Court File and Parties

Date: December 20, 2022 Court File No.: D43517/22

ONTARIO COURT OF JUSTICE

B E T W E E N:

MAHMOUD AL-RIFFAI APPLICANT

CATERINA LICATA, for the APPLICANT

• and -

ALIAA AHMED SAID ABDALLAH HUSSEIN RESPONDENT

AMAL TAHIR, for the RESPONDENT

HEARD: In Chambers

JUSTICE S.B. SHERR

COSTS ENDORSEMENT

Part One – Introduction

[1] The applicant (the father) seeks costs of $19,000, arising from two motions and a case conference, related to the respondent’s (the mother’s) wrongful removal of the parties’ three-year-old child (the child) to Egypt.

[2] The mother did not file costs submissions.

Part Two – Background

[3] The parties were married in May 2017 and separated in July 2022.

[4] The parties have the one child together.

[5] The child primarily resided with the mother in Toronto after the parties separated.

[6] On October 7, 2022, the mother wrongfully removed the child to Egypt, without prior notice to the father.

[7] Egypt is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention).

[8] The father promptly issued an Application and brought a motion without notice seeking the return of the child to Ontario.

[9] On October 17, 2022, Justice Carole Curtis found that Ontario is the child’s habitual residence. She ordered that the child be returned to Ontario no later than October 24, 2022. She adjourned the motion for service on the mother.

[10] The mother did not return the child to Ontario. The father brought a second motion on the return date to find the mother in contempt. The mother retained counsel and filed material contesting both motions. She submitted that Ontario did not have jurisdiction to hear this case and asked the court to set aside Justice Curtis’ order.

[11] The father did not personally serve the mother with his contempt motion. It was converted into an enforcement motion, pursuant to subrule 1(8) of the Family Law Rules (all references to rules in this decision are to the Family Law Rules).

[12] The court heard these motions on November 10, 2022 and gave oral reasons for decision that day. The court found and ordered that:

a) The child was wrongfully removed from Ontario on October 17, 2022. b) Ontario is the child’s habitual residence. c) It would not decline to exercise jurisdiction, as requested by the mother, pursuant to section 25 of the Children’s Law Reform Act. d) The mother was in breach of the October 17, 2022 order of Justice Curtis. She is still required to comply with this order. e) Pursuant to subrule 1 (8) (e), the mother is not entitled to any order from the court, unless the court orders otherwise, until she is in compliance with the order of Justice Curtis to return the child to Ontario. f) The mother was granted an extension to file her Answer/Claim at her request. g) If the mother complied with the order to return the child to Ontario she could seek permission from the court, on notice to the father, to bring a motion on the return date for temporary orders, including the ability to relocate with the child to Egypt, parenting orders and support.

[13] The father submitted that this was an International Child Abduction Case (ICAC) that must be immediately placed on the trial list and completed within 6 weeks pursuant to rule 37.2. This rule reads as follows:

RULE 37.2: INTERNATIONAL CHILD ABDUCTION

Application

37.2 (1) This rule applies to international child abduction cases.

Interpretation of rules

(2) For the purposes of subrules 2 (2) and (4), dealing with an international child abduction case justly includes applying these rules with a view to providing the timeliest and most efficient disposition of the case that is consistent with the principles of natural justice and fairness to the parties and every child involved in the case.

Prompt disposition

(3) An international child abduction case shall be disposed of promptly, and not later than six weeks after the case is commenced if Article 11 of the Convention on the Civil Aspects of International Child Abduction applies to the case.

Case management judge

(4) Wherever possible, a judge shall be assigned at the start of an international child abduction case to manage it and monitor its progress.

First meeting

(5) A first meeting of the parties with a judge shall be held not later than seven days after the case is commenced.

Same

(6) The clerk shall make best efforts to promptly notify the parties of the scheduling of the first meeting.

Same

(7) At the first meeting, the judge,

(a) shall set a timetable for the service and filing of further materials in the case, as well as a hearing date; and

(b) may make any further order the judge considers necessary.

[14] This submission was rejected by Justice Curtis on October 17, 2022, and again by this court on November 10, 2022. This is not an ICAC. The definition of an ICAC is contained in subrule 2 (1) which reads as follows:

“international child abduction case” means an application involving the alleged wrongful removal to or retention of a child in Ontario that is made under section 40 of the Children’s Law Reform Act or under the Convention on the Civil Aspects of International Child Abduction, set out in the Schedule to section 46 of that Act, if the removal or retention involves a jurisdiction outside Canada;

[15] It is an ICAC when a child is wrongfully retained in Ontario or is wrongfully removed to Ontario. In these circumstances, Ontario courts are expected to prioritize the case to promptly determine if the child should be returned to the foreign jurisdiction. All ICAC cases must be disposed of promptly. If the foreign country is a signatory to the Hague Convention the case is to be disposed of in six weeks (37.2 (3)).

[16] This rule does not apply when the child is wrongfully removed from Ontario or wrongfully retained in a foreign jurisdiction.

[17] The case was adjourned to a case conference on December 19, 2022. The mother did not attend on the return date. She did not file a case conference brief. She did not file an Answer/Claim, despite having been granted the extension she had requested.

[18] Most importantly, the mother has not returned the child to Ontario.

[19] Counsel for the mother brought a motion for her removal from the record on December 19, 2022. This motion was unopposed and was granted.

[20] The case has been adjourned for an uncontested hearing.

Part Two – Legal considerations

[21] The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 set out 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 under subrule 2 (2).

[22] Costs can 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. See: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, 2003 S.C.C. 71, paragraph 25.

[23] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.

[24] An award of costs is subject to the factors listed in subrule 24 (12), subrule 24 (4) pertaining to unreasonable conduct of a successful party, subrule 24 (8) pertaining to bad faith, subrule 18 (14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party. See: Berta v. Berta, 2015 ONCA 918, at paragraph 94.

[25] Subrule 24 (1) states that the successful party at a step in the case is presumptively entitled to costs.

[26] Subrule 24 (12) reads as follows:

24 (12) In setting the amount of costs, the court shall consider,

a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

(i) each party’s behaviour, (ii) the time spent by each party, (iii) any written offers to settle including offers that do not meet the requirements of rule 18, iv) any legal fees, including the number of lawyers and their rates, v) any expert witness fees, including the number of experts and their rates, vi) any other expenses properly paid or payable; and

(b) any other relevant matter.

[27] The court should also take into consideration the ability of a party to pay costs. See: MacDonald v. Magel (2003), 67 O.R. (3d) 181 (Ont. C.A.). Difficult financial circumstances are a factor but not are always a reason to deprive a successful party of costs or to reduce the amount of costs. See: Beaulieu v. Diotte, 2020 ONSC 6787.

[28] In determining the appropriate quantum, the court should consider the amount that the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation. See: Arthur v. Arthur, 2019 ONSC 938.

Part Three – Analysis

[29] There is no issue that the father was the successful party on both motions. The presumption that he is entitled to costs was not rebutted by the mother.

[30] The case conference held on December 19, 2022 was a wasted appearance, as the mother did not attend at court or file a case conference brief. Costs are payable pursuant to subrule 17 (18). This subrule reads as follows:

Costs

(18) Costs shall not be awarded at a conference unless a party to the conference was not prepared, did not serve the required documents, did not make any required disclosure, otherwise contributed to the conference being unproductive or otherwise did not follow these rules, in which case the judge shall, despite subrule 24 (10),

a) order the party to pay the costs of the conference immediately; (b) decide the amount of the costs; and (c) give any directions that are needed.

[31] The case was important for the parties. It was not complex or difficult.

[32] The father acted reasonably.

[33] The mother has acted unreasonably. She surreptitiously and wrongfully removed the child from Ontario. She has breached Justice Curtis’ order to return the child to Ontario. She did not participate at the case conference.

[34] The rates claimed by the father are reasonable ($300 per hour for a 2016 call to the Bar).

[35] The court reviewed the father’s bill of costs. It included some time for work not associated with these steps in the case. It also appeared high based on the materials filed and the time taken to hear the motions.

[36] The court was provided with no information about the mother’s financial circumstances.

[37] The mother should have reasonably expected to pay the costs that will be ordered if she was unsuccessful on the motions, which the court finds are reasonable and proportionate in these circumstances.

Part Four – Conclusion

[38] An order shall go as follows:

a) The mother shall pay the father’s costs of the two motions in the amount of $10,000, inclusive of fees, disbursements and HST. These costs are payable within 30 days. However, if the mother returns the child to Ontario, as ordered, she may seek a payment order from the court over a longer period of time. b) The mother shall pay the father’s costs of the case conference in the amount of $1,000, inclusive of fees, disbursements and HST. These costs are payable forthwith.

Released: December 20, 2022 _____________________ Justice S.B. Sherr