H. v. A.-M., 2017 ONSC 1644

Court File No.: FS73/16 Date: 2017-03-13 Superior Court of Justice – Ontario

Re: H., Applicant And: A.-M., Respondent

Before: Mr Justice Ramsay

Counsel: Nathalie G. Fortier for the Applicant Sheila Gibb and K. Warren for the Respondent

Endorsement

[1] The successful Respondent asks in writing for costs of this application for custody of a child. I stayed the application on the ground that the court had no jurisdiction over the child and ordered the return of the child to the jurisdiction of her habitual residence.

[2] The Respondent asks for $275,000, of which $185,000 should be enforceable by the Family Responsibility Office. The Applicant replies that she has no ability to pay costs as she is living on social assistance benefits of $680 per month, that the amount claimed represents an excessive amount of work on the file and that the court has no jurisdiction to order enforcement by the Family Responsibility Office.

Enforcement

[3] I agree with the Applicant on the last point. The Respondent cites two cases as authority for the contrary position: de Somer v. Martin, 2012 ONCA 908; and WG v. KG, 2015 ONSC 6160. Both cases involved support payments.

[4] The Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31, provides for enforcement of support orders by the Director of the Family Responsibility Office. The definition of support orders in s. 1 of the Act includes the following:

“support order” means a provision in an order made in or outside Ontario and enforceable in Ontario for the payment of money as support or maintenance, and includes a provision for

(g) interest or the payment of legal fees or other expenses arising in relation to support or maintenance …

[5] The Application had to do with custody and access. I do not think that the fees and expenses can be said to have arisen in relation to support or maintenance. The cases cited to me by the Respondent are distinguishable. I conclude that I have no jurisdiction to order enforcement by the Director of the Family Responsibility Office.

Entitlement to Costs and Quantum

[6] As to entitlement to costs and quantum, much of the history of the case is set out in my endorsement of January 27 2017 ONSC 703. In addition, on January 12, 2017 the Respondent made an offer to settle that did not expire and was not accepted. The Respondent offered to settle for what he eventually got, but he would have foregone costs. The offer meets the terms of Rule 18(14) of the Family Law Rules and entitles the Respondent to costs incurred before January 12 and full recovery of costs incurred thereafter.

[7] The Applicant’s behaviour was beyond egregious. The Applicant set out from the beginning to sever all ties between the child and the Respondent. To do this she made false allegations of sexual abuse by the father on the child. She abducted the child from her home in Egypt and then, when litigation in Ontario was coming to a head, she abducted the child again. She lied to the Canadian consular authorities, to the police, to FACS and to me. She has acted in bad faith. Under Rule 24(8) of the Family Law Rules the Respondent is entitled to full recovery payable forthwith. Before me are the costs of the five-day motion, as well as the proceedings of November 17 and December 2, 2016 and January 4, 2017, which were reserved to me by the presiding judges.

[8] In fixing the amount I have to take into account the factors listed in Rule 24(11) of the Family Law Rules.

[9] The issues were of the highest importance. If the Respondent had been unsuccessful he would not likely have seen his daughter again until she grew up. The Applicant is an educated and sophisticated person. Given her ruthlessness, I have to wonder whether the Respondent would have been able to mount the necessary response if he had not been a wealthy person. Certainly the Applicant would have contemplated that the Respondent would be put to significant expense in responding to her application.

[10] The Applicant was unreasonable throughout. The Respondent on the other hand has consistently taken positions that focused on the best interests of the child. The Respondent offered before the child was abducted the first time to agree to the child living in Canada with the Applicant subject essentially to summer visitation in Egypt with the Respondent. When the false allegations of sexual abuse were made, the Respondent offered to pay for neutral experts to evaluate the allegations. When he found out that the child was in Canada, he flew here and sought only supervised access as long as the cloud of the allegations hung over him. He flew to England at his own expense for an interview with the Metropolitan Police, who were investigating false claims that he abused his daughter while in England.

[11] Counsel’s hourly rate, $475, is not out of line with the circumstances of the case. Counsel used junior counsel at a much more reasonable rate whenever possible and discounted the time of articling students.

[12] The case required extensive and repeated preparation. The Applicant’s last affidavit was 500 pages long. Study of the affidavit and associated documentation is what enabled counsel to expose the inconsistency in the Applicant’s allegations. Further work was made necessary when the Applicant abducted the child in December 2016. Searches, court orders and police intervention were required and all had to be arranged by counsel.

[13] I am required to consider expenses properly paid and payable. This would include airfare and short-term rental of accommodations in Ontario. I note that Maddalena J. endorsed on November 23, 2016, “The presence of [the Respondent] in Canada is necessary to properly adjudicate the issues in this case.” It would also include fees charged by two experts retained by the Respondent to help the child deal with her mismanagement by the Applicant.

[14] The fees charged by the Respondent’s lawyer are reasonable. The Applicant cannot reasonably have contemplated much less. Some of the costs involved appearances in which the judges did not reserve costs to me. After deducting the corresponding amounts and reducing the award substantially in consideration of the Applicant’s ability to pay, I conclude that $100,000 is fair. That is a large amount for a case of this sort, but the Applicant deliberately made it expensive for the Respondent to vindicate his rights.

[15] I order the Applicant to pay costs to the Respondent forthwith fixed at $100,000, all inclusive.

J.A. Ramsay J. Date: 2017-03-13