DATE: May 29, 2023 COURT FILE NO.: D91699/16 ONTARIO COURT OF JUSTICE

B E T W E E N:

CARLY ADELINE BLACKMAN Applicant

NADINE WALDMAN, for the Applicant

• and –

MICHAEL ZANRE Respondent

ACTING IN PERSON

HEARD: IN CHAMBERS

JUSTICE S.B. SHERR

COSTS ENDORSEMENT

Part One – Introduction

[1] On May 4, 2023, the court granted the applicant’s motion to travel with the parties’ child to the United States for a vacation without the respondent’s consent.

[2] The parties were given the right to make written costs submissions. The applicant seeks her costs of $2,924. The respondent did not make costs submissions.

Part Two – Legal considerations

[3] 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:

a) to partially indemnify successful litigants; b) to encourage settlement; c) to discourage and sanction inappropriate behaviour by litigants and; d) to ensure that cases are dealt with justly under subrule 2 (2) of the Family Law Rules (all references to the rules in this decision are to the Family Law Rules).

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

[5] Subrule 24(1) creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. See: Sims-Howarth v. Bilcliffe, [2000] O.J. No. 330 (SCJ- Family Court).

[6] 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.

[7] 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.

Part Three – Analysis and order

[8] The applicant was the successful party on the motion. She is presumptively entitled to her costs. The respondent did not rebut this presumption.

[9] The motion was not difficult or complex. It was important to the applicant.

[10] The applicant acted reasonably on the motion. She tried very hard to obtain the respondent’s travel consent prior to bringing her motion. She first sought the respondent’s consent on her own. She then had her counsel write to the respondent.

[11] The respondent acted unreasonably. In response to the applicant’s requests he wrote her profane, taunting and disdainful texts and refused to consent to the child going on the trip. This forced the applicant to bring her motion. At court, the respondent finally agreed to the trip and two make-up days were ordered.

[12] The time and rates claimed by the applicant are reasonable and proportionate.

[13] The respondent has the ability to pay the costs that will be ordered and should have reasonably expected to pay this level of costs if the applicant was successful.

[14] The issue of whether a parent’s consent for a child to travel outside of Canada with the other parent should be dispensed with arises frequently in family law cases. The parent seeking the dispensation is often worried that the other parent will thwart reasonable travel plans involving the child, either by not reliably responding to requests for consent, or by withholding consent as a tool to control, manipulate and hurt them.

[15] The parent seeking to preserve their ability to consent often worries that the other parent might travel with the child to an unsafe location. Sometimes their concern is that their consent will lead to a permanent removal of the child from Canada. More often though, they see the dispensation request as an attempt by the other parent to marginalize their relationship with the child.

[16] The court repeats what it wrote at paragraph 63 of R.B.J. v. B.N.R.J., 2020 ONCJ 399 as follows:

It does not necessarily follow that if a parent is granted custody of a child that the right to obtain government documentation for the child without the other parent’s consent or to travel with the child outside of Canada without the other parent’s consent will be ordered. These are parental rights distinct from who has custody of the child, and without a dispensation order from a court, the consent of an access parent is usually required by government authorities. These are important parental rights that are not to be dispensed with lightly.

[17] At the conference stage, where appropriate, this court will inform parents that if a travel consent is unreasonably withheld and the traveling parent has to come to court to obtain the travel order, that its going rate for costs against the unreasonable parent is $2,500. This leads to many settlements and fortunately, very few cases return to court on this issue.

[18] The respondent unreasonably withheld his travel consent. This is an appropriate case for the court to order its going rate for costs.

[19] An order shall go that the respondent pay the applicant the amount of $2,500 for her costs plus $325 for HST for a total of $2,825. The costs are due and payable forthwith.

[20] The court cautions the respondent that if he unreasonably withholds a travel consent again the court may award more than just costs – it might order that his right to consent to the child traveling outside of Canada be dispensed with on a final basis. Hopefully, this will not be necessary.

Released: May 29, 2023

Justice Stanley B. Sherr