Court File and Parties
Court File No.: Toronto D91765/16 Date: 2017-06-20 Ontario Court of Justice
Between:
Luke Sebastian Lawrence Applicant
— And —
Inna Lawrence Respondent
Before: Justice Curtis
Written submissions regarding Costs
Endorsement released on 20 June 2017
Counsel:
- Glenda Perry .... counsel for the Applicant
- Bohdan Shulakewych ... counsel for the Respondent
CURTIS, J.
INDEX
- Over-view
- The Parties' Positions re Costs
- Issues for Determination at the Trial
- Background
- Events Which Lead to the Hague Application
- Findings from the Trial
- The Costs Analysis
- a. The Law of Costs
- i. Entitlement
- ii. The Evolution of Costs as an Instrument of Social Policy
- b. Costs and Ability to Pay
- c. Offers to Settle
- d. Behaviour of the Parties
- e. Quantum of Costs
- i. The Claim for Costs under the Family Law Rules
- ii. The Claim for Costs under the Hague Convention
- a. The Law of Costs
- Order
Over-view
1This is the decision regarding costs of the hearing of the father's application for an order returning the two children of the marriage to the United Kingdom ("the U.K."). The father brings this application ("the Hague Application") under the Hague Convention, Convention on the Civil Aspects of International Child Abduction, 25 October 1980, C.T.S. 1983/35; 19 I.L.M. 1501 ("the Hague Convention"). The Hague Application was heard on 30 December 2016 and the decision was released on 9 January 2017. The children were ordered to be returned to the U.K. and the court ordered that the father was entitled to costs.
The Parties' Positions re Costs
2The father claims costs of this matter, on a full recovery basis, under Rule 24 of the Family Law Rules, s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C. 43, as amended, and Article 26 of the Hague Convention. He claims the following amounts:
| Category | Amount |
|---|---|
| Fees + HST | $27,600.25 |
| Disbursements + HST | $608.63 |
| Other expenses | $16,747.88 |
| Total | $44,956.76 |
3The mother claims that each party should bear their own costs of the Hague Application, or in the alternative, that costs should be on a partial recovery basis.
4The father's entitlement to costs was already determined at the trial. The Reasons for Decision at trial specified that the costs submissions were to deal with the amount of costs only.
Issues for Determination at the Trial
5These were the issues for determination at the hearing of the Hague Application:
a) Was the father exercising rights of custody before the children were removed?
b) Were the children wrongfully retained in Canada by the mother?
c) Did the father consent to or acquiesce in the children staying in Canada?
d) Where are the children habitually resident?
e) Are there any exceptions recognized in the Hague Convention to the general expectation that the children will be ordered returned to their place of habitual residence?
Background
6The facts regarding the Hague Application are set out in detail in the Reasons for Decision released 9 January 2017. This is a summary of the facts as they relate to the costs claims.
7The father was born in the U.K. and is employed with the British Diplomatic Service. He was posted in Pretoria, in the Republic of South Africa, and he lived there.
8The mother was born in Ukraine and during the Hague Application and the hearing she lived in Toronto, and had been a student at Sheridan College, since September 2016.
9The parents were married in the U.K. on 10 October 2009. They separated sometime in 2016.
[10] There are two children:
- Kristina born 3 September 2012 (4 years old), and
- Henry Alexander born 5 July 2015 (18 months old at the time of the hearing).
11Both parents are citizens of the U.K. The parents decided that the father would apply to work in the British Diplomatic Service, as they saw a life overseas in Diplomatic Service as an adventure and exciting. He works in the Visa and Immigration Section of the British High Commission. His office is responsible for providing assistance to British nationals who are in the country of his posting and who need assistance.
12As a member of the Diplomatic Service the father is subject to a global mobility obligation as a term of his employment, that is, he must be prepared to go to any appropriate post in the U.K. or overseas to which he is appointed.
13The father's terms of employment are highly structured and contain clear rules about how long an officer can stay overseas in the Diplomatic Service. An employee may spend a maximum of six years overseas (across two postings) before being required to return to a posting in the U.K. His employment requires that he return to the U.K. on the completion of his overseas posting. The parents planned for the father to accept postings for a maximum of six years, and then to return to the U.K.
14The father was first posted to Nairobi, Kenya, where the family moved on 17 February 2014. He was then transferred, and on 5 November 2014, the family moved to Pretoria, South Africa. That posting ended on 19 February 2017, when the father's next posting was to be in Manila, Philippines.
15This is some of the evidence about the day-to-day arrangements for the family while living in an overseas posting, and about some of the terms of the father's employment:
a) The father is paid by the British government in British currency, wherever the posting is located, by direct deposit to a U.K. account. This joint account is the only joint account the parents have;
b) The family is housed in a property either owned or managed by the government of the U.K.;
c) All medical costs are covered by the National Health Service (the health care service for residents of the U.K.);
d) The father is entitled to the employment benefits for British government employees wherever the posting is located. His employment overseas is considered as U.K. employment for purposes of his pension;
e) The father pays taxes only in the U.K.;
f) While on a Diplomatic posting overseas, the father is not subject to local employment law;
g) The father has a British passport and a Diplomatic passport issued by HM Passport Office of the Home Office. He has a U.K. driver's license with a London address;
h) The parents are maintained on the electoral registers in the U.K. and are entitled to vote in British elections and referenda;
i) The father's work and personal e-mail addresses have a U.K. extension (i.e. @yahoo.co.uk);
j) All of the father's family reside in the U.K.;
k) The mother is legally able to work in the U.K. and did work there at a Russian state owned oil company;
l) The mother receives child benefits from the U.K. government which are paid into the joint account in the U.K. Child benefits are payable during a Diplomatic posting as this is not considered to be an absence abroad. The mother was still receiving these benefits at trial;
m) Children like Henry (the youngest child) who are born to two foreign parents in South Africa, are not recorded on the national population register of that country. The handwritten unabridged birth certificate that was issued at the hospital at the time of his birth was used by the parents to register Henry's birth with the U.K. in September 2015, and to apply for Henry's U.K. passport and his Diplomatic passport;
n) As a member of the Diplomatic Service the father is subject to the laws of the U.K. no matter where in the world he is posted, and he owes duties of loyalty and confidentiality to the Crown; and,
o) As a term of his employment and during the posting, the father, the mother and their children are all under the continued protection of the British government.
Events Which Lead to the Hague Application
16On 25 December 2015, the mother and the children flew to Toronto to visit with her mother and were scheduled to return on a flight booked on 20 January 2016. The mother wanted to stay in Canada longer and she asked the father to change the return tickets to a later date. He did so and he agreed that the children could stay in Canada longer. The new return date was 11 May 2016.
17There was some tension in the parent's marriage and difficulties for the first half of 2016, while the parents talked variously of separation and of remaining together.
18The father came to Canada in April 2016 to see the mother and the children and to try to work on the marriage. The mother told the father that she was trying to obtain a student visa and that she planned to stay in Canada with the children. The father told the mother that he did not agree to this.
19The mother applied for a student visa in Canada. She did not tell the father at that time that she had applied for this visa. She received a student visa dated 22 June 2016.
20On 5 May 2016 the mother sent the father a message asking him to change the departure date of the tickets to 24 June 2016.
21In May 2016 the mother asked the father to redirect the return flight tickets to the U.K. (not to South Africa). She admitted that her plan was to return to the U.K.
22The mother admits that the father's messages to her were emphatic that he was unwilling for the children to remain in Canada.
23On 11 May 2016 the mother did not leave Canada with the children. The parents agreed at the trial that 11 May 2016 is the date of removal of the children.
24After the mother and children failed to leave Canada on 11 May 2016, the father took many steps to attempt to get the children returned to either the U.K. or South Africa, including: contacting various Canadian and U.K. government agencies, contacting the police in the U.K., telling the mother repeatedly that he did not agree to the children remaining in Canada, threatening to start legal proceedings about the removal of the children, contacting the U.K. Central Authority, contacting the Ontario Central Authority, and starting a court case on 31 October 2016 to secure the return of the children to the U.K.
Findings from the Trial
25These are the findings at trial that are relevant on the issue of costs:
a) The evidence that the U.K. was the habitual residence of the children was substantial, indeed, overwhelming. There was no other possible country of habitual residence for the children;
b) The exception the mother tried to rely on, consent or acquiescence by the father to the children remaining in Canada, had no application in this case. The father was clear and unequivocal in his communications with the mother. He was not consenting to the children remaining in Canada. And, as the father did not consent nor acquiesce to the retention of the children, there was a wrongful retention of the children;
c) The mother argued that the children, if returned to the U.K., would be placed in an intolerable situation (under Article 13 (b) of the Hague Convention). The onus was on her to convince the court of this. The threshold regarding exceptions to the Hague Convention provisions is a high one. The mother called almost no evidence on the issue of intolerable situation. The evidence fell far short of the high standard required for finding that the children would be placed in an intolerable situation if ordered to be returned to the U.K.;
d) The elements of Article 13 of the Hague Convention have been met:
i. The children were habitually resident in the U.K. immediately before they were removed to Canada on 11 May 2016;
ii. The retention breached the father's custody rights;
iii. The mother wrongfully retained the children in Canada after 11 May 2016;
iv. None of the exceptions or defenses under the Hague Convention apply; and,
v. Therefore the children must be returned to the jurisdiction of their habitual residence.
e) The evidence in this matter was substantial, indeed overwhelming, particularly on the issues of habitual residence and lack of consent. This case should not have gone to trial;
f) The mother would have been well-advised to negotiate a different, and perhaps better outcome with the father, and much earlier on in this process. She may even, at some point, have been able to remain in Canada with the children, while the litigation regarding custody proceeded in the U.K.; and,
g) The father was successful on this application and is entitled to costs.
The Costs Analysis
The Law of Costs
Entitlement
26The courts have a broad discretion to award costs. The general discretion of the courts regarding costs is contained in the Courts of Justice Act, R.S.O. 1990, c. C. 43, as amended, s. 131(1), which sets out three specific principles:
a) the costs of a case are in the discretion of the court;
b) the court may determine by whom costs shall be paid; and,
c) the court may determine to what extent the costs shall be paid.
27Modern costs rules are designed to foster three fundamental purposes: Fong v. Chan, 46 O.R. (3d) 330, 181 D.L.R. (4th) 614, 1999), para. 24:
(a) to indemnify successful litigants for the cost of litigation;
(b) to encourage settlement; and
(c) to discourage and sanction inappropriate behaviour by litigants.
28Rule 2(2) of the Family Law Rules adds a fourth fundamental purpose for costs: to ensure that the primary objective of the rules is met – that cases are dealt with justly. This provision needs to be read in conjunction with Rule 24 of the rules: Sambasivam v. Pulendrarajah, 2012 ONCJ 711 , [2012] O.J. No. 5404 (Ont. C.J.).
The Evolution of Costs as an Instrument of Social Policy
29The traditional purpose of an award of costs was to indemnify the successful party in respect of the expenses sustained. For some time, however, courts have recognized that indemnity to the successful party is not the sole purpose, and in some cases not even the primary purpose, of a costs award. The principle of indemnification, while paramount, is not the only consideration when the court is called on to make an order of costs; indeed, the principle has been called "outdated" since other functions may be served by a costs order, for example to encourage settlement, to prevent frivolous or vexatious litigation, and to discourage unnecessary steps. This change in the common law was an incremental one when viewed in the larger context of the trend towards awarding costs to encourage or deter certain types of conduct, and not merely to indemnify the successful litigant: British Columbia (Minister of Forests) v. Okanagan Indian Band, [2002] S.C.R. 371 (S.C.C.), paras. 21-24.
30The traditional approach to costs can also be viewed as being animated by the broad concern to ensure that the justice system works fairly and efficiently. Because costs awards transfer some of the winner's litigation expenses to the loser, rather than leaving each party's expenses where they fall, they act as a disincentive to those who might be tempted to harass others with meritless claims. In addition, because they offset to some extent the outlays incurred by the winner, they make the legal system more accessible to litigants who seek to vindicate a legally sound position. These effects of the traditional rules can be connected to the court's concern with overseeing its own process and ensuring that litigation is conducted in an efficient and just manner. In this sense it is a natural evolution in the law to recognize the related policy objectives that are served by the modern approach to costs: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2002, S.C.C., supra, para. 26.
31Modern costs rules accomplish various purposes in addition to the traditional objective of indemnification. An order as to costs may be designed to penalize a party who has refused a reasonable settlement offer. Costs can also be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2002, S.C.C., supra, para. 25.
32When awarded on a full recovery scale, costs can serve to express the court's disapproval of unreasonable conduct during the litigation: Prinzo v. Baycrest Centre for Geriatric Care, 2002 CarswellOnt 2263, 2002 C.L.L.C. 210-027, 17 C.C.E.L. (3d) 207, 161 O.A.C. 302, 60 O.R. (3d) 474, 215 D.L.R. (4th) 31 (Ont. C.A.), para. 76.
Costs and Ability to Pay
33Success is given presumptive pre-eminence in Rule 24. While Rule 24(11)(f) does permit the consideration of ability to pay (under the umbrella of "any other relevant matter"), it is given significantly less prominence than the presumption that costs will follow success: Biant v. Sagoo, 2001 CarswellOnt 3315, [2001] O.T.C. 695, 20 R.F.L. (5th) 284 (Ont. Sup. Ct.).
34Ability to pay may be relevant to the issue of the quantum or scale of costs, but not to another party's entitlement to costs: Izyuk v. Bilousov, 2011 CarswellOnt 14392, 2011 ONSC 7476, 210 A.C.W.S. (3d) 143, [2012] W.D.F.L. 1822, [2012] W.D.F.L. 1819, [2012] W.D.F.L. 1818, 7 R.F.L. (7th) 358 (Ont. Sup. Ct.), para. 51.
35Ability to pay alone cannot, nor should it, over-ride the other factors in Rule 24(11): Peers v. Poupore, 2008 ONCJ 615 , 2008 O.N.C.J. 615 (Ont. Ct.), para. 42.
36The (financial) means of the unsuccessful party may not be used to shield her from liability for costs, particularly when she has acted unreasonably: Gobin v. Gobin, 2009 ONCJ 278 , 71 R.F.L. (6th) 209 (Ont. Ct), para. 24.
Offers to Settle
37Offers to settle are a significant part of the landscape in family law in Ontario. They are important to the possible resolution of cases. In addition, they are important to determining costs.
38Parties and their lawyers have a positive obligation to behave in ways which enable the court to move cases forward to resolution (Rule 2). Rule 2(4) imposes a duty on parties and their lawyers to promote the primary objective of the rules to deal with cases justly (Rule 2(2)). This includes taking appropriate steps to save time and expense (Rule 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: Laing v. Mahmoud, 2011 ONSC 6737, [2011] O.J. No. 5134, 2011 CarswellOnt 12972 (Ont. Sup. Ct.), para. 7.
39Offers to settle are important and can be the yardstick by which to measure success. They are significant in determining both liability for costs and quantum: Osmar v. Osmar, 2000 CarswellOnt 2343, 8 R.F.L. (5th) 387, [2000] W.D.F.L. 660, [2000] O.J. No. 2504, [2000] O.T.C. 979 (Ont. Sup. Ct.), para. 7.
40In deciding whether a party has acted reasonably or unreasonably in a case, the court shall examine the reasonableness of any offer the party made (Rule 24(5)(b)): M. (J.V.) v. P. (F.D.), 2011 CarswellOnt 13510, ONCJ 616, 209 A.C.W.S. (3d) 873, [2012] W.D.F.L. 2168 (Ont. C.J.).
41To determine whether a party has been successful, the court should take into account how the order compares to any settlement offers that were made: Lawson v. Lawson, 2008 CarswellOnt 2819, [2008] W.D.F.L. 3600, 167 A.C.W.S. (3d) 723, [2008] O.J. No. 1978 (Ont. Sup. Ct.). The position each party took in the case should also be examined.
42The costs consequences of offers to settle are set out in Rule 18 (14) as follows:
COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER
18 (14). A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:
- If the offer relates to a motion, it is made at least one day before the motion date.
- 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.
- The offer does not expire and is not withdrawn before the hearing starts.
- The offer is not accepted.
- The party who made the offer obtains an order that is as favourable as or more favourable than the offer.
43The court has a discretion to take into account any written offer to settle, the date it was made and its terms, even if Rule 18(14) does not apply to the offer to settle, when exercising its discretion over costs (Rule 18(16)).
COSTS — DISCRETION OF COURT
18 (16). When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply.
44Rule 18 (16) invites consideration of any and all offers to settle: Osmar v. Osmar, 2000, Ont. Sup. Ct., supra, para. 7.
45The father did not make a formal Offer to Settle. However, his position was clear in his many e-mails to the mother in 2016 and in the pleadings and affidavits filed as his evidence at the hearing, that he was not consenting to the children remaining in Canada and wanted them returned to the U.K.
46In his evidence he offered to "facilitate" the arrangements for the return of the children and the mother to the U.K. At the hearing he offered to pay for those flights.
47The mother did not file an Answer before the case proceeded to hearing, but the court allowed the hearing to be held, as it was clear that this was a contested matter. The mother was given leave to serve and file her Answer by 4 January 2017 (intentionally a date before the trial judgment was released), and she did.
48In her Answer the mother made no claim for the father to pay for the cost of the flights to return the children to the U.K., nor for the cost of her flight to return to the U.K. At the hearing, she made no claim for either of these.
49The mother made an Offer to Settle served on 27 December 2016. The Offer was that (among other things) the proper jurisdiction to determine custody of the children was the U.K., but that the mother and children should be allowed to stay in Canada for three years. The Offer was not open for acceptance at the start of the trial and so does not qualify as an Offer under Rule 18 (14), but can be taken into consideration as an Offer under Rule 18 (16).
50While the father made no formal Offer to Settle, his position in the case was clear throughout, he was entirely successful in the claims he made, and was entitled to costs.
Behaviour of the Parties
51One of the purposes of costs is to change behaviour.
52The justice system is a precious public resource. Access to the justice system by individuals must be balanced with the need to ensure that the resource is available for all those who need it. This is one of the purposes of Rule 2.
53Family law litigants are responsible for and accountable for the positions they take in the litigation: Heuss v. Sarkos, 2004 CarswellOnt 3317, 2004 ONCJ 141, 132 A.C.W.S. (3d) 1112 (Ont. Ct.), and Peers v. Poupore, 2008 ONCJ 615 , 2008 O.N.C.J. 615 (Ont. Ct.), para. 62.
54Parties 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: Heuss v. Sarkos, 2004, Ont. Ct., supra, para. 20.
55Matrimonial litigation is an occasion for sober consideration and thoughtfulness rather than intemperate behaviour: Heuss v. Sarkos, 2004, Ont. Ct., supra, para. 20.
56Rule 24 (5) provides criteria for determining the reasonableness of a party's behaviour in a case (a factor in Rule 24 (11)(b)). It reads as follows:
DECISION ON REASONABLENESS
(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,
(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 failed to accept.
57A finding of bad faith is not a condition precedent to full recovery of costs by the other side under the Family Law Rules: Osmar v. Osmar, 2000, Ont. Sup. Ct., supra, para. 11.
58The unreasonable conduct of an unsuccessful litigant is a factor in both the awarding of costs and in fixing the amount of costs. The court should express disapproval of a litigant who proceeds to trial without adequate evidence to prove her claims, and should send the message that the successful party should have redress by awarding costs on a full recovery basis.
59The dynamics on this case are all too common, and cry out for judicial response. Combined with limited judicial resources, the need to encourage settlement and discourage inappropriate behaviour by litigants has never been more pressing: Izyuk v. Bilousov, 2011, Ont. Sup. Ct., supra, para. 58.
60It must be made clear to family law litigants that there is no right to a day in court, or at least, that the right to a day in court is tempered with the requirement that the parties take a clear-headed look at their case before insisting on their day in court. The court must sanction this behaviour clearly, or it will invite more of this behaviour.
61This case should not have come to court at all. There are alternatives to litigation (negotiations by lawyers, mediation) that ought to have been considered to resolve these disputed issues. In the fall of 2016, the Ontario Central Authority asked the father whether he wanted them to try to negotiate a voluntary return by the mother (i.e., a solution without litigation, required by Article 10). He asked them to do so, but the mother refused this request to voluntarily return the children to the U.K.
62The evidence in support of the father's position that the children's habitual residence was the U.K. was overwhelming. As well, the evidence in support of the mother's claim that the father had consented to or acquiesced to the children remaining in Canada was far too little to support that position. And the mother was presented by a lawyer in this matter.
63The mother made claims that were unreasonable in the circumstances, not supported by the evidence and in which she was entirely unsuccessful. Courts must discourage this behaviour. Unless courts discourage this behaviour, it will continue and increase. Orders for costs are one way to discourage this behaviour.
Quantum of Costs
64Determining the amount of costs is not simply a mechanical exercise. Costs must be proportional to the amount in issue and the outcome: Boucher et al. v. Public Accountants Council for the Province of Ontario, [2004] O.J. No. 2634 (Ont. C.A.).
65Costs awards should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties, rather than any exact measure of the actual costs to the successful litigant. It is not appropriate to simply take the number of hours spent by counsel on a particular matter and multiply those hours by a determined hourly or per diem rate: Zesta Engineering Ltd. v. Cloutier (2002), 21 C.C.E.L. (3D) 161 (Ont. C.A.).
66The over-riding principle is reasonableness. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case: Boucher et al. v. Public Accountants Council for the Province of Ontario, 2004, Ont. C.A., supra.
The Claim for Costs under the Family Law Rules
67The factors to consider in determining the amount of costs in family law matters are (Rule 24(11)):
a) The importance, complexity or difficulty of the issues;
b) The reasonableness or unreasonableness of each party's behaviour in the case;
c) The lawyer's rates;
d) The time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;
e) Expenses properly paid or payable; and
f) Any other relevant matter.
68In determining the amount of costs in this matter, the court took into account these factors set out in R. 24 (11), as follows:
a) The importance, complexity or difficulty of the issues: the case was important to the mother and the father. It was also legally complex. Hague applications involve a very discreet and specific legal code and an area of law that is litigated infrequently. The case was high conflict. The case was also litigated under severe time restrictions, due to the requirements of the Hague Convention for a prompt decision in these matters;
b) The reasonableness or unreasonableness of each party's behaviour in the case: a finding of unreasonableness is not necessary to the making of a costs order. The father's behaviour was reasonable, and the mother's was not, particularly given the overwhelming evidence;
c) The lawyer's rates: the rates claimed for the father's lawyer are reasonable, given her experience and expertise. The mother's lawyer did not object to the rate, and made no submissions regarding the rate;
d) The time properly spent on the case: The time spent by the father's lawyer was reasonable, under these circumstances, given the issues at stake, the claims made, and the very tight time frame for the trial. As well, the mother's lawyer included her own summary of time spent and it was similar to the time spent by the father's lawyer. The mother did not object to the time spent by the father's lawyer;
e) Expenses properly paid or payable: the disbursements claimed by the father under the Family Law Rules were $608.83. The mother accepted this amount.
69The court must determine an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of this case. This determination is not merely an arithmetical exercise of calculating time spent by a suitable hourly rate. The costs award in this case should take into account and reflect the amount of work necessary and the timeframe for the work done.
The Claim for Costs under the Hague Convention
70Article 26 of the Hague Convention gives the court jurisdiction to order the respondent parent (the move away parent) "to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child".
71The discretion granted in Article 26 is broad. It allows the court to order costs under the following categories:
- to pay necessary expenses incurred by or on behalf of the applicant;
- to pay travel expenses;
- to pay any costs incurred or payments made for locating the child;
- to pay the costs of legal representation of the applicant; and,
- to pay those of returning the child.
72Article 26 of the Hague Convention has three objectives:
a) to compensate the left behind parent for costs incurred in locating and recovering the abducted child;
b) to punish an abducting parent; and
c) to deter other parents from attempting to abduct their children.
73The objectives of the Hague Convention would be defeated if the left behind parent were required to fund the process of locating the abducted child and obtaining that child's return: Beatty v. Schatz, 2009, B.C.S.C., supra, para. 16.
74The Convention anticipates that all necessary expenses incurred to secure the children's return will be shifted to the abductor, both to restore the applicant to the financial position he would have been in had there been no removal or retention, as well as to deter such conduct from happening in the first place: Dalmasso v. Dalmasso, 9 P.3d 551 (U.S. Kan. S.C. 2000); Beatty v. Schatz, 2009, B.C.S.C., supra, para. 17; Solem v. Solem, 2013 CarswellOnt 8639, 2013 ONSC 4318, [2013] W.D.F.L. 3211, [2013] W.D.F.L. 3326, [2013] W.D.F.L. 3329, [2013] W.D.F.L. 3331, [2013] O.J. No. 2960, 229 A.C.W.S. (3d) 457, 33 R.F.L. (7th) 120 (Ont. Sup. Ct.), para. 10.
75Article 26 gives the Court authority to order legal costs beyond those ordinarily provided for in family law cases by the rules of court. The legal costs provided for in the rules are generally only a portion of the actual legal costs incurred: Beatty v. Schatz, 2009, B.C.S.C., supra, para. 20.
76The father claims travel costs of $16,747.88. This includes the following:
| Category | Description | Amount |
|---|---|---|
| Flights | For father; Court on 9 December 2016 (South Africa to Toronto, return) | $9,030.23 |
| For father; Court on 30 December 2016 (South Africa to Toronto, return) | $4,266.00 | |
| For the mother and two children; on 23 January 2017 (from Toronto to London) | $3,020.36 | |
| Hotel | Court 8 December 2016 | $237.74 |
| Court 30 December 2016 | $193.54 | |
| Total | $16,747.88 |
77In evidence the father offered to "facilitate" the arrangements for the return of the children and the mother to the U.K. At the hearing he offered to pay for those flights.
78Although her Answer was filed after the hearing, but before the Reasons for Decision were released (this is explained earlier) the mother made no claim for the father to pay for the cost of the flights to return the children to the U.K., nor for the cost of her flight to return to the U.K. At the hearing, she made no claim for either of these.
79It appears that the mother brought a motion after the Reasons for Decision were released regarding this issue. The materials filed on this motion have not been reviewed. The issue was resolved and the father paid for the flights of the mother and children to return to the U.K. This endorsement does not deal with that motion, nor the costs of that motion.
80The father is entitled to costs under Article 26 of the Hague Convention for necessary expenses incurred, travel costs, and the costs of returning the children to their habitual residence.
Order
81The mother shall pay the father's costs of this matter. A fair and reasonable costs order, and one that is proportionate to the issues involved, in all of these circumstances, is as follows:
a) Costs under the Family Law Rules, fixed at $25,920.63 all in (fees + HST, and disbursements + HST); and,
b) Costs under Article 26 of the Hague Convention fixed at $16,747.88.
82The mother shall pay the father's costs of this matter of $42,668.51.
83The final order in this case has not been issued and entered. The father's lawyer shall have this order taken out promptly, as well as this costs order.
Released: 20 June 2017 Justice Carole Curtis
Footnote
1Article 26: Upon ordering the return of a child or issuing an order concerning rights of access under this Convention, the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child, or who prevented the exercise of rights of access, to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child.
