CITATION: Coburn v. McCreight et al., 2026 ONSC 3917
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: Cody Richard Parker Coburn, Applicant
AND:
Chelsy Lyn McCreight, Respondent
AND:
Kevin Ricard, Respondent
BEFORE: MITROW J.
COUNSEL: Kenneth Fraser, for the Applicant
Chioma Adiele, for the Respondent Chelsy Lyn McCreight
William Doran, for the Respondent Kevin Ricard
HEARD: by written submissions filed
COSTS ENDORSEMENT
1I have reviewed all three parties’ written costs submissions served and filed pursuant to my order dated April 29, 2026, dealing with the applicant’s urgent motion for a parenting order. There was also a motion brought by the respondent Ricard.
2The subject child was born in January 2025. At that time, the applicant and the respondent McCreight, who is the child’s mother (“the mother”), were cohabiting. They separated in June 2025, and on separation, the applicant and the mother agreed to a week-about parenting schedule. A finding was made that post-separation, on a de facto basis, the child had been in the applicant’s primary care to a significant extent (Reasons1, para. 51).
3In January 2026, it was learned via DNA tests that the respondent Ricard is the child’s biological father (“the father”).
4The urgent motion brought by the applicant was necessitated because in January 2026, both respondents began sharing all the child’s parenting time between themselves to the exclusion of the applicant.
5On the return of the urgent motion on February 4, 2026, when both respondents were self-represented, the court, on an interim interim without prejudice basis, reinstituted the applicant’s parenting time to include alternating weeks, from Sunday to Sunday, commencing February 15, 2026. The applicant’s motion was adjourned and timelines were provided for filing further affidavit material.
6The applicant was completely successful on his motion. He is presumptively entitled to costs. The applicant obtained an order for parenting time on a week-about basis. The order allocated parenting time between the respondents for the other week.
7The applicant seeks costs payable by the respondents in the amount of $20,000, which is almost full recovery.
8The applicant’s total costs on the motions were claimed to be $21,407, inclusive of HST and disbursements, as set out in the applicant’s bill of costs and the time dockets.
9The mother requests that no costs be awarded against her. She submits that she is currently unemployed and has very limited financial means. The mother also attaches a financial statement sworn March 18, 2026 that attaches various tax returns, notices of assessment and T4 slips to show that she earned minimal income for the years 2022 to 2025. In the alternative, the mother submits that if costs are ordered against her, that the costs be substantially reduced to reflect her limited financial means.
10The father’s position is that no costs should be awarded against him. He does work full time but submits that he has a limited income and that a costs award against him at this early stage would cause financial hardship. The father’s income in 2024 and 2025 was $40,491 and $42,872, respectively. The father attaches a pay statement from early February 2026, which suggests his 2026 income will be similar to his 2025 income.
11The untenable positions taken by the respondents are best explained by reproducing paras. 101 to 103 and para. 104 in part, from the Reasons2:
101The mother’s affidavit evidence includes statements that it is not appropriate for the child to have multiple “father” figures; that the applicant’s involvement as a parent risks creating confusion for the child regarding parental identity; that the child has not developed “a long-standing or deeply-rooted psychological parent bond with [the applicant]”; and that given the child’s age, any such relationship can be transitioned without harm.
102The foregoing evidence is not only disturbing, but it is bereft of any understanding and insight into the child’s best interests. Most, if not all, of that evidence is inadmissible opinion evidence from the mother masquerading as an expert witness.
103The main reason advanced by both respondents to sever the applicant’s relationship with the child is because the applicant is not a “biological parent”. That alone is enough for the respondents. The applicant’s role as a psychological father to the child during the child’s formative first year is a non-factor in the respondents’ biological-parent world.
104The respondents, acting together, have propounded their ill-informed theory that the child must only have two parents (so as not to confuse the child) and that those two parents can only be the biological parents, to the exclusion of the applicant. This theory of parenthood espoused by the respondents is not supported by the jurisprudence, as discussed earlier, and importantly, it is not tethered to any child-focused analysis of the child’s best interests in relation to the factors in s. 24(3)…
12In considering the factors in r. 24(14), I start with behaviour. Both respondents, acting together, withheld the child from the applicant in January 2026, prompting the applicant’s urgent motion. The applicant, through his counsel’s communication with the mother, made reasonable efforts to reinstate his parenting time without commencing legal proceedings, but the mother remained intransigent, and both respondents continued to deny any parenting time to the applicant.
13The foregoing conduct by both respondents constitutes unreasonable behaviour.
14The mother maintained her position, in her motion material, that the applicant should have no further involvement in the child’s life.
15In his costs submissions, the father attempts to distance himself from the mother’s extreme position, submitting that he “pleaded no relief seeking to restrict [the applicant’s] parenting time at this early stage in the proceeding”. However, the father’s primary position was that the applicant’s involvement in the child’s life “should end” (now that the father is involved in the child’s life), but in the alternative, the father’s position was that any continued involvement by the applicant with the child should be “secondary and limited”. (See Reasons3, paras. 43 and 44.)
16Regarding the rates for lawyers and clerks, all parties provided a bill of costs. I find the lawyers’ rates for all the parties and clerks’ rates to be reasonable.
17However, in relation to the time spent, the applicant’s bill of costs shows 40.7 hours for the applicant’s counsel. This docketed time, however, is not restricted to the motions. For example, on January 21st and January 22, 2026, there was a total of 6.2 hours docketed by the applicant’s counsel, totalling $2,480 in fees “to work on pleadings”. There is also clerk’s time docketed relating to the application. The impression from the applicant’s bill of costs is that all work done since the file was opened is included. I am not satisfied that the applicant’s bill of costs includes only work related to the motions.
18According to the bill of costs of each respondent, the mother’s lawyer spent 26.3 hours and the father’s lawyer spent 14.9 hours.
19Even if the docketed time not applicable to the motions is removed, I find that the time spent by the applicant’s counsel is excessive when viewed from the perspective of the respondents, as to what they should reasonably be expected to pay.
20In dealing with reasonableness, rather than engaging in a mathematical exercise, the judge ordering costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party, rather than any exact measure of the actual costs of the successful party: Davies v. Clarington (Municipality), 2009 ONCA 722 (Ont. C.A.), at para. 52.
21The only written formal offer to settle referred to in the written submissions was the applicant’s offer dated January 22, 2026. This offer provided that the child would reside with the applicant and the mother on a week-on-week-off basis. The offer also required the respondent father to complete a DNA test.
22The applicant submits that his offer preserved the status quo in relation to the applicant’s parenting time. The applicant’s position on the motions was that the original agreed upon status quo was a week-about for the applicant, and that is what was awarded to the applicant by the court on the current motions.
23The respondents did not accept the applicant’s offer, which the applicant submits did not expire and remained open for acceptance.
24The applicant also submits that his offer engages the costs consequences of r. 24(12), and that he is entitled to costs to the date of his offer, and full recovery of costs thereafter. It is the applicant’s position that he obtained an order that is as good as, or better, than his offer. This is one of five conditions that must be met to engage the costs consequences in r. 24(12). Pursuant to r. 24(13), the burden of proof regarding clause 5 rests with the applicant, as he is claiming the benefit of r. 24(12). The respondents do not address specifically the applicant’s submissions regarding r. 24(12).
25I do not agree that r. 24(12) is engaged, because in his offer, the applicant also deals with costs. The offer provided that if the offer was accepted, then the mother will pay costs on a partial recovery basis to the date of the offer, and on a full recovery basis after the date of the offer.
26However, an offer which also includes a requirement to pay costs cannot comply with r. 24(12). This issue was dealt with by Pazaratz J. (in relation to the similar predecessor r. 18(14)) in Chomos v. Hamilton, 2016 ONSC 6232 (Ont. S.C.J.), at paras. 24 and 294:
An offer to settle substantive terms which also includes a predetermination of costs perverts the Rule 18(14) analysis, because the party ends up trying to claim credit for accurately predicting a costs determination a judge has not yet made.
Rule 18(14) contemplates full indemnity for costs where all of the terms of an offer have been obtained in the trial judgment. An offer which includes costs obligations not yet determined by the court, cannot satisfy the strict requirements of this section.
27The reality is that the offer has to be compared to the order. The offer required the mother to pay costs if she accepted the offer. The costs provisions were not severable from the other provisions in the offer. The order made by the court did not require the mother to pay costs. Hence, it is not possible for the applicant to comply with clause 5 of r. 24(12).
28However, I do consider the applicant’s reasonable offer as one of the factors in relation to r. 24(14).
29The financial situation of a party is a relevant consideration when fixing costs: M.(C.A.) v. M.(D.), 2003 CanLII 18880 (ON CA), [2003] CarswellOnt. 3606 (Ont. C.A.), at para. 42; Grujicic and Grujicic v. Trovao, 2023 ONSC 1518 (Ont. S.C.J.), at para. 27. However, a party’s limited financial resources do not create immunity from an order for costs: Hales v. Lightfoot, 2022 ONSC 5892 (Ont. S.C.J.), at para. 9; Mark v. Bhangari, 2010 ONSC 4638 (Ont. S.C.J.), at para. 10; Grujicic, supra, at para. 28. Where a party has acted unreasonably, then ability to pay is less of a mitigating factor: Grujicic, supra, at para. 29. For the foregoing principles, see also to the same effect, the summary contained in Rubio v. Leigh, 2025 ONSC 1203 (Ont. S.C.J.), at para. 41.
30Further, as noted by McGee J. in Mohr v. Sweeney, 2016 ONSC 3238 (Ont. S.C.J.), at para. 17, it is those who are least able to afford to litigate who should be most motivated to seriously pursue settlement and avoid unnecessary proceedings. This sage directive from McGee J. was ignored by both respondents.
31This is not a proper case to reduce costs payable by the respondents. Both respondents acted unreasonably. The respondents also continued to pursue their positions, refusing to settle, despite the interim interim without prejudice order made on February 4, 2026 reinstating the applicant’s parenting time during alternate weeks. I consider also that the applicant is of modest means and has had to incur legal expenses to reinstate his parenting time.
32Having regard to the principles of reasonableness and proportionality, I fix the applicant’s costs on the motions in the amount of $10,000 all inclusive.
33In relation to the mother, I do consider her financial circumstances in providing for a payment plan as set out below. Regarding the father, he is, and has been, gainfully employed, and I decline to allow a payment plan for him.
34I have considered whether the respondents should be jointly and severally liable for the total award of costs. However, I take into account each respondent’s financial circumstances, and that the payment terms are different for each respondent. Accordingly, the order below requires each respondent to pay $5,000.
ORDER
35I make the following interim order:
- The respondents shall pay to the applicant his costs of the motions, fixed in the amount of $10,000 inclusive of HST and disbursements as follows:
a. The respondent McCreight shall pay to the applicant the sum of $5,000, payable $1,000 within 30 days, and the balance to be paid in the amount of $250 per month commencing October 1, 2026 until paid in full;
b. The respondent Ricard shall pay to the applicant the sum of $5,000, payable within 30 days.
“Justice Victor Mitrow”
Justice Victor Mitrow
Date: July 6, 2026
Footnotes
- Coburn v. McCreight et al., 2026 ONSC 2523 (Ont. S.C.J.).
- Ibid, footnote 1.
- Ibid, footnote 1.
- See also to the same effect Hall v. Hall, 2019 ONSC 4198 (Ont. S.C.J.), at paras. 12–14; and Shelley v. Shelley, 2019 ONSC 608 (Ont. S.C.J.), at para. 44.