A.M. v. S.M., 2026 ONSC 1609

Court File and Parties

Citation: A.M. v. S.M., 2026 ONSC 1609 Court File No.: FS-24-1229 (Stratford) Date: 2026-03-17

Ontario Superior Court of Justice Family Court

Between: A.M., Applicant

• and - S.M., Respondent

Counsel: Cynthia MacKenzie, for the Applicant Jenn McMillan, for the Respondent

Heard: February 18, 2026

Before: Moser J.

Reasons for Decision

Introduction

1This motion addresses several requests arising from an ongoing family law dispute.

In oral reasons, I limited the scope of this motion to the following three issues:

1. The Applicant’s motion for an order requesting the involvement of the Ontario Children’s Lawyer (“OCL”) either as counsel or to conduct a s. 112 assessment regarding the child of the marriage, C. M.M., born March 20, 2013, pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”);

2. The Respondent’s motion for an order for security for costs;

3. The Respondent’s motion for an order requiring the Applicant to undergo a mental health assessment under s. 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), or s. 105 of the CJA.

2The court did not hear the remaining issues raised in the Applicant’s motion to change, including parenting time, decision-making authority and spousal support. Those issues will be addressed at a later date.

Background

3The Applicant and Respondent married in 2004. They had C. in 2013 and separated in 2020. The Applicant was C.’s primary caregiver until her incarceration in 2022. Since that time, C. has resided with the Respondent and his wife.

4I will not repeat the earlier background of this family matter outlined in DeWolfe J.’s reasons dated November 29, 2023. Following that hearing, DeWolfe J. granted the Respondent sole decision-making authority and primary parenting time. The court directed that spousal support not be considered until six months after the Applicant’s release from prison. The court also permitted the Respondent to relocate from Nova Scotia.

5Pursuant to that order, the Respondent relocated to Stratford, Ontario, in August 2024, just before the new school year. The Applicant appealed DeWolfe J.’s order and sought a stay pending appeal. The Nova Scotia Court of Appeal dismissed both the stay and the appeal. The Court of Appeal ordered the Applicant to pay a total of $3,500 in costs for both proceedings. The Applicant has not paid these costs orders.

6In October 2024, the Applicant moved to Stratford to be closer to C. On October 17, 2024, the Applicant filed a motion to change in Ontario regarding parenting time, decision-making and spousal support.

7The Applicant had C. for March Break in 2025. On the Monday following March Break, C. told her school that she would not return to live with the Respondent. Police and the Children’s Aid Society (“CAS”) became involved. C. made allegations against the Respondent and his wife. Authorities investigated those allegations and found them to be unsubstantiated. Following March Break, the Respondent restricted the Applicant’s visits for a period of time.

8After a court hearing before Dube J. in July 2025, the Respondent agreed that the Applicant could have parenting time with C. for a two-week vacation to Nova Scotia. The court warned the Applicant of both cost consequences and legal consequences if she failed to return C. as required. The evidence suggests that the Applicant planned to move to Nova Scotia, as she had ended her lease in Stratford before leaving for “vacation”.

9Once she arrived in Nova Scotia, the Applicant brought a motion that substantially mirrored the motion to change in Ontario. She filed her motion materials during the two-week “vacation” seeking primary residence, decision-making and parenting time. In that motion, the Applicant claimed that she habitually resided in Nova Scotia and that C. resided with her.

10The Applicant did not return C. on July 12, 2025. The Respondent reported this to the Stratford Police, police agencies in Nova Scotia and child welfare agencies in both provinces. Moore J. heard an urgent motion and granted an apprehension order. The court warned the Applicant of the consequences of failing to bring C. to the airport at the required date and time.

11The Applicant did not bring C. to the airport at the required time. Police assistance was required to obtain custody of C.

12C. again made allegations against the Respondent and his wife. Police investigated the allegations and found them to be unsubstantiated. After Renee Wilson from Nova Scotia’s Family and Children’s Services interviewed and observed C., C. returned to Ontario with the Respondent and his wife. Police from Nova Scotia and Ontario arrested and charged the Applicant on criminal charges arising from these events. The Applicant is currently out on release in both provinces and awaits two separate trials on these charges.

13Currently, the Applicant’s only parenting with C. consists of one recorded virtual visit per week. The Applicant resides with her surety in Dundas, Ontario, and wears an ankle monitor.

14C. previously saw a child psychologist in Nova Scotia, who testified before DeWolfe J. She now sees a similar professional in Ontario.

15The Applicant has not paid costs awards made against her since 2023. The total unpaid costs owing is $8,700. She has no income, cannot work due to the pending criminal charges and does not receive spousal support. She also owes the government over $1,000,000 arising from fines imposed for fraud and convictions pursuant to the Excise Tax Act, R.S.C. 1985, c. E-15.

16I will now consider the three issues before me.

Issue #1 – Appointment of OCL Counsel and/or Request for a s. 112 Assessment

The Applicant’s Position

17The Applicant submits that C. has not been able to meaningfully express her views or preferences during this protracted family proceeding. She submits that, in this high-conflict matter, the OCL should be involved, in C.’s best interests, to ensure that her voice is not lost in the litigation. The Applicant points out that this is not a case involving an alienating parent, such as Reynolds v. Reynolds, 1996 7273 (Ont. S.C.), or Hosein v. Dhamoon, 2017 ONSC 2482, as she is currently limited to a one-hour weekly recorded video call with her daughter and is therefore not in a position to influence or alienate C.

18The Applicant relies on s.16(3)(e) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), which requires the court to consider C.’s current views and preferences. She submits that the Respondent’s resistance to OCL involvement is suspect and amounts to an attempt to muzzle C.’s true wishes. The Applicant further submits that C. is a mature and intelligent girl and that counselling has been in place to support her since 2020, first arranged by the Applicant.

The Respondent’s Position

19The Respondent submits that the court can receive C.’s views and preferences without involving the OCL and that the Divorce Act does not mandate OCL involvement for that purpose.

20The Respondent expresses concern that involving the OCL would drag C. back into her parents’ conflict. He submits that each time an outside agency becomes involved, allegations of abuse and other unfounded allegations are repeated, requiring the agency to conduct its own independent investigation. This happened with at least two police forces and two child welfare societies in Nova Scotia and Ontario. The Respondent submits that each time a new agency becomes involved, the Applicant repeats unfounded allegations, which in turn mandates a detailed interview with C. and draws her back into the emotional trauma of her parents’ conflict. As outlined in the Respondent’s affidavit dated June 27, 2025, each time C. is re-engaged in this conflict, she becomes physically ill and emotionally dysregulated.

Analysis

21DeWolfe J. made findings following a contested parenting time and relocation motion heard on September 25, 2023. DeWolfe J. found that:

[40] Ms. M. has not met C.’s emotional and psychological needs. Ms. M. has displayed very little insight into the impact on C. of her actions and words. She did not prepare C. for the possibility of her incarceration. She has upset C. during contact, and has perpetuated C.’s anxiety. Ms. M appears to have little insight into the trauma she has caused C. through her actions.

22I must carefully consider the full background when deciding whether to involve the OCL in this case. Although the Applicant frames this request as being in the best interests of C., her past behaviour undermines that claim.

In Hosein, at para. 65, Price J. described the role of the OCL in family proceedings:

[65] Counsel for a child is to be a zealous advocate, not a guardian acting in the child’s best interests. Where alienation is found, the child’s views have been accepted to be the views of the alienating parent. In such circumstances, the appointment of child’s counsel may not be appropriate or in the child’s best interests.

23C. has been through a great deal. She was raised primarily by the Applicant until the Applicant’s incarceration for fraud. She then moved into the care of the Respondent and her stepmother. Following that, C. relocated out of province with the Respondent. She had to start a new life. The move forced her to attend a new school and make new friends.

24The Applicant, understandably, moved to Stratford to be closer to her daughter. However, each time over the past year that the Applicant has had extended visits with C., C. exhibited extreme signs of alienation from the Respondent. I find that the circumstances before Price J. in Hosein are similar to before this court.

25The OCL is only one mechanism for the court to receive C.’s views and preferences. Other mechanisms include calling C.’s psychologist to testify, just as what occurred before DeWolfe J. C. is currently seeing a counsellor in Stratford, Ms. Brooker, who could be called as a witness, if necessary.

26In any event, there is a plethora of material before me on this motion reflecting C.’s views. Ms. Wilson interviewed C. in Nova Scotia as recently as July 2025. The court is not currently being asked to determine parenting time, particularly given the criminal charges the Applicant faces.

27There is no need to involve the OCL. In fact, I find that involving the OCL would be harmful to C. and not in her best interests. Once again, C. would be dragged back into this high-conflict, adult dynamic for no meaningful reason.

28C. clearly loves her mother. I do not need the OCL to understand that C. would like to have more time with her mother and would prefer that time to be unsupervised.

29However, the material before me also shows that recent extended unsupervised contact with the Applicant, in March 2025 and July 2025, caused C. significant stress. This young girl has repeatedly made police and CAS reports. This conflict harms her. She suffers from anxiety and related physical symptoms, including nausea and vomiting. The evidence shows that C. is thriving in the care of her father and stepmother. I find that involving the OCL at this time would not be in C.’s best interests.

30I decline to order OCL involvement. This motion is dismissed.

Issue #2 – Security for Costs

The Respondent’s Position

31The Respondent brings a motion seeking $42,500 in security for costs against the Applicant. He submits that the Applicant has several outstanding costs awards against her arising from family court proceedings. In submissions, the Respondent explained that $8,700 in costs awards remain outstanding, excluding any costs associated with this motion.

32When asked why the requested amount was $42,500, counsel candidly acknowledged that there was no “magic” to that figure and that previous counsel selected it.

The Applicant’s Position

33The Applicant claims impecuniosity and submits that a security for costs order would effectively terminate her ability to bring any further motions in this proceeding, including her spousal support motion and any future parenting motions. She submits that she is unemployed and has no available funds. The Applicant requests that, if the court orders security for costs, it should be limited to $8,700 and that enforcement should be stayed until her spousal support motion is decided on its merits. The $8,700 represents the amount the Respondent claims remains outstanding from prior costs orders.

Analysis

34Rule 24(13) of the Family Law Rules, O. Reg. 114/99, permits the court, on motion, to order for security for costs, including where there is a history of one party failing to pay court-ordered costs. Here, the Applicant has failed to pay the costs ordered against her since 2023 in Nova Scotia.

35In Clark v. Moxley, 2017 ONSC 7610, at para. 29, Shelston J. adopted Pazaratz J.’s summary of the applicable test in Izyak v. Bilousov, 2015 ONSC 3684, at para. 40:

40. The court must apply the following analysis:

a) The initial onus is on the party seeking security for cost to show that the other party falls within one of the enumerated grounds.

b) If the onus is met, the court has discretion to grant or refuse an order for security.

c) If the court orders security, it has a wide discretion as to the quantum and means of payment. Clark v. Clark, 2014 ONCA 175.

d) The order must be “just” and based on one or more of the factors listed in sub rule 24(13). Hodgins v. Buddha, 2013 O. J. No. 1261 (OCJ)

41. A common theme in the case law suggest security for costs in custody and access cases should only be ordered in exceptional circumstances…

42. But high conflict parenting disputes are often the most time-consuming, financially draining, and emotionally damaging cases we deal with in family court. Quite often the best gift we can give children is a break from the family siege mentality and perpetual stoking of conflict which accompanies endless litigation.

36The Respondent has satisfied me that the Applicant falls within an enumerated ground, namely her failure to pay several costs awards ordered against her since 2023. Therefore, it is in my discretion to grant or refuse an order for security.

37The quantum and method of payment fall within my discretion, and this order must be just and made only in exceptional circumstances. This is a high-conflict case involving serious parenting disputes and very concerning behaviour. C. is the true victim here. She has suffered horrible consequences because of these disputes.

38As Nicholson J. stated in his endorsement dated August 15, 2025: “[t]he Respondent seeks security for costs in the amount of $42,500. Although it is postulated that the Applicant has the funds, that order could effectively terminate the proceedings.”

39The Applicant is subject to court orders with which she has not complied. To date, she has not paid any portion of the $8,700 ordered by various courts. She offered explanations for her non-payment, including that she was in custody and on bail for much of the relevant period and unable to secure employment. She is also awaiting a hearing for her interim spousal support motion.

40The court does not wish to effectively terminate any legitimate future motions by the Applicant. I find that the requested sum of $42,500 would be an impossible amount to post as security for the Applicant at this time.

41However, much, if not all, of the Applicant’s financial hardship is a result of her own behaviour. Her spousal support claim was not entertained in Nova Scotia because she was going into custody after being convicted of several serious fraud offences. She is currently on bail as a result of her failure to return C. on the date and time ordered by the court. These are exceptional circumstances, and I find that some order for security for costs is warranted. I am persuaded by the Applicant’s alternate argument that any security for costs should be limited to the amount of outstanding costs awards, namely $8,700.

42Therefore, I order security for costs in the amount of $8,700, to be paid into the court by the Applicant within 60 days of the determination of her spousal support claim. To be clear, the Applicant may bring her spousal support claim before she needs to pay security into the court and only has to pay the $8,700, 60 days after the court has released its decision in that matter.

Issue #3: Should the Applicant be Ordered to Undergo a Mental Health Assessment?

The Respondent’s Position

43The Respondent seeks an assessment of the Applicant’s mental health under either s. 30 of the CLRA or s. 105 of the CJA. He submits that parental abduction, wrongful withholding and the manufacture of crises involving police and child protection authorities constitutes compelling evidence of impaired judgment and warrants professional assessment before any reconsideration of parenting arrangements. He relies on the Applicant’s recent behaviour, criminal history, and demonstrated poor judgment to justify the assessment.

The Applicant’s Position

44The Applicant strongly opposes this motion. She submits that the request is exceptionally intrusive and unsupported by the evidentiary record. She further submits that s. 30 assessments are reserved for cases requiring a determination of clinical issues, and that no such evidence exists here.

Analysis

45I reviewed the authorities provided by counsel. The court has jurisdiction to order assessments under s. 105 of the CJA and s. 30 of the CLRA. Section 30 of the CLRA authorizes the court, at any stage of the proceedings, to appoint a qualified professional to assess a parent’s ability and willingness to meet a child’s needs.

46The parties have not proposed a potential assessor. Aside from evidence of alienation, I have no evidence that the Applicant suffers from emotional dysregulation or lacks the capacity to care for C. A parental capacity assessment is appropriate where an identified issue may impair a parent’s ability to parent. That issue must affect the parent’s ability to respond to the child’s needs.

47I do not find sufficient evidence of such an issue on the record before me. I am deeply concerned about the Applicant’s impact on C. However, much of the information the Respondent wants the court to consider in any future parenting motion is already available on the existing record. The court record speaks for itself. I do not see how an intrusive mental health assessment would meaningfully assist the court in explaining the Applicant’s past behaviour.

48This motion is dismissed.

Conclusion

49Therefore, I dismiss the motions related to Issue #1 and Issue #3.

I grant the motion in part on Issue #2 and order security for costs in the amount of $8,700, to be paid into the court by the Applicant within 60 days of the determination of her spousal support claim.