Court File and Parties

Court File No.: Brampton 1195/12 Date: 2013-03-20 Ontario Court of Justice

Between: Wayne Wright, Applicant

— And —

Vilma Cox, Respondent

Before: Justice S.R. Clark

Cost Submissions by the Applicant Further to Motion Heard on December 21, 2012

Ruling released on March 20, 2013

Counsel:

• Mr. M. Freeze for the applicant Wayne Wright
• Mr. L. Cuddy for the respondent Vilma Cox

CLARK, J.:

1:0 INTRODUCTION

[1] The Court heard a motion by the respondent mother, dated November 16, 2012, to allow her to travel to England with the subject child, Lowell Wright, born August 19, 2003, presently age 9, between December 30, 2012 and January 7, 2013.

[2] The applicant father then brought his own motion, dated December 6, 2012, in response, seeking to dismiss the respondent's motion. His reasons for doing so were essentially based on his concern that the respondent would not return to the jurisdiction with the child.

[3] In the course of hearing the motions, the Court was told that one of the reasons why the respondent was seeking the order to travel was to give the subject child the experience of attending a premier league soccer match, having regard to his developing skills in this area.

[4] What also was disclosed in the course of hearing the motions, however, is that the respondent was now married, as of April, 2012, to a gentleman who resides in the United Kingdom. Furthermore, the materials filed by the applicant and his friend, Brian Richards, provided a basis to consider that the respondent was intending to relocate to live with her new partner in Britain. Furthermore, the Court became aware that she had obtained a work visa to allow her to seek employment there.

[5] The Court ultimately made a temporary order that would, hopefully, allow the child to have such a meaningful travel experience, while at the same time, impose terms to address any "risk" factors, in an effort to ensure his return. The respondent was, therefore, required to make a cash deposit of $1,000.00 paid into Court.

[6] Another term of the December 21st temporary order was that counsel were at liberty to file written submissions on costs of the motion within 14 days.

[7] The matter then returned to Court on January 11, 2013, to be spoken to regarding the status of the involvement of the Office of the Children's Lawyer. This appointment was also a term of the December 21st temporary order.

[8] On January 11, 2013, neither the respondent, nor her counsel, Mr. Cuddy, were in attendance. Mr. Freeze was in attendance with the applicant father. He asked the Court to make a ruling on his costs submissions which were submitted within the requisite timeframe. In the circumstances, however, given the absence of any explanation for the non-attendance of the respondent or her counsel, the Court determined that it was fair to give Mr. Cuddy an opportunity to file his materials on or before January 31st, 2013.

[9] Subsequently, a representative of Mr. Freeze's office contacted the judicial secretaries' office by telephone on Wednesday, March 13, 2013, making an inquiry as to whether the Court would be providing its ruling on costs.

[10] As a result of receiving this message, the Court instructed one of the judicial secretaries to place a professional courtesy call, or otherwise contact Mr. Cuddy by email to confirm that he was still representing the respondent and to determine whether he either had submitted responding materials on costs or was intending to do so. He apparently requested a further indulgence to file by Wednesday, March 20th, 2013.

[11] As a further courtesy, the Court instructed one of the judicial secretaries to contact Mr. Freeze's office to seek his position on the proposed extension. The Court's understanding of his response is that no such extension should be granted.

[12] Accordingly, this ruling is based on the materials filed by the applicant only.

2:0 THE APPLICANT FATHER'S POSITION ON COSTS

[13] Counsel for the applicant father submits that a fair and reasonable cost award is $2,000.00, on a partial recovery basis.

[14] He submits that he was successful on his motion. Although the Court ordered that the respondent could travel to England with the subject child, restrictions were put on the travel, including making a cash security deposit into Court before leaving the country.

[15] Having regard to the history of the events as between the parties, the Court should consider that the respondent, quite inappropriately, originally sought an ex parte order granting her the right to apply for a passport for the child without the applicant's consent.

[16] Furthermore, he submits that the respondent's unreasonable conduct necessitated him bringing his own urgent motion to address his concerns surrounding the circumstances under which the respondent was leaving Canada for a claimed visit to the United Kingdom.

[17] Regarding the reasonableness of the parties, he submits that the respondent failed to provide several material facts which would have addressed his concerns. She failed to disclose that she had married a British citizen and further, she failed to disclose that she had also obtained paperwork granting her the right to remain there. Accordingly, he submits that the respondent did not come to Court with "clean hands", as is the obligation imposed on a party seeking ex parte relief, and for that matter, seeking relief at any time.

[18] Regarding the importance of the issue, he submits that it was necessary to bring his motion to ensure that the child was not removed from Canada on a prolonged or permanent basis. The order obtained on his motion, therefore, provided very strong terms to secure the return of the subject child to Canada.

[19] On a full indemnity basis, he submits that his costs have exceeded $3,000.00. Furthermore, it appears obvious that the respondent has the means to pay a costs award since she had the means to purchase airline tickets. He asks the Court to also note that the respondent's motion would not have been necessary had she provided the applicant information in a timely manner and by having meaningful discussions with him.

[20] Regarding any offer to settle, the applicant was not in a position to explore settlement since the respondent failed to serve him until close to the motion review date of December 21, 2012. The Court should also note that the respondent was not responding to his emails to answer his requests for contact and flight information. Therefore, although no Offer to Settle was served pursuant to Rule 18 of the Family Law Rules, the applicant did make efforts to try and settle the issues raised at the motion.

3:0 ANALYSIS

3:1 Costs – General Principles

[21] Rule 24(1) of the Family Law Rules ("the Rules") creates a presumption of costs in favour of the successful party. This is the starting point.

[22] The objective of the Court is to fix an amount for costs that is fair and reasonable for the unsuccessful party to pay, rather than an amount fixed by the actual costs incurred by the successful litigant.

[23] The overriding principle is reasonableness, so as to not produce a result that is contrary to the fundamental objective of access to justice. (Boucher v. Public Accountant's Council (Ontario), 71 O.R. (3d) 291).

[24] The tenor of the current Rules recognizes the increasing demand on limited Court and judicial resources, and the increasing costs of litigation.

[25] The Rules also attempt to encourage settlement, and discourage unnecessary or prolonged litigation, and unreasonable behaviour on the part of litigants and their counsel that is wasteful of time and money. (Children's Aid Society of St. Thomas (City) and Elgin (County) v. S.(L.), [2004] O.J. No. 289 at para. 31).

[26] Parties to litigation must understand that Court proceedings are expensive, time-consuming and stressful. They are not designed to give the litigants a forum for carrying on in whatever manner they may choose, oblivious to the impact of that conduct on the other side, and oblivious to the mounting costs of litigation.

[27] Matrimonial litigation is an occasion for sober consideration and thoughtfulness, rather than intemperate behaviour. (Heuss v. Surkos, 2004 ONCJ 141, [2004] O.J. No. 3351, at para. 20).

[28] Rule 24(1), therefore, carries significant weight in determining a party's entitlement to costs. This helps to ensure an awareness that the losing party will be responsible for at least a portion of the successful party's costs, which should encourage reasonable behaviour and discourage actions brought in bad faith.

[29] Rule 24(11) sets out the factors to be considered in setting the appropriate quantum of costs, including the following:

• (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;
• (e) expenses properly paid or payable; and
• (f) any other relevant matter.

3:2 Application of the Governing Principles to this Case

[30] Having regard to the above-noted factors, the Court finds as follows:

(a) The Importance, Complexity or Difficulty of the Issues

[31] There was nothing particularly complex or difficult about these issues. They were obviously of importance to both parties, however.

(b) The Reasonableness or Unreasonableness of Each Party's Behaviour in the Case

[32] These travel scenarios crop up frequently. Ordinarily, the parties are able to reach some form of consensus. Any concerns by one parent are often addressed by having the other parent provide an itinerary and proof of a return travel ticket. However, in the circumstances of this case, the respondent clearly withheld important information from the applicant, namely, that she was now married, and more importantly, that she had obtained a work visa. Both of these factors were suggestive of the makings of some form of "plan" to relocate. Small wonder, therefore, that the applicant had concerns. The respondent's "strategy" to be selective in her disclosure of information to the applicant, militates against her.

(c) The Lawyers' Rates

[33] There is nothing on the face of the materials filed that would detract from a costs order in accordance with the amount requested.

(d) Time Properly Spent on Case

[34] See paragraph 33 above.

(e) Expenses Properly Paid or Payable

[35] See paragraphs 33 and 34 above.

(f) Any Other Relevant Matter

[36] Under sub-rule (f), the most common scenario is a party's ability to pay a costs award. The Court cannot ignore the best interests of the child, and thus, cannot ignore the impact of a costs award against a parent that would seriously affect their interests. Therefore, the financial situation of the parties is a relevant factor to consider.

[37] In the present case, however, the Court has no evidentiary foundation on which to give any meaningful consideration to this factor.

4:0 CONCLUSIONS

[38] Having regard to the requirement that there needs to be some correlation between legal fees and the benefit actually achieved, costs will be fixed at a significant, but not prohibitive amount.

5:0 ORDER

[39] The Court makes the following order:

1. The respondent mother, Vilma Cox, shall pay to the applicant father, Wayne Wright, the amount of $2,000.00, inclusive of disbursements and HST, within 30 days of the date of this order.

Released: March 20, 2013

Justice S.R. Clark