ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 266/14
DATE: 2015/11/23
BETWEEN:
John Paul Balev
S.M. Bookman and C. Stankiewicz, for the Applicant
Applicant
- and -
Catharine-Rose Baggott
M. Stangarone and K. Maurina, for the Respondent
Respondent
James Stengel, for the Office of the Children’s Lawyer
The Honourable Madam Justice W.L. MacPherson
COSTS ENDORSEMENT
[1] The applicant father brought an application pursuant to the Hague Convention seeking an order that the parties’ two children be returned to Germany. The respondent mother opposed the application arguing that the children’s habitual residence was in Ontario and disputing that there had been a wrongful retention. It was submitted that given that the children had become settled in their environment from being in Ontario for more than two years and given their objections to returning to Germany, a return order should not be granted.
[2] The matter was dealt with by way of affidavit evidence and required the attendances of counsel on March 9, April 21 and August 24, 2015. The April 21, 2015 attendance related solely to the issue of whether the Office of the Children’s Lawyer (“OCL”) should become involved. This issue had been argued at the initial attendance, and upon further review of the matter, the court requested further submissions on this issue. Further material was not to be filed, although additional case law was permitted. This order was opposed by the applicant father. The OCL order was made. The clinician’s affidavit was filed and legal counsel from the OCL participated on the final hearing day of August 24, 2015.
[3] My decision on the Hague application was released on August 27, 2015. The children were ordered to be returned to Germany on or before September 30, 2015. The mother was found to have wrongfully retained the children in Ontario and although the children had expressed through their counsel their desire to remain in Canada, their objections were not of sufficient strength to have raised a defence under Article 13 of the Convention.
[4] Although the father sought an order returning the children to his care, that was not a return to a status quo as contemplated by the Hague convention. As a way of lessening the disruption to the lives of the children, the mother was permitted to travel with the children to Germany and to reside there with them. The father was required to provide suitable housing for the mother and children, which he undertook to do. It was expected that additional financial assistance would be provided by the father, but without any evidence a specific order could not be made. Finally, and as a term of the return order, the mother was required to pay for the cost of her own and the children’s travel to Germany.
[5] Counsel was invited to make written submissions on the issue of costs. I have now had the opportunity to review those submissions.
Positions of the Parties
[6] The father’s counsel seeks costs on a partial indemnity basis in the amount of $67,014.65. This is comprised of fees of $54,930.60 and HST of $7,140.90, plus disbursements inclusive of HST of $4,943.15. The corresponding full recovery amount is $108,344.15 all inclusive.
[7] The mother’s counsel submits that each party should bear their own costs. This is based on numerous factors including: the mother’s impecuniosity; the divided success of the parties, namely that the mother was successful on the motion to appoint the Office of the Children’s Lawyer (OCL), even though the father did succeed on the Hague application; the father’s unreasonable conduct. If costs are awarded to the father, the mother submits that they should be reduced substantially as being excessive and not in line with what a losing party would reasonably expect to pay. On a comparison basis, the mother’s bill of costs on a full indemnity basis was $52,445.04 (inclusive) and on a partial indemnity basis was $32,280.65. The mother seeks her costs of the OCL motion in the amount of $5,000.00.
Entitlement to Costs & Factors to Consider
[8] Costs are governed by Rule 24 of the Family Law Rules. It is clear under that rule that there is a presumption that a successful party is entitled to costs.
[9] In determining the appropriate amount of costs, consideration must be had to Rule 24(11) which provides that the following are to be taken into consideration:
(a) The importance, complexity or difficulty of the issue;
(b) The reasonableness and unreasonableness of each parties’ behaviour in the case;
(c) The lawyer’s rates;
(d) The time property 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;
(e) Expenses properly paid or payable;
(f) And any other relevant matter.
[10] Article 26 of the Hague Convention also provides that upon ordering the return of a child under the Convention, the court may, where appropriate, direct the person who removed or retained the child to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred, as well as the costs of legal representation of the applicant.
Analysis
[11] With regard to the Hague application, the father is entitled to costs as he was entirely successful with regard to obtaining an order for the children to be returned to Germany.
[12] It is clear that the matters being determined were very important to both parties. As with most Hague Convention cases, the facts were complex and there was a lengthy history as between the parties involving German court proceedings both prior to the Hague application and while the Hague application was outstanding.
[13] To their credit, the parties did deal with matters by way of affidavit evidence and counsel chose not to conduct cross-examinations, which no doubt lessened the length of the hearing process. As a result, this was not a lengthy trial, and while there were three court attendances, none of them lasted an entire day.
[14] It is apparent that a significant amount of time was necessarily spent on the preparation of documentation in the form of lengthy affidavits and factums and books of authorities. However, after reviewing the bill of costs of the applicant’s counsel, it is apparent that the preparation time and attendance time shown is excessive. The bill of costs may accurately reflect the amount of time spent on a matter, but that does not automatically mean that the cost is justifiable. The other consideration in determining the appropriateness of the fees is that as a result of three lawyers, a student-at-law and a law clerk being involved there was significant duplication in the work that was done. The time for both a senior lawyer and a junior lawyer to attend any court attendances was billed. Further, it appears that travel time from Toronto to St. Catharines was billed at the full hourly rates.
[15] The other difficulty with regard to the applicant’s bill of costs is that it includes time spent on such matters as a 14B motion for a consent order; a case conference held in August 2014; and the transfer of the file to Toronto, which ultimately was denied. In accordance with the Family Law Rules as confirmed in Islam v. Rahman, [2007] ONCA 622, costs must be dealt with at each stage of a proceeding. If costs are not specifically reserved, a party is not entitled to claim costs for those steps. As such, none of the time spent for the consent motion and order, preparation and attendance at a case conference and costs relating to the transfer of the file to Toronto is properly claimed.
[16] I also find the disbursements claimed ($4,943.15) to be excessive both in the amounts claimed and that many of the disbursements were incurred for steps taken not directly related to the Hague application as set out above.
[17] In assessing the quantum of costs, I find that the father acted unreasonably in several respects. One week after the departure of the children for Canada, he was in contact with the German Justice Department inquiring about steps to deal with an abduction of the children, even though he had just signed papers giving his permission for the children to remain in Canada until August 15, 2014. He attempted to unilaterally revoke his consent five months early (in March 2014) by threatening to charge the mother with abduction if she did not return the children within 14 days. In the face of the consent that had been signed, this was also unreasonable behaviour.
[18] On the other side, for the reasons set out in the Hague application, the mother’s refusal to return the children by the agreed upon date was unreasonable. The case law is clear that a new habitual residence cannot be established unilaterally by the actions of one parent.
[19] Within the proceeding, there was further unreasonable conduct by the father. He delayed the ability of the Hague application to be heard in Ontario by the multiple applications and appeals in the German courts, resulting in a 10-month delay in this matter.
[20] It was also unreasonable for the father to raise the issue of the mother’s mental health, relying upon a psychiatric report tendered in the German court proceedings in August 2012 based on interviews that took place in 2011 and providing only portions of the report being translated from German to English. It was also apparent that the father continued to raise this issue by involving the Children’s Aid Society of Niagara. This was entirely unreasonable given the fact that, if the father had any legitimate concerns, he would not have permitted the mother to move with the children to Canada knowing that they would be in her sole physical care.
[21] While the father was ultimately successful on his Hague application, the mother was successful on the motion to appoint the OCL. This is not a case of divided success on two issues, such that there should be no order as to costs. The request was included in the original responding material by the mother. Much less time was required for that aspect of the document preparation and submissions, although this did require an additional attendance on April 21, 2015. Nonetheless, the mother is entitled to her costs of the motion, which costs were reserved. The claim of $5,000.00 on a partial indemnity basis is reasonable in the context of total partial indemnity fees and HST of $30,000.00.
[22] The mother submits that the court should consider her financial circumstances and the impact that a costs award would have on her. It is submitted that as she is the primary parent for the children, a substantial costs award would prevent her from meeting the financial obligations for the children. There was no evidence before me as to the mother’s current financial situation. In their submissions, respondent’s counsel noted that the mother had no employment status in Germany and no ability to obtain employment in Germany and that the father was not paying spousal or child support as had been ordered in Germany under the Hague protocol. However, I am aware that the mother has appealed this court’s decision, and that a stay has been granted pending the appeal of the Hague order and, as such, the mother continues to be in Canada and continues to be employed.
[23] I am satisfied that Rule 24(11)(f) does allow me to consider the financial circumstances of the mother. I have no doubt that a costs award in any amount will impose a financial hardship on the mother. However, one’s ability to pay a costs order cannot entirely shield that party from a costs award when the other party has been successful in the claims made and the necessity of the application is brought about by the mother’s wrongful retention of the children in Canada.
[24] Another consideration is that my order has already imposed a financial obligation on the mother to cover the costs of the children being returned to Germany. Those costs have not yet been incurred as a result of the stay that has been granted, but they are nevertheless relevant.
[25] Finally, I am mindful of the principles set out in Boucher v. Public Accountants Council (Ontario) (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.). In setting costs, the court should not simply be performing a mathematical calculation rather an award of costs must reflect a fair and reasonable amount to be paid by an unsuccessful party in all of the circumstances.
[26] After considering all of the circumstances of this case, the provisions of Rule 24 of the Family Law Rules and the factors set out above, the mother shall pay costs to the father in the amount of $10,000.00 inclusive of HST and disbursements.
MacPherson J.
Released: November 23, 2015
COURT FILE NO.: 266/14
DATE: 2015/11/23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
John Paul Balev
Applicant
- and –
Catharine-Rose Baggott
Respondent
COSTS ENDORSEMENT
MacPherson J.
Released: November 23, 2015