SUPERIOR COURT OF JUSTICE - ONTARIO

Editor’s Note: Erratum released December 4, 2013. Original judgment has been corrected, with text of erratum appended.

COURT FILE NO.: 623/12

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ROBERT SOLEM, Applicant

AND:

MARIANNE SOLEM, Respondent

BEFORE: Turnbull, J.

COUNSEL: Darrell Waisberg, Counsel, for the Applicant

Luigi De Lisio, Counsel, for the Respondent

COSTS ENDORSEMENT ON A MOTION

1The applicant successfully brought an application before the court under the Hague Convention for the return of his four children to Norway where they had resided all their lives until their mother moved them to St. Catharines, Ontario in October 2011. This court found that the applicant had not consented to such a move and that the actions of the respondent amounted to a wrongful retention. As a result, the respondent was ordered to forthwith return to Norway with the children.

2In my ruling on this matter which was released February 20, 2013, I asked counsel to provide written submissions as to costs in the event the parties could not resolve them. I received the last of these submissions on April 22, 2013 and wish to thank counsel for their helpful and detailed submissions.

Legislative Framework Relative to the Entitlement to Costs

3Article 26 of the Hague Convention provides as follows:

Upon ordering the return of a child or issuing an order concerning rights of access under this Convention, the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child, or who prevented the exercise of rights of access, to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child.

4Section 131(1) of the Courts of Justice Act, R.S.O. 1990 c.C.43, as amended, gives the court a broad discretion to deal with the costs of and incidental to a proceeding or a step in the proceeding including determination of who will pay the costs and to what extent.

5Rule 24(1) of the Family Law Rules, creates a presumption of costs to the successful party.

6In setting an appropriate amount of costs, the court must consider the factors specified under Rule 24(11).

7In the circumstances of this case, I find the applicant should be entitled to his costs. He was totally successful.

8The determination of the quantum of costs involves consideration of several elements. They may be generally summarized as follows:

a. The scale of costs to be awarded relative to work done by the applicant’s Canadian lawyer.

b. The reasonable hourly rate for counsel for the applicant, his law clerks and his students.

c. The costs of the applicant to retain and instruct counsel in Norway.

d. The costs of the applicant to travel to Canada for a hearing of this matter which was adjourned at the request of the respondent.

Scale of Costs

9This litigation became necessary because of the “self-help” remedy chosen by the respondent to unilaterally remove the children from Norway. In my view the respondent has behaved unreasonably in these proceedings by simply taking the children from Norway without allowing the Norwegian courts to render considered decision with respect to the best interests of the children.

10The objectives of the Hague Convention would be defeated if the applicant were required to fund the process of locating the abducted children and obtaining their return. The Hague Convention anticipates that all necessary expenses incurred to secure the children’s return will be shifted to the abducting parent. This then restores the applicant to the financial position he or she would have been in had there been no removal or retention as well as deterring such conduct from happening again or in other cases.¹

11In Mitchell v. Mitchell, 2009 13620 (ON SC), 2009 CarswellOnt 1628 (Ont.S.C.J.), Polowin J., considered Article 26 of the Hague Convention, the circumstances of that case and the costs factors set out in the Ontario Rules, and a settlement offer. The Court assessed costs in the amount of $35,000.00 on a complete indemnity basis payable by the abducting parent. I refer to that award of costs because in many ways, the facts as outlined by the learned judge in her ruling on costs do not appear to be significantly more complicated than those before this court.

12I find that the applicant should be entitled to his costs on this matter on a substantial indemnity basis. He was completely successful on this application. In acted in a bona fide manner throughout and as will be noted later, he made an offer to settle. In considering the reasonable costs, Rule 24(11) of the Family Law Rules is the governing basis upon which costs shall be assessed in Ontario in these matters.

Factors under Rule 24(11)

13I find that this matter was of great importance to the applicant and involved some of complexity and difficulty. The applicant has had to deal with counsel in Norway, the notary public office in Norway, and seek the assistance of the Central Authority in that country. I find the applicant has acted reasonably in this matter and sought to have the matter heard by the court as soon as possible. I have previously indicated how I felt the respondent acted unreasonably in all the circumstances save and except with respect to the presentation of her argument before this court.

Hourly Rates Sought

14Counsel for the applicant seeks $600 per hour on a full indemnity scale, $480 per hour on a substantial indemnity scale and $360 per hour on a partial indemnity scale. Mr. Waisberg was called to the bar in 1994 and has 19 years experience in the bar almost exclusively in family law. He claimed $150 per hour for his law clerks and students on a full indemnity scale, $120 per hour on a substantial indemnity scale and $90 per hour on a partial indemnity scale. I have taken into account that Mr. Waisberg practices in Toronto where the cost of rent, staff and related expenses are higher than in St. Catharines.

15In my view, the rate claimed on a substantial indemnity scale is excessive and it should be reduced to $450 per hour. Substantial indemnity costs have been defined as “about 80%” of the costs. ² Furthermore, I find the rate claimed for a law student and/or law clerk is also excessive and it should be reduced to $90 per hour.

16The Court must take the reasonable expectations of the parties into account in assessing costs. In the area of St. Catharines, as Mr. De Lisio has pointed out in his able submissions, experienced family counsel such as himself (who has 30 years experience at the bar with considerable experience in family law) charge their clients approximately $350 per hour. I find that a reasonable hourly rate for Mr. Waisberg on a substantial indemnity basis is $450 per hour. I find that $90 per hour for his clerks and student is a reasonable hourly rate on a substantial indemnity basis.

17Mr. Waisberg has given a very detailed list of dockets and services rendered with respect to this matter. Mr. De Lisio did not seriously take issue with respect to the services rendered and the time claimed. I find that the time docketed including conversations between the lawyer or party or witnesses, drafting documents, and attempts to have the matter heard were largely reasonable and appropriate. Some of it, though not much, was repetitive. For example, the preparation for argument of the motion was repeated twice and the second time the preparation time exceeded that of the first time for some reason. He has claimed 108 hours of his time on this application and I allow him 100 hours. I allow the hours and work done by his student and law clerks as claimed.

Payment of Other Expenses

18Under Rule 24(12), the court may make an order that a party indemnify a successful party for the expenses incurred to carry on the case.

19Mr. Solem is a caretaker in the Norwegian school system. He clearly would not have had the knowledge of the steps necessary to institute these legal proceedings which have an international aspect to them. His solicitor in Norway has charged him $11,168.18. I have been provided with a copy of his dockets but they have not been translated for me. The amount claimed is $11,168.18. I require a translated copy of the dockets before I can fairly assess whether they represent services required with respect to this matter. I will reserve my decision on this part of the claim and if the applicant provides a translated copy of the supporting dockets with a description of the work done, the hourly rate charged and the experience of counsel in Norway, I will assess the expenses claimed at that time. This is to be provided to the court on or before September 3, 2013 with a copy provided to counsel for the respondent.

20As set out in paragraphs 2, 34, and 35 and Tab T of the applicant’s costs submissions, the applicant seeks reimbursement of $3,579.67 for reasonable travel costs he incurred to attend the hearing of this application before McPherson J. in November 2012. That hearing was adjourned at the request of the respondent and the court reserved the issue of costs and expenses relating to that attendance to the judge who heard and decided the matter.

21I find that the travel expenses of Mr. Solem to come to Canada in November 2012 for the argument of this proceeding are reasonable and should be allowed to him. In a matter which involved his children, who he had not seen for an extended period of time, I find that it would be eminently unfair that he should not be able to be indemnified for attempting to attend at the hearing of a matter so important to him. It was ultimately adjourned at the request of the respondent despite the objections of the applicant throughout.

22I am satisfied those costs would not have been incurred by the applicant if the respondent had acted reasonably and notified the applicant’s counsel well enough in advance of her adjournment requests. I find the expenses claimed to be reasonable I therefore assess and allow those expenses.

Bad Faith

23I do not feel that the respondent has necessarily acted in bad faith within the meaning attributed to it in the ordinary course by these courts. Clearly what she did was in contravention of the rights of the applicant but I do not feel that her conduct breaches the high standard necessary to make a finding of bad faith. In my view, that determination would be better made by a court in Norway which will have a better idea of the circumstances and wishes of the children based on proper evidence and a full record.

Offers to Settle

24Pursuant to correspondence dated November 29, 2011 and March 16, 2012 from the applicant’s counsel in Norway, sent through the Central Authority to the respondent, the applicant offered to settle this matter by requesting the respondent voluntarily return the children to Norway. The respondent did not comply with those voluntary requests. The applicant also signed a consent dated February 9, 2012 offering to settle the matter by requesting the respondent voluntarily return the children to their home in Norway. The applicant’s counsel, in Norway, also sent a letter June 18, 2012 to the respondent offering to settle this matter by having the respondent voluntarily return the children to their home in Norway.

25In my view, the applicant took reasonable steps to avoid this costly litigation and settle the matter voluntarily. Clearly, had the respondent complied with those requests the applicant would not have had to bring this application. I note the respondent did not make any offers to settle.

26I have taken these offers to settle into account in assessing costs in this matter. Clearly, there was a very limited scope for compromise in a matter of this nature. In other words, the children were either going to be returned to Norway or the applicant would have to bring his application in Canada with the associated legal costs. Because he is being awarded costs on a substantial indemnity basis I am satisfied that the offers to settle made by him are reflected adequately in the costs award being made herewith as envisaged under Rule 18 (16) of the Family Law Rules.

Quantum of Costs and the Respondent’s Ability to Pay

27Mr. De Lisio submitted that there is no evidence with respect to the respondent’s ability to pay any award of costs. He noted that although she did receive money on the sale of property in Norway, she has been living in Canada supporting herself and the four children for 18 months. He argued that there is no evidence that she was or is employed and that one could assume that given her living and legal expense much of the money she did receive from the sale of the home has been dissipated.

28I reject that submission. The onus lies upon a party who pleads that he/she is unable to pay an award of costs to provide the court with such evidence. The only evidence with respect to the means of the parties which is meaningfully before the court is that the applicant works as a janitor in a Norwegian school. He has sworn he has had to use his share of the net proceeds of the sale of the matrimonial home to pay for this application. As noted above, none of these costs would have been incurred had the respondent simply returned the children to Norway after her two week vacation in St. Catharines as she promised to do.

29In determining costs, I have considered the principles enunciated in Boucher v. Public Accountants Council (Ontario), 2004 14579 (ON CA), 71 O.R. (3d) 291 (Ont.C.A.) in which the Court of Appeal ordered that an award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings.

Conclusion:

30It is ordered that the respondent shall pay the applicant his costs of these proceedings on a substantial indemnity basis fixed in the sum of $48,206.00 plus H.S.T., plus assessable disbursements (including H.S.T.) of $2,116.63.

31It is further ordered that the respondent pay to the applicant his costs of travelling to Canada in November 2012 of $3,579.67.

32It is further ordered that the determination of the quantum of expenses to be paid to the applicant with respect to retaining and instructing counsel in Norway is reserved until the appropriate supporting information is provided to the court on or before September 3, 2013.

Justice J. R. Turnbull

Date: June 24, 2013

COURT FILE NO.: 623/12

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ROBERT SOLEM, Applicant

AND:

MARIANNE SOLEM, Respondent

BEFORE: Turnbull, J.

COUNSEL: Darrell Waisberg, Counsel, for the Applicant

Luigi De Lisio, Counsel, for the Respondent

ADDENDUM

33Pursuant to paragraph 19 of the Costs Endorsement of this court released to the parties on June 24, 2013, the court has received information relating to the applicant’s Norweigen legal costs in this matter.

34The applicant’s solicitor, Halvor Hjelm-Hansen has provided an email with the appropriate monetary conversions and docketed time associated with this matter affixed to his email.

35I have had an opportunity to review that email and I am satisfied that a substantial amount of the work related directly to this application.

36As indicated earlier in the reasons issued on costs, in my view, the amount paid for legal counsel in Norway is a recoverable expense within the provisions of the Hague Convention and within ambit of the costs’ rules under the Family Law Act.

37In that email the Canadian Currency equivalent of the fees incurred by the applicant to pay his solicitor in Norway is $11,306.62.

38In the circumstances I allow the applicant $8,000.00 costs on a substantial indemnity basis with respect to his legal expenses incurred in Norway in order to have the application heard by this court.

39In a letter dated September 3, 2013, Mr. Waisberg noted that the applicant has incurred significant costs with respect to the return of the children to Norway. He asked the court to consider whether a bill of costs for fees which have been accumulated since the order of the court June 24, 2013 would be considered. Mr. De Lisio has urged the court not to rule on such additional costs based upon the fact that the court is functus.

40In my opinion, any costs which have been incurred relating to the return of the children to Norway should be pursued by the applicant before the Norweigen courts. I therefore decline to make any further order to costs other than what is made in this endorsement. In the circumstances, there will be no additional costs to either party.

Footnotes

1. 1Beatty v. Schatz (2009) 2009 BCSC 769, 69 R.F.L. (6th) 102 (B.C.S.C.) at para. 16.
2. 2Biant v Sagoo, 2001 28137 (ON SC), 2001 CarswellOnt 3315 (S.C.J.) at paras. 20-21; Mantella v Mantella, 2005 CarswellOnt 3261 (S.C.J.) at para. 8.