CITATION: C.H. v. A.B., 2026 ONSC 3861

COURT FILE NO.: FS-25-0067-00

DATE: 2026-07-02

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

C.H.

Crystal Kennedy, for the Applicant

Applicant

• and -

A.B.

Self-Represented, for the Respondent

Respondent

HEARD: in writing

Madam Justice R.A. Lepere

Decision on Costs

Introduction

1The Applicant brought proceedings in Ontario seeking to recognize for the purpose of enforcement an order she had obtained in Manitoba. While I do not want to fully reiterate the facts as they are set out in my earlier decision I will do so to some extent in this decision as they are relevant to the determination of costs given the positions of the parties.

2The Applicant and the child had been living in Manitoba with the Respondent exercising parenting time in Ontario. The Respondent in March 2023, after the child was removed from the care of the Applicant by Winnipeg Child and Family Services took the child to Ontario pursuant to his regularly scheduled parenting time but then never returned him.¹

3The Applicant started court proceedings in Manitoba in April 2023 for the return of the child, among other relief. On May 3, 2023, an interim order was made. The Respondent was not ordered to return to the child, but the interim order stated that the Manitoba’s King Bench shall determine an application for a parenting order for the child. It also ordered interim parenting time for the Applicant wherein she would have supervised parenting time with the child every second weekend.

4The Applicant did not take any steps to advance the proceeding in Manitoba or to enforce the interim order between May 2023 and early 2025 despite now asserting that her scheduled parenting time did not always occur.

5The Applicant retained a new lawyer in January 2025, and she attempted to contact the Respondent with no success. The attempts at contact spoke about the Applicant’s interest in having settlement discussions and then subsequently a threat that contempt proceedings with respect to the interim order would be commenced and served upon him shortly.

6The Applicant did not proceed with a contempt hearing as threatened in the email correspondence dated January 15, 2025, and did not serve the Respondent with further court materials. Instead, the Applicant noted the Respondent in default, with no advance warning and had the proceeding in Manitoba heard on an uncontested basis.

7On March 7, 2025, a final order was made in the Manitoba proceeding by Berthaudin J. of the Manitoba King’s Bench (Family Division) which ordered the return of the child to the Applicant in Winnipeg, Manitoba along with additional orders.

8However, because the final order was made in Manitoba, the Applicant could not get the assistance of police in Ontario to enforce same.

9The Applicant commenced this application on September 16, 2025, seeking to have the final order in Manitoba recognized in Ontario for the purposes of enforcement. She initially requested that it be heard on an urgent basis without notice to the Respondent. This request was denied. She thereafter brought a motion seeking the same relief as sought in the application.

10The Respondent was served with the materials in early November 2025. On November 27, 2025, Newton J. refused to grant the relief sought on an urgent basis and directed the matter to a Case Conference.

11A Case Conference was then held on January 9, 2026. It was adjourned to February 11, 2026, to allow the Respondent time to retain a lawyer and file material. At the Case Conference on February 11, 2026, the Respondent had still not retained counsel or filed materials. The matter was scheduled for a two-hour hearing on April 1, 2026, and directed to proceed regardless of whether the Respondent had retained a lawyer.

12Mr. Fuller on behalf of the Respondent appeared at the hearing on April 1, 2026, and materials were filed on his behalf.

13The Applicant’s motion was dismissed. The same relief sought in the Application was also denied. However, the Application was not dismissed as the Respondent sought relief in his Answer that needs to be determined, including whether an order superseding the final order in Manitoba should be made in Ontario.

14The Respondent seeks his costs of the motion on a partial indemnity basis in the amount of $4,251.06, inclusive of HST and disbursements from the Applicant.

15The Applicant asserts that the Respondent should not be entitled to costs due to his delay and unreasonable behaviour throughout the litigation.

16There is a useful summary on the approach to costs in family law proceedings by the Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 at paras. 9-18 which I have considered.

17Rule 24(1) of the Family Law Rules creates a presumption of costs in favour of the successful party on a motion. As such, consideration of success is the starting point for determining costs. With that being said, an award of costs is still subject to the other factors found in the Rules: see Mattina at paras. 12 and 13.

18Specifically relevant to this case and the position of the Applicant, a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs, or ordered to pay all or part of the unsuccessful party’s costs. In deciding whether a party has behaved reasonably or unreasonably, the court shall examine:

a. the party’s behavior in relation to the issues from the time they arose, including whether the party made an offer to settle;

b. the reasonableness of any offer the party made; and

c. any offer the party withdrew or failed to accept: see Mattina at paras. 15-17.

19The Respondent was successful on the motion. Therefore, we start with the presumption that he is entitled to costs.

20There are not offers to settle to consider in the determination of costs. The Applicant did make an offer to settle whereby the child would be returned to her in Manitoba at the conclusion of the school year in June 2026 and the parties would thereafter follow the final order from Manitoba. This offer is not relevant to my assessment of costs given the outcome on the motion.

21In this case, there is much I could criticize about the actions and behaviours of both of the parties. The Respondent should not have exercised the self-help remedy of taking the child in March 2023 without properly seeking a change to the existing arrangement that was in place. He should have been more responsive to the Applicant and her lawyer and should have responded to this motion in a timelier manner.

22With that being said, the Applicant took every opportunity she could to proceed on an ex parte or summary basis without notice to the Respondent. Specifically, the Respondent was advised in January 2025 that the Applicant would be serving him with a contempt motion. Instead, she proceeded on a without notice basis to obtain the final order in Manitoba with no notice to the Respondent. The Applicant also took almost two years to advance the Manitoba proceeding while the child was living in Ontario with the Respondent.

23Lastly, the decision on this motion does not bring any final resolution or determination to the issues between the parties. The final order in Manitoba remains in place. It will still have to be determined whether a superseding should be made in Ontario with respect to the child.

24Based on the foregoing, I find that the presumption in favor of awarding costs to the Respondent, as the successful party has been overcome. Instead, each party shall bear its own costs of this motion.

The Hon. Madam Justice R.A. Lepere

Footnotes

1. 1Non-specific identifiers will be used to protect the privacy of the parties and the children.