SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: FS-11-17686
DATE: October 3, 2012

APPLICANT: Harry Perez-Lopez

RESPONDENT: Debbie Patricia Cordero

BEFORE: Mr. Justice Perkins

LAWYERS:
M.E. Zagazeta Garcia, for the applicant father

C. Falquez-Warkentin, for the respondent mother

HEARD: By submissions in writing

ENDORSEMENT

[ 1 ] This is the decision of the costs of the motion heard April 23 and decided April 27, 2012. I determined that Ontario would not exercise jurisdiction over the parties’ two children, ages 7 ½ and 5½, who were living in Mexico. As a result, I stayed the father’s application.

[ 2 ] Costs submissions were filed by June 1, but unfortunately the submissions were misplaced and have only now come to me. The parties did not request an oral hearing.

[ 3 ] The mother has submitted a bill of costs of $31,414.63 for the entire application and asks for $30,000 or in the alternative a partial recovery of $20,000 to be awarded to her. She claims success on the principal issue and has provided a copy of her offer to settle, dated April 19, 2012, in which she offered to settle for $10,000 in costs and offered supervised access to the father in Mexico if the father agreed that the appropriate forum for the issues was Mexico. The offer was open for acceptance only on the day it was made and, though it was a reasonable offer, is not a significant factor because it was not open for acceptance when the matter came before me.

[ 4 ] The father submitted a bill of costs of $25,586.44 for the application and asked that he be awarded $20,000 in costs or in the alternative that there be no costs award. He served an offer, open for acceptance until the motion hearing, that would have required the mother to litigate the issues in Ontario. In the result, his offer is not a factor.

[ 5 ] Both bills of costs are high for this case, which never went to a trial.

[ 6 ] The mother succeeded on the issue of jurisdiction and obtained a stay of the application by the father. She is the successful party and is presumed entitled to costs under rule 24 (1). Since she obtained an order staying the entire application, the costs of the whole application are up for consideration here.

[ 7 ] My decision of April 27 criticized the father for trying to make an end run around the Ontario Court of Justice, where the custody and access issues had been litigated before the mother’s departure and where the father had failed to take part in the case, though given several opportunities to do so. He started a new case here instead of trying to reopen the matter there.

[ 8 ] On the other hand, my decision also criticized the mother for deceiving the father and the court about her intention to relocate permanently to Mexico and for setting up a sham access arrangement in Ontario for a date after her planned (and executed) departure.

[ 9 ] Because of the mother’s deceitful behaviour in the case, her costs recovery will be cut down from the $15,000 I would ordinarily have awarded her. Costs to the mother are fixed at $5,000, payable within 30 days.

October 3, 2012 ____________________________________

Perkins J.