SUPERIOR COURT OF JUSTICE - ONTARIO
CITATION: Pascual v. Pascual, 2015 ONSC 1303
COURT FILE NO.: FS-11-3614-00
DATE: 20150226
RE: ALEXANDER CARLOS PASCUAL v.
SIMONE DE FREITAS PASCUAL
BEFORE: O’Connor J.
COUNSEL: Rinku Deswal/Tina Margellis, for the Applicant
Simone de Freitas Pascual, self-represented
Faryal Rashid, Office of the Children’s Lawyer
COSTS RULING
[1] This extremely contentious, fractious custody/access and related issues action absorbed enormous time, cost and legal energy in courts in Brazil and Ontario. It dragged out over almost six years and included a lengthy proceeding in Brazil under The Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention). That proceeding, in 2010, resulted in orders for the return of two children to Canada and ruled that jurisdiction to determine their custody resided in the Ontario Courts.
[2] Thereafter, the parties engaged in a war of attrition. It included dozens of attendances before six different Ontario Superior Court Justices, a comprehensive investigation and report by the Ontario Children’s Lawyer, investigations and reports by the Peel Children’s Aid Society, the Peel Region Police Service, doctors and social workers. This Court heard 16 days of evidence at a trial, after which the matter was continued, on consent, through a series of mediation sessions. The matter was finally resolved by the parties agreeing to the terms of a comprehensive temporary order issued by this Court, resolving all issues, except costs, a copy of which is attached as schedule “A”. As a result, the parties will share joint custody of the children, with their primary residence in Brazil with their mother. They will spend extensive periods of time with their father in Canada.
[3] Both parties now seek costs against the other.
The Law
[4] In Serra v. Serra, 2009 ONCA 395, [2009] O.J. 1905 ONCA 395, the Ontario Court of Appeal stated that the family law costs rules have three purposes:
(a) To partially indemnify successful litigants for the cost of litigation;
(b) To encourage settlement; and
(c) To discourage and sanction inappropriate behavior by litigants.
[5] Liability for payment by one party to another of costs in a family law dispute is generally governed by the relative success of that party as compared to the other. While Rule 24 of The Family Law Rules (the Rules) has changed the landscape significantly, the more successful party should still be awarded some costs, barring reasons to the contrary. The Court should consider the Serra criteria, that is. whether a party acted either in bad faith during his or her carriage of the action or conducted themselves in an inappropriate manner or did anything to obstruct the progress of the case. A.T v. J.D. [2013] ONSC 6915 at paras. 20 – 24. “Bad faith” was defined by Perkins J. in C.S. v. M.S., 2007 20279 (ON SC), [2007] O.J. 2164 as follows:
In order to come within the meaning of bad faith in subrule 24(8) behavior must be shown to be carried out with intent to inflict financial or emotional harm on the other party or other persons affected by the behavior, to conceal information relevant to the issues, or to deceive the other party or the court. A misguided but genuine intent to achieve the ostensible goal of the activity, without proof of intent to harm, to conceal relevant information or to deceive, saves the activity from being found to be in bad faith. The requisite intent to harm, conceal or deceive does not have to be the person’s sole or primary intent, but rather only a significant part of the person’s intent.
[6] The Court may also consider the conduct of a party that may not reach the level of bad faith, but nevertheless is unreasonable or inappropriate and which contributed unnecessarily to the lengthening of the litigation and more particularly to the cost of same incurred by the other party.
[7] The Court must also consider any offers to settle, whether made in writing or otherwise, the date they were made, and particularly the reasonableness of the offers. Rule 18(14) sets out the cost consequences of failure to accept an offer to settle.
[8] The financial position of the parties must be considered in the exercise of the Court’s discretion to award costs, particularly as it may impact on the best interests of children. C.A.M. v. D.M. 2003 18880 (ON CA), 67 OR (3d) 181 (OCA).
[9] The reasonable expectations of the parties respecting the payment or the receipt of costs can be taken into account by the Court when setting the amount of costs. Further, the Court may consider the fact that a party exercising access to children may be required to incur sometimes considerable additional expense when the parties live a great distance apart.
[10] Rule 24(11) sets out the factors to be considered when setting the amount of costs to be awarded after it has been determined which party is liable for the payment of costs. It reads:
A person setting the amount of costs shall consider,
(b) the importance, complexity or difficulty of the issues;
(c) the reasonableness or unreasonableness of each party’s behavior in the case;
(d) the lawyer’s rates;
(e) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;
(f) expenses properly paid or payable; and
(g) any other relevant matter.
[11] Ultimately, a costs award should be fair and reasonable in all the circumstances of the particular facts of the case at bar. In Fyfe v. Jouppien [2012] O.J. No. 18, Chappel J., said at para 14:
The Court has also highlighted the discretionary nature of costs awards, and the importance of the court considering all relevant factors. It has emphasized that although Rule 24 has circumscribed the broad discretion which section 131 of the Courts of Justice Act grants the court in regard to costs, it has not completely negated this discretion. In Serra v. Serra, the court noted that ultimately, costs decisions should reflect what the court considers to be a fair and reasonable amount that the unsuccessful party should pay. Costs need to be proportional to the issues and amounts in question and the outcomes of the case. Amounts actually incurred by the successful litigant may therefore not be determinative. (emphasis added)
Father’s Position
[12] The Applicant, Alexander Carlos Pascual, (the father) argues that he was entirely successful at the Hague Convention proceeding in Brazil and is therefore entitled to the expenses ordered by that Court of $5,166.25 plus the legal fees paid to his Brazilian counsel for a total of $29,884.35. In 2009, the Respondent, Simone de Freitas (the mother) , a citizen of Brazil, took the two children to Brazil, with the consent of the father, allegedly for a visit with her family. The children were seven and ten at the time. She failed to return them to Canada, stating that she intended to keep and raise them in Brazil. She obtained a Brazilian court order granting her sole custody. The father brought his successful Hague Convention action, obtaining an order that the children be returned to Canada. The Brazilian court, in a lengthy judgment, said, in part;
“At this point it is important to note that the Defendant, in her personal testimony, expressly declared that when she got the children’s travel authorization she told their father that she would return, although her real intent was to effectively stay in Brazil, as seen in the case records. It is mandatory, however, to inform that the Defendant had told the minor L. that she did not intend to return to Canada, further requesting secrecy of the confession done to the daughter, a fact that was mentioned in L’s interview with the Court expert. Hence, by the Defendants’ personal testimonial it is understood that the father did not grant his express consent for the children’s definite stay in Brazil and the defendant acted with manifested mental reserve towards her real intent.”
“In the case herein, it is clear the violation if the referred ethic duty as the Defendant, by her former behaviour, has created fair expectation of the children’s return, gaining the trust of her husband in order to further frustrate it, undertaking an obvious contradictory behaviour and incurring into the clause nemo postest verire contra factum proprium. In effect, it rises out of the case records that the minors’ travel and withholding in Brazil was done to premeditate and clandestine manner, with evident frustration of the expectation created by the father concerning their return. It is further necessary to observe that the Defendant, did not, at any time, deny that the father also shared the children’s guardianship, which furthermore, results from the legal mandate included in art. 20 of the Canada’s Laws on children, as exposed in the preliminary records.”
Finally, the Defendant has confessed that she came to Brazil being aware that in Canada she would not be granted the same judicial protection, precisely incurring into the hypothesis of the behaviours that should be hindered by the Convention. Hence, the Defendant has incurred into the hypothesis set forth under art. 3 of the Convention, thus authorizing establishment of the minors’ search and seizure process herein.
[13] Further, he seeks payment of fees and disbursements of a Canadian solicitor previous to current counsel being retained, in a total amount of $14,035.
[14] The largest portion of the costs sought by the father is for the work done by his current counsel from November 23, 2011 to December 11, 2014. On a full indemnity basis the total of fees and disbursements claimed is $396,146.22. On a partial indemnity basis the total is $386,034.45. He also seeks costs for preparation of the bill of costs of $4,068.
[15] The father argues that although the result of the Ontario proceeding provides the primary residence of the children will now be in Brazil, they will be spending a considerable amount of time throughout the year with him in Ontario. The parties share joint custody under the terms and conditions as set out in the January 14, 2015 order, attached. As both parties were seeking sole custody, the result is a split decision.
[16] He argues that the reason the matter took as long as it did and was as expensive as it was, is due in great part to the bad faith conduct of the mother throughout, both in contesting the Hague Convention action and during the many attendances over the last four years in the Ontario Superior Court.
Mother’s Position
[17] Mother argues that she was successful on the trial/mediation proceeding as the result was the children now reside primarily with her in Brazil.
[18] Her argument respecting the reasons for the extensive delays, multiplicity of motions and the protracted trial/mediation process, is the mirror image of the father’s position. Each continues, and one assumes will continue, to vociferously vilify the other for the catastrophe that has befallen this family and particularly their children. As an example of the mother’s mindset, she says at paragraph 40 of her cost submissions:
- The Applicant’s unreasonable inflexibility demonstrates that the best interest of the children is not what his goal is, but to punish the Respondent for having divorced him and for having taken the children to Brazil…
[19] She further argues she is the reasonable party and “…was always ready to resolve this case out of the courts…” (paragraph 46 of her submissions)
[20] She seeks an order for payment to her of costs totalling $121,674.31, covering her previous counsel’s bills, for portions of the many motions heard prior to trial, $57,793.29 related to the trial, $7,263.28 related to the preparation and execution of the Minutes of Settlement and even $37,500 for rent while residing in Canada pending and during the trial.
Analysis
The Hague Convention Proceeding
[21] The mother took the children to Brazil in 2009, allegedly for a family visit. She refused to return them to Ontario, then sought and obtained a custody order from a Brazilian court. The father resorted to the Hague Convention to require their return. He was fully successful. The Brazilian court ordered the return of the children to Ontario, recognizing this to be their habitual residence and the ultimate jurisdiction to determine the issue of custody.
[22] The Brazilian court was particularly denunciatory of the conduct of the mother, as is evident from the excerpts of that court’s ruling set out above.
[23] In these circumstances, the father is entitled to his costs of the Hague Convention proceeding on a full indemnity basis. I agree with the remarks of Turnbull J., as set out in Solem v. Solem, 2013 ONSC 4318, [2013] O.J. No. 2960 (Ont. S.C.J.), at paras. 9 and 10:
This 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.
The objective of the Hague Convention would be defeated if the applicant were 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.
[24] The father is awarded the costs of the Hague Convention proceeding fixed at $29,884.35.
The Ontario Proceedings
[25] As noted, the proceeding in this Court, once the children were returned to Ontario, were lengthy and strenuously fought each step of the way. Over the course of four plus years the parties appeared before six different judges, several times before most of them. They each brought a plethora of motions, cross-motions, and case conferences, settlement and trial management conferences. The Ontario Children’s Lawyer was appointed to investigate and report to the Court its findings as to the wishes and preferences of the children. The OCL produced an exhaustive report, ultimately finding that the children’s wishes were to live with their mother in Brazil. Counsel for the OCL attended and participated throughout the proceedings and at trial. She was of significant assistance to the Court, often playing a helpful mediative role between the self-represented mother and counsel for the father.
[26] After sixteen days of trial, the parties agreed to continue the matter by way of mediation. That process resulted in Minutes of Settlement of all issues except the awarding of costs. The Court then made the temporary order attached. The order is temporary, rather than final, so that this Court may remain seized of the matter should difficulties arise concerning any of the matters agreed to and ordered in it.
[27] The mother argues that she has been largely successful as the children’s primary residence is with her in Brazil. The father argues that the final result was an order of joint custody, not sole custody as the mother had sought from the outset. Further, he now enjoys generous access. Thus success on the major issue is divided, he says.
[28] I agree. The fair characterization of the result on the major issue before the court is divided success. Neither party has “won”, except of course, the children, whose best interests are served by as frequent contact with both parents as possible in the circumstances of their living on two different continents.
[29] The father further argues that, notwithstanding the divided result, he should be awarded his costs. He argues the inordinately protracted proceedings and exorbitant costs both parties have incurred resulted entirely from the mother’s bad faith behavior throughout.
[30] I find that the conduct of the mother during the proceedings, although a significant cause for the delays and ensuing costs, does not reach the level of bad faith as defined by Perkins J. in C.S. v. M.S., as set out above. Her conduct cannot be said to have been carried out with intent to inflict financial or emotional harm on the father, nor was it intended to conceal information or deceive the court.
[31] However, several steps and positions taken by her that caused delays and increased costs were unreasonable. They should be taken into consideration in the awarding of costs. Mitchell v. Mitchell, [2009] O.J. No. 1267. These included her attempting to ward off the Hague Convention proceedings by obtaining a custody order from a Brazilian court. Presumably she did this because she knew the proper jurisdiction to determine custody was Ontario and that the Hague court would so find. The custody order was a tactic to delay the process and strengthen her position. She then vigorously fought the Hague Convention proceeding knowing it must ultimately fail. The Brazilian Court found “…she told their (the children’s) father that she would return (to Canada), although her real intent was to effectively stay in Brazil…[T]he Defendant had told the minor L., that she did not intend to return to Canada…(she) has created fair expectation of the children’s return, gaining the trust of her husband in order to further frustrate it…the minors’ travel and withholding in Brazil was done to premeditate and clandestine manner…she came to Brazil being aware that in Canada she would not be granted the same judicial protection…”
[32] After the release of the Hague Convention judgment ordering the children’s return to Canada she continued to attempt to frustrate the process. She delayed obeying the order, claiming she did not understand it, although its terms were clear. It was written in Portuguese, her first language.
[33] Her conduct during the proceedings in Ontario similarly often involved apparent delaying tactics, purported misunderstandings of the procedure and plays on the sympathy of the Court. The Court does recognize, however, that she was self-represented, that she was dealing with a very emotional situation and that she was required to cope with a foreign legal system in her second language. She should be granted some latitude.
[34] However, I must find that much more of the responsibility for the delays and costs of this proceeding lies at the feet of the mother. It was her initial conduct in abducting the children to Brazil with no intention of returning them to Canada and then, once there, her efforts to delay and frustrate their return, knowing full well that it was inevitable, that resulted in much of the cost overruns thereafter. In Canada, after she discharged her counsel and took over management of her file, it was frankly poorly managed.
[35] The mother has acted unreasonably in this regard, as that term has been defined, which conduct contributed significantly to the extensive costs expended by the father. He should therefore be compensated by a reasonable costs award.
[36] Taking into account the law as set out above, particularly in Fyfe v. Jouppien (supra), and Serra v. Serra (supra) and the considerable discretion this Court has in making a fair and reasonable costs award, I would order costs to the father for the proceeding in Ontario, I fix the amount at $50,000, plus a portion of the disbursements claimed, fixed at $10,000, for a total for the entirety of the proceedings in Ontario of $60,000.
Ruling
[37] Order to issue requiring the Respondent, Simone de Freitas Pascual forthwith pay costs to the Applicant, Alexander Carlos Pascual in a total amount of $89,884.35, (being $29,884.35 for the proceeding in Brazil plus $60,000 for the proceedings in Ontario).
O’CONNOR J.
DATE: February 26, 2015
CITATION: Pascual v. Pascual, 2015 ONSC 1303
COURT FILE NO.: FS-11-3614-00
DATE: 20150226
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ALEXANDER CARLOS PASCUAL v. SIMONE DE FREITAS PASCUAL
BEFORE: O’Connor J.
COUNSEL: Rinku Deswal/Tina Margellis, for the Applicant
Simone de Freitas Pascual, self-represented
Faryal Rashid, Office of the Children’s Lawyer
COSTS RULING
O’CONNOR J.
DATE: February 26, 2015