. on June 9, 2021, which granted the Father specified parenting time with the child. Those orders were often honoured in the breach.
[8] The Mother has a history of disobeying parenting court orders. Most troublingly, that history includes withholding the child from the Father, contrary to court orders. She did so on July 8, 2020, for one overnight, for two months between July 16, 2022 and for over a full year between December 4, 2022 and December 22, 2023.
[9] On August 3, 2023 Tranquilli J. found the Mother in contempt of four separate court orders. She imposed a fine as well as an additional fine for each day that the child was not returned. Tranquilli J. also struck the Mother's pleadings. Nonetheless, Tranquilli J. offered the Mother the opportunity to fully participate at trial if she complied with all past, present and future court orders pending trial. The Mother failed to meet that requirement.
[10] On December 23, 2023 Cook J. ordered the reinstatement of the Father's parenting time, in accord with the order of McArthur J. of June 9, 2023. The Cook J. order included a police enforcement clause. Only after that order was made was the Father's parenting time restored. This came after the Mother had withheld the child from the Father for over a year, since the previous December 4, 2022, in defiance of the McArthur J. order.
[11] The Mother attempted to appeal the Tranquilli J. order and to have it stayed pending appeal. But she did so tardily, after the appeal period had expired. She moved before the Court of Appeal for Ontario for an extension of the time to bring her appeal and to have the Tranquilli J. order stayed. In an unreported decision dated January 12, 2024, Miller J.A. of the Court of Appeal for Ontario dismissed the Mother's motion. He found little merit to the appeal, finding that the grounds advanced before him were "weak". He also noted that the Mother had the opportunity to reinstate her trial rights in a motion scheduled to be heard five days later. Absent leave to extend the time for appeal, there was no right to a stay pending a non-existent appeal.
[12] Regarding the Mother's rationale for denying parenting time to the father, Miller J.A. wrote:
Tranquilli J. found the moving party [i.e. the Mother] to be in contempt of four orders addressing the responding party's parenting time with the child of their relationship. The moving party had, until very recently, repeatedly engaged in self-help by unilaterally withholding the child from the responding party, including denying the responding party any parenting time with their son – in person or virtually – for over a year. She only relented after the responding party obtained a further order for police enforcement of his parenting time.
The moving party firmly maintains that the responding party has committed repeated and severe sexual abuse of their child. The allegations have been investigated, repeatedly, by each of the Ontario Provincial Police, a clinician appointed by the Office of the Children's Lawyer, and the Children's Aid Society (the "CAS"). The parties' son has been medically examined several times, including by a specialist physician. All these investigations have concluded that the allegations are unfounded. The moving party maintains her belief that her child is in danger and believes these institutions have each failed in their duty to protect him. Several judges of the Superior Court have concluded that her belief is unreasonable.
[13] On January 17, 2024 MacFarlane J. dismissed the Mother's motion to have her participation rights at trial restored.
[14] As a result, ten Cate J. conducted the uncontested trial ordered by Tranquilli J. While she had the discretion to do so, ten Cate J. chose not to grant the Mother leave to participate in the trial. She explained her reasoning at paras. 4-6 of her trial decision of May 6, 2024, reported at 2024 ONSC 2659, as follows:
4 In exercising my discretion [to deny the respondent Mother trial participation rights], I considered the investigations and findings of the Children's Aid Society, the Ontario Provincial Police, Halton Regional Police, and a clinician retained by the Office of the Children's Lawyer (OCL) which found that there was no evidence of sexual or physical abuse by the applicant. Those investigations failed to convince the respondent that there is no evidence supporting her allegations that the applicant sexually or physically abused their son. Despite their collective conclusion, the respondent availed herself of self-help remedies in violation of various orders of this court, detailed below.
5 I also considered that the respondent declined to continue her participation in the OCL investigation process, which resulted in an incomplete report and deprived this court of the clinician's final recommendations.
6 I find that the respondent's evidence and submissions at trial would have been founded on an unshakeable and fundamental misconception and, therefore, would not have been of assistance to me in deciding the main issues in this trial which are responsibility for decision-making and the child's primary residence.
[15] At trial, ten Cate J. was presented with voluminous evidence. As she wrote at para. 8:
Other than the applicant, five witnesses testified, and fifty-two exhibits were entered into evidence. The applicant also filed affidavits from himself, Detective Julie Powers of the Halton Regional Police Service, John Butt (clinician retained by the OCL), Whitney Moffatt of the Halton Children's Aid Society, and Stephanie Flood of the Huron-Perth Children's Aid Society.
[16] In her decision, ten Cate J. reversed C.'s parenting arrangements, awarding primary parenting rights to the Father. Those rights were subject to alternate weekend and other holiday in-person parenting for the Mother, along with virtual parenting time to each parent when the child is with the other parent. The Father was further granted "primary responsibility for decision-making regarding the child's welfare" and final say following consultation with the Mother.
[17] ten Cate J. also ordered the Mother to pay 19% of s. 7 special and extraordinary expenses under the Child Support Guidelines. These figures were based on a finding that the Father's annual income was $181,400.00 while that of the Mother was $42,692.00.
[18] ten Cate J. made a specific finding that the Mother unnecessarily complicated and prolonged the parenting proceedings, forcing the Father to repeatedly pursue redress through the courts at great cost. In part because of that finding, ten Cate J. awarded the father costs of $228,302.21 against the Mother. Those costs were only calculated on a partial indemnity scale, even though ten Cate J. stated that the Mother's behaviour would ordinarily attract an amount closer to full recovery costs of $341,267.67. The higher figure was reduced because the Mother was of modest means.
[19] The trial costs award was in addition to the net figure of $86,607.00 owing from the financial penalties imposed by Tranquilli J., ($94,500.00), net of a $7,893.00 retroactive adjustment of child support owing to the Mother by the Father.
[20] In her supplemental costs endorsement of March 28, 2025, 2025 ONSC 1945, ten Cate J. noted that the Mother had yet to pay any of the $44,390 costs awarded against her prior to the trial or the $228,302.21 trial costs. In fact, on the date that the ten Cate J. decision was released, the Mother filed a Notice of bankruptcy, listing the trial costs as her largest liability.
[21] As a result of the bankruptcy, ten Cate J. declared that 75% of the trial costs award, or $171,226.65 are to be considered a debt in relation to the support of a child living apart from the Respondent, pursuant to section 178(1)(c) of the Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3. She further found them to be enforceable under by the Family Responsibility Office under the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31.
Current Concerns with the Mother Withholding the Child and Other Behaviour
[22] With the exceptions cited below, the Father has exercised his primary parenting time with the child since the time of the ten Cate J. order, subject to the Mother's alternate weekend time.
[23] On August 23, 2025 the Mother sent a text to the Father, attaching a photograph of her chalkboard and a message that she had "put this on" the chalkboard. The photograph showed that she had written the following words on the chalkboard: "U R NOT CRAZY".
[24] The Father had planned to travel with C. to visit his family members in San Antonio, Texas between August 19 to August 26, 2025. This was to be his first such trip with the child. He was entitled to do so under the ten Cate J. order. The Mother ignored his request to sign a travel consent until August 9, 2025, ten days before the flight was due to take off. On that date, she had made several demands of him before she would sign it, not all of which related to the trip. But he did comply with her two travel-related demands – he supplied proof of his travel insurance and a proposal for a video call schedule while he was away. Nonetheless, the Mother refused to sign the consent.
[25] The Mother then withheld the child from the Father following a weekend parenting visit, until Monday August 18, 2025.
[26] Nonetheless, the Father was able to travel on August 19, 2025, using the ten Cate J. order. While the Father was waiting to board a flight at Pearson Airport for the first leg of his trip with the child, he was contacted by the Halton Regional Police. After he explained the situation, he was allowed to proceed. Then while he was waiting to change planes in Dallas for the San Antonio leg of the trip, he was contacted by the Huron/Perth OPP. He was told that the Mother had reported that the Father had left Ontario with the child, with no intention of returning. The Father was allowed to proceed when he confirmed his return flight.
[27] Following the Father's return from Texas with the child, the Mother again withheld the child; this time for the eighteen days commencing September 1, 2025 and ending during the course of argument of this motion.
[28] On Thursday August 28, 2025 the Mother texted the Father to confirm the date and time of their parenting exchange the following Monday September 1, 2025 at 3:30. She was to have the child over the Labour Day weekend. Her time was extended due to the long weekend.
[29] Two days later, on August 30, 2025 the Mother texted the Father to announce that she would not be returning the child the following Monday after all. She continued "[p]lease have your counsel contact me as soon as possible Monday if they are still [on] record to get things sorted out."
[30] The Father's lawyer, Ms. Brown, texted the Mother later that day, despite the long weekend. Ms. Brown indicated that the Father was not consenting to the withholding in any event. Nonetheless, she invited the Mother to list her grievances. The Mother responded that Ms. Brown had had her list of grievances for some time. The only rationale she offered for withholding the child was "I have yet to receive any responses of required documents". As set out below, the Mother was referring to certain demands she had made of the Father for financial disclosure. Ms. Brown again asked for an exhaustive list of whatever she alleged was outstanding but made it clear that whatever was on that list, it did not justify withholding the child.
[31] In the evening of September 2, 2025 the Mother responded to Ms. Brown asking for the Father to produce his income tax returns. The Father claims that he has already produced those documents. In this motion, I am not in a position to determine the extent of his compliance with his disclosure obligations.
[32] On September 3, 2025 Ms. Brown emailed the Mother, stating that the withholding of the child, in breach of an order, because she felt that she had not received the Father's tax returns was "egregious". She asked the Mother to confirm whether this was a misinterpretation of her position, as she stated the Father had produced those returns. Ms. Brown added that if the Mother disagreed with the Father's assertion, she had legal recourse, but that the solution was not to use C. as a pawn. Ms. Brown ended by appropriately recommending that the Mother obtain legal advice as soon as possible.
[33] While withholding the child, the Mother allowed the Father virtual parenting time three times per week until September 16, 2025. On that date, she withheld even virtual parenting time. Her response to the father's text asking whether he would have his virtual visit that day was "[c]ommunication only through counsel". She also refused to disclose the child's location.
[34] At some point the Father learned that on September 8, 2025 the Mother wrote to the principal of the child's private Christian school as follows:
Good afternoon
My name is Robn [sic] Tolchard and I am requesting some information about my son C. Tolchard-Wright's enrollment at John Knox. Could I please get confirmation of his school registration for 2025/2026 and for how many months payments have been made.
If you require any information from me please let me know and thank you very much in advance. Have a great afternoon!
[35] The principal responded that he could confirm C.'s registration at the school but had not yet attended this school year. He added that "[d]ue to our privacy policy, I am unable to provide you with any financial information unless Chris provides permission to do so."
[36] The Mother responded by sending the principal a copy of the Father's sworn financial statement, which she stated shows his debts. She added "I am sorry but we cannot afford your school and another plan is required for this year."
Argument of this Motion
[37] As stated above, I did not grant the Mother an adjournment of this motion because of its urgency, based on the two affidavits offered by the Father and the notice provided to the Mother that this motion would be forthcoming.
[38] After Ms. Brown offered relatively brief submissions, I asked the Mother whether she was now willing to return the child. Her answer was 'no". I then asked where the child was at that time. The Mother advised that the child was at her parents' home, two blocks away.
[39] I followed up by asking her, despite the absence of sworn materials, to explain the rationale for withholding the child. She offered the following justifications:
a. The first reason she offered was admittedly "financial". She was attempting to obtain financial information from the Father. The parties were supposed to exchange financials on June 1, 2025 but she did not receive the financial documents. Instead, she received unsigned tax documents with Notices of assessment missing.
b. When she travelled with the child, the Mother had to have a travel consent signed by the Father. Yet he did not have to do so, presumably during the trip to Texas. That situation, the Mother asserted is "unbalanced". It placed her in "a scary position".
c. The Mother does not know where the Father works, if he even has a job.
d. The Father does not have the money for private schools or nannies. She does not want to be required to pay for them.
[40] Tellingly, none of the justifications which the Mother offered arose from any complaint regarding the Father's parenting of the child. Three of four reasons were financial. The other related to what she perceived as unfairness regarding the Father's ability to travel when she had withheld her consent, while she needed his consent to travel with the child.
[41] Clearly the Mother had no legal or factual justification for withholding the child. After much discussion, I was able to persuade the Mother to have her parents return the child to her and to have her then return him to the Father, who was waiting near her home. I made it clear that I was going to order the return and that would be best for all, particularly the child, to have the return take place voluntarily and without police involvement.
[42] Ultimately, the Mother acquiesced. However, after the child was returned to her, she claimed that the seven-year-old child refused to return to his Father and that she could not force him to do so. After further discussion, the Father came into her door and took the child into his care.
[43] Thus, it is not necessary to order the return of the child to the Father's care or police enforcement.
Interim Variation of a Final Parenting Order
[44] Currently there is a final order of ten Cate J. which call for the Mother's parenting time to proceed without supervision. However, the Father argues that the ten Cate J. order should be varied on an interim basis. He makes that argument in light of the Mother's withholding of the child from him, her series of thin justifications for the withholding, her conduct regarding his trip to Texas, as well as his concerns about her mental health. He asks me to consider the Mother's recent conduct in light of her history of withholding the child from him and breaching court orders.
[45] In Epshtein v. Verzberger-Epshtein, 2021 ONSC 7694, I concluded at para. 121 that the proper test for an interim variation of a final parenting order requires:
a. A strong prima facie proof that there is a material change in circumstances regarding a parenting issue;
b. The parenting issue must be an important one;
c. The circumstances arising since the final order must be urgent or pressing; and,
d. The moving party must then prove that the remedy sought is in the child's best interests.
[46] Here, I find that the test is met.
[47] The bar of a strong prima facie case is a very high one. It has been interpreted as "a strong case with a high although not absolutely assured likelihood of success based on the material presently before the court": Loops, L.L.C. v. Maxill Inc., 2020 ONSC 5438 (Div. Ct.), citing Quizno's Canada Restaurant Corporation v. 1450987 Ontario Corp., para. 42.
[48] Even with so high a threshold, the serious issue portion of the test has been met in this case. Based on the evidence above, it is clear that the steps which led to the ten Cate J. final order have not convinced the Mother to comply with parenting orders of this court. She tried to block the Father's proper trip to Texas with the child, involved the police and then arbitrarily withheld the child for 18 days. Even when this motion began, the Mother professed her unwillingness to comply with the ten Cate J. order.
[49] Further, the Mother's justifications for withholding C. do not even overlap with the child's best interests. In other words, the Mother is increasingly ungovernable regarding parenting orders, even in the face of a final order. Further remedies are required to deal with the withholding conduct which has followed the ten Cate J. order.
[50] There is no doubt that the parenting issue is an important one. It involves the withholding of a child contrary to a final order. That concern goes to the heart of the child's best interests.
[51] Chang J. has already found that the issue is urgent, a finding with which I concur.
[52] Thus, I must find a remedy which is in the child's best interests. For the reasons which follow, I find that a temporary and time-limited variation of the ten Cate J. order, requiring that the Mother's parenting time be supervised is in the child's best interests.
Supervised Parenting Time
[53] The parent seeking an order imposing supervised parenting time on the other parent bears the burden of establishing that supervision is necessary: W.H.C. v W.C.M.C., 2021 ONCJ 308, at para. 63. Further, the parent who seeks to reduce normal parenting time will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction: W.H.C., citing M.A. v. J.D., [2003] O.J. No. 2946 (OCJ).
[54] In M.A. B. v. M.G.C., 2022 ONSC 7207, at para. 189, Chappel J. offered a thorough synopsis of the law regarding the imposition of a supervised parenting order, including the factors to consider before granting such an order, as follows:
The imposition of supervision on a parent's time with a child materially impacts on the opportunity for meaningful parenting time and the quality of that time. Having regard for the principle set out in section 24(6) of the CLRA that a child should have as much parenting time with each parent as is consistent with their best interests, there must be compelling reasons and evidence in support of the need for supervision.
However, it is important to avoid a doctrinal approach to the issue of supervised parenting time, and to avoid establishing principles that may hover dangerously close to creating presumptions. This is because the best interests analysis is a highly fact-driven and contextualized undertaking that must always revolve around the particular characteristics and needs of the child in question.
In addition, consideration of the need for supervision of parenting time must take into account Society's developing awareness of social issues that impact on the safety and overall well-being of children, including the impact of all forms of family violence on children.
Supervision of parenting time or exchanges may be appropriate where it is necessary to protect children from risk of harm, including exposure to family conflict. In determining this issue, the court should consider all relevant factors, including:
a) Whether there is a history of family violence as that term is broadly defined in the CLRA, towards either the child or a family member;
b) Whether the parent has a history of anger management difficulties generally, or aggression towards other people;
c) Does the parent have a history of substance abuse issues, and if so, have they addressed those issues to the court's satisfaction, and how may those concerns impact the child?
d) Are there flight risk concerns respecting the parent?
e) Are there any concerns regarding the parent's overall physical, cognitive mental or emotional health functioning that render supervision appropriate for the safety and well-being of the child?
f) Has there been child protection intervention, or is there an ongoing child protection investigation, and if so, have the child protection professionals involved given any temporary or indefinite directions respecting supervision of the party's parenting time? If so, what are the grounds for such directions?
Supervised parenting time may also be in the child's best interests where the parent-child relationship has been severed or undermined for any reason, including alienation by the other party or a third party, illness, or geographical distance, and the evidence indicates that supervision by a third party would assist the child in re-establishing the relationship. In these circumstances, supervision may be a valuable tool in implementing a gradual step-up plan for parenting time.
In cases involving older children who are able to articulate their views and preferences, their expressed wish for supervision of parenting time should weigh very heavily in support of such relief.
Supervision of parenting time is often appropriate as a time-limited measure rather than a long-term solution. It represents a significant intrusion upon the parent-child relationship, and therefore its continued imposition must be justified.
However, supervision may be appropriate on an indefinite basis where the evidence suggests that the reasons for the order are unlikely to be addressed in the reasonably foreseeable future.
Where supervised parenting time is ordered, the court should also address whether there are any steps that the party could take to potentially move towards a more natural setting for their parenting time.
Finally, if the court concludes that supervision of parenting time is appropriate, it should also consider whether it can be carried out by family members or friends in a normal family setting rather than by a third party professional or agency. The decision respecting the appropriate form of supervision must be based on the child's overall best interests and not the other party's comfort level or personal preferences.
[55] Unfortunately, I see no alternative to supervised parenting in this case. Time and time again, including the eighteen days leading up to this motion, the Mother has chosen to withhold the child from his Father, contrary to court order. This pattern did not end with the ten Cate J. order. As the narrative above and the Mother's own comments to the court during the course of this motion disclose, her justifications, even if true, do not excuse her withholding the child from the Father.
[56] In other words, even if the Father has failed to provide all of the disclosure required by an order or the Child Support Guidelines, that failure does not warrant the Mother's self-help remedy of withholding the child from his primary caregiver. Rather, it shows a lack of judgment and a willingness to prioritize the Mother's view of her interests over those of the child.
[57] The Mother cannot be allowed to continue to use the child as a pawn in her attempts to force the Father to adhere to her financial demands. None of the concerns she raises are relevant to the child's best interests. But the manner in which she attempts to impose her will on the Father is clearly detrimental to those best interests. If the Mother continues to be ungovernable, her conduct will jeopardize her future role in parenting the child.
[58] In Arbitman v. Lee, 2021 ONSC 315, Monahan J., as he then was, plainly stated at para. 39 that; "[s]elf-help measures are to be discouraged, and resort to the courts for permission is indicated where a parent's right of access to children is to be restricted."
[59] In van Ruyven v. van Ruyven, 2021 ONSC 5963, I wrote of the mischief caused when a parent arrogates to him or herself the right to parenting self-help. I stated at para. 22:
A parent who engages in self-help tactics despite the best interests of the child will generally raise serious questions about their own parenting skills and judgment. In many cases, courts conclude manipulative, selfish or spiteful parents simply can't be entrusted with custodial authority they would likely abuse. Izyuk v. Bilousov (supra); Clement v. Clement, 2010 ONSC 1113 (SCJ).
[60] The only positive aspect of this whole episode is that the Mother was ultimately capable of being persuaded, albeit after some time during the course of this motion, to agree to return the child to his Father without the involvement of the police.
[61] That being said, I have no confidence that the Mother will forbear from finding another excuse to withhold the child again if she feels that she needs to place pressure on the Father or she finds some reason to disapprove of some aspect of his parenting.
[62] Thus, it is necessary to impose supervised parenting on the Mother for the next three months upon the following terms set out in the Father's draft Order, which I order:
On a temporary basis, the Respondent, Robin Elizabeth Tolchard's, parenting time with the child, C. Walker Tolchard-Wright, born December 18, 2017 ("C."), shall proceed on a supervised basis as follows:
a. The Respondent's parenting time shall occur every other weekend, on Saturday, for a period of up to three hours;
b. The Respondent's parenting time shall be supervised by Brayden Supervision Services and take place at their Oakville centre, or at a public place to be agreed upon by the parties in advance. If no agreement is reached, the visit will take place at the Oakville centre;
c. The parties shall complete the necessary intake forms/interviews within 3 days of the date of this Order;
d. The Respondent shall be responsible for any and all of Brayden Supervision Services' fees; and
e. The requirement for the Respondent's parenting time to be supervised shall be reviewable after three months or as otherwise at the discretion of the Honourable Court.
[63] At the end of three months, this motion shall return before me on a date convenient to both parties for the review set out above. At that time, I will determine whether the supervision may end.
Costs
[64] The Father requests full indemnity costs of $8,900 for this motion. He argues that:
- The issues in this motion are very important;
- The motion was absolutely necessary in order to return the child to him;
- The litigation in this matter has persisted for the life of the child;
- The Mother has a good idea of the costs to be expected in light of the history of litigation and the costs which have already been ordered against her;
- Nonetheless, the Mother has not paid anything towards the costs which she owes.
[65] The Mother's sole response to this costs request is that she cannot afford to pay any costs.
[66] The jurisdiction of this court to award costs arises from s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. That provision gives the court broad discretion to determine costs.
[67] As the Ontario Court of Appeal for Ontario noted in Serra v. Serra, 2009 ONCA 105, [2009] O.J. No. 432 (Ont. C.A.), at para. 8:
Modern costs rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants: Fong v. Chan (1999), 46 O.R. (3d) 330, at para. 22.
[68] A further factor is ensuring that cases are determined justly as required by subrules 2(2) – (5) of the Family Law Rules: Mattina v. Mattina, 2018 ONCA 867, at para. 10, citing Fong v. Chan (1999), 46 O.R. (3d) 330 (Ont. C.A.), at para. 22; Shute v. Shute, [2017] O.J. No. 4110 (O.N.C.J.) at para. 29.
[69] In Spadacini-Kelava v. Kelava, 2021 ONSC 2490, I considered the role of bad faith, as set out in former r. 24(8), now r. 24(10), in the determination of costs as follows at paras. 74 - 78:
74 Under r. 24(10), full indemnity costs are available when a party has been found to have acted in bad faith. That rule states that "[i]f 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." Nonetheless, any costs decision must be in accord with the underlying principles of proportionality and reasonableness (see C.A.M. v. D.M., at para. 41). Further, any application of r. 24(8) must apply to the part of the proceeding in which the party has acted in bad faith. If a party has acted in bad faith in regard to part of a proceeding, the imposition of full indemnity costs may apply to that part or all of the proceeding, as the facts may bear out.
75 In order to meet the definition of bad faith in r. 24(8), a litigant's conduct must fall far below the standard expected of parties to a proceeding. The misbehaviour must be deliberate and intended to harm, conceal or deceive. In S.(C) v. S.(C), [2007] O.J. No. 2164 (S.C.J.), Perkins, J. offered a thorough description of the behaviour required to meet the definition of the term, bad faith, as follows:
17 In order to come within the meaning of bad faith in subrule 24(8), behaviour must be shown to be carried out with intent to inflict financial or emotional harm on the other party or other persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court. A misguided but genuine intent to achieve the ostensible goal of the activity, without proof of intent to inflict harm, to conceal relevant information or to deceive, saves the activity from being found to be in bad faith. The requisite intent to harm, conceal or deceive does not have to be the person's sole or primary intent, but rather only a significant part of the person's intent. At some point, a party could be found to be acting in bad faith when their litigation conduct has run the costs up so high that they must be taken to know their behaviour is causing the other party major financial harm without justification.
76 That test was approved by the Court of Appeal for Ontario in Scalia v. Scalia, 2015 ONCA 492, where Epstein J.A., writing for the court, summarized the test at para. 68 as follows: "[i]n short, the essential components are intention to inflict harm or deceive." She added at para. 69 that the test for bad faith requires: "wrongdoing, dishonest purpose or moral iniquity".
77 Deliberate disobedience of a court order can be bad faith if that disobedience is intended to achieve an ulterior motive (Fatahi-Ghandehari v. Wilson, [2018] O.J. No. 460, at para. 39) or inflict financial harm (S.(C.) v. S.(M.), [2007] O.J. No. 2164 (S.C.J.)).
78 As Pazaratz J. wrote in Jackson v. Mayerle, at para. 56: "...Rule 24(8) requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made." Pazaratz J. was careful to distinguish bad faith from bad judgment, negligence, or unreasonable behaviour. Bad faith requires some element of conscious wrongdoing. As Pazaratz J. put it at paras. 58-61:
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...
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. The court can determine costs at a far higher level than those that there shall be full indemnity for only the piece of the litigation where bad faith was demonstrated.
To establish bad faith, the court must find some element of malice or intent to harm.
Bad faith can be established by the intentional failure to fulfill an agreement in order to achieve an ulterior motive, or an intentional breach of court order with a view to achieving another purpose.
[citations omitted]
[70] Here, I find that the Mother's deliberate breach of the order of ten Cate J was in bad faith. It forms part of her pattern of deliberate disobedience of court orders, which even led to a contempt fining and penalty. The Mother withheld the child for ulterior motives, including pressuring the Father regarding financial issues. Subrule 24(10) applies.
[71] In addition, for reasons set out below, I reject the Mother's argument that her financial circumstances (as ten Cate J. found, above, her income at the time of trial was $42,692.00 per year) excuse her from the costs consequences of her conduct.
[72] The right to bring or respond to a case does not grant either party a license to litigate in a manner which ignores the consequence of that litigation. In Heuss v. Surkos, 2004 ONCJ 141 (Ont.C.J.), at para. 20, Spence J. discussed the need for prudence in conducting potentially costly litigation, writing:
Parties to litigation must understand that court proceedings are expensive, time-consuming and stressful for all concerned. They are not designed to give individual litigants a forum for carrying on in whatever manner they may choose, oblivious to the impact of that conduct on the other side and, perhaps most importantly for the purposes of this case, oblivious to the mounting costs of the litigation. Matrimonial litigation is an occasion for sober consideration and thoughtfulness rather than intemperate behaviour.
[73] As I wrote in Spadacini-Kelava v. Kelava at para. 81:
Limited financial means cannot be used as a "get-out-jail-free" pass for an unreasonable party. They cannot, as Chappel J. put it in Thompson v. Drummond, 2018 ONSC 4762, at para. 22, litigate "without regard or concern for potential costs consequences at the end of the line. A party's limited financial means will be accorded less weight if the court finds that they acted unreasonably". The comments of Spence J. in Heuss v. Surkos, cited above, that parties may not litigate oblivious to the impact of their conduct, are particularly apposite to this point.
[74] Here, having reviewed Ms. Brown's bill of costs, I find that the request for full recovery costs of $8,900 is fair, reasonable and proportionate in the circumstances. It is in accord with what should be the Mother's reasonable expectations in light of previous litigation and costs awards. Thus, I order that the Mother pay costs of $8,900 to the Father.
[75] For the reasons given by ten Cate J. in her supplemental costs endorsement, cited above, I find that this costs award shall be considered a debt in relation to the support of a child living apart from the Respondent, pursuant to section 178(1)(c) of the Bankruptcy and Insolvency Act. It shall also be enforced by the Family Responsibility Office under the Family Responsibility and Support Arrears Enforcement Act, 1996.
Kurz J.
Date: September 26, 2025
Footnotes
[1] The Children's Law Reform Act, R.S.O. 1990, c. C-12, the applicable statute for the determination of parenting orders in this case