SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-11-73214
DATE: 20140304

RE: Christopher Ronan Holligan, Applicant

AND:

Nuala Maria Holligan, Respondent

BEFORE: MacKenzie, J.

COUNSEL:
Anita Kain, for the Applicant

William C. Fanjoy, for the Respondent

HEARD: January 9, 2014,

ENDORSEMENT

[1] On January 9, 2014, I made an order directing the respondent (wife) to release the child of the marriage, Samuel G. Holligan (date of birth: August 10, 1999), into the care of the applicant (father) for return to the United Kingdom. The applicant brought this motion on an urgent basis for purposes of addressing the refusal of the respondent to release their son, Samuel, to the applicant for return to the United Kingdom after Samuel spent the 2013 Christmas holiday with the respondent.

[2] It is noteworthy that Samuel’s Christmas visit with the respondent mother took place pursuant to an endorsement dated August 20, 2013, by Donohue J. (the “August, 2013 Endorsement”). In particular, Schedule A to the August, 2013 Endorsement provided, among other things, in paragraph 7, that the applicant was permitted to relocate Samuel to the United Kingdom; that Samuel would attend school in the United Kingdom; and that the applicant would have primary care of Samuel.

[3] The respondent opposed the motion of the applicant (the urgency arising from the applicant’s and Samuel’s scheduled departure from Canada and return to the United Kingdom on the day the motion was brought). She brought her own allegedly urgent motion to vary the terms of the August, 2013 Endorsement relating to the primary care and residency of Samuel. In this regard, the respondent took the position on the return of the motion that Samuel who at all material times was 14 years old had indicated a desire to stay with her and did not wish to return to the United Kingdom.

[4] The respondent in her opposition to the applicant’s motion, and in support of her own urgent motion to vary, referred to a s. 30 CLRA assessment that had been made by Dr. R. Morris. Counsel for the respondent suggested that no order be made directing the return of Samuel to the United Kingdom in compliance with the August, 2013 Endorsement until Dr. Morris, the assessor, could meet and discuss the question of the son’s wishes in this regard and whether those wishes were in accordance with the child’s best interests.

[5] I rejected the position of the respondent on this point, and gave effect to the position of the applicant. In the result, I granted the relief sought by the applicant and directed that I receive submissions from both parties as to the costs of the motion. I dismissed in its entirety the respondent’s motion, although the parties did consent to certain arrangements respecting telephone access by the respondent with Samuel in the United Kingdom.

[6] Pursuant to my endorsement of January 9, 2014, I directed the parties to give written submissions on the issue of costs. The submissions on behalf of the respondent were delayed and the request for the extension of those submissions by the respondent was agreed to by counsel for the applicant; I acceded to the requested extension.

[7] I received those submissions on behalf of the respondent on or about February 18, 2014 and I have not received any reply submissions on behalf of the applicant in relation to the respondent’s submissions. Accordingly, I will now proceed to deal with the question of costs on the motions.

[8] The applicant refers at length to the provisions of Family Law Rule 24 respecting costs. There is no issue as to the presumption of costs in favour of a successful party; the applicant was wholly successful on contested matters in both his motion and the respondent’s motion.

[9] The applicant suggests that Rule 24(8) of the Family Law Rules which provides for costs on a full indemnity basis if a party has acted in bad faith is engaged here. In support of this position, the applicant submits that an order for costs in his favour be made on the full indemnity basis, and cites the case of Hunt v. Hunt, [2001] CarswellOnt 4548, being a decision of this court (MacKinnon, J.).

[10] In Hunt, the court found that the mother had intentionally breached an existing court order with a view to achieving another purpose, and that such breach constituted bad faith. The intentional breach, according to the costs endorsement in Hunt, was that the mother, against whom the costs award was sought, knew that she had to obtain a change in a temporary access order and that she could not legally move the child to another jurisdiction (outside Ontario) without obtaining that change or variation, but she nonetheless did so.

[11] Those facts are at variance with the situation in in this case. Although it could be be properly characterized as an intentional breach by the respondent of the specific term in the August, 2013 Endorsement, the reason for the breach as appears from the record is the respondent’s position that she was seeking to give effect to what she characterized as a “request by their son Samuel” not to return to the United Kingdom.

[12] In the face of this evidence in that regard, I am unable to say that her breach of the return aspect of the August, 2013 Endorsement relating to Samuel was made in bad faith. Accordingly, I do not award costs to the applicant on a full indemnity basis. Regardless of the basis on which costs are awarded, the court in fixing the costs must have regard to the factors in Family Law Rule 24. The cost factors as set out in Rule 24(11) includes items such as the complexity or the difficulty of the issues; the reasonableness of each party’s behaviour; the rates of counsel claiming costs; the time properly spent on the case and any other relevant matter. These items will be taken into account but the award shall be on a partial indemnity basis.

[13] I refer to correspondence between the offices of counsel for the applicant and the respondent on January 3, 2014, which preceded the motion being brought on an urgent basis. The correspondence on behalf of the applicant establishes the applicant was seeking compliance by the respondent with the obligation to deliver Samuel for the return flight to the United Kingdom without the necessity of bringing an urgent motion.

[14] I have also been supplied with a time print out of the docketed time spent by counsel for the applicant and a student-at-law who assisted counsel. The value of the time docketed by both parties is $8,222.00. This time value is broken down as to 20 hours on behalf of counsel for the applicant and 1.2 hours of the law student who is assisting counsel. The hourly rate claimed for counsel is $400.00 per hour, and the hourly rate claimed for the law student appears to be $185.00 per hour.

[15] There is no indication in the applicant’s material as to the year of Call to the Bar of the counsel for the applicant, although the cost submissions on behalf of the respondent refer to counsel for the applicant’s year of call being the year 2002.

[16] The position of the respondent on costs issues is that the amount of time spent by counsel and the assisting law student on behalf of the applicant is excessive; that the hourly rate of $400.00 for the applicant’s counsel is excessive, and that there had been shared success in terms of the respondent’s cross-motion to deal with the alleged refusal of the applicant to permit Samuel to communicate with his mother and brothers. The subject of the cross-motion was not properly within the criteria of urgency under Family Law Rule 14, and accordingly, I declined to hear it. The cross-motion may be remounted at the discretion of the respondent.

[17] In the result, I reject the contention of counsel on behalf of the respondent that there was divided success in both the applicant’s motion and the respondent’s cross-motion.

[18] Apart from proportionality issues, the respondent raises issues of her financial position not being such as to warrant the burden of a costs award against her. Counsel points out that there are outstanding support payments due and owing by the applicant, and that there are potential “costs which the husband will owe to the wife in respect of this application.” This description is vague; I am unable to ascertain whether the reference to “application” means the instant urgent motion or other motions that are pending or have been the subject of a hearing.

[19] In any event, I am not prepared to defer or create a set-off on any costs award in respect of the applicant’s urgent motion against any alleged arrears owing on support obligations by the applicant to the respondent, nor on any speculative award of costs that may be made in favour of the respondent against the applicant.

[20] Taking into account the appropriate factors under Family Law Rule 24 for an award of costs on a partial indemnity basis, I fix the costs of the applicant at $4,500.00, all inclusive. This award shall be payable by the respondent on or before March 31, 2014. If there are any legitimate bases for a set off of the costs obligation of the respondent herein against any sums on account of arrears or punitive costs awards that may be pending, the respondent shall be at liberty to bring the appropriate motion before any judge of this court on or before the due date of March 31, 2014.

MacKenzie, J.

Date: March 4, 2014