COURT FILE NO.: FC-16-665 DATE: 2016/05/08 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Adeline Hoi-Ming Ng, Applicant AND Kevin James Charles, Respondent

BEFORE: Shelston J.

COUNSEL: Tania Pompilio, counsel for the Applicant Lauren McMurtry for Linsey Sherman, counsel for the Respondent

HEARD: In Writing (at Ottawa)

costs ENDORSEMENT

Parties’ Positions on Costs

[1] The main issue in this urgent motion was what custodial arrangements would be put in place for the child at this stage in the litigation.

[2] The applicant (mother) submits that there was divided success on the motion and that the father’s behaviour was unreasonable. She seeks partial indemnity costs of $16,415.65.

[3] The respondent (father) submits the he was successful on the motion and seeks full recovery costs of $14,853 inclusive of disbursements and HST.

Parties’ Positions at the Motion

[4] At the motion, the mother sought the following relief:

(a) An order that the child be immediately returned to the mother’s primary care;

(b) An order implementing a defined interim parenting schedule for the child with the father to have the child in his care every Wednesday evening after daycare until 7 p.m. as well as every Friday from after daycare overnight until Saturday at 7 p.m.;

(c) An order abridging the time for service and filing of these documents;

(d) An order for costs on a substantial indemnity scale;

(e) Such further order as the honourable Court deems just.

[5] The father’s Notice of Motion sought the following relief:

(a) An order that the parenting terms of a separation agreement which the parties entered into on November 17, 2015 be enforced as follows:

(i) the parties will have shared/joint custody of the child;

(ii) the parties will care for the child on alternating weeks, from Friday after school or daycare to Friday to the start of school or daycare, in addition to holiday time.

(b) In the alternative to item (i) above, an order that the parties care for the child on an equal time schedule in the child’s best interests.

(c) An order that the mother disclose evidence that she sought treatment for her mental health issues.

(d) An order preventing the mother from removing the child from the jurisdiction without the father’s consent or in accordance with a court order.

(e) An order abridging the time for service and filing of these documents.

(f) An order for costs on a substantial indemnity basis.

(g) Such further order as this honourable Court deems just.

[6] Both parties filed a total of 19 affidavits for this motion with many exhibits to support their positions.

[7] Despite the father’s notice of motion, the father at the motion did not advocate for an immediate equal time sharing arrangement. He submitted that the mother’s mental health issue required investigation and that is why he removed the child from daycare and kept her until the return of the motion.

[8] In a letter dated April 18, 2016, counsel for the father advised, for the first time, that there were serious concerns about the mother’s mental health that raised protection concerns requiring the father to pick up the child from daycare.

[9] In a letter dated April 19, 2016, counsel for the father requested confirmation that the mother had sought or was seeking treatment for her “mental health” issues and requesting a doctor’s letter. The father raised the mother’s mental health as an issue and a significant part of the father’s affidavit evidence from various witnesses dealt with that issue.

[10] In the end, I did not find that the mother suffered from any mental health issues or that the child would be at risk in her care. I ordered the following:

(a) On an interim-interim basis, the parties shall have joint custody of the child Beatrix.

(b) On an interim-interim basis, the parties will have a two-two-three schedule with the child. Commencing May 1, 2016, the mother will have the child every Sunday at 7 p.m. until daycare Wednesday morning, the father every Wednesday after daycare until daycare on Friday morning and the parties will alternate weekends starting Friday after daycare to Sunday at 7 p.m. with the father having the child the weekend of Friday, May 6, 2016.

(c) The parties shall set an expedited case conference to be heard before May 18, 2016.

(d) The Office of the Children’s Lawyer (“OCL”) is appointed with a recommendation for a social worker appointed. The parties to complete and fax the intake forms to the OCL by May 6, 2016.

The Law

[11] Under Rule 24(1) of the Family Law Rules, O. Reg. 114/99 there is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.

[12] Rule 24(5) states that in deciding whether a party has behaved reasonably or unreasonably, the court is then directed to examine a party’s behaviour in relation to the issues from the time they arose including whether the party made an offer to settle, the reasonableness of any offer the party made and any offer the party withdrew or fail to accept.

[13] Rule 24(10) mandates the court to promptly decide in a summary manner after each step who is entitled to costs and set the amount of costs.

[14] Rule 24(11) states that a person setting the amount of costs shall consider:

(i) the importance, complexity or difficulty of the issues;

(ii) the reasonableness or unreasonableness of each party’s behaviour in the case;

(iii) the lawyer’s rates;

(iv) the time properly spent on the case, including conversations between the lawyer and the party or witness, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of order;

(v) expenses properly paid or payable; and

(vi) any other relevant matter.

[15] Rule 24(11)(f) allows the court to take into account “any other relevant matter” in determining costs that appear just in the circumstances of the case while giving effect to the Family Law Rules: Cawdrey v. Cawdrey, 2011 ONSC 416, 92 R.F.L. (6th) 99, at para. 6.

[16] In Murray v. Murray (2005), 79 O.R. (3d) 147 (C.A.), at para. 9, the Court of Appeal held that neither Rule 18(14) nor 24(1) require the court to make a cost award.

Analysis

Success

[17] When one compares the relief sought in the notice of motion, the father’s position at the motion itself and the order made, the following points can be determined:

(a) The mother’s claim that she was granted primary care of the child and that the father would have access every Wednesday evening as well as every Friday from after daycare to Saturday at 7 p.m. was not granted;

(b) The father removed the child from daycare on April 18, 2016 and kept her until the motion date of April 26, 2016. He took this action because he was concerned about the mother’s judgment and the care of the child. He justifies his actions because he alleges that he was faced with a mother who has struggled with serious mental health issues during periods of high stress;

(c) He had hoped that the issue of the impact of the mother’s mental health on the child’s safety and well-being could be resolved in the week he removed the child from daycare. It was not resolved that week, but he still held the child until April 26, 2016;

(d) I rejected that submission and ordered interim-interim joint custody of the child;

(e) The father was not successful in obtaining an order compelling the mother to provide evidence that she had sought treatment for her mental health; and

(f) The parties consented to an order that neither party were to remove the child from the city of Ottawa on an interim-interim basis.

[18] I ordered an equal time sharing arrangement. Neither party was successful in relation to their positions taken at the motion.

Importance, Complexity or Difficulty

[19] The decision as to the residential arrangements and timesharing arrangements with respect to the child were very important to both parties. This finding is supported by the extensive affidavit evidence used by both parties to advance the claims made at the motion.

[20] However, the issue of interim-interim custody of the child was not complex or difficult.

Reasonableness

[21] Parties to the litigation are responsible for the positions they take in the litigation.

[22] The father alleges that the mother has acted unreasonably by commencing this application to set aside a separation agreement; by seeking to move out of Canada with the child; by seeking to restrict the father’s access upon his return from the Yukon; by serving the father with a motion on one day’s notice; by allegedly making false statements about the child being anxious or unhappy in the father’s care and by unilaterally altering the parental contact information related to the child.

[23] I do not find that the mother’s actions amount to unreasonableness as envisaged by the Family Law Rules. The mother is within her rights to make an application to court seeking to set aside the separation agreement and seek to move with the child. This issue will be resolved at a trial. The mother served the father in reply to his decision to remove the child from daycare. The Master set timelines for the filing of material.

[24] The mother’s allegations regarding the child will be tested in the litigation. Finally, the mother’s decision to change the parental contact number was not unreasonable.

[25] The mother alleges that the father acted unreasonably by resorting to the self help remedy of removing the child from daycare, keeping the child and by making unsubstantiated allegations regarding the mother’s mental health to gain a litigation advantage. In Brown v. Pulley, 2015 ONCJ 238, 70 R.F.L. (7th) 495, at para. 24: “the court needs to send a strong message to parents that resorting to self-help and wrongfully removing children from their habitual residence is unacceptable. There will be significant costs consequences for doing this” (emphasis in original).

[26] In Tulchinsky v. Shuster, 2009 CarswellOnt 482 (S.C.), the court held that the mother’s unilateral conduct in removing the child from the matrimonial home and preventing her from seeing her father for nearly a month could not be justified. In this case, the self-help remedy went beyond the realm of unreasonable, and justified a finding of bad faith (at para. 8).

[27] The father’s position is that he was simply following the terms of the November 2015 separation agreement when he took the child out of daycare. However that agreement, which is subject to dispute by the mother, only provides the father with having the child on alternate weeks. He retained the child up until the date of the motion and was not prepared to return the child without some response to his concern about the alleged mental health issues of the mother. It was open for the father to bring a motion on an urgent basis rather than to simply take the child and hold the child from April 18, 2016 to April 28, 2016, when the parties agreed on an interim-interim without prejudice basis to his schedule of the child alternating residence every two days. The father did bring a motion on April 21, 2016 in reply to the mother’s motion.

[28] The actions of resorting to self-help remedies regarding the custody of children is not to be condoned. The father should have commenced his own motion seeking judicial intervention.

[29] The father’s decision to keep the child required the mother to bring the urgent motion and based on the costs submissions received, the parties incurred a total of approximately $41,000 in total legal fees for this motion.

[30] For that reason, I find that the father’s actions were unreasonable.

Offers to Settle

[31] Neither party made an offer to settle.

Lawyer’s Hourly Rate

[32] I find that the hourly rates claimed for the lawyers are reasonable.

Time Properly Spent

[33] I have reviewed the mother’s bill of costs which provides a total of the hours spent but does not provide a breakdown of how the hours were spent.

[34] A total of 93.90 hours were spent by the mother’s counsel resulting in total legal fees of $23,209. The mother seeks $13,925.40 being 60% of her fees.

[35] In comparison 59.9 hours were spent by father’s counsel resulting in total legal fees of $14,428.97. The father seeks $9,081.41 being 60% of his fees.

Disposition

[36] In all the circumstances, I find that success was divided but that the father acted unreasonably. The use of self-help remedies is to be discouraged especially in custodial matters.

[37] I have considered all of the factors and the positions taken by the parties and their conduct into consideration. I order the father to pay the mother’s costs in the amount of $7,500 inclusive of disbursements and HST.

Shelston J.

Released: June 8, 2016