WARNING

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

CITATION: HSCAS v. M.S., C.D.S., and C.A.D., 2026 ONSC 4579

BELLEVILLE COURT FILE NO.: FC-24-420

HEARD IN WRITING

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Highland Shores Children’s Aid Society

Lauren Hawn, for the Applicant

Applicant (the “Society”)

• and -

M.N.S.

On her own behalf

Respondent (the “Mother”)

• and -

C.D.P.

Laura Shaw and Jessica Oudyk, for the Respondent, T.’s Father

Respondent (the “T’s Father”)

• and -

C.A.D.

Heather Smith-McGurk, for the Respondent, H.’s Father

Respondent (the “H.’s Father”)

Sharon Leitch, counsel for Office of the Children’s Lawyer, for the children T.P. and H.A.D.

HEARD IN WRITING

JUSTICE ALEX FINLAYSON

REASONS FOR DECISION REGARDING

COSTS OF A CHILD PROTECTION TRIAL

A. Overview

[1] The Court heard a lengthy child protection trial in April and May of 2026. The Court released its Reasons for Judgment on May 25, 2026 (the “Trial Judgment”).

[2] At ¶ 841(jjjj)-(llll) of the Trial Judgment, the Court inquired as to whether anyone was seeking costs. I was informed that both C.D.P. (“T.’s father”) and C.A.D. (“H.’s father”) wished to seek costs against M.N.S. (the “mother”). No one seeks costs against Highland Shores Children’s Aid Society (the “Society”) or the Office of the Children’s Lawyer (the “OCL”), nor does either the Society nor the OCL seek costs against each other, or any of the parents.

[3] In a subsequent Endorsement of June 8, 2026, I set a timetable for the delivery of costs submissions in writing. Only H.’s father filed his costs submissions by the deadline imposed. I could not locate any submissions from T.’s father.

[4] The mother filed an affidavit sworn July 8, 2026, saying that she “respectfully decline[s] to participate in a conventional cost submission or to deliver a bill of costs at this time, as the fairness and legal integrity of the underlying trial are presently before the Divisional Court on appeal”, among other things. On July 9, 2026, she filed a further affidavit that addresses her views about another aspect of the conduct of the trial, that I gather she intends to raise on appeal. The mother says that this second affidavit also explains why she is not seeking costs.

[5] It was brought to my attention that the Endorsement of June 8, 2026 was not sent to T.’s father’s lawyer when it was released. In a supplementary Endorsement of July 10, 2026, I granted T.’s father an extension of time to file his written submissions given the error in the release of the June 8, 2026 Endorsement. T’s father then filed his written submissions. I advised the mother through that same July 10, 2026 Endorsement, that the costs of the trial remained before the Court notwithstanding her appeal (although an appellate court may consider the correctness of this Court’s eventual ruling on costs as part of her appeal). The Court afforded the mother a further opportunity to file costs submissions by August 6, 2026, failing which I said I would consider her affidavits of July 8 and 9, 2026 only.

[6] The mother filed a further affidavit sworn August 6, 2026. It continues to object to the Court deciding costs, and raises various appeal issues. The July 8 and August 6, 2026 affidavits also raise an argument about the mother’s ability to pay. I have considered the mother’s three affidavits, despite her objection to this Court dealing with costs of the trial because she has appealed.

B. The Nature of this Child Protection Proceeding in Which Costs Are Now Sought

[7] This was a lengthy and challenging trial of an Amended Protection Application. The Society called evidence about eight clusters of significant protection concerns, namely extreme parental conflict and the children’s exposure to family violence, the mother’s use of physical discipline, concerns arising out of the fact that the mother coached H. to make false allegations of sexual abuse, concerns about the children’s education, concerns about the mother’s inability to manage the children’s health care, concerns about the mother’s inappropriate internet use, concerns about numerous lawsuits, complaints or threats towards others involved in the children’s lives that the mother had initiated, and underpinning all this, significant concerns about the mother’s mental health, her refusal to accept one of her diagnoses, and her refusal to obtain proper treatment for it: see ¶ 4 of the Trial Judgment.

[8] The Court found the children to be in need of protection for numerous reasons. The Court granted section 102 custody Orders in favour of each of the fathers. The Court ordered Restraining Orders against the mother at H.’s father’s request. It ordered conduct orders against the mother concerning T., as T.’s father did not seek a Restraining Order. The Restraining Orders/conduct Orders include restrictions on the mother’s internet and social media behaviour, among others. The Court found it to be in the children’s best interests to limit the mother’s parenting time. The Court imposed terms. The Court found it to be in the children’s best interests to impose a moratorium on the mother commencing further proceedings. It imposed conditions for her to seek a return to Court thereafter, tied largely, although not entirely, to the need for her to address properly her mental health. The Court ordered sibling contact, to which the fathers readily consented.

[9] At ¶ 9-11 of the Trial Judgment, the Court provided an overview or summary of some of what transpired during this trial. I wrote:

9This Judgment is lengthy. The Court’s description of the conduct of this trial in Part V(f)(4.) of this Judgment below, explains why. This trial was scheduled for 10 days; it took 12 (several of which were extended sitting days). This case concerns two children and three parents, with multiple competing plans. In a certain respect, this was a trial of two cases in one, albeit with overlapping evidence.

10Over the course of the 12 day trial, the Court heard from a staggering 33 witnesses, one of whom had to be recalled, and two of whom were added into the mix mid-trial. The Court was called upon to deal with multiple voir dires about expert opinion evidence and the admissibility of documents and statements. There are now 123 Exhibits at the end of the day, which include surprise documents sought to be tendered mid-trial, sometimes as events outside the court room unfolded. The Court was bombarded with the mother’s seven binders of documents, several thousands of pages in length.

11Below, I deal with multiple preliminary issues, before being able to get to the crux of the analysis. One of these preliminary issues is the mother’s multi-faceted constitutional challenge, much of which did not require the Charter to dispose of. Incidentally, all of this contributes to, but is not even the complete explanation, for why I have found there needs to be a moratorium on more litigation concerning these children.

[10] The mother’s constitutional challenge contained arguments about her freedom of expression, relating to her internet and social media behaviour. The Court expressed a number of concerns about the mother’s online behaviour, only some of which included certain mid-trial conduct. During this trial, the mother made a post about this case online, and then she openly defied the Court, when it ordered her to cooperate to remove what she had posted mid-trial. Other very problematic behaviour included that the mother had been launching multiple lawsuits, Human Rights Tribunal applications, professional regulatory complaints, and other complaints about most involved in this case. The Court was tasked during this trial to address several issues respecting admissibility of numerous recordings, including of the children, and the admissibility of various children’s hearsay statements.

[11] It was not just this trial, that was lengthy and challenging. There were lengthy and challenging prior proceedings in this case too. They are summarized in Part III of the Trial Judgment.

C. The Different Approach to Costs in Child Protection Proceedings

[12] It is well established that modern costs rules are designed to foster four fundamental purposes: to partially indemnify successful litigants; to encourage settlement; to discourage and sanction inappropriate behaviour by litigants and; (4) to ensure that cases are dealt with justly under subrule 2 (2) of the Family Law Rules: see Mattina v. Mattina, 2018 ONCA 867.

[13] The purposes are slightly modified in child protection cases. Success is not as dominant a factor, and in many child protection cases, it is not a factor at all: see Children’s Aid Society of Toronto v. C.B., 2020 ONCJ 369 ¶ 19.

[14] I alerted counsel and the parties to the different approach to costs in child protection proceedings when inquiring as to whether anyone was seeking costs at ¶ 841(jjjj) of the Trial Judgment. T.’s father’s submissions referred to the different approach to costs in child protection cases. H.’s father’s submissions did not. H.’s father relies in part upon the presumption of success in rule 24(3) of the Family Law Rules, which does not apply in child protection proceedings: see rule 24(5).

[15] At ¶ 3 of Children’s Aid Society of Ottawa-Carleton v. S., 2003 CanLII 88994 (ON SCDC), [2003] O.J. No. 945 (Div. Ct.), the Divisional Court explained the rationale for exempting the presumption of success in child protection cases. The Court wrote:

The rationale for making child protection cases an exception to the presumptive entitlement to costs stems from the fact that a children's aid society has a statutory obligation to initiate and pursue proceedings if there is reason to believe a child is in need of protection and it should not be dissuaded from the pursuit of its statutory mandate by costs considerations. Parents, on the other hand, are generally insulated from claims for costs in such proceedings because when faced with state intervention in the care and upbringing of their children, they have a right to force the state to prove its case and should not be penalized in costs. See Children's Aid Society of Ottawa-Carleton v. V. and V. (2001), 105 A.C.W.S. (3d) 885, [2001] O.J. No. 2147, [2001] O.T.C. 428, 2001 CarswellOnt 1991 (Ont. Fam. Ct.).

[16] While at ¶ 5, the Division Court wrote that there may be appropriate cases for costs awards as between parents in a child protection case, entitlement must be based on “sometime more than merely the outcome of the case”.

[17] The case law has been subsequently developed since Children’s Aid Society of Ottawa-Carleton v. S. was decided in 2023.

[18] At ¶ 7 of Children and Family Services of York Region v. A.S., 2010 ONSC 1287, [2010] O.J. No. 872 (S.C.J.), McGee J. noted that although the presumption of success is exempted in child protection cases, the balance of rule 24 is not overridden. Nonetheless, she still applied the Divisional Court’s rationale, finding at ¶ 17, that parents were entitled to vigorously present their case, without fear of a costs sanction absent bad faith, or excessively unreasonable or disproportionate behaviour.

[19] E. Murray J. in Children’s Aid Society of Toronto v. S.T., 2018 ONCJ 573 followed this “bad faith, or excessively unreasonable or disproportionate behaviour” approach. At ¶ 23, she added that the kind of conduct that can qualify as “bad faith or excessively unreasonable or disproportionate behaviour” is that which harms the children involved by heightening and extending conflict between the parents. Often, cases will involve a parent who has repeatedly disobeyed court orders and misled the court, and who is found to be acting in bad faith.

[20] Sherr J. relaxed the threshold a bit in Children’s Aid Society of Toronto v. C.B., 2020 ONCJ 369, where there has been a breach of an order for parenting time, although his commentary likely has application to other breaches of orders. He found the “excessive unreasonable behaviour” threshold to be too high in such circumstances of breach. He otherwise found that the dispute between the parents in the case before him mirrored a proceeding under the Children’s Law Reform Act, but felt that it was important to sanction non-compliance. He made reference to rules 1(8) and 2 in so doing: see ¶ 33-37.

[21] An addition consideration here, is the fact that the mother struggles with her mental health. At ¶ 25 of Children’s Aid Society of Toronto v. S.T., E. Murray J. wrote that even highly unreasonable behaviour may not result in an award of costs, if the genesis of that behaviour is mental illness, and not just stubborn rigidity. More recently in Children’s Aid Society of Peel v. A.W., 2025 ONCJ 130, Clay J. followed that approach, and found that the mother acted irrationally, exhibited challenging behaviour and prolonged the trial, yet this was likely the result of an undiagnosed and untreated mental health problem: see ¶ 383-384.

D. Analysis

[22] In my view, some award of costs is appropriate here, but not in the sums sought by the fathers.

(1) The Mother’s Behaviour

[23] Both fathers ask the Court to find that the mother engaged in bad faith behaviour pursuant to rule 24(10). There is merit to that request.

[24] At ¶ 17 of S.(C.) v. S.(M.), 2007 CanLii 20279 (S.C.J.), Perkins J. defined bad faith as behaviour that is:

…carried out with intent to inflict financial or emotional harm on the other party or other persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court. A misguided but genuine intent to achieve the ostensible goal of the activity, without proof of intent to inflict harm, to conceal relevant information or to deceive, saves the activity from being found to be in bad faith. The requisite intent to harm, conceal or deceive does not have to be the person’s sole or primary intent, but rather only a significant part of the person’s intent. At some point, a party could be found to be acting in bad faith when their litigation conduct has run the costs up so high that they must be taken to know their behaviour is causing the other party major financial harm without justification.

[25] At ¶ 58-61 of Jackson v. Mayerle, 2016 ONSC 1556, Pazaratz J. wrote that bad faith implies “the conscious doing of a wrong because of dishonest purpose or moral obliquity”; it involves “duplicity, obstruction or obfuscation”. Bad faith is different from unreasonable behaviour. Its essence is when “a person suggests their actions are aimed for one purpose when they are aimed for another purpose” and it is done “knowingly and intentionally”. The Court must find “malice” or “intent to harm”. Bad faith can be established by “the intentional failure to fulfil an agreement in order to achieve an ulterior motive”, or “the intentional breach of an order with a view to achieving another purpose”.

[26] On the one hand, the Court made a number of findings that the children were at risk of physical and emotional harm. The Court does not make a finding of bad faith based on most of those findings. Most of the behaviour that led the Court to find the children in need of protection was part of the factual matrix underpinning a protection application.

[27] Moreover, a central feature of this case, were the Court’s significant concerns about the mother’s mental health, and those concerns underpin much of the mother’s conduct. In particular, at ¶ 608 of the Trial Judgment, the Court found that the mother has diagnoses of Borderline Personality Disorder and ADHD. The Court found that her co-morbidities have a significant impact on her functioning and her ability to parent.

[28] On the other hand, aspects of the mother’s conduct, while also relevant to the protection findings and to disposition, did rise to the level of bad faith, and if not bad faith, then the conduct bordered on it. Whether I apply the somewhat more relaxed standard that Sherr J. applied when there is a breach of an order (there were breaches in this case), or even the “excessive unreasonable behaviour” standard that is articulated in several cases, the result would be the same. There should be some costs, but for the principal purpose of “discourag[ing] and sanction[ing] inappropriate behaviour by litigants”: see again Mattina v. Mattina. I base this conclusion on three aspects of the evidence, about which there are a number of findings of fact set out in the Judgment.

[29] First, the mother launched a broad constitutional challenge that was devoid of merit. To be clear, the Court does not award costs because of that alone. Although it was without merit, I am prepared to consider that her constitutional challenge was generally part of the vigorous defence that she is entitled to mount in a child protection proceeding.

[30] However buried within her constitutional challenge included arguments about her freedom of expression. Those arguments pertained to her online behaviour. The Court found that the mother had behaved immaturely and inappropriately on social media both before and during this case: see ¶ 238 of the Trial Judgment. The Court found that the mother had targeted many persons online, including H.’s father, Society workers, and other witnesses: see ¶237-261.

[31] The Court found that aspects of the mother’s online behaviour while this case was pending amounted to a breach of section 87(8) of the Child, Youth and Family Services Act, 2017 and the temporary Consent Order of McCarty J. dated June 5, 2025. The mother even breached a mid-trial Order that I made concerning a mid-trial posting that she made. She then acted with defiance in the face of the Court. She later admitted that she had “fabricated the truth” and lied to the Court during the trial about what she had done: see ¶ 259, and 272-278 of the Trial Judgment.

[32] Second, part of this trial concerned the mother’s allegation that H.’s father had sexually abused H., which I did not find. Some of the evidence respecting that allegation included that the mother made a video of H. making a statement of sexual abuse by H.’s father.

[33] The Court found that video to be very problematic. At ¶ 401 of the Trial Judgment, the Court found that the mother was either preparing the child to make a statement at a subsequent hospital visit, or for the purposes of a subsequent Society interview about the alleged abuse. The Court found that she acted in a way that was both in the nature of evidence gathering, but that also caused the child emotional harm. Relatedly, the Court learned mid-trial, that the mother had made approximately 40 hours of recordings of her pre-trial supervised visits: see ¶ 403-410 of the Trial Judgment.

[34] Third, the Court heard an overwhelming amount of evidence about a number of law suits, applications to the Human Rights Tribunal, professional regulatory complaints, and other complaints or threats of complaints, that the mother and sometimes others aligned with her, had made. Some of that behaviour went on during the prior proceedings, but it continued during the trial.

[35] The Trial Judgment contains a detailed summary of the mother’s actions in this regard: see ¶ 548-591 of the Trial Judgment. Importantly for the purposes of costs, many of her actions targeted both fathers and others in their family (in addition to several lawyers involved in this case, Society employees, witnesses, and even the Court).

[36] Both Tellier J. and McCarty J. commented on the inappropriateness of this in their pre-trial rulings dated November 6, 2024 and May 13, 2025. Yet the behaviour continued. The Court in the Trial Judgment admonished the mother for this conduct again, as had Tellier J. and McCarty J. before me: see ¶ 594-600 of the Trial Judgment.

[37] These three significant components of the mother’s conduct were specifically designed to cause harm to the children’s other parents. They also exposed the children to a risk of harm. Some of it included breaches of the non-publication provisions of section 87(8) of the CYFSA, and orders of this Court.

(2) The Mother’s Mental Health

[38] While I still accept that the mother’s mental health underpins this conduct, I am equally mindful that there was an overwhelming amount of evidence as to the mother’s likely diagnosis, well before this trial got underway. Efforts had been made to work with the mother prior to trial, that she rebuffed. The Court at this trial found that the mother was refusing to acknowledge and to properly treat her diagnosis: see the Trial Judgment ¶ 608, and 680-696.

[39] She can only rely on her mental health to excuse this specific behaviour that is worthy of a costs sanction, to a point. She refused to take responsibility for her mental health, and to deal with it appropriately.

(3) Quantum

[40] T.’s father seeks costs of $50,065 on a “partial indemnity basis” plus HST. H.’s father seeks costs of $36,381.43.

[41] Rule 24(14) of the Family Law Rules sets out factors that the Court may consider when setting the amount of costs. The Court does not take issue with the time spent or the hourly rates charged, in general. Both lawyers for both fathers are experienced child protection counsel.

[42] However one of the factors in rule 24(14)(a)(i) is each party’s behaviour, not just the mother’s. Each father did not always behave above reproach here either.

[43] For example, the Court found that H.’s father in particular had been very involved in the parental conflict, which included calling the Society and the police. The Court found that conduct did not reflect well on both parents, not just the mother: see ¶ 55-63 of the Trial Judgment.

[44] The Court had concerns about T.’s father’s his prior use of physical discipline, and the fact that his own childhood issues had not been addressed.

[45] That said, this conduct is not so severe as to disentitle either to costs altogether. The Court acknowledged in the Trial Judgment that T.’s father had some insight. The Court sought the consent of the Society to remain involved with T.’s father to support T.’s placement there: see ¶ 487-491, and 740-741 of the Trial Judgment. The Court recognized that H.’s father was seeking help and it wasn’t always provided to him. The Court expressed some concerns about the Society’s and the local police’s past inaction: see ¶ 63 of the Trial Judgment.

[46] Of more significance, the Court on the one hand appreciates that both fathers had to participate during what was a lengthy and involved trial, as T.’s father’s submissions argue. But both fathers took a secondary role in this trial to some degree, and T.’s father did that even more so, than H.’s father. While each of T.’s father and H.’s father provided helpful evidence, such as by way of background information that was relevant, and they contributed to the trial in other ways, unquestionably it was the Society that did all of the heavy lifting. It was the Society who presented the principal position during this trial.

[47] T.’s father in particular called the fewest number of witnesses. He didn’t even cross-examine all of the witnesses. T.’s father had two counsel throughout much of the trial. While I understand why counsel may have felt the need for that, and while Ms. Oudyk was undoubtedly helpful to her co-counsel, it is disproportionate to charge for two lawyers here, when I consider the totality of the circumstances. T. and his lawyer(s) did not even attend in person every day. Some days T. was not here at all, but his lawyers were. Yet his Bill of Costs is the largest of the two fathers.

(4) Ability to Pay

[48] The mother in her July 8, 2026 and August 6, 2026 affidavits raises arguments about ability to pay. This can be considered under rule 24(14)(b). And I am prepared to take into account her ability to pay, but once again only to a point.

[49] In so doing, the mother’s mental health has relevance again here. The same health issues that underpinned the protection issues are very likely impacting adversely her financial circumstances.

[50] On the other hand, I heard during this trial that:

(a) The mother lives with her parents, and they are supporting her such as through housing;

(b) The mother at one point worked for her father and had some income source from that;

(c) The mother continued to collect child support from both fathers after the children’s removal in her care in November of 2024: see ¶ 830-840;

[51] I do not find persuasive the mother’s argument that she now owes $14,000.00 to the federal government for the Canada Child Benefit. If she owes that, it is on account of her collecting it after the removal, when she wasn’t entitled to it.

[52] I consider McGee J.’s comments at ¶ 17 of Mohr v. Sweeney, 2016 ONSC 3238, 2016ONSC 3238, where she wrote, “[t]hose who can least afford to litigate should be most motivated to seriously pursue settlement, and avoid unnecessary proceedings.” Yet this commentary from Mohr v. Sweeney has to be put back into the aforementioned context, which is that this is a child protection proceeding. And I further recognize that I imposed on the mother the majority of the cost of supervision of her visits, as well as the cost of her travel to Guelph for the visits that will take place there. On the other hand, the fathers now have the principal financial responsibility for caring for the respective children: see ¶ 841(bbb) and (ccc) of the Trial Judgment.

[53] In other words, ability to pay has some impact here, but only some impact.

(5) Payment Schedule

[54] None of the submissions address whether there should be a payment schedule if costs are awarded. It was probably incumbent on the mother to do this, but she chose not to.

[55] Nonetheless, I am prepared to entertain this on my own accord. I find that the Court can address ability to pay by ordering a payment schedule. Taking into account the sums being ordered below, I find it to be appropriate to order that the mother can pay her costs over an approximately three-year period, provided she does not default on a payment.

E. Conclusion

[56] For these reasons, I find that there should be some costs, but not in the sums claimed. The total quantums have to be fair, reasonable and proportionate, and they have to take into account the different context of this case, the mother’s mental health, her ability to pay, but also her specific problematic conduct that transcends justification on mental health grounds.

[57] I therefore fix the sum at $10,000.00 for H.’s father. I find that T.’s father is entitled to a more modest amount of $5,000.00.

F. Order

[58] I make the following Orders:

(a) The Respondent mother shall pay costs in the sum of $10,000.00 to H.’s father. Commencing September 1, 2026, the mother shall pay these costs at the rate of $300.00 per month;

(b) The Respondent mother shall pay costs in the sum of $5,000.00 to T.’s father. Commencing September 1, 2026, the mother shall pay these costs at the rate of $150.00 per month;

(c) If the mother defaults on any particular periodic payment of costs, the total remaining amount then owing to the father to whom she defaulted, shall become immediately due and payable to that father; and

(d) Counsel may take out separate costs Orders pertaining to each of the fathers individually.

_________________________

Justice Alex Finlayson

Released: August 7, 2026

CITATION: HSCAS v. M.S., C.D.S., and C.A.D., 2026 ONSC 4579

BELLEVILLE COURT FILE NO.: FC-24-420