Overview

[1] The appellant brings this appeal from the final Order (Judgment”) and Costs Decision of Justice Sager made on January 28, 2025 and March 3, 2025 respectively.

[2] During the trial before Justice Sager, and the appeal before this Court, the appellant was self-represented while the respondent was represented by counsel.

[3] Justice Sager’s judgment followed a two-day trial before her Honour on January 22-23, 2025. Justice Sager granted the respondent primary care of, sole decision-making authority (with consultation with the appellant on all major decisions) over, and child support for the parties’ two children.

[4] Justice Sager also ordered the appellant to pay the respondent her costs of the trial fixed in the amount of $22,600.00 plus interest. The respondent had sought her costs of the trial on a substantial indemnity basis in the amount of $42,081.50.

[5] While the judgment addressed the issues of decision-making responsibility for the parties’ two children, parenting time/schedule and child support (retroactive and ongoing), the thrust of the appellant’s submissions during the appeal hearing focused upon his argument that pursuant to sections 22 and 23 of the Children’s Law Reform Act R.S.O.1990, c.C12 (“CLRA”), the Ontario Court of Justice (“OCJ”) did not have jurisdiction over this proceeding, and in particular jurisdiction to make any parenting or contact orders.

[6] Indeed, the appellant’s arguments in both his factum and during the hearing of his appeal were based upon the “jump off position” that all of Justice Sager’s orders were made without jurisdiction, thereby entitling the appellant to an order setting aside both Justice Sager’s Judgment and Costs Decision. The only other arguments advanced by the appellant relate to a general claim that Justice Sager “failed to grapple with key issues” and “erred in applying the Children’s Law Reform Act and the Family Law Rules”.

[7] I carefully listened to and considered the arguments made by the appellant during the hearing. In my view, and for the reasons which follow, none of those arguments provide a basis for a successful appeal. I am satisfied that Justice Sager made no reversible errors, and the appeal is dismissed.

Standard of Review

[8] The standard of review in this appeal is not in dispute. As held in Housen v. Nikolaisen 2002 SCC 33, on questions of fact the standard of review is one of “palpable and overriding error”, and on questions of law the standard of review is correctness.

[9] In Mileuska v. Najdovski 2026 ONSC 299, Justice Kraft summarized these governing principles as follows:

“The motion judge’s determinations with respect to questions of fact and mixed fact and law are entitled to deference and cannot be interfered with absent a palpable and overriding error of fact or in mixed fact and law or an extricable question of law that would be reviewed for correctness. The question is whether the motions judge erred with respect to identifying the correct legal test (an error of law), or correctly identified the legal test but erred in applying the test to the facts (an error of mixed fact and law).”

[10] When dealing with questions of mixed fact in law, the Court is faced with a spectrum. Where there is an extricable legal principle, the standard of review is correctness. When assessing the application of legal principles to the evidence, the standard of review is palpable and overriding error. No appellate court will interfere with a trial judge’s findings of fact unless an appellant can plainly identify the imputed error, and that error is shown to have affected the result.

[11] In Barendregt v. Grebliunas, 2022 SCC 22, the Supreme Court of Canada stated the following about the scope of appellate review in family law cases:

“The scope of review in family law cases is narrow. Determining a child’s best interests is always a fact-specific and highly discretionary determination.

Therefore, an appellate court may only intervene where there is a material error, a serious misapprehension of the evidence, or an error in law.

Absent an error of law or a palpable and overriding error of fact, deference is vital. Appellate courts must review a trial judge’s reasons generously and as a whole, bearing in mind the presumption that trial judges know the law [Citations Omitted].”

Summary of Relevant Facts

[12] In order to address the appellant’s principal argument, I note the following facts are not in dispute:

• The respondent commenced her application in the OCJ on February 12, 2024.

• In her application, the respondent stated that her residence had been “Toronto, Province of Ontario” since 2009.

• In the respondent’s Form 35.1 affidavit sworn February 12, 2024 (the same day that she commenced her OCJ application), she indicated that she and the parties’ children resided in “Toronto, Province of Ontario”.

• In reality, on February 12, 2024, (a) the appellant resided in Toronto, but (b) the respondent was not ordinarily resident in Ontario, and was residing with the parties’ children in Alberta.

• At some point during the OCJ proceeding (and certainly by the time the trial proceeded before Justice Sager), the respondent relocated with the parties’ children to Toronto, Ontario.

Justice Sager’s Decision re: Jurisdiction

[13] In dealing with the appellant’s argument regarding the OCJ lacking jurisdiction to make any parenting or contact orders, Justice Sager gave the following oral reasons:

“So the first issue I am going to deal with is that of jurisdiction of the court. So section 22(1) of the Children's Law Reform Act says:

A court shall only exercise its jurisdiction to make a parenting order or contact order with respect to a child if,

(a) the child is habitually resident in Ontario at the commencement of the application for the order; or

(b) the child is not habitually resident in Ontario, but the court is satisfied that,

(i) the child is physically present in Ontario at the commencement of the application for the order.

(ii) substantial evidence concerning the best interests of the child is available in Ontario.

(iii) no application respecting decision-making responsibility, parenting time or contact with respect to the child is pending before another court where the child is habitually resident....

And the list goes on. I am just going to go through the legislation, because this legislation is relied upon when a parent wants a court to decline to exercise jurisdiction over a child and that parent wants the child returned to a jurisdiction where the child is habitually resident and for that jurisdiction to make decisions. And so the father is relying on the legislation, even though he is here. So I am just going to go through it and deal with the issue.

The legislation says in section 23, so:

Despite sections 22 and 41, a court may exercise its jurisdiction to make or vary a parenting order or contact order with respect to a child if,

(a) the child is physically present in Ontario; and

(b) the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if,

(i) the child remains with a person legally entitled to decision-making responsibility with respect to the child,

(ii) the child is returned to a person legally entitled to decision-making responsibility with respect to the child, or

(iii) the child is removed from Ontario.

So one can see this legislation is not relied on in the way the father is relying on it, because the parties are here, and the children are here.

But if I am wrong, and I had to rely on this legislation, what I would say is that even though the children were not habitually resident in Ontario when the application was commenced, I would assume jurisdiction over them pursuant to subsection 23, because I find that, one, the children are physically present in Ontario now and two, that I am satisfied that the child or children, on the balance of probabilities, would suffer serious harm if they are removed from Ontario, because they would be sent away from their parents.

So if the father is insistent on making this jurisdictional issue, like proceeding with it or pursuing it, my interpretation of the legislation would be, number one, the children are here at the date of trial, as are both their parents. This issue is a non-issue, but in the alternative, the children would be, obviously, at harm if they were removed from Ontario and sent back to Edmonton, where the father seems to think the application should take place even though they are here.

So the argument the father made clearly is it is not logical, but I am confident that since everybody is here right now and lives here permanently, there is no basis upon which the court would not have jurisdiction over the children. At the time the mother commenced the application, that would be a different story, had the father lived in Edmonton and asked that the children be returned to Edmonton. Then I would agree with the father that the mother was definitely living in Edmonton, and she was not just there on an extended visit or what she says temporarily.

The mother had a job, an apartment, the older child was in school in Edmonton. It is not believable that the mother was just there temporarily and planned to return to Toronto. I can believe that she hoped to return to Toronto at some time, but there was no question that she was living in Edmonton. But that is a moot point, because everybody is here now, so it should not be an issue. And, frankly, the father should not have pursued it.

The father also asks in his draft order for the court to dismiss all of the mother's claims because she did not live in Toronto at the time that she commenced the proceeding, but to grant all the orders that he is asking for, and that is just nonsensical. It does not make sense. So that is not an option. Either the court has jurisdiction over the children, or it does not. The court cannot have jurisdiction over children only with respect to one parent's claims. So I accept that this court has jurisdiction and can make orders with respect to these children.”

Issues to be Determined

[14] For the disposition of this appeal, the following two issues are to be determined:

Did the OCJ lack jurisdiction to hear the application and make the parenting and contact orders?
If answer to Issue #1 is “No”, is there any other reason to disturb Justice Sager’s findings?

Issue #1 Did the OCJ lack jurisdiction to hear the application and make the parenting and contact orders?

[15] As stated above, there is no dispute that as of the date the OCJ application was commenced, neither the respondent nor the children resided in Ontario. They moved from Alberta to Ontario during the lifespan of the OCJ application. As such, section 22(1)(a) of the CLRA clearly does not apply, as the parties’ children were not habitually resident of Ontario at the commencement of the OCJ application.

[16] Section 22(1)(b) of the CLRA was not relied upon by Justice Sager in her jurisdiction analysis, and rightfully so as the majority of the sub-factors in section 22(1)(b) were not applicable.

[17] As stated above, at some point in 2024 both parties and their children were and remained ordinarily resident in Ontario. As Justice Sager pointed out on several occasions in her oral reasons, to her mind the jurisdictional issue became a “non-issue”. I agree with this assessment in the sense that there was no actual battle between two competing jurisdictions before the Court.

[18] During the hearing of the appeal, the appellant was asked several times by the Court to advise where the alternative jurisdiction was or should have been; i.e. if not Ontario, then where? The appellant could not provide the Court with any answer that was responsive to that question.

[19] As the appellant’s submissions continued, it appeared to this Court that the appellant’s insistence upon his jurisdiction argument was designed to try and place the Court, and the parties, in some form of “gotcha” situation. If the children were not habitually resident in Ontario at the time of the commencement of the OCJ application, then according to the appellant, the disputes between the parties (including the determination of the children’s best interests) could not be made by any Court in the country. This is a non-sensical contention, as highlighted by Justice Sager in her Honour’s reasons.

[20] The parties and their children have permanently resided in Ontario since sometime in 2024. As Justice Sager noted, if the appellant had never moved with the parties’ children from Alberta, a different inquiry would have been undertaken by the Court. As everyone was (at trial) and is (now) ordinarily resident in Ontario, Ontario is the proper and only province with jurisdiction to make the parenting and contact orders.

[21] Additionally, Justice Sager relied on section 23 of the CLRA in support of her finding that Ontario had jurisdiction to make the orders her Honour made. I agree with Justice Sager’s analysis. The children were physically present in Ontario, and there was sufficient evidence for the Court to be satisfied that the children would suffer serious harm if they were removed from Ontario. Having relocated from Alberta to Ontario on a permanent basis, there was no reason for the children to relocate from Ontario. This is of course buttressed by the fact that the appellant also resides in Ontario.

[22] Finally, there is another reason supporting the dismissal of the appellant’s jurisdiction argument. If the appellant wished to challenge the jurisdiction of Ontario over the OCJ proceeding, it was incumbent upon him to bring a motion seeking that exact relief at the outset of the OCJ proceeding. This is due to the fact that Ontario can take jurisdiction over the OCJ application through the consent of the parties.

[23] As held by the Court of Appeal for Ontario in Mehralian v. Dunmore 2023 ONCA 806, a party is deemed to attorn to a court’s jurisdiction where they actively litigate the matter on the merits. Once a party attorns to a court’s jurisdiction, any other jurisdictional analysis is no longer necessary.

[24] There is no dispute that the appellant voluntarily submitted to the jurisdiction of Ontario; which is not surprising given that he resides in Ontario. The appellant served and filed an Answer, participated in all case conferences, settlement conferences and trial management conferences. By taking all those steps on the merits, the appellant clearly attorned to Ontario.

[25] If the appellant wanted to dispute the jurisdiction of the OCJ to make parenting and contact orders, he should have “carved out” that position and never have responded on the relevant merits in the OCJ proceeding. It could not, and cannot, lie in his mouth at the trial, or the appeal, to take any different position.

[26] For these reasons, the answer to Issue #1 is “No”.

Issue #2 If answer to Issue #1 is “No”, is there any other reason to disturb Justice Sager’s findings?

[27] During the hearing of the appeal, the appellant did not point to any specific examples of findings of fact made by Justice Sager which amounted to palpable and overriding errors. While the appellant raised an issue in his factum that Justice Sager “failed to grapple with key issues”, there is very little, if anything, in the appellant’s factum to support that very vague position.

[28] During the hearing of the appeal, the appellant’s approach to that issue did not change. At most, the appellant simply took issue with Justice Sager’s findings by claiming that they were “incorrect”. It is trite to state that much more is needed for an appellate court to disrupt findings of fact made by a trial judge.

[29] Accordingly, the answer to issue number 2 is “No”.

[30] Finally, with respect to the appellant’s request that Justice Sager’s Costs Decision be overturned, I rely on the following passage from the Court of Appeal for Ontario’s decision in Beaumont v. Beaumont 2025 ONCA:

“Where an appeal from the main award is dismissed, the appellant needs leave to appeal the costs order pursuant to s. 133(b) of the Courts of Justice Act, R.S.O.1990, c. C.43. Leave to appeal a costs order will not be granted except in obvious cases where the party seeking leave convinces the court there are ‘strong grounds upon which the appellate court could find that the judge erred in exercising his discretion’…. This test is designed to impose a high threshold because appellate courts recognize that fixing costs is highly discretionary and that trial judges are best positioned to understand the dynamics of a case and to render a costs decision that is just and reflective of what actually happened on the ground….[Internal citations omitted].”

[31] A cost award attracts a high level of deference. As previously stated, the respondent sought costs on a substantial indemnity basis in the amount of $42,081.50. In arriving at her Costs Decision, Justice Sager relied upon the proper legal principles reserved for the Court’s disposition of costs. Her Honour found that while success was somewhat divided between the parties, the respondent was the more successful party as she was successful on all joined issues save and except for the appellant’s regular parenting time.

[32] As the more successful party at trial, the respondent was awarded approximately half of the costs she sought, with Justice Sager considering that to be a reasonable and proportional result given that her finding that the appellant’s unreasonable conduct in the litigation increased trial time.

[33] As costs awards attract high level of deference, I do not see anything unfit or inappropriate in Justice Sager’s Costs Decision, and I deny the appellant’s cost appeal.

Costs of the Appeal

[34] If the parties are unable to agree upon the costs of this appeal, they may serve and file written costs submissions, totaling no more than five pages including a Costs Outline, in accordance with the following timetable:

(a) the respondent’s costs submissions to be served and filed within 14 business days of the receipt of these Reasons for Judgment; and,

(b) the appellant’s responding costs submissions to be served within 14 business days of the receipt of the respondent’s costs submissions.

Diamond J.

Released: April 22, 2026

CITATION: Reid v. Mkhize, 2026 ONSC 2332

COURT FILE NO.: FS-25-00047829-000

DATE: 20260422

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LEON SHAWN REID

Appellant

– and –

SIPHETFWESIHLE (ANGEL) MKHIZE

Respondent

REASONS FOR JUDGMENT

Diamond J.

Released: April 22, 2026

Reid v. Mkhize, 2026 ONSC 2332

Case Summary

Overview

Standard of Review

Summary of Relevant Facts

Justice Sager’s Decision re: Jurisdiction

Issues to be Determined

Issue #1 Did the OCJ lack jurisdiction to hear the application and make the parenting and contact orders?

Issue #2 If answer to Issue #1 is “No”, is there any other reason to disturb Justice Sager’s findings?

Costs of the Appeal

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legal Tests 3

Legislation 2