A $150,000 Costs Award in Family Court: What Zaidi v. Zia Says About Unreasonable Litigation
Costs decision: Zaidi v. Zia, 2026 ONSC 4693, Justice M. Kurz | Underlying Hague decision: Zaidi v. Zia, 2026 ONSC 291
Key takeaways
You don't have to act in "bad faith" to face a massive costs award — simply refusing to narrow issues, ignoring a serious settlement offer, or litigating a losing position past the point of reason can cost you six figures. In this case, a mother who fought a losing battle over the return of her children to the UK was ordered to pay $150,000 in costs, even though the judge stopped short of finding she acted in bad faith. The lesson applies well beyond international child-abduction cases — it's relevant to any contested custody, parenting, or property dispute in Ontario.
Family litigation can be expensive even when both sides act reasonably. But when a party refuses reasonable efforts to narrow the dispute, pursues unsuccessful issues that substantially lengthen the case, or otherwise conducts the litigation unreasonably, the financial consequences can become much more serious.
The Ontario Superior Court of Justice's costs decision in Zaidi v. Zia, 2026 ONSC 4693, provides a striking example. Following a Hague Convention trial concerning two children, Justice Kurz ordered the Mother to pay the Father $150,000 in costs — without finding that she had acted in bad faith. The award illustrates how unreasonable litigation conduct can justify substantially enhanced costs even where there is no bad faith.
What happened?
The underlying proceeding was brought under the Hague Convention on the Civil Aspects of International Child Abduction. The parents' two children were habitually resident in the United Kingdom. The Mother travelled with them to Canada in August 2025 with return tickets and the Father's signed travel consent. The expected return date was September 4, 2025. They did not return.
In the underlying merits decision, Zaidi v. Zia, 2026 ONSC 291, Justice Kurz ordered the children returned to the United Kingdom with the Father. So, the Father won.
The litigation became lengthy and expensive: six completed trial days, four aborted trial days, and several mid-trial motions, including adjournment requests and a recusal motion. The Father ultimately claimed $198,739.87 in costs on a full-recovery basis. The Mother's own legal fees and disbursements, excluding her expert's fees, exceeded $200,000.
The Father's efforts to narrow the case
Before trial, the Father's counsel proposed that the parties agree on three threshold matters: that the children were habitually resident in the UK, that the Father had been exercising his rights of custody there, and that he had not consented to the children remaining in Canada. Had those matters been agreed, the trial could have focused solely on the Mother's asserted grave-risk-of-harm defence.
The Mother declined to narrow the case. Justice Kurz connected this to the Supreme Court of Canada's direction in Dunmore v. Mehralian, 2025 SCC 20, that Hague Convention proceedings are to be dealt with expeditiously and should not be permitted to become unnecessarily complex and costly.
The October 8, 2025 offer to settle
The Father also delivered a written offer to settle well before trial, proposing that the children return to the UK within seven days, with no costs if accepted before October 17. The ultimate judgment achieved the central result sought in that offer.
Justice Kurz nevertheless declined to treat the offer as automatically entitling the Father to full-recovery costs. The proceeding was essentially binary — either the children would be returned or they would remain in Canada — and the offer did not contain what the Ontario Court of Appeal has described as a true element of compromise. An offer that predicts the eventual outcome can be highly relevant to costs, but it doesn't automatically create an entitlement to full reimbursement.
Unreasonable conduct is not the same as bad faith
Justice Kurz found several aspects of the Mother's conduct unreasonable. The Court found she had misled the Father about her intention to return to the UK — she purchased return tickets and obtained his travel consent on the representation that she and the children would return, while the Court inferred she had already decided not to. The Court was also troubled by inconsistencies and retractions in her evidence, and by significant adverse credibility findings made in the underlying judgment. She also refused the Father's efforts to narrow issues he ultimately won at trial.
But the Court drew an important legal distinction. Under Rule 24(10) of the Family Law Rules, a finding of bad faith carries mandatory full-recovery costs — a high threshold. Drawing on authorities including S.(C.) v. S.(C.), Scalia v. Scalia, 2015 ONCA 492, and Jackson v. Mayerle, 2016 ONSC 1556, Justice Kurz emphasized that bad faith generally involves conscious wrongdoing — an intention to harm, conceal, deceive, obstruct, or pursue an ulterior purpose.
The Court concluded that the Mother's behaviour, though unreasonable and accompanied by serious credibility problems, did not cross that line — Justice Kurz allowed for the possibility that she genuinely, if unreasonably, believed her conduct was in the children's best interests. That meant mandatory full-recovery costs for bad faith were not available.
How Ontario courts decide family-law costs
Justice Kurz reviewed the broader principles under s. 131 of the Courts of Justice Act and Rule 24 of the Family Law Rules. A successful party is presumptively entitled to costs, but success doesn't automatically mean full reimbursement. Costs awards serve several purposes: partially indemnifying successful litigants, encouraging settlement, discouraging inappropriate litigation behaviour, and helping ensure family cases are dealt with justly.
The governing touchstones are reasonableness and proportionality. Courts may consider the parties' behaviour, time spent, written settlement offers, legal fees, expert fees, and other properly incurred expenses. Importantly, unreasonable behaviour can justify enhanced costs even without a finding of bad faith — Justice Kurz relied in part on Climans v. Latner, 2020 ONCA 554, while also emphasizing that simply losing a case does not make a party's position unreasonable.
The result: Mother has to pay $150,000 to the Father
The Father was completely successful and his conduct was found reasonable; the Mother's conduct had unnecessarily increased the length and expense of the litigation. Justice Kurz also rejected the argument that the Mother's limited financial resources should substantially protect her from a costs award — access to justice remains important, but a person who knows substantial costs would be difficult to pay must still be circumspect about requiring the other side to incur them.
Applying fairness, reasonableness and proportionality, the Court fixed costs at $150,000 — enhanced costs, short of the full $198,739.87 claimed.
What could this mean if you're involved in a family-law case?
This case happened to arise from an international child-abduction dispute, but the costs principles apply just as much to an ordinary battle, a drawn-out parenting dispute, or a property division fight that could have settled but didn't.
Court isn't a place where every arguable position should automatically be pursued to the end. Parties are expected to be realistic, make reasonable efforts to narrow the issues in dispute, take settlement offers seriously, and avoid steps that unnecessarily run up the other side's costs. You don't have to act maliciously before serious financial consequences follow — there's a middle ground between reasonable litigation and bad faith, and Zaidi v. Zia shows that the price tag in that middle ground can still be huge.
At the same time, this isn't a warning against raising legitimate concerns. Justice Kurz was clear that losing an argument, or being disbelieved on a point, is not by itself enough to trigger enhanced costs. What mattered here was the overall pattern: refusing to narrow clearly resolvable issues, the manner in which the case was pursued, the credibility findings, the settlement history, and the unnecessary expense it all imposed on the other side.
Before you decide to fight every point in your case, ask not just "can I make this argument?" but "is it reasonable and necessary — and what will it cost both of us if I'm wrong?" Ontario's family law cost rules give judges the power to make that second question a financial one.
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