Court File and Parties
Court File No.: FC-23-1509 Date: 2024/01/24 Ontario Superior Court of Justice
Between: Niendow Oma Al-Hassan, Applicant – and – Ama Gaynor Ankamah, Respondent
Counsel: John Allan, counsel for the Applicant Concillia Muonde, for the Respondent
Heard: In Writing
Costs Endorsement
Doyle J.
Overview
1On December 13, 2023, the Court dismissed the applicant father’s motion for the return of the child M.A. born in November 2014 (“the child”) who he alleged was wrongfully removed/abducted from his care in Ottawa by the respondent mother and brought to Ghana.
2The Court granted the mother’s motion and found that the child’s habitual residence was Ghana and that the Superior Court of Justice does not have jurisdiction or should decline jurisdiction.
3If the parties could not agree on costs, they were to file costs submissions.
4Both parties’ written costs submissions exceeded the length as stipulated in the direction in my endorsement. In the future, the Court will consider rejecting submissions which do not comply with my directions.
5Having considered the Family Law Rules, the parties’ written submissions and the Bill of Costs, the Court awards costs in the amount of $7,000.00 (inclusive of HST and disbursements) payable by the father to the mother within 90 days.
Mother’s Position
6The mother is requesting her costs $38,126.51 on a full indemnity basis. As the successful party, the mother is presumptively entitled to costs.
7She alleges that the father acted in bad faith by: misleading the Court regarding the child’s whereabouts, breaking up with the mother when the child was in his care to gain litigation advantage and the absence of consideration for the mother’s lack of status in Canada. In addition, his materials lacked completeness and did not provide family history.
8Counsel for the respondent had to prepare a detailed family history and materials to ensure that the complete context was before the court.
9There were no offers as the parties’ respective positions were irreconcilable.
Father’s Position
10The father submits that he acted reasonably and responsibly, following the surreptitious removal of the child by the mother to Ghana. This was an act of bad faith which caused financial and emotional harm to the father. The Court should not condone the mother’s actions by awarding costs.
11The mother blocked the father from communications at key points of time.
12In contrast, the mother’s removal of the child is denounced by Canadian legislation and taken seriously under international law. Therefore, success is mixed.
13The mother’s materials were prolix and contained uncredible facts and exhibits and dealt extensively with primary care even though this was not contested. There were irrelevant documents filed incurring unnecessary fees. The hearing only took 3.5 hours and the amount claimed is exorbitant.
14Whereas the father was forthright in his materials filed, the mother’s application in Ghana is “laden with falsehoods and misleading facts”.
15Also, there was no offer to settle from the mother. In addition, the father did not request security for costs even though the mother was a foreign resident.
Legal Principles
16In Mattina v. Mattina, 2018 ONCA 867, the Ontario Court of Appeal stated that modern costs rules are designed to foster four fundamental purposes (1) to partially indemnify successful litigants; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants and; (4) to ensure that cases are dealt with justly. (Rule 2(2) of the Family Law Rules).
17There is a presumption of costs in favour of the successful party. An award of costs is subject to the factors listed in Rule 24(12).
18The Rules provide the Court with a broad discretion in awarding costs and the list of factors are set out in rule 24.
19The overarching principle is to fix an amount that is fair, reasonable, proportionate and within the parties’ reasonable expectations. See Boucher v. Public Accountants.
Analysis
20Firstly, the mother, as the successful party, is presumptively entitled to costs.
21The central issue in this matter was whether this Court had jurisdiction to make a parenting order for the parties’ child. Specifically, the Court must determine whether the child is habitually resident in Ontario or in Ghana pursuant to s. 22 of Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”). Neither party took the position that the child would be at risk of harm if she was allowed to return to Canada within the meaning of s. 23 of the CLRA.
22The main facts were not contentious in that the child was only in Ontario for about 1 month and her life was in Ghana. This supports a finding that the child’s habitual residence is in Ghana.
23The Court declined to exercise its discretion to take jurisdiction on this matter.
24I do not find that that the behaviour of either party rises to the level of bad faith as defined in rule 25(8) and the case law. For a finding of bad faith, the action must be carried out with an intent to inflict harm to the other party and to inflict financial or emotional harm and to conceal information relevant to the issues or deceive the other party or the court. See S.(C.) v. S. (M.) 2010 ONCA 196, [2010] O.J. 1064 (ONT C.A).
25Both parents have not been forthright nor candid with the other parent. I find that both parties made misguided but genuine attempts to gain litigation advantage in this case. The father by ensuring only the child had Canadian citizenship and separating while the child was in his care. However, it should be noted that he paid for the mother’s flight to Canada so that she could determine if the child had settled in. And the mother attempted to gain litigation advantage by taking the child without the father’s consent. The parties have failed to provide proof that there was an intent to inflict harm and that this was the significant part of the person’s intent.
26I have determined that costs on a full indemnity basis is not justified.
27There is no bad faith, but a message must be sent that surreptitiously removing a child is not condoned by the courts despite the clear evidence that the child’s habitual residence is Ghana.
28Upon reviewing the Bill of Costs, time spent, a rate of $325 hour with 10 years experience is reasonable, and expenses incurred.
29This was not a complex hearing and there were no allegations of risk of harm if the child was ordered returned to Canada.
30For the most part, the parties agreed on much of the timing of the events. The father conceded that the mother had cared for the child in Ghana.
31Considering all the above, the Court finds that a fair and reasonable amount of costs to be paid by the father to the mother is $7,000.00 (inclusive of HST and disbursements).
Madam Justice A. Doyle
Date: January 24, 2024