Court File and Parties

COURT FILE NO.: FS-16-0219 DATE: 2020 05 20 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: EMUESIRI TEJIRI MEDU, Applicant – and – ERERE OHWOFASA MEDU, Respondent

BEFORE: McSweeney J.

COUNSEL: Hannah Kazman , for the Applicant Respondent, Self-Represented

HEARD: Via Teleconference: April 28, 2020

Costs Endorsement Order

[1] This is my endorsement on costs for the motion brought by the Applicant for return of the parties’ children. Earlier endorsements on this motion are reported as Medu v. Medu at 2020 ONSC 2465 (April 21), 2020 ONSC 2582 (April 24), and 2020 ONSC 3055 (May 15).

[2] Applicant mother seeks her full indemnity costs of this urgent motion in the amount of $6,850.06. Father objects on the basis that the motion was not necessary, as he was going to return the children on April 27, 2020 anyway. He suggests that partial indemnity costs be ordered, and that he and the Applicant pay costs of just over $2,000 each.

[3] I have reviewed Applicant’s bill of costs and considered both parties’ submissions.

[4] The Applicant’s costs are reasonable. I reach this conclusion having considered her counsel’s hourly rate, noting appropriate use of law clerk assistance to contain costs.

[5] I note also that counsel used her time efficiently to secure the urgent return of the children. In particular the court notes with approval that counsel’s first steps were focused on resolution: ie she helped her client comply with the Respondent’s request for information, even though the request was not relevant to his overholding of the children. She then attempted to arrange the return of the children directly with the Respondent. Only when this approach was not effective did counsel initiate the urgent motion in court.

[6] I emphasize that the steps taken by the Applicant were reasonable and proportionate to the circumstances. She ensured that the Respondent had an opportunity to return the children without the necessity or cost of court involvement. He chose not to do so. Had he chosen otherwise, the Applicant’s legal costs would have been much lower.

Family Law Costs Framework

[7] With respect to entitlement, the Applicant was successful and is presumptively entitled to costs (see Rule 24(1) of the Family Law Rules).

[8] As emphasized by the Court of Appeal for Ontario in Mattina v. Mattina, 2018 ONCA 867, modern family cost rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement, and; (3) to discourage and sanction inappropriate behaviour by litigants. Rule 2(2) adds a fourth fundamental purpose: to ensure that cases are dealt with justly, and Rule 24(12), which sets out factors relevant to setting the amount of costs, specifically emphasizes “reasonableness and proportionality” in any costs award.

[9] The Family Law Rules direct that the court “shall” decide costs on a full indemnity basis where it finds that a party has acted in bad faith: Rule 24(8).

[10] The meaning of “bad faith” behaviour in the family law context was considered by my colleague Kurz J in Cameron v. Cameron, 2018 ONSC 6823:

at para 45: “[d]eliberate 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 par. 39 ) or inflict financial harm (S.(C) v. S.(C) , 2007 20279 (ON SC) , [2007] O.J. No. 2164 (S.C.J.)); and

at para 46: “As Pazaratz J. of this court's Family Court wrote in Jackson v. Mayerle, 2016 ONSC 1556: ‘ ... Rule 24(8) requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made. … Bad faith requires some element of conscious wrongdoing.’ As Pazaratz J. put it at paras. 58-59: ‘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...’”

Analysis

[11] As noted in my earlier endorsements, I have found that this motion was necessary, and that Father was in flagrant breach of the parties’ final order. Specifically, he overheld the children for over four weeks without legal justification in contravention of the parties’ final court order. During this time, Father did not tell Mother where the children were, or that he and his partner had driven them over 1,700 km north, a trip of over 18 hours, to Sioux Lookout in northern Ontario. Nor did father comply with the parties’ final order by facilitating Mother’s daily calls to the children during this time.

[12] Respondent Father’s conduct was deliberate. It also carried an increased risk of harm to the children because he removed them from their home community in violation of public health “stay at home” protocols during the COVID-19 pandemic.

[13] In concluding that full indemnity costs are appropriate, I have considered the following:

a. Father’s breach of the court order was deliberate and prolonged;

b. He withheld information from mother which would have helped her to assess the risk to their safety posed by travel to a new region during a pandemic;

c. He manipulated her emotionally by refusing to return the children to her while attempting to obtain her agreement to change the parties’ final order in his favour. Specifically, while he was in northern Ontario, Mother asked Father repeatedly to return the children. He made what looked to her like offers to return the children, then tauntingly offered only to meet in person “to negotiate” a new access schedule. He offered to do so on a Wednesday which he later admitted was a working day for him in northern Ontario.

d. He blamed the Applicant for the situation by claiming that she was obligated to let him overhold the children because of (a) her past unwillingness to regularly adjust the court access schedule to accommodate his changing travel and work plans and (b) due to the Applicant mother’s refusal to permit the Respondent’s partner to pick up the children, even though he had refused to give the Applicant requested information about his partner.

e. In the result the Applicant was unaware that her children were in northern Ontario, over 18 hours’ drive from Brampton, in a different time zone, in the care of Father and his common law partner.

f. Father did not advise mother that while the children were in his care, he was leaving them daily to work full-time hours in an essential service job (pharmacist) during the COVID-19 global pandemic.

[14] Father not only engaged in deliberate breach of the terms of the parties’ access schedule but did so over a period of weeks in which he continued to deceive the Applicant and engaged in obfuscation with respect to the children’s whereabouts and his plans for them.

[15] Father was clear in his submissions on the motion that he does not like the access schedule in the parties’ final order, as it often conflicts with his work obligations, and does not give him the access schedule flexibility that he wants. Nonetheless he has not brought a motion to change or taken lawful steps to vary the order.

[16] Instead, the evidence on the motion, admitted by the Respondent in his submissions, shows that he has repeatedly cancelled access, and on many other occasions over the previous year has asked Applicant Mother to change his court-ordered pick-up time or location, or date of access, to accommodate him.

[17] The Respondent admits that Applicant has accommodated his requests on many occasions but argues that she should also have given him “make-up” time, despite not being required to do so by the parties’ final order.

[18] I find that Respondent Father’s overholding of the children for a month in an undisclosed location was designed to pressure or bully the Applicant mother into changing change the access terms of their final order. That is, the Respondent’s overholding amounts to bad faith.

[19] By contrast, Applicant Mother’s actions in response to Father’s refusal to return the children were child-focused and forbearing, considering that she tried to arrange the children’s return directly for weeks before re-engaging her trial counsel for assistance. Because of Applicant Mother’s measured approach and that of counsel, the children came back to Brampton without the additional stress of police involvement.

[20] I do not accept Father’s argument that he was going to bring the children back on April 27, 2020 in any event. The inconsistency in the Respondent’s promises during the period of overholding, his secrecy in hiding from the Applicant where he was working and living, his removal of the children over 1700 km away, in knowing contravention of a court order – all these factors gave the Applicant Mother, and this court, good reason to doubt that the Respondent would have returned the children to the Applicant without a court order.

Conclusion

[21] Father’s actions were a flagrant contravention of the Access Schedule terms of the parties’ Final order of Justice Shaw dated September 12, 2018.

[22] The Applicant’s costs of the motion are reasonable. Full indemnity costs are appropriate for the reasons given, as the Respondent’s actions were unreasonable, and I find they were taken in bad faith.

[23] With respect to Father’s ability to pay, I note his evidence that he worked full time hours as a relief pharmacist from late March 2020 until April 24, 2020. He did not respond to the Applicant’s request to provide information as to his rate of pay or income over that period.

[24] I conclude that the cost award in this circumstance is reasonable, is proportionate to the Respondent’s bad faith overholding of the parties’ three young children from their primary care parent in contravention of the parties’ final court order. The order also supports the goal of discouraging and sanctioning the behaviour of the Respondent.

Order

THIS COURT HEREBY ORDERS:

[25] Costs of $6,850.06 are fixed and payable by the Respondent ERERE OHWOFASA MEDU to the Applicant EMUESIRI TEJIRI MEDU within 30 days.

[26] Should these costs not be paid in full by June 21, 2020, this Endorsement Order may be filed for enforcement with the Family Responsibility Office and a Support Deduction Order shall issue. Interest shall be calculated on the unpaid amount pursuant to the Courts of Justice Act.

[27] Upon the Brampton courthouse reopening to the public, each party shall file with the SCJ Brampton Trial Office a copy of all the material he or she delivered electronically for this motion, with proof of service, and pay the appropriate fees.

[28] This endorsement is effective when made. No formal order is required.

“Original signed on file”___

McSweeney J.

Released: May 20, 2020

COURT FILE NO.: FS-16-0219 DATE: 2020 05 20 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: EMUESIRI TEJIRI MEDU Applicant - and - ERERE OHWOFASA MEDU Respondent costs endorsement ORDER MCSWEENEY J. Released: May 20, 2020