K.A. Maurina

The applicant mother sought costs on a full recovery basis after successfully obtaining a declaratory order for the return of her child, who had been wrongfully retained by the respondent father in Mexico.

The father failed to participate in the proceedings, and the child was ultimately returned following an order from the Mexican court.

The court found the father's conduct amounted to bad faith, justifying an award of full recovery costs.

While the requested legal fees were reduced by 10% for proportionality, the mother was also awarded full recovery of her travel expenses incurred in securing the child's return.

The applicant mother sought a declaratory order that the child, Vivian Wu, was wrongfully retained by the father in Mexico City since August 14, 2022, and an order for her immediate return to Ontario under the Hague Convention and the Children's Law Reform Act.

The father failed to participate in the proceedings despite notice.

The court found that Ontario was the child's habitual residence and declared the retention wrongful, ordering the child's forthwith return to Markham, Ontario.

The court also granted the mother's request for letters rogatory to ensure proper service on the father in Mexico.

Following dismissal of a support payor’s motion seeking to stay child and spousal support obligations, the court determined the appropriate costs award.

Applying Rule 24 of the Family Law Rules, the court confirmed the presumption that the successful party is entitled to costs and considered factors including the parties’ conduct, proportionality of fees, and the impact of an unaccepted offer to settle.

Although the successful party sought full indemnity costs exceeding $24,000, the court found certain billings duplicative and limited the effect of the offer to settle to the period after its delivery.

The court fixed costs at $9,000 payable by the unsuccessful party in monthly installments.