R. Byrnes

Following a family law trial concerning custody, access, and mobility, the successful party sought substantial indemnity costs exceeding $170,000 including costs of earlier motions.

The court applied Rule 24 of the Family Law Rules and considered the effect of an unaccepted offer to settle under Rule 18(14), the parties’ conduct during litigation, and the presumption that costs follow success.

The court found the successful party’s conduct reasonable and the opposing party’s conduct contributed to unnecessary trial length and litigation complexity.

However, the bill of costs did not clearly segregate financial issues from parenting issues, warranting a modest reduction.

Considering the opposing party’s limited financial circumstances as a discretionary factor, the court fixed costs at $105,000 inclusive.

The applicant father and respondent mother contested custody of their three-year-old child.

The mother had previously taken the child to Germany without the father's consent, leading to a Hague Convention order returning the child to Canada.

The mother sought custody and permission to relocate to Germany, while the father sought sole custody in Canada.

The court found that the mother's lingering anger and history of interfering with the father's access posed a significant risk to the child's relationship with the father.

Applying the best interests test, the court awarded sole custody to the father and established an access schedule for the mother, contingent on whether she remained in Canada or returned to Germany.