Costello v. McLean, 2015 ONSC 934
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jonathan Patrick Costello, Applicant
AND:
Ashley McLean, Respondent
BEFORE: The Honourable Justice G. A. Campbell
COUNSEL: Barry T. Paquette, Counsel for the Applicant
Scott Sobering, now Counsel for Respondent
Sharon McKim-Ryan, previous Counsel for the Respondent on motion
ENDORSEMENT REGARDING COSTS
1Since the Respondent was in Newfoundland with the child on December 17, 2014, this motion was argued by way of telephone conference call.
2Although the facts were clear and unambiguous, the issue of the newborn’s “habitual residence” was complex, important and difficult.
3Much research effort was invested by both counsel regarding the issue, which in turn resulted in an inordinately high counsel fee for such a motion.
4The need for the motion is self-evident, given (the Applicant asserts) the Respondent unilaterally and surreptitiously removed the newborn child to Newfoundland from his birth city of Cambridge, Ontario.
5I accepted the Applicant’s evidence that once the Respondent disclosed her “plan” to stay in the province of her birth, he resiled from his initial acquiescence to the move. At trial, the Applicants’ evidence may not withstand close examination, nor may his assertions be persuasive that he had never been advised by the Respondent of her intention to relocate to Newfoundland. However, on the motion, I found as a fact that the Respondent removed the infant without the Applicant’s foreknowledge, consent or acquiescence.
6In any event, Mr. Paquette is correct in his submission that, despite adverse rulings or conclusions that may be made or reached at trial, the Applicant was entirely successful on the motion. I agree that there was no compromise available. It was an “all or nothing” motion. The motion was necessary and very important to the child, if he was to ever have any real relationship with his father or his father’s extended family.
7Based upon my findings on the evidence before me on December 17, 2014 (not on the mother’s unsworn assertions contained in her, now counsel’s written submissions) I find that the Respondent’s actions were precipitous, unilateral and unreasonable. My costs award should reflect the court’s disapprobation and censure of such behaviour.
8Again, while I agree with Mr. Paquette that I do not have any direct evidence before me regarding the Respondent’s financial circumstances, the content and nature of her evidence in her affidavits (and that of Mr. Costello in his), would allow any observer to reasonably conclude that neither of these parties had any substantial assets or income and that Ms. McLean was on some sort of government sponsored or funded support (if even temporarily while on maternity leave).
9Accordingly, while I shall ignore Mr. Sobering’s gratuitously providing unsworn “facts” regarding his client’s impecuniosity, given the circumstances I assumed then (and do now) that Ms. McLean has little, if any, ability to pay any costs award made against her.
10I have re-read and considered Rule 29(11) and the costs decision of M(C.A.) v. M(D), (2003) 2003 18880 (ON CA), 67 O.R. (3d) 181 and Murray v. Murray, (2005) 2005 46626 (ON CA), 79 OR (3d) 147, whereby “any other relevant matter” allows the court to take into account a litigants ability to pay costs and whether such an order may/will affect a custodial parent’s ability to adequately care for the child.
11There are now many, many cases that have wrestled with this issue, inter alia; some of which I have read, followed and listed here, including: Achakzad v. Zemaryalai, 2009 49896 (ON SC), 2009 CarswellOnt 5615, [2009] O.J. 3933 (Ont. S.C.J.); Peers v. Poupore, 2008 ONCJ 615, 2008 CarswellOnt 7055, [2008] O.J. No. 4791 (Ont. C.J.); Heuss v. Surkos, 2004 ONCJ 141, 132 A.C.W.S. (3d) 1112, [2004] O.J. No. 3351, 2004 CarswellOnt 3317 (Ont. C.J.); Biant v. Sagoo, Sagoo and Sagoo, 2001 28137 (ON SC), 2001 28137, 20 R.F.L. (5th) 284, [2001] O.J. No. 3693, [2001] O.T.C. 695, 2001 CarswellOnt 3315 (Ont. Fam. Ct.); Beckett v. Beckett, [2010] OJ No 1957 (QL), 2010 ONSC 2706; Harrington v. Harrington, 2009 CarswellOnt 1028, [2009] O.J. No. 827 (Ont. C.A.); Cassidy v. McNeil, 2010 ONCA 218, 2010 CarswellOnt 1637, [2010] O.J. No. 1158 (Ont. C.A.); Izyuk v. Bilousov, 2011 ONSC 7476, 2011 CarswellOnt 14392, [2011] O.J. No. 5814 (Ont. S.C.J.); Takis v. Takis, [2003] O.J. No. 4059 (Ont. S.C.J.); Parsons v. Parsons, (No. 2) 2002 45521, 31 R.F.L (5th) 373); Panny v. Gifford and Gifford, 1997 9579 (Ont. Prov. Div.); Spears v. Spears, 2010 ONSC 4882 (Ont. S. C. J.).
12Accordingly, I find that the Applicant should be awarded his costs on an (almost) full indemnity basis, subject to the evidence upon which I based my decision being accepted as accurate (and persuasive) at trial.
13Accordingly, I order that the Respondent pay to the Applicant, costs of $6000 inclusive, but in the cause.
14By “in the cause” I intend that if the Applicant is successful in his claims at trial, the expense of $6369.81 that he incurred for the motion to force the Respondent to return the child to this jurisdiction shall be reimbursed by the Respondent to him after trial to the extent of $6000.00
G. A. Campbell