Regarding the Child, A.J.

Ontario Court of Justice

Date: 2016-04-14

Court File No.: Belleville 288/15

Between:

K.A.M. Applicant

— And —

A.M.J. Respondent

Before: Justice Wendy Malcolm

Decision on Costs released on April 14, 2016

Counsel:

• William D. Watson — counsel for the applicant
• Anthony Peter Girard — counsel for the respondent
• Ellen Burke — counsel for the respondent in Nova Scotia

Malcolm, J.:

[1] This is a decision with respect to costs following a hearing on the issue of whether the Ontario Court of Justice in Hastings County has jurisdiction to determine custody and access of the child A.J. The Applicant mother asked that the matter remain in Ontario. The Respondent father asked that this Court refuse to accept jurisdiction and allow the Nova Scotia Court to hear the case.

[2] The jurisdictional hearing was scheduled for February 25, 2016, but heard on February 26, 2016. A written decision was provided to counsel on March 4, 2016. Written submissions were provided by counsel to the Court on the issue of costs.

[3] At the hearing, I determined that the correct jurisdiction to hear this matter was Nova Scotia.

[4] The Applicant mother is represented by counsel in Hastings County. The Respondent father is represented by counsel in Hastings County, but also has counsel in Nova Scotia. At the hearing I allowed counsel for the father in Nova Scotia to make submissions, in particular because an Affidavit was served and filed by the mother on February 23, 2016 and there was no time for written reply.

[5] As the Respondent has been successful in this matter, I must consider Rule 24(11) of the Family Law Rules, O. Reg. 114/99, which provides that:

Factors in Costs

(11) A person setting the amount of costs shall consider,

(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. O. Reg. 114/99, r. 24(11).

[6] The issues were important and difficult. The parties had lived together in Nova Scotia and the mother moved with the child to Ontario without the consent or knowledge of the father. The mother wished to remain in Ontario and the father wished the mother to return to Nova Scotia with the child. Both parents wanted the province in which they were residing to determine the issues of custody and/or access to the child.

[7] The only offer to settle was made by the mother on March 3, 2016. This was six (6) days after the hearing and one (1) day before the release of the decision.

[8] The costs had already been incurred to argue the issue of jurisdiction when this offer was made. Although the offer conceded that the mother would return to Nova Scotia for purposes of having the custody hearing in Nova Scotia, she did not concede to return the child to Nova Scotia nor did she make an offer with respect to access between the child and the father in Nova Scotia.

[9] The father asks for not only the costs of his counsel in Ontario, but costs for counsel in Nova Scotia. Counsel for the father requests $9,250.00 in costs. The mother asks that there be no costs.

[10] Nova Scotia counsel attended by telephone at the hearing on February 26, 2016 as a courtesy, and although made submissions, was not lead counsel. The only document prepared in this proceeding by the Respondent was an Affidavit. The other documents considered were Affidavits prepared in Nova Scotia for a custody Application heard there. The father can request costs in the Nova Scotia proceeding and to award costs for preparation for those documents in this proceeding would be double recovery.

[11] There is no Bill of Costs to determine what time was allocated to the preparation of documents in this proceeding or time spent in preparation for this hearing. The Court record indicates that 1 hour and 19 minutes was spent on the February 26, 2016 jurisdiction hearing. No counsel attended Court on March 4, 2016 when the decision was released.

[12] There have been several inter-jurisdictional judicial communications where counsel have been invited to attend. These were not formal Court proceedings in this Court file. It is not appropriate to order costs for those discussions. Further, counsel and the parties have participated in a Settlement Conference before a Justice in this Court. I cannot order costs with respect to that Settlement Conference.

[13] There must be an Order of costs to recognize that the father has been successful; there has been no reasonable offer made prior to the hearing of the matter and the mother has not been reasonable (although I do not find she acted in bad faith). Further, the Court cannot condone parties taking the law into their own hands as the mother did in this case.

[14] As set out in the Ontario Court of Appeal decision of Serra v. Serra, 2009 ONCA 395, modern costs rules are designed to foster three fundamental principles, namely to partially indemnify successful litigants for the cost of litigation, to encourage settlement and to discourage and sanction inappropriate behaviour by litigants bearing in mind that the award should reflect what the Court views is a fair and reasonable amount that should be paid by the unsuccessful party.

[15] Here the mother is unemployed and supports the child. I am not aware of any support arrangements between the parties. Given my decision, the mother will have expenses to return to Nova Scotia. Costs should not be punitive in nature and to order costs of a full recovery, they would be excessive, considering the Applicant mother's financial situation.

[16] The father was required to have his lawyer review and respond to the mother's materials and attend Court. Ontario counsel is entitled to have an agent, namely the Nova Scotia counsel, to meet with the father and prepare the materials.

[17] I therefore set costs in the amount of $3,000.00, inclusive of tax and expenses, to be paid by the Applicant mother to the Respondent father or as the parties agree between themselves.

Released: April 14, 2016

Signed: Justice Wendy Malcolm