SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: FS-11-17425
DATE: April 18, 2012

APPLICANT: Uri Landman Husid

RESPONDENT: Hélène Marie Thérèse Daviau

BEFORE: Mr. Justice Perkins

LAWYERS:
Jeffery Wilson, for the applicant father
Phyllis Brodkin and Serena Lein, for the respondent mother

ENDORSEMENT

[ 1 ] This is the determination of the costs of this case, in which I heard a seven day trial last November. The parties have filed costs submissions and have not asked for an oral hearing.

[ 2 ] The father’s application sought an order returning the child Shelli to Perú under the Hague Convention on the Civil Aspects of International Child Abduction. The mother defended, seeking to have Shelli remain here, under article 13 (b) of the convention. The mother was successful.

[ 3 ] The mother has asked for costs of $83,857 on a full recovery basis. She asserted, correctly, that she was completely successful. Her claim for full recovery was not grounded on bad faith or unreasonable litigation conduct, but rather on the discretionary factors found in rule 24 (11).

[ 4 ] The father resisted the claim for costs on several grounds.

[ 5 ] First, the father submitted that costs could only be awarded in the circumstances set out in article 26 of the Hague Convention, namely, “Upon ordering the return of a child or issuing an order concerning rights of access under this Convention ...”. I disagree. The wording of that provision does not purport to interfere with the normal authority of the courts of a country to award costs in a court case. Rather, the language of article 26 is aimed at expanding the kinds of “expenses” that could be awarded by a court as incidental to an order for return of a child to include expenses beyond those ordinarily considered “costs” of a court case.

[ 6 ] The father’s alternative argument conceded the mother was successful and pointed to several reasons why the court in its discretion under rule 24 ought, in his submission, to reduce or eliminate any costs burden on him. He made an offer to settle that would have seen Shelli residing primarily in Canada with the mother. The mother admitted she wrongfully retained Shelli in Canada despite the Peruvian court order authorizing only a two month vacation. The case was a difficult one in which the mother accepted a trial was necessary in order to know which party would prevail. The mother was not blameless in the events detailed in the trial evidence. The father reasonably took the position that the case should have been determined in Perú.

[ 7 ] Finally, the father made submissions on the propriety of some aspects of the mother’s bill of costs and the father’s ability to pay. On this last point, I will only comment that I did not believe the father’s evidence about his means. I found the grandmother’s evidence about the manipulation of shares in the family business more telling and I preferred the mother’s estimation of the father’s available means to the father’s evidence. I note as well that the father had the means to pursue the various court applications and appeals in Perú.

[ 8 ] The father has raised some valid points about time spent that was not strictly necessary or appropriately included in the bill. The suggestion that the trial was materially lengthened by improper questions by the mother’s lawyer is not well founded. It is interesting that the father’s lawyer’s total time is 50 hours less than the mother’s. The mother’s bill of costs is in general reasonable for a case ending in a seven day trial. Notably absent is a disbursement for translating the many Peruvian court documents.

[ 9 ] There does not appear to be any factor that takes this case out of the ordinary operation of rule 24, either as to the successful party recovering costs or as to the normal level of recovery (for which, see Osmar v. Osmar , 2000 20380 (ON SC) , [2000] O.J. no. 2504, Biant v. Sagoo , 2001 28137 (ON SC) , [2001] O.J. no. 3693 and Mantella v. Mantella , [2005] W.D.F.L. 3442 ). The case was difficult and the issues very important. The father’s conduct in the litigation (as distinct from within the parties’ relationship) was not unreasonable or deserving of sanction. The mother was equally reasonable in the litigation. The parties’ offers were reasonable but neither party beat their offer and it was reasonable, especially given the result, for the mother not to accept the father’s offers.

[ 10 ] Costs are awarded to the mother in the all inclusive amount of $64,000 and are payable within 60 days.

Perkins J.

Date: April 18, 2012