CITATION: Ahmad v. Ali, 2016 ONSC 7816

COURT FILE NO.: FS-16-00020977

DATE: 20161215

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sarah Ghayas Ahmad, Applicant

AND:

Mohd Yousuf Ali, Respondent

BEFORE: Kiteley J.

COUNSEL: Adela Crossley, for the Applicant

Margaret Osadet, for the Respondent

HEARD: November 25, 2016

ENDORSEMENT AS TO COSTS

[1] The parties were married on October 8, 2011 and their child was born December 3, 2012 in Florida where they resided. In 2013, the mother went to London, England for a visit and then went to Toronto. The father started a Hague Convention application in Florida and, on February 7, 2014 an order was made in the Superior Court at Toronto declaring that the habitual residence of the child was Florida; that the State of Florida was the proper jurisdiction for the resolution of custody and access disputes; that the mother had wrongfully removed the child; and that the mother was directed to return the child to Florida within 10 days on certain conditions, including that the mother pay costs of $5000 which costs were deferred until the matrimonial and custody matters were completed in Florida.

[2] The final orders on consent were issued in Florida on April 24, 2014 (divorce) and on May 28, 2014 (custody, access and support) pursuant to which the mother was authorized to relocate the child in Toronto which she did in June 2014. The mediation agreement that was incorporated into the May 28 order includes a term that the father was responsible for payment of all travel expenses associated with seeing the child and a term with respect to “Attorney’s fees and suit money” which is unclear in that at paragraph 2, the father waived his right to payment of the funds pursuant to the February 7, 2014 order but in paragraph 3 he appears to preserve his right to claim such costs.

[3] As contemplated by the May 28, 2014 agreement and order, in order to reduce the distance and facilitate his parenting time with the child, the father moved from Florida to Ohio and, before the mother had announced her move to Texas, he had accepted a position in Syracuse, New York starting August 15, 2016.

[4] On June 2, 2016, the Applicant sent an email to the Respondent notifying him that in 30 days she intended to relocate with the child to Texas to be with her husband.

[5] On July 8, 2016, the Applicant caused this Application to be issued in which she asked for an order that she have sole custody and other relief including that the Respondent consent to what she characterized as “travel”.

[6] The Applicant immediately launched an urgent motion returnable July 14, 2016 on short notice seeking leave to bring the motion before a case conference and seeking an order permitting her to relocate to Texas as well as an order for costs. That motion was adjourned to July 19 but not heard because the Respondent consented to the relocation and the Applicant left Toronto and arrived in Texas on July 19, 2016.

[7] The Respondent filed an Answer dated August 6, 2016 in which he took the position that the travel provisions of the May 28, 2014 order and agreement did not apply, that the proposed relocation was governed by Florida law and specifically by the May 28, 2014 order and agreement.

[8] Counsel for the Applicant served a notice indicating that the case conference would be held on August 17. It was not held that day. On August 30, 2016, counsel for the Applicant served a notice that the case conference would be held on November 25, 2016.

[9] In correspondence from Ms. Crossley dated October 6, 2016, the Applicant suggested that she would withdraw the Application without costs but no agreement was reached.

[10] The Respondent launched a motion originally returnable October 18 and adjourned to October 25 in which he asked for an order pursuant to the Children’s Law Reform Act that this court recognize Florida as the proper jurisdiction, that Ontario decline jurisdiction and that this court declare that Ontario was not the correct jurisdiction, as well as costs of the withdrawn Application.

[11] I first dealt with the matter on October 25 at which time I adjourned the motion because a case conference had not been held and because, in response to the Ontario Application, the Respondent had reinstated the Florida proceedings by seeking to enforce the May 28, 2014 order and counsel advised that the court in Florida was grappling with the issue of jurisdiction. The information that each counsel provided as to the status of those proceedings was not consistent and I required more detail. In hearing submissions about the adjournment of the Respondent’s motion, Ms. Crossley indicated that her client was reconsidering whether she would withdraw in Ontario because of what was happening in Florida and the Respondent’s motion should be adjourned to give her client the opportunity to do so.

[12] In my endorsement dated October 25, I directed counsel to serve and file a case conference brief at least 7 days in advance and that the briefs were to contain the legal basis for Ontario taking jurisdiction. I also ordered that the return date of the motion would be set at the case conference and I reserved costs of October 25 to the case conference or the return of the motion.

[13] On November 25, 2016, counsel attended the case conference in person and the parties attended by telephone. Counsel reported that on November 14, 2016, the Florida court made an order dismissing his motion to enforce the Florida order and granting her motion to dismiss the case. And counsel advised that in August, the Applicant had started proceedings in Dallas and that the Respondent had been served when he went to Dallas to visit the child. The court in Dallas had issued what is referred to as a “standing order” directing the parties to maintain the status quo and in particular, prohibiting the parents from changing the residential status quo. However, counsel advised that there is a six month waiting period before that court would consider the substantive issues. That meant that no steps could be taken in the Dallas court before January 19, 2017 but counsel agreed that for purposes of this case conference it would be reasonable to assume that the court in Dallas will take jurisdiction on the basis of residence of the child.

[14] In paragraph 12 of her case conference brief, counsel for the Applicant proposed the following to resolve the issues: an order that this Court does have jurisdiction, and an order for sole, interim custody of the child to the Applicant mother, along with the incidents of custody, an order that any access to the Respondent be at the discretion of the Applicant, an order that the Respondent pays costs of $7000 to the Applicant for his motion which was unwarranted and unnecessary, as well as an order that he provide, within 10 days, his financial statement and financial disclosure. Counsel provided no legal authorities for the position taken on jurisdiction.

[15] On the other hand, in her factum and authorities addressing the legal issues in the motion returnable October 25 that I had adjourned to this date, counsel for the Respondent took the position that the appropriate jurisdiction for the Florida order to be “modified” was Texas and not Ontario; that the Application in Toronto was unnecessary and caused financial loss to the Respondent because the Applicant was seeking vastly different orders to that in the Florida order; that the Respondent was required to respond to protect the best interests of the child; and that the Application should be dismissed with costs. In submissions, counsel for the Respondent asked for an order that the Applicant pay costs of the case in the amount of $2500.

[16] At the outset of the case conference, and notwithstanding the case conference brief, counsel for the Applicant confirmed that her client would take no further steps in this Application in the Ontario Superior Court. She reduced the claim for costs to $6000. Following a recess, counsel advised that they had not been able to agree on costs. The parties consented to an order that the Application and Answer and Claim be dismissed and to an order that costs were in my discretion and I heard submissions.

[17] Given the agreement to dismiss the case, there is no “successful party” and accordingly, the presumed costs in rule 24(1) does not apply.

[18] In my view, the Applicant did not act reasonably when she announced by email on June 2 that she intended to relocate to Texas within 30 days and on July 8 when she launched these proceedings. The Respondent acted reasonably when, on July 19 which was less than 50 days after her announcement, he consented to the move. The Respondent acted reasonably when he filed his Answer and Claim and when he subsequently brought the motion returnable October 18 and then October 25. He also acted reasonably when he took steps in Florida which was the court that had taken jurisdiction and had made the substantive order in 2014. The Applicant did not act reasonably in taking the position at the case conference that Ontario did have jurisdiction, thereby ensuring that jurisdiction remained a live issue in the face of clear evidence that the Applicant and the child resided in Texas and had no connection with Ontario.

[19] In my view, the responsibility for all of the costs in this case lies squarely on the Applicant. The amount claimed on behalf of the Respondent for the motion is modest in comparison to the amount claimed on behalf of the Applicant for the case. Furthermore, counsel for the Respondent did comply with my direction to prepare a factum on the jurisdiction issue, which necessitated additional services.

ORDER TO GO AS FOLLOWS:

[20] On consent, the Application and Answer and Claim are dismissed.

[21] By January 15, 2017, the Applicant shall pay to the Respondent costs of the case in the amount of $2500 CDN inclusive of disbursements and taxes.

Kiteley J.

Date: December 15, 2016