Mother who successfully appealed order to return child gets $80,000 in total costs
In a case where a mother successfully challenged an order to return her child to her country of origin, the Ontario Court of Appeal awarded her $80,000 in costs, considering the parties’ pro bono legal representation in the cost analysis.
The parties had a child born in July 2012. The mother retained the daughter in Ontario without the father’s consent and filed a refugee application on her own and the child’s behalf.
The father applied to return the daughter to her country of origin under art. 12 of the Hague Convention on the Civil Aspects of International Child Abduction.
The daughter repeatedly objected to the mandatory return. The Office of the Children’s Lawyer (OCL) represented her in the proceedings.
The mother sought to dismiss the father’s application. She acknowledged the child’s wrongful removal from her habitual residence. However, she asserted Convention exceptions – grave risk of harm under art. 13(b) and the child’s objection under art. 13(2) – to oppose the return.
The Immigration and Refugee Board of Canada granted the daughter Convention refugee status.
On May 5, in Woods v. Kirby, 2025 ONSC 2655, the Ontario Superior Court of Justice granted the father’s Hague application and ordered the child’s return to her habitual residence. The application judge ruled that the mother wrongfully retained the daughter in Canada.
The mother appealed. She moved for access restrictions on the appeal court file and the appeal court decision.
On June 12, in Kirby v. Woods, 2025 ONCA 437, the Court of Appeal for Ontario imposed access restrictions to protect the child’s privacy and the confidential nature of the IRB file and decision. The appeal court deemed it unnecessary to seal the file entirely.
On Aug. 6, the Superior Court’s application judge found the father, as the party wholly successful on the Hague application, entitled to $75,000 in application costs, including harmonized sales tax, for legal fees on a substantial indemnity basis.
On Aug. 26, in Kirby v. Woods, 2025 ONCA 601, the appeal court allowed the mother’s appeal and overturned the application judge’s decision to return the child to her country of origin.
The appeal court saw error in the judge’s determination that neither the grave risk of harm nor the child’s objection – as exceptions to mandatory return under the Hague Convention – applied.
The appeal court remitted the case to another Superior Court judge for a focused hearing on decision-making and parenting time. The appeal court found the mother entitled to appeal costs.
The mother requested $40,000 in appeal costs. She asked for a reversal of the application judge’s cost award, such that the father should pay her $75,000 in application costs. The mother alleged that:
On the other hand, the father sought to set aside the application judge’s cost award. He argued that the appeal court should not award either party appeal costs because the appeal raised a novel issue of public importance.
He added that the appeal court’s cost analysis should consider the pro bono nature of both his legal representation at the appeal stage and the mother’s legal representation at all stages. He also claimed that:
On Oct. 28, in Kirby v. Woods, 2025 ONCA 744, the appeal court awarded the mother, as the party wholly successful on the appeal, $50,000 in application costs and $30,000 in appeal costs.
The appeal court modestly reduced the mother’s requested amount, given the father’s limited financial capability.
While there were complex issues of utmost importance to the mother and the child, the appeal court ruled that the appeal raised no novel issues, given that the appeal court previously established a rebuttable presumption of harm arising from a positive refugee determination.
The appeal court noted that parties with pro bono counsel, such as the parties in this case, should face ordinary cost consequences to:
