Zaidi v. Zia, 2026 ONSC 4693

CITATION: Zaidi v. Zia, 2026 ONSC 4693

COURT FILE NO.: FS-25-00000075-0000

DATE: 2026-08-13

SUPERIOR COURT OF JUSTICE – ONTARIO

491 Steeles Avenue East, Milton ON L9T 1Y7

RE: Rubaid Zaidi, applicant

AND:

Sarina Khalid Zia, respondent

BEFORE: Justice M. Kurz

COUNSEL: Farrah Hudani and Jessica Luscombe, for the Applicant

Fadwa Yehia and Astha Dhanda, for the Respondent

Archana Medhekar, Office of the Children’s Lawyer

HEARD: November 24-28, December 3, 9, 22, 2025, January 2 and 6, 2026

costs ENDORSEMENT

Introduction

[1] This was a trial under the Hague Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35 (the “Hague Convention”). Following six days of trial and four aborted days of trial, I found that the two children subject to this application (the “Children”) are habitually resident in the United Kingdom. Having made that finding, I made a series of orders. The primary term of my order required the return of the Children to the U.K. I granted five terms set out in the Applicant Father’s Application. Finally, I also ordered that the undertakings given by the Father, set out at para. 276 of my endorsement, are binding on him.

[2] The background to this matter and my findings leading to my order are found in my endorsement of January 14, 2026, cited at 2026 ONSC 291 (the “trial endorsement”).

[3] This proceeding included three formal mid-trial motions brought by the Mother. The first was to adjourn the trial to allow her to obtain a transcript of the first conference in this proceeding, which I conducted. She wished to obtain that transcript in support of her second motion, that I recuse myself from this proceeding because of allegedly biased comments I made at the first conference. As set out below, I dismissed both motions. However later in the same week, the Mother moved again for an adjournment after she had fired her absent lawyer and hired another. I granted that request.

[4] In my trial endorsement, I directed the parties to attempt to resolve costs on their own. Failing that, I allowed them to offer written submissions regarding costs of the entire proceeding, including any claim to necessary expenses under Article 26 of the Hague Convention. In doing so, I noted that the Father was the successful party and thus presumptively entitled to his costs under r. 24(1).

[5] The parties were unable to agree on those trial costs.

[6] At a conference following the release of the trial endorsement, I pointed out to the parties that there were two potential sets of costs to consider: those of the four aborted days of trial between November 24-28, 2025 and those regarding the balance of the trial. I differentiated those potential cost claims because of the possibility that the Mother would attempt to obtain costs against her former counsel. In fact, LawPro appointed counsel to represent the Mother’s previous counsel in that regard. However, the Mother has decided that she is not seeking costs against her former lawyer at this time, although she may engage in a civil claim against him at a later date. She is aware of the applicable limitations issues.

[7] I have reviewed the costs submissions of the parties. I have received no costs submissions from the OCL. It is not seeking costs against either party and neither party is seeking costs against it. I note that OCL counsel in this proceeding has been appointed to the Ontario Court of Justice.

Submissions of the Parties

[8] The Father seeks his costs on a full recovery basis, of $198,739.87. He argues that:

1. He was entirely successful at trial, obtaining all of the substantive relief he sought in his Application. As I pointed out in my January 14, 2026 endorsement, he is therefore presumptively entitled to costs (although I did not cite a scale of costs).

2. He is entitled to full recovery costs of the entire proceeding because of the Mother’s unreasonable and bad faith conduct throughout this litigation. Here, he refers to her wrongful retention of the children in Canada, against his express wishes, as well as the litigation strategy she assumed at trial. She refused to narrow the issues at trial, arguing every conceivable defence and exception available to her under the Hague Convention. None of them were accepted. Further, the Mother made serious and false allegations of domestic violence and sexual assault against him, none of which the court accepted. She also attempted to lead irrelevant expert evidence, which was rejected, but only following a lengthy voir dire hearing.

3. On the other hand, the Father says that his counsel made numerous efforts to reduce or minimize costs. He did so by attempting to convince the Mother to agree on certain obvious threshold issues such as: a) the children’s habitual residence; b) the Father’s exercise of his rights of custody under the Hague Convention before their retention in Canada; and 3) the absence of his consent or acquiescence to the retention of the children in Canada. Had those efforts to narrow obvious issues been accepted, the Father asserts, the trial could have been considerably narrowed to deal with the only real issue at trial: the grave risk of harm defence under the Hague Convention. Despite his counsel’s encouragement and that of Coats J. in a settlement conference, the Mother insisted on litigating all issues. The Father cites Chawla v. Marakami, 2025 ONSC 1024, at para.16, where Fryer J. found a similar approach to an obvious Hague Convention issue, habitual residence, to amount to unreasonable behaviour.

4. Similarly, while the Father attempted to deal with this matter on a summary basis, the Mother insisted on a protracted hearing. Because of the serious allegations levelled by the Mother against the Father I granted more time for cross-examinations than originally scheduled. Yet none of the Mother’s serious allegations against the Father were borne out in the evidence. In fact, the Mother recanted a number of her more inflammatory pleading allegations against the Father during the course of the trial. Not only did the erroneous allegations and their recantation cause the Father’s counsel to engage in lengthier and costlier preparations than they would otherwise have had to engage in, but the false allegations amounted to bad faith.

5. The Mother brought the three motions at trial cited above. Her first motion was a request to adjourn the trial. She sought the adjournment in order to obtain a transcript of the first conference in this proceeding, which I conducted. The transcript would be obtained in support of a second motion, requesting that I recuse myself because, allegedly, I had made certain biased comments at the first conference. Rather than delay the trial any further, I played the transcript of that conference in open court. When the recording demonstrated that I did not make the comments which the Mother and her then counsel had ascribed to me, she still insisted on requesting an adjournment to further investigate my alleged bias. Her counsel at the time cited “new issues” and “more grounds” for my recusal, making the transcript of that first conference more important. However, despite my request to particularize those new issues and grounds, counsel failed to do so. I dismissed both the adjournment request and the recusal request. Later that week, the Mother again sought again an adjournment because she had dismissed her former counsel, and retained Ms. Yehia in his stead. Ms. Yehia required time to acquaint herself with the case. I had to reluctantly adjourn the trial for about a month.

6. I dismissed the Mother’s request to qualify a witness as an expert, finding that “the potential benefits of [the witnesses’] legal, religious and cultural evidence in regard to those issues simply do not justify the risks and costs to the trial process that her evidence poses.” He argues that he should be entitled to the costs of that voir dire.

7. Much time was wasted when the Mother’s former counsel inexplicably failed to attend at the first or any other day of trial. He did send one lawyer as his agent on the first day of trial, to seek an adjournment and recusal. When that agent failed to appear at the second day of trial a second agent attended in his stead, to again argue for another adjournment, citing the first agent’s health concerns. Overall, the absence of the Mother’s counsel of record cost four days of trial time. It required the Father to remain in Ontario for a full month while awaiting the recommencement of the trial. While the ultimate responsibility for former counsel’s failure to appear at trial rested with him, the Father points out that the Mother has elected not to seek any costs against him. That is the case even though the court repeatedly advised the Mother of her right to seek those costs.

8. Because of the trial adjournment and the new materials prepared by the Mother’s new counsel, Ms. Yehia, Father’s counsel had to prepare for trial again, based on those new materials. His counsel had to prepare an Amended Reply, a Supplemental Affidavit, and an Addendum Factum. He says that in total 3.5 days of court time and legal fees were wasted. He asserts that he should not have the burden of costs for those added services, which were not his responsibility.

9. Father’s counsel warned the Mother and her counsel at every stage of this proceeding of the mounting legal costs of this proceeding and that the positions which she assumed would result in financial consequences. This gave the Mother reasonable notice of the substantial costs which the Father seeks.

10. The Father made an offer to settle on October 8, 2025, calling for the return of the children to the UK within seven days. Although my order does not replicate the terms of his offer, the Father says that in essence, my order has the same result as that contemplated in his offer.

[9] The Mother responds that no costs should be awarded and that each party should bear their own costs. She argues as follows:

1. Her own costs add up to $214,911.71.

2. The determination of costs of a proceeding is not only dependent on success. Costs remain dependent on judicial discretion. They need not be awarded at all. She cites Reid v. Mulder, 2006 CanLII 9981 (S.C.J.), where Reilly J. chose not to order costs in a mobility case. He found that both parties had pursued the case in good faith and based on their love for the child.

3. It was not unreasonable for her to want to remain in Canada with the children. Rather, in light of the significance and complexity of the issues, both parties acted reasonably.

4. She did not act in bad faith in choosing to remain in Canada. Therefore, full indemnity costs should not be available to the Father: Beaver v. Hill, 2018 Carswell Ont 17345, at paras. 11-13.

5. Her conduct does not rise to the level of bad faith in the sense of an intention to inflict emotional harm on the other party, to conceal information relevant to the issues or to deceive the other party or the court: C.S. v. M.S. 2007 CanLII 20279 (ON SC), [2007] O.J. No. 2164, 38 R.F.L. (6th) 315, at paras. 16-19 affd. 2020 ONCA 196. A finding that the court did not find a party’s evidence to be credible is not sufficient to support a finding of bad faith. Her claims of abuse were not meant to mislead.

6. Even though I expanded the time for cross-examinations from the time set out in the Trial Scheduling Endorsement Form (including from one to three hours for each party) and she was subject to the same time restrictions which bound the Father and his counsel, the Mother contends that she was not afforded lengthy time for cross-examination. Nonetheless, she argues as well that once new trial dates were set, she did her best by both retaining new counsel on a timely basis and committing to strict timelines, even facilitating parenting time between the Father and the Children.

7. The Mother seeks to reargue the necessity of her attempt to introduce expert evidence which I, as gatekeeper of evidence, refused to allow.

8. She should not be blamed for her first counsel’s failure to attend trial and therefore the aborting of the first four days of trial. Her decision not to seek costs against that counsel is immaterial to the issue of costs of the proceeding.

9. Once new counsel was retained, it was necessary to prepare new materials to ensure that the domestic violence issue she raised was adequately addressed, particularly as such allegations are very dependent on credibility.

10. While Hague Convention matters are intended to be disposed of expeditiously, it should not be at the expense of procedural fairness or natural justice.

11. The Mother did not make “false allegations” of domestic violence or sexual abuse.

12. Even had she narrowed the issues at trial to the grave risk exception, this trial would have been lengthy. The Mother reminds the court that the OCL offered its own unique arguments regarding the issue of habitual residence (an issue which the Mother raised as well).

13. If he wished, the Father could have returned to the UK pending the second set of trial dates. Moreover, he did not experience financial hardship by staying in Canada. He stayed with a relative and had the opportunity to enjoy parenting time with the Children while he was awaiting trial. Further he was able to remotely engage in his work.

14. The Mother possesses limited financial resources. She has funded her defence, which is more costly than that of the Father, through relatives. Any significant costs award would impair her ability to travel to the UK to see the Children.

15. On December 2, 2025, close to the end of the trial, the Mother served an offer to settle. If accepted, that offer would have allowed the Father the option of having the children primarily reside with him in Wilmslow, UK, while allowing the Mother parenting time every winter and spring break, and all of the summer school break. In the alternative those arrangements could have been reversed. The offer had a number of other terms dealing with property issues between the parties. The parenting terms of the Mother’s offer were subject to review when the Children turn ten years of age (even though they were of different ages, one eight years old, the other five). The Mother contends that this offer demonstrates her attempt to take a reasonable position and resolve the matter without further cost to the parties. I note that the offer was made close to the conclusion of this trial.

General Costs Principles

[10] The jurisdiction of this court to award costs arises from s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. That provision gives the court broad discretion to determine costs.

[11] As the Ontario Court of Appeal noted in Serra v. Serra, 2009 ONCA 105, [2009] O.J. No. 432 (Ont. C.A.), at para. 8:

Modern costs rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants: Fong v. Chan (1999), 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330, at para. 22.

[12] In Shute v. Shute, [2017] O.J. No. 4110, at para. 29, Justice Victoria Starr of the Ontario Court of Justice supplemented Serra's three costs purposes by offering a fourth that applies in family law proceedings: ensuring that the primary objective of the Family Law Rules, O. Reg 114/99, as amended ("FLR"), dealing with cases justly, is met. That finding was echoed by the Court of Appeal for Ontario in Mattina v. Mattina, 2018 ONCA 867, at para. 10, citing Fong v. Chan, above.

[13] To those factors, Chappel J. of this court's Family Court added that "courts must also ensure that the law of costs does not become an impediment to the pursuit of justice... the court should also consider the importance of not unduly deterring potential litigants from pursuing legitimate claims for fear of overly burdensome costs consequences": Weber v. Weber, 2020 ONSC 6855, at para. 11.

[14] In Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634 (Ont. C.A.) ("Boucher"), at para. 24, the Ontario Court of Appeal concluded that costs awards should reflect "what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties."

[15] That consideration must include the reasonable costs expectations of the party called upon to pay costs: Boucher, at para. 38, Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC, 2005 CanLII 1042 (ON CA), 75 O.R. (3d) 638, [2005] O.J. No. 160, at para. 8.

[16] In Beaver v. Hill, the Court of Appeal for Ontario clarified that proportionality and reasonableness, the two key factors set out in r. 24(12)(a), are the touchstone considerations to be applied in fixing the amount of costs in family law matters.

[17] Rule 24 of Family Law Rules, O. Reg. 114/99 set out the provisions for the determination of costs in a family law proceeding. I set out below those subrules which are relevant to my consideration of costs, as well as other relevant factors which emerge from caselaw regarding the determination of costs.

Scale of Costs

[18] In deciding costs in family law proceedings, judges are not constrained by the normal scale of costs found in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The court may increase or decrease what would ordinarily be an appropriate amount of costs based on the behaviour of the parties and the presence of absence of offers to settle: Beaver v. Hill, at para. 9.

[19] I add that there is no reference to any scale of costs in the Family Law Rules, other than the reference to "full recovery of costs" in two instances:

1. “The party who made the offer obtains an order that is as good as or better than the offer”: r. 24(12); and

2. When the court makes a finding that a party has acted bad faith: r. 24(10).

I will have more to say about those two areas of entitlement to full recovery costs below. Further, as also set out below, the court may order enhanced costs short of full recovery costs when it finds that a party has acted unreasonably.

Presumption that successful party is entitled to costs

[20] Rule 24(3) states that “[e]xcept as otherwise provided in this rule, there is a presumption that a successful party is entitled to the costs of a step in a case. But that presumption is subject to the other r. 24 factors: Beaver v. Hill at para. 10. Further, as Rosenberg J.A. stated in C.A.M. v. D.M., [2003] O.J. No. 3707, 2003 CanLII 18880 (Ont. C.A.), at para. 41, that presumption does not completely remove the court's discretion to refuse to grant costs to the successful party. One aspect of that principle is reflected in r. 24(7), which states that “[a] successful party who has behaved unreasonably during a step in 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.”

[21] Further, there is no presumption that the successful party in a family law proceeding is entitled to an amount approaching full recovery or even enhanced costs. The exceptions to that principle are bad faith (r. 24(10)) or besting an offer to settle (r. 24(12), which can allow full recovery costs: Beaver v. Hill at paras. 11-13.

Reasonable and Unreasonable Behaviour

[22] The Family Law Rules are deeply concerned with offering incentives to reasonable behaviour in family law proceedings. Implicit in that concern is an understanding that reasonable behaviour is a necessary precondition to the court meeting its primary objective of dealing with cases justly, per rr. 2(2) – (5).

[23] Proportionality and reasonableness are keystone factors in the determination of costs, as set out in r. 24(14), which sets out the factors to be considering the determination of those two factors. It reads as follows:

(14) In setting the amount of costs in relation to a step in a case, the court may consider,

(a) the reasonableness and proportionality of the following factors, as applicable, as they relate to the importance and complexity of the issues in the step:

(i) Each party’s behaviour.

(ii) The time spent by each party.

(iii) Any written offers to settle, including offers that do not meet the conditions set out in subrule (12) or the requirements of rule 18.

(iv) Any legal fees, including the number of licensed representatives and their rates.

(v) Any expert witness fees, including the number of experts and their rates.

(vi) Any other expenses properly paid or payable; and

(b) any other relevant matter.

[24] Unreasonable behaviour may be sanctioned, as set out in rr. 24 (7) and (8), which read as follows:

(7) A successful party who has behaved unreasonably during a step in 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.

Same

(8) In deciding whether a successful party has behaved unreasonably, the court may consider,

(a) the party’s behaviour 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 did not accept.

[25] If the court determines that a party has behaved unreasonably, it is entitled to order enhanced costs against that party: Climans v. Latner, 2020 ONCA 554, at para. 92. Those enhanced costs may be based on the party's conduct of the litigation, including whether his or her legal position was unreasonable: ibid. However mere lack of success will not attract enhanced costs if their conduct, including the legal position advanced, is reasonable: Climans, at para. 90.

[26] In Weber, Chappel J. explains at para. 15 the reasons for the centrality of reasonable behaviour in the assessment of costs as follows:

One of the most important functions of costs is to ensure that litigants conduct themselves in a manner that upholds the integrity of our justice system as a whole. Costs awards are a means of ensuring that litigation is not utilized as a tool to harass parties, that it is conducted in an organized and responsible manner and that the resources of the justice system are not unduly drained by clearly unreasonable claims.

[27] Chappel J. adopts this trenchant statement of Spence J. of the Ontario Court of Justice in Heuss v. Surkos 2004 ONCJ 141 (Ont. C.J.), at para. 20, about the need for prudence in conducting potentially costly litigation:

Parties to litigation must understand that court proceedings are expensive, time-consuming and stressful for all concerned. They are not designed to give individual litigants a forum for carrying on in whatever manner they may choose, oblivious to the impact of that conduct on the other side and, perhaps most importantly for the purposes of this case, oblivious to the mounting costs of the litigation. Matrimonial litigation is an occasion for sober consideration and thoughtfulness rather than intemperate behaviour.

Bad Faith

[28] Under r. 24(10) the court may not only grant a party enhanced costs but full recovery costs in the face of the other’s party’s bad faith. Such an order is mandatory and those costs are payable immediately. The subrule states: “[i]f a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.”

[29] That being said, any costs decision must still be in accord with the underlying principles of proportionality and reasonableness: see C.A.M. v. D.M., at para. 41. Further, any application of r. 24(10) must apply to the part of the proceeding in which the party has acted in bad faith. If a party has acted in bad faith in regard to part of a proceeding, the imposition of full indemnity costs may apply to that part or all of the proceeding, as the facts may bear out.

[30] In order to meet the definition of bad faith in r. 24(10), a litigant's conduct must fall far below the standard expected of parties to a proceeding. The misbehaviour must be deliberate and intended to harm, conceal or deceive. In S.(C) v. S.(C), 2007 CanLII 20279 (ON SC), [2007] O.J. No. 2164 (S.C.J.), affd. 2010 ONCA 196, Perkins, J. offered a thorough description of the behaviour required to meet the definition of the term, bad faith, as follows:

17 In order to come within the meaning of bad faith in subrule [24(1)], behaviour must be shown to be 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.

[31] On appeal, the Ontario Court of Appeal wrote, at para, 12, “[w]e agree with this description of the father's conduct and its consequences. It justified an award of costs on a full recovery basis.”

[32] Perkins J.’s test for bad faith was further approved by the Court of Appeal for Ontario in Scalia v. Scalia, 2015 ONCA 492, where Epstein J.A., writing for the court, summarized the test at para. 68 as follows: "[i]n short, the essential components are intention to inflict harm or deceive." She added at para. 69 that the test for bad faith requires: "wrongdoing, dishonest purpose or moral iniquity".

[33] Deliberate disobedience of a court order can be bad faith if that disobedience is intended to achieve an ulterior motive: Fatahi-Ghandehari v. Wilson, [2018] O.J. No. 460, at para. 39, or inflict financial harm: S.(C.) v. S.(M.), 2007 CanLII 20279 (ON SC), [2007] O.J. No. 2164 (S.C.J.).

[34] As Pazaratz J. wrote in Jackson v. Mayerle, 2016 ONSC 1556 at para. 56: "...[r. 24(10)] requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made." Pazaratz J. was careful to distinguish bad faith from bad judgment, negligence, or unreasonable behaviour. Bad faith requires some element of conscious wrongdoing. As Pazaratz J. put it at paras. 58-61:

58. Bad faith is not synonymous with bad judgment or negligence. Rather, it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. Bad faith involves intentional duplicity, obstruction or obfuscation...

59. There is a difference between bad faith and unreasonable behaviour. The essence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose. It is done knowingly and intentionally. The court can determine costs at a far higher level than those that there shall be full indemnity for only the piece of the litigation where bad faith was demonstrated.

60. To establish bad faith, the court must find some element of malice or intent to harm.

61. Bad faith can be established by the intentional failure to fulfill an agreement in order to achieve an ulterior motive, or an intentional breach of court order with a view to achieving another purpose.

[Citations omitted.]

Offers to Settle

[35] Offers to settle represent an important barometer of reasonableness and a party’s willingness to meet their obligation, under r. 2(4), to meet the court’s primary objective of dealing with cases justly.

[36] Rules 18 and 24(12) deal with offers to settle. Rule 18(1) defines the term "offer" as "an offer to settle one or more claims in a case, motion, appeal or enforcement, and includes a counter-offer." Although r. 18(1) does not explicitly define an offer as being one in writing, the rule implicitly imposes that requirement. For example, an offer under r. 18 must be signed personally by the party making the offer and by their lawyer, if any: r. 18(2). Under r. 18(12.1) “[t]he making, withdrawal, acceptance and rejection of offers are subject to the costs consequences provided for under rule 24.”

[37] Subrules 24(12) and (13) deal with the failure to accept an offer. They read as follows:

(12) A party who makes an offer in relation to a step in a case is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date to the conclusion of the step, if the following conditions are met:

1. If the offer relates to a motion, it is made at least one day before the

motion date.

2. If the offer relates to a trial or the hearing of a step other than a

motion, it is made at least seven days before the trial or hearing date.

3. The offer does not expire and is not withdrawn before the hearing

starts.

4. The offer is not accepted.

5. The party who made the offer obtains an order that is as good as or

better than the offer.

Same, burden of proof

(13) The burden of proof that the order is as good as or better than the offer to settle is on the party who claims the benefit of subrule (12). O. Reg. 10/25, s. 4.

[38] Rule 24(12) requires a party to meet strict requirements regarding offers if they wish to take advantage of the opportunity to obtain full recovery costs for the period after the offer is made. In Jackson, Pazaratz J. considered the requirements for an order under what is now r. 24(12) and was at the time r. 18(14). The wording between the two subrules is somewhat different (r. 18(14) referred to an offer that is "as favourable as or more favourable than the offer", as opposed to the less elegant formulation of r. 24(12): “as good as or better than the offer to settle”). Pazaratz J. wrote that in order to determine whether a party has obtained a more favourable result, the court need not compare the offer and the result with microscopic precision. Rather, as Pazaratz J. stated at para. 47:

To trigger full recovery costs a party must do as well or better than all the terms of any offer (or a severable section of an offer) ... The court is not required to examine each term of the offer as compared to the terms of the order and weigh with microscopic precision the equivalence of the terms. What is required is a general assessment of the overall comparability of the offer as contrasted with the order...

[Citations omitted.]

[39] While the requirements of r. 24(12) are strict, r. 24(14)(a)(iii) contains a basket clause for offers that do not meet those strict conditions. It states that one factor the court may consider in the determination of costs is “[a]ny written offers to settle, including offers that do not meet the conditions set out in subrule (12) or the requirements of rule 18.” That provision allows the court broad discretion regarding costs arising out of offers to settle, even when the requirements of r. 24(12) are not met, so long as the offer is in writing.

[40] All of that said, as Lemon J. pointed out in Slongo v. Slongo, 2015 ONSC 3327 (S.C.J.), (rev'd. on other grounds, 2017 ONCA 272), r. 24(12) (then r. 18(14)) does not require the presiding justice to allow the successful party to demand a blank cheque for his costs. The principle implicitly applies to 24(14)(a)(iii) as well.

Offers to Settle as a Factor in Determining Reasonable Behaviour

[41] In Slater v, Slater, 2012 ONSC 2860 McGee J. wrote at para. 10 that “[t]o determine whether a party has been successful, the court should take into account how the order compares to any settlement offers that were made.”

[42] In Sims-Howarth v Bilcliffe, 2000 CanLII 22584 (ON SC), [2000] OJ No 330 (S.C.J.), Aston J. stated that “[o]ffers to settle not only become a yardstick by which to measure success, but also become a prime consideration in determining the quantification of costs.” Aston J. endorsed the comment of Quinn J. in Mallory v. Mallory (1998), 1998 CanLII 29653 (ON CTGD), 49 O.T.C. 323, 16 C.P.C. (4th) 386, 35 R.F.L. (4th) 222, [1998] O.J. No. 41 (Ont. Gen. Div.), at para. 31 about the importance of making offers to settle and the consequences of failing to make such an offer (referring to the civil scales of party-and-party costs and the higher scale of solicitor and client costs):

The proliferation of litigation, particularly in the matrimonial realm, demands that litigants address their minds, early and often, to settlement of the outstanding issues. Unless the justice of the case requires otherwise, I see no reason why the failure of a losing litigant to make a written proposal for settlement of a motion should not transform what would otherwise be an adverse award of party-and-party costs into a higher award. ... Similarly, unless the justice of the case requires otherwise, I see no reason why the failure of a winning litigant to make a proposal for settlement should not deprive him or her of an award of costs or, at least, reduce that award.

[43] In Serra, the Court of Appeal for Ontario emphasized the obligation to attempt to settle that arises from the very beginning of a family law case. In doing so, the court adopted the following statement by Spence J. in Husein v. Chatoor, 2005 ONCJ 487, [2005] O.J. No. 5715 (Ont. C.J.), at para. 30:

[P]arties have an obligation to begin to assess their respective cases at the outset of the litigation -- even before the litigation commences -- and to make all reasonable efforts to settle. Legal fees can create enormous financial burdens for litigants and it behoves neither party simply to sit back and to roll the dice while those fees continue to mount.

[Emphasis added by Court of Appeal for Ontario]

[44] In J.V.M. v. F.D.P., 2011 ONCJ 616, [2011] O.J. No. 5441 (Ont. C.J.), Sherr J. equated the failure to make an offer to settle to unreasonable behaviour. He stated at para. 5:

The failure to make an offer to settle much earlier [than trial] by either party is unreasonable behaviour. Subrule 2(4) imposes a duty on parties and their lawyers to promote the primary objective of the rules to deal with cases justly (subrule 2(2)). This includes taking appropriate steps to save time and expense (subrule 2(3)). Offers to settle play an important role in saving time and expense by promoting settlements, focusing parties and often narrowing issues in dispute. See Laing v. Mahmoud, 2011 ONSC 6737, [2011] O.J. No. 5134, 2011 CarswellOnt 12972 (Ont. Fam. Ct.). The failure to serve an offer to settle will be an adverse factor when assessing costs.

[45] However, in Beaver v. Hill, the Ontario Court of Appeal offered a note of caution about excessive reliance on offers to settle in determining costs when the provisions of r. 18(14)(now r. 24(12)) are not engaged. Even if all of the requirements of r. 24(12) are met, the service of an “as good as or better” offer to settle may not, in itself, be sufficient to full recovery costs from the date it was served. The offer must contain what Nordheimer J.A., writing for the court, described at para. 16 as "... a true element of compromise." Even so:

... judges should be very cautious about relying too heavily on this factor to increase or decrease the quantum of costs, when the specific Rules regarding such offers are not directly engaged. Even under r. 24(5)(a) [now 24(8)(c)] of the Family Law Rules, it is but one factor that is to be considered.

[46] In sum, the Family Law Rules costs rules offer a number of routes to the determination of costs. One of them is through offers to settle that are as good as or better than the ultimate result and another is through a successful result itself. The scheme under r. 18 and r. 24(12) compares the ultimate order to the offers that preceded it. But offers to settle are not a factor in the determination of success in a proceeding under r.24: DeSantis v. Hood, 2021 ONSC 5496, at paras. 40-53.

Analysis

[47] In considering the submissions of the parties and all of the factors cited above, I make the following findings.

[48] As I stated in my January 14, 2026 endorsement, the Father was the successful party in this proceeding, He succeeded in obtaining all of the relief which he sought. Thus, he is presumptively entitled to costs, although the scale of his costs is not presumptive.

Reasonable and Unreasonable Behaviour

[49] When I consider reasonable or unreasonable behaviour, I start with the Father. Even the Mother concedes that his behaviour was reasonable That is the case from the time that the issues arose. He allowed the Mother to bring the children to Canada based on the reasonable understanding that she would return with them under her return tickets. When she indicated that she was unwilling to return, he tried, unsuccessfully, to reason with her. As I wrote at para. 272(b):

A review of the correspondence between the parties after the Mother came to Canada this past summer shows that, even in the face of her unilateral actions and strong language, the Father maintained a measured, non-threatening and at times, sympathetic tone with her. He attempted to reason with her and attempted to respond to the Mother’s financial concerns. The Mother rejected his entreaties, making clear that she alone would decide where the Children would live.

[50] On August 27, 2025, before he commenced this proceeding but when the Mother’s intention to retain the children became increasingly clear, the Father wrote to her. The justifications the Mother offered to the Father for remaining in Canada were finances and her health. The Father offered to increase his financial help to her (he was already voluntarily paying her the equivalent of $5,000/mo. towards her rent and expenses). He offered to lend her his apartment and car while she sought alternate accommodations, pay her rent until she got on her financial feet and pay the full cost of the Children’s private school. The Mother refused his entreaty, outright.

[51] On October 1, 2025, one of the Father’s counsel, Ms. Luscombe, wrote to the Mother’s lawyer at the time. The letter followed the first conference in this proceeding. She proposed that the parties agree to the three obvious conclusions cited above, regarding the children’s habitual residence, the Father’s exercise of his rights of custody in the UK and his non-consent or acquiescence to the retention of the Children in Canada. That would have left only the issue of grave harm issue for trial. Ms. Luscombe was explicit that “[t]his would narrow the evidence that needs to be adduced at trial and undoubtedly reduce the court time required, as well as drastically reduce each party’s legal fees.” At that point, those fees were quite manageable.

[52] Ms. Luscombe’s request was in line with the directive of the Supreme Court of Canada in Dunmore v. Mehralian, 2025 SCC 20, 503 D.L.R. (4th) 686, at para. 76. There, the Supreme Court stated that lower courts dealing with Hague Convention cases are required to act expeditiously and avoid allowing the proceedings to become complex and costly. Nonetheless the Mother refused.

[53] On October 8, 2025, well over seven days before the trial was originally scheduled to commence. the Father made a written offer to the Mother. As set out above, the offer called for the return of the children to the UK within seven days of acceptance of the offer, a return of their passports to the Father and a finding that this court has no jurisdiction to determine parenting issues for the Children. The offer was made before the Father came to Canada for the trial, so it also called for his virtual parenting until the Children returned to the UK. If the offer were accepted before October 17, 2025, there would be no costs. If it was accepted thereafter, costs would be payable from the time of the offer until acceptance, on a substantial indemnity basis.

[54] The Father says that in essence, my order granted him as “good” a result as that contained in his offer. I will have more to say about that assertion below.

[55] On the other hand, a number of aspects of the Mother’s conduct since the time that the issues raised in this proceeding were unreasonable. She misled the Father about her true intentions in bringing the Children to Canada in the summer of 2025. She purchased a return ticket for each of herself and the Children with a set return date and so informed the Father. He was so certain of her return and willing to assist her that he drove her to the airport to leave for Canada and arranged to be there when she and the Children returned. Yet when she arrived in Canada she told the Children that they were not returning to the UK. It can be safely inferred that when she left, she had no intention of returning.

[56] The Mother offered this court a number of justifications for her refusal to return the Children to the nation of their habitual residence. Those justifications centred around various allegations of abuse and coercive control – physical, sexual, emotional and financial. But in her voluminous correspondence with the father regarding her refusal to return with the children, she did not mention any of those justifications. She mentioned only her finances and her health (without specifying which aspects of her health were holding her back). That is why the Father made his informal financial offer of August 27, 2025; an offer she simply brushed off.

[57] The fact that the court rejected the Mother’s claims is not, in itself, a reason for enhanced costs. Further, in my endorsement I cited some problems with the Father’s evidence as well. But I found that the evidence of the Mother was far more problematic than that of the Father. Where their evidence conflicted, I preferred that of the Father. I wrote that the Mother’s problematic evidence

… include[s] statements in her pleadings which she has withdrawn without fully explaining the contradictions, inconsistencies between her pleadings, affidavits, and oral testimony; contemporaneous evidence set out in the text exchanges between the parties, as well as outright fabrications.

[58] Later in my endorsement, I concluded:

As set out above, I have concerns with the credibility and reliability of both parties’ evidence but have more concerns with many facets of the Mother’s evidence. The Father was not always responsive to questions in cross-examination, mainly because of his tendency towards digression, desire to be perceived in a positive manner, and attempts to underplay the conflict between himself and the Mother. Regarding the Mother, she was forced to retract many of the allegations she originally included in her pleadings. Her cross-examination, as set out above and further particularized below, exposed many areas in which she had not been honest with the court or the Father, to the point of outright lying. There are others in which she exaggerated her evidence regarding the Father.

[59] In sum, the Mother’s conduct of this proceeding from the time that the issues arose was unreasonable. She misled the Father about her intentions even after she came to Canada with the Children. She purchased return airplane tickets and obtained the Father’s signature on a travel consent, all based on her representation that she and the Children would return to the UK on September 4, 2025. She clearly had planned not to return to the UK and misled the Father in that regard. She then attempted before this court to rely on the travel consent which the Father signed under what turned out to be false pretenses to argue that he consented to her move to Canada with the Children.

[60] As set out above, after this proceeding was commenced, the Father offered to significantly narrow the issues so as to reduce court time and costs. The Mother refused. Nonetheless, the Father was fully successful on all issues which she refused to concede. She further refused to accept the Father’s offer to return to the UK with the Children on a cost-free basis.

[61] The Mother did make an offer to settle of her own, but only close to the end of the trial, on December 2, 2025. It was lengthy and complex. It contained bifurcated terms, allowing the Father to chose whether to have the children in his care subject to the Mother having them each winter, spring and summer school holiday or the reverse.

[62] By the time the Mother had made this offer, the lion’s share of the costs of this proceeding had already been consumed. Even if the Father accepted the portion of the offer which called for the return of the Children to the UK, there was an ambiguous “poison pill” term, calling for a review when the children turned ten. The oldest child was already eight. The decision at that time would be based only on the Children’s wishes. However the Children’s expressed wishes at the time were not independent. They had already expressed to the OCL their preference to remain in Canada with their Mother.

[63] In fact, I did not find that the Children’s expressed views and preferences, including their objection to a return to the UK were mature, substantial or independent. I pointed out that the Children were closely aligned with the Mother and that she “has clearly attempted to influence the Children in favour of relocation to Canada from well before they boarded a plane on August 6, 2025.”

Bad Faith

[64] The issue of bad faith is a close one. The Mother did mislead the Father prior to the commencement of these proceeding and I found that much of her evidence was untrue and at times false.

[65] Nonetheless, and despite my adverse credibility findings against the Mother and my finding of unreasonable behaviour, I am not convinced that her conduct reached the elevated level of bad faith. While she originally offered some manifestly untrue pleadings, she did amend them somewhat, after retaining new counsel.

[66] I am open to the possibility that her conduct was motivated by a belief, albeit an unreasonable one, that her conduct, was in her children’s best interests. She certainly saw it as being in her best interests. From her evidence, it appears that she saw those two sets of best interests as fully aligned with each other.

[67] Not every case where a party is disbelieved or acts unreasonably meets the test of bad faith. While a close call, and recognizing the high bar to a finding of bad faith, I do not find that the Mother’s conduct amounts to bad faith.

Offers to Settle

[68] I have already considered the Mother’s offer to settle within the context of reasonable behaviour. However, it is open to me to consider the Father’s offer under r. 24(12).

[69] The Mother’s counsel wrote that the Father’s offer does not meet the test of r. 24(12) without explaining why that is supposedly the case. As I see it, that offer was made more than seven days before the trial began in earnest. The result it called for, the return of the Children to the UK, was the central term of my January 14, 2026 order. While that order included other terms, I cannot say that it was not as good, from his point of view, as the Father’s offer.

[70] That being said, this was essentially an all or nothing trial. Either the Children would be ordered to be returned to the UK or they would be allowed to remain in Canada. This court’s choice was binary. For that reason, while the Father’s offer was as good as my order, it did not contain a true element of compromise.

[71] For that reason and because of my inherent jurisdiction under s. 131 of the Courts of Justice Act, I still retain an element of discretion in determining what order of costs is fair, reasonable and proportionate in the circumstances.

Reasonable Expectations

[72] Here, there is no question that the costs sought by the Father are within the reasonable expectations of the Mother as her counsel’s bill of costs, looking to actual fees and disbursements (excluding her expert witness’ fees), are $204,911.71. That amount is slightly greater than the actual fees and disbursements claimed by the Father’s counsel.

Fair, Reasonable and Proportional

[73] The stakes in this case were profound for both parties. It determined more than the parenting arrangements for the Children but in which side of the Atlantic Ocean they would reside. Since the Mother insisted on remaining in Canada, it also determined whether one of the parents would be unable to see the Children in person for significant periods of time.

[74] The Father’s case was presented with great skill by both of his counsel. They were fully successful. Their cross-examinations and arguments were well presented. The hourly fees were reasonable for counsel of their level of skill and experience.

[75] The Mother argues that her limited financial inability should be a factor in my consideration. She argues that if I were to grant a substantial amount of costs to the father, she would be financially limited in her ability to see the Children. Yet, she was able to amass a legal bill of over $200,000. She argues that she was only able to do so because of the financial assistance of her parents.

[76] That is a consideration which she should have entered into before this proceeding began. As set out above, litigation, even parenting litigation, is not a licence to litigate with impunity. The doors of justice should not be closed to a person who claims limited financial ability. But if they know that they cannot afford to pay substantial costs, they should be circumspect in requiring the other party to incur them.

[77] Here, the Father not only had to incur the substantial legal costs cited above, but he had to put his life aside to come to Canada for close to three months in order to do so. The Mother minimizes that sacrifice as well as the cost of this proceeding to the Father. But having been responsible for the expenditure of time, money, and effort it hardly lies in her mouth to gainsay it.

[78] Nonetheless, I cannot say that it is the Mother’s fault that her original lawyer of record failed to attend the trial. But even then, when other counsel attended as her counsel’s agents, time was incurred in a meritless recusal motion and various adjournment requests. The Father was required to pay for his counsel to attend court, even when the Mother’s counsel of record failed to attend, for reasons still unclear to the court.

[79] Fortunately, the Mother retained new counsel, Ms. Yehia, who accepted this case in short order, and acted ably, professionally, and with civility during the course of her representation.

[80] In considering all of the factors cited above, I find that the Father is entitled to enhanced but not full recovery costs. I find that the hourly fees and number of hours cited in the bill of costs are reasonable. I find that costs fixed at $150,000 are fair, reasonable and proportionate in the circumstances. Furthermore, they are within the Mother’s reasonable anticipation.

[81] Thus, I order that the Mother pay costs fixed at $150,000 to the Father

____________________ Kurz J.

Released: August 13, 2026