Mirzaei v. Yamohammadi, 2026 ONSC 2454

CITATION: Mirzaei v. Yamohammadi, 2026 ONSC 2454

COURT FILE NO.: FS-25-00048535-0001

DATE: 20260424

ONTARIO SUPERIOR COURT OF JUSTICE

RE: Sanaz Mirzaei and Jornt van der Wiel, Applicants (Appellants)

-and-

Aliakbar Yamohammadi, Respondent (Respondent)

BEFORE: Robert Centa J.

COUNSEL: Ronan Mallovy, for the applicants (appellants)

Aryan Yassavoli-Sani, for the respondent (respondent)

HEARD: April 14, 2026

ENDORSEMENT

1Sanaz Mirzaei and Jornt van der Wiel are the aunt and uncle of a six year old boy, F.Y. They purport to appeal a costs order of S.J. Meyrick J. of the Ontario Court of Justice. The aunt and uncle did not obtain leave to appeal as required by s. 133(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43. There is no right to appeal only as to costs without first obtaining leave of the court to which the appeal lies.

2In the interests of dealing with this case justly and efficiently, I will proceed as if a motion for leave to appeal was before me. In my view, the aunt and uncle do not meet the high test for leave to appeal a costs order. They have not demonstrated strong grounds upon which I could find that Meyrick J. erred in exercising her discretion. For the reasons explained below, leave to appeal is denied.

1. The respondent’s request for an adjournment is denied

3At the beginning of the hearing, Aryan Yassavoli-Sani appeared as counsel for the respondent, who is F.Y.’s father. He requested an adjournment stating that he had just been retained. The father did not provide a credible explanation for why he had just retained counsel where this proceeding having been outstanding since the fall of 2025. Hearing dates are scarce, and parties cannot avoid them by retaining counsel at the last minute. In the circumstances, I denied the request for an adjournment.

2. The proceeding in the Ontario Court of Justice

4On July 7, 2023, the aunt and uncle started an application in the Ontario Court of Justice concerning their nephew, F.Y. They commenced the application after F.Y.’s mother died on April 29, 2023. They were concerned about the father’s temper, allegations of intimate partner violence, and their view that the father was unable to parent a young child like F.Y. They sought orders giving them primary residence of the child, sole decision-making authority for the child, and an order permitting them to return to the Netherlands with F.Y.

5F.Y.’s father resisted the application and asserted his own rights of primary residence and decision making. He agreed that he would remain in Canada if he was successful on the application, provided that he received permanent residence status. He acknowledged that he would have to return to Iran or the UAE if he was not permitted to remain in Canada.

6The application was heard before Meyrick J. over seven days in September 2024. The parties filed affidavit evidence from nine witnesses, who were also cross-examined in court. In addition, the parties called an expert in Iranian criminal law, a clinician from the Office of the Children’s Lawyer, and a friend and business partner of the father.

7On February 26, 2025, Meyrick J. released reasons for decision that spanned 27 single-spaced pages.¹ The reasons for decision are thorough, nuanced, and careful. Justice Meyrick faced a very challenging proceeding and the evidence marshalled by each side was conflicting and somewhat self-serving. As Meyrick J. explained, e.g. at paras. 70, 75, and 82-95:

a. The maternal grandmother gave evidence that was not credible or reliable and her “demeanour in the courtroom was indicative of her disdain” for the father;

b. The aunt and uncle did not respect the father and the reliability of their evidence as it related to the father was “gravely tainted by their perceptions of this intimate partner violence between” the father and the deceased mother;

c. The father, who did not speak English, had been largely absent from F.Y.’s life for significant periods of time, although the reasons for that absence were contested.

8After carefully reviewing the facts and setting out the applicable law, Meyrick J. concluded that “it was more likely than not that the father perpetrated physical abuse on the mother” and had unilaterally and deliberately removed F.Y. from his mother’s care when he was only 16 days old, for a 30-day period. Among others, Justice Meyrick made the following orders:

a. The aunt and uncle shall have sole decision-making responsibility, with the qualification that the father is entitled to provide input on decisions made, particularly relating to the child’s education and medical treatment;

b. The aunt and uncle shall be permitted to relocate the child to The Netherlands; and

c. Upon entering into a bond of recognizance of $30,000, the father shall have specified unsupervised parenting time and the father shall not remove the child from the Greater Toronto Area without the consent of the aunt and uncle.²

9The father appealed the decision of Meyrick J. On May 28, 2025, Horkins J. dismissed his motion for an order staying the final relocation order pending his appeal of the decision and dismissed his motion for an order extending the time to perfect an appeal. In the result, Horkins J. dismissed the father’s appeal.³

10The aunt and uncle sought $180,432.92 in costs of the hearing, which amounted to 75% of their actual costs. After receiving submissions from both sides, Meyrick J. declined to order costs of the proceeding.

11On October 28, 2025, Meyrick J. released reasons for decision covering six single-spaced pages.⁴ Justice Meyrick cited the costs provisions found in Rule 24 of the Family Law Rules, O. Reg. 114/99, and set out the applicable principles from some of the leading cases on costs in family law proceedings.⁵ Justice Meyrick considered the aunt and uncle’s “non-severable” offer to settle and concluded that it was not “better or as good as the decision reached by the court.”⁶ Justice Meyrick noted the presumption that the successful party is entitled to costs and stated that the father “appears to concede that the Aunt/Uncle were the more successful party and costs should be awarded to them.”⁷

12Justice Meyrick then considered the amount of costs claimed by the aunt and uncle. She considered the behaviour of each party (finding that no one acted in bad faith), the time spent by each side, the written offers (noting again that neither party beat their offer to settle), the hourly rates charged by counsel, the use of multiple lawyers, and the time spent on prior steps in the proceeding. Stepping back from each of the component parts of the analysis, Meyrick J. explained her ultimate conclusion as follows:

[40] The Court finds it reasonable and proportionate that each party bear their own costs in this matter.

[41] The child has been permitted to relocate to The Netherlands and the Applicant's have been granted sole decision making authority. Father has also been awarded parenting time, greatly expanded from that which was offered.

[42] Father has the additional costs associated with the Court's decision, not only the bond but the travel cost of visiting the child in The Netherlands.

[43] Despite the expense incurred by both parties in litigation, the Court is not persuaded that this is the appropriate case for a cost order. A cost order would be punitive in nature only and unjustified.

[44] This matter is now fully and finally resolved, and the Court file shall be closed.

2. The appeal to the Superior Court of Justice

13The aunt and uncle signed a Form 38: Notice of Appeal dated November 25, 2025. It was filed with the Superior Court of Justice on December 9, 2025. In their request for relief, the aunt and uncle asked that an order be made as follows:

1. Grant the Appellants leave to appeal the costs decision of Justice Meyrick of the Ontario Court of Justice, dated October 28, 2025;

2. In the event that personal service cannot be effected at the Respondent's last known address, permit the Appellants to serve the Respondent with this Notice of Appeal via substituted service at his personal email…pursuant to subrule 6(15) of the Family Law Rules;

3. Award the Appellants costs in the amount of $180,432.92, representing recovery for costs incurred throughout the proceeding on a substantial indemnity basis;

4. Award costs on appeal; and

5. Provide such further and other relief as this honourable Court deems just.

14In their notice of appeal, the aunt and uncle relied on “Rules 18 and 24, and subrules 6(15) and 38(4)-(5) of the Family Law Rules, as well as subsection 133(b) of the Courts of Justice Act.”

3. The aunt and uncle were required to obtain leave to appeal before filing their appeal

15As I will explain, the aunt and uncle were required to bring a motion for leave to appeal that ought to have been heard and determined before the appeal itself was scheduled or heard.

16The jurisdiction of a judge of the Ontario Court of Justice to award costs in a proceeding under the Children’s Law Reform Act arises from s. 131(1) of the Courts of Justice Act, which provides:

131(1) Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.

17In this case, the determination of costs is also subject to the provisions of “Rule 24: Costs” of the Family Law Rules.

18The Courts of Justice Act carefully circumscribes the right to appeal only as to costs of a proceeding. Clause 133(b) of the Courts of Justice Act, on which the aunt and uncle relied in their notice of appeal, requires leave to appeal only as to costs:

133. No appeal lies without leave of the court to which the appeal is to be taken,

(b) where the appeal is only as to costs that are in the discretion of the court that made the order for costs.

19Pursuant to s. 73 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, an appeal from an order of the Ontario Court of Justice made under Part III lies to the Superior Court of Justice.⁸

20In this case, Meyrick J. exercised her jurisdiction under s. 131(1) of the Courts of Justice Act to make a discretionary decision to award no costs of the proceeding under Part III of the Children’s Law Reform Act. If the aunt and uncle wish to appeal the order of Meyrick J., their appeal lies to the Superior Court of Justice. However, no appeal lies without leave of the Superior Court of Justice where the appeal is only as to costs.

21Rule 38(4) of the Family Law Rules states that subrules 38(5) to 38(45) apply to appeals from an order of the Ontario Court of Justice to the Superior Court of Justice under s. 73 of the Children’s Law Reform Act.

22In Nehaus Management, the Divisional Court considered the effect of s. 45(1) of the Arbitration Act, 1991, S.O. 1991, c. 17, which provided that in certain circumstances “a party may appeal an award to the court on a question of law with leave.”⁹ The Divisional Court concluded that s. 45(1) of the Arbitration Act “requires that leave to appeal be granted before any appeal may be brought.”¹⁰

23As explained by Aston J. in Johanns v. Fulford, the Nehaus principle applies to appeals under the Family Law Rules.¹¹ In Johanns, on the eve of their trial in the Ontario Court of Justice, the parties settled all issues except for costs. The terms of the settlement reserved the question of costs to the court. Justice Murray awarded Ms. Fulford costs on a partial recovery basis, fixed in the amount of $65,000.

24Mr. Johanns appealed the costs order to the Superior Court of Justice. Mr. Johanns submitted that he did not require leave to appeal because Rule 38 did not mention obtaining leave to appeal. Justice Aston disagreed and held that “there is no automatic right of appeal when that appeal is only as to costs” and that obtaining leave to appeal “is required as a precondition to any appeal” about costs alone.¹²

25In the alternative, Mr. Johanns submitted that leave to appeal should be determined when the appeal itself is heard. Justice Aston rejected this submission and held that a party must seek leave in order to bring the appeal to preserve the screening and gatekeeping functions served by the leave procedure:

I do not think the question of leave to appeal should be deferred to the hearing of the appeal. There are good reasons why leave to appeal is required when the appeal is only as to costs, quite apart from the fact that s. 133 of the Courts of Justice Act plainly requires it. The gate keeping function is important. As recently observed by the Court of Appeal in Elgner v Elgner, 2011 ONCA 483, in approving the Divisional Court’s majority decision: “The majority opined that s. 21 [of the Divorce Act] must be interpreted within the context of the ‘gatekeeper’ function played by the courts, which is becoming more necessary and acceptable in our judicial system, in order to prevent the situation where the person with the deepest pockets or the inclination and ability to argue motions and appeals can wear down his or her opponent.”

It is particularly important in family law cases that litigants with limited resources be protected from the costs of litigation by procedural safeguards which enable them to limit and minimize their costs. Vetting a proposed appeal which demands a high level of deference on appeal may accomplish that purpose.¹³

26Justice Aston concluded that Mr. Johanns could not appeal the costs order unless and until he obtained leave from a judge of the Superior Court of Justice and that the issue of leave should be determined in advance and not left to the hearing of the appeal itself.¹⁴ I agree.

27In this case, the aunt and uncle correctly initiated the appeal process. An appeal under s. 73 of the Children’s Law Reform Act from the Ontario Court of Justice is commenced by serving a notice of appeal: rules 38(4)(b) and 38(5)(a), Family Law Rules. The aunt and uncle also correctly indicated in their notice of appeal that, pursuant to s. 133(b) of the Courts of Justice Act, they required leave of the court to bring an appeal only as to costs.

28However, they then needed to bring a motion in the appeal for leave to appeal. Where a person needs to bring a motion in an appeal, Rule 14 applies: rule 38(25), Family Law Rules. The aunt and uncle should have brought a motion for leave to appeal under Rule 14. Because such a motion is made in an appeal, there is no need to conference the issue before the motion is heard: rule 15(5)(e.3), Family Law Rules. Although this issue is not squarely raised in this case, I doubt that a motion for leave to appeal should be brought as a Form 14B motion because it is unlikely that the motion for leave to appeal will be unopposed or on consent. In any event, regardless of the position of the parties, the court must still consider whether to grant the motion for leave to appeal.

29In this case, the aunt and uncle should have brought a motion for leave to appeal supported by a factum that addressed directly and solely whether it was appropriate for a judge of this court to grant leave to appeal the costs order of Meyrick J. This motion should have been heard and determined before the appeal itself was scheduled or heard. The aunt and uncle did not follow these steps and their appeal was not properly before me.

4. Leave to appeal is denied

30I am mindful that the primary objective of the Family Law Rules is to enable the court to deal with cases justly, which includes ensuring that the procedure is fair to all parties, saving expense and time, dealing with the case in ways that are appropriate to its importance and complexity, and giving appropriate resources to the case while taking account of the need to give resources to other cases.¹⁵

31In this case, I have the benefit of the factum of the aunt and uncle on the appeal and the oral submissions of their counsel on whether leave to appeal should be granted. I see no benefit at this point to requiring the aunt and uncle to bring a separate motion for leave to appeal. I am well-positioned to determine the matter.

32There is a high test for leave to appeal costs orders. Leave to appeal a costs order is to be granted sparingly and only in obvious cases. As the Court of Appeal for Ontario explained in Grimm v. Ontario (Children’s Lawyer), there must be strong grounds upon which the appellate court could find that the judge erred in exercising her discretion.¹⁶ On an appeal itself, a costs award should be set aside “only if the trial judge has made an error in principle or if the costs award is plainly wrong.”¹⁷

33I see no basis, much less strong grounds, to find that the Meyrick J. erred in the exercise of her discretion.

34In her reasons for decision on costs, Meyrick J. identified and correctly stated the relevant rules and legal principles. Justice Meyrick then considered all the issues raised by the aunt and uncle and explained her conclusion in clear and cogent reasons. The aunt and uncle essentially complain about how Meyrick J. exercised her discretion and how she applied the law that she correctly stated. Neither of those submissions justifies granting leave.

35First, the aunt and uncle submit that Meyrick J. “erred by failing to find that the final order was as good or better than [their] offer to settle.” This was a complex case with multiple issues and several offers to settle. The trial judge was best positioned to determine, considering all of the issues, whether the aunt and uncle obtained a final order that was as good as or better than their offer to settle. Justice Meyrick correctly set out the law and concluded that although the non-severable offer made by the aunt and uncle complied with the technical requirements of rules 18(4) and 24(12), the offer was not as good or better as the final order of the court.¹⁸ Justice Meyrick noted that the “[f]ather has also been awarded parenting time, greatly expanded from that which was offered.”¹⁹ Justice Meyrick was entitled to reach this conclusion on the evidence before her. I see no grounds to believe that Meyrick J. erred in exercising her discretion to determine whether the aunt and uncle obtained a final order as good as or better than their offer.

36Second, the aunt and uncle submit that the trial judge erred in concluding that success at trial was mixed. I disagree. The determination of who is the more successful party in a case of divided success is a matter of judgment and an exercise of discretion.²⁰ The aunt and uncle suggest that Meyrick J. contradicted herself by accepting the father’s concession that they were the more successful parties and then concluding that success was mixed. I do not agree with this submission. Justice Meyrick simply noted the husband’s concession before reaching her own conclusion that, in all of the circumstances of the case, the results were “quite mixed.”²¹ Justice Meyrick was not obliged to accept the husband’s concession. In light of the that conclusion, I see no grounds to conclude that Meyrick J. erred in the exercise of her discretion to depart from the presumption that the successful party is entitled to costs. She was entitled to reach that conclusion based on the complicated case presented to her and I see no grounds to conclude that she erred in the exercise of her discretion.

37Third, the aunt and the uncle submit that there was no basis for the conclusion of Meyrick J. that a costs order “would be punitive in nature only and unjustified.”²² This conclusion lies at the very heart of the trial judge’s exercise of discretion. It is informed by the sad facts that infused this case. Moreover, the aunt and uncle are not reading the conclusion in context. Justice Meyrick noted that the father would have the additional costs associated with the court’s decision, including the bond and the travel costs of visiting F.Y. in the Netherlands. In all the circumstances of this case, the trial judge was best positioned to assess how a costs order would affect the parties. I see no grounds to believe she erred in the exercise of her discretion.

38The aunt and uncle submit that a costs order in their favour would have been “reasonable and proportional.” That submission misses the point. Justice Meyrick exercised her discretion and determined that, in all the circumstances of the case, the parties should each bear their own costs.

39The aunt and uncle have not met the high test for leave to appeal a costs order. I do not find that there are strong grounds upon which the appellate court could find that the judge erred in exercising her discretion. I have no grounds to believe that Meyrick J. has made an error in principle or that her award is plainly wrong. Leave to appeal the costs order of Meyrick J. is denied.

40I award no costs of this proceeding in the Superior Court of Justice.

Robert Centa J.

Footnotes

1. 1Mirzaei v. Yamohammadi, 2025 ONCJ 108 (“ONCJ Trial Decision”).
2. 2ONCJ Trial Decision, at para. 187.
3. 3Mirzaei v. Yamohammadi, 2025 ONSC 3142.
4. 4Mirzaei v. Yamohammadi (28 October 2025), Toronto, DFO-23-00000878-0000 (Ont. C.J.) (“ONCJ Costs Decision”).
5. 5ONCJ Costs Decision, at paras. 5-9; Mattina v. Mattina, 2018 ONCA 867, at para. 10; Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519; Berta v. Berta, 2015 ONCA 918; she also cited British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371, which contains applicable principles but is not a family law case.
6. 6ONCJ Costs Decision, at para. 19.
7. 7ONCJ Costs Decision, at para. 21.
8. 8Part III being the provisions related to Decision-making responsibility, parenting time, contact and guardianship.
9. 9Neuhaus Management Ltd v. Huang, 2022 ONSC 5548 (Div. Ct.).
10. 10Neuhaus, at para. 7.
11. 11Johanns v. Fulford, 2011 ONSC 3839, 15 R.F.L. (7th) 178. Although the Family Law Rules have been amended since 2011, the relevant provisions of r. 38 that were in place on January 1, 2011, are identical to the current provisions in all material respects.
12. 12Johanns, at paras. 7-9, 12, and 17.
13. 13Johanns, at paras. 13-14.
14. 14Johanns, at para. 17.
15. 15Family Law Rules, rr. 2(2) and (3).
16. 162023 ONCA 161, at para. 23, citing Barresi v. Jones Lang Lasalle Real Estate Services Inc., 2019 ONCA 884, 58 C.P.C. (8th) 318, at para. 14; McNaughton Automotive Limited v. Co-Operators General Insurance Company, 2008 ONCA 597, 95 O.R. (3d) 365, at para. 24; Brad-Jay Investments Ltd. v. Szijjarto (2006), 2006 42636 (ON CA), 218 O.A.C. 315 (C.A.), at para. 21.
17. 17Grimm, at para. 23, citing Barresi, at para. 14; Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27.
18. 18ONCJ Costs Decision, at paras. 10-19.
19. 19ONCJ Costs Decision, at para. 41.
20. 20Crisp v. Crisp, 2013 ONSC 4366, at para. 15.
21. 21ONCJ Costs Decision, at para. 32.
22. 22ONCJ Costs Decision, at para. 43.