Kimoko Uriu v. Francisco Rivadeneyra, 2017 ONSC 1930

COURT FILE NO.: FC-14-2854-1 DATE: 2017/03/27

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

KIMOKO URIU Applicant – and – FRANCISCO RIVADENEYRA Respondent

COUNSEL: Michael Rappaport, for the Applicant Any Mayer, for the Respondent

HEARD: By Written Submissions

DECISION REGARDING COSTS of HAGUE CONVENTION APPLICATION

L. SHEARD, J.

[1] This cost award is in respect of the successful Hague Application brought by the father, Francisco Rivadeneyra (named Francisco Sanchez in that Application) (the “Father”). The Father sought an Order under the provisions of the Hague Convention on the Civil Aspects of International Child Abduction for the return to Ottawa, Ontario of his child, Luca Kenji Rivadeneyra-Uriu (D.O.B. August 4, 2012) (“Luca”). The mother, Kimiko Uriu, (the “Mother”) was the respondent on the Hague Application.

[2] As per my Endorsement of September 14, 2016, the Father’s costs of the Hague Application were to be determined by the trial judge hearing the main application. I was the trial judge and hereby determine the costs to be paid to the Father.

Court Appearances on the Hague Application

[3] This cost award covers all steps and/or court appearances related to the Father’s application as follows:

i. August 9, 2016: Ex Parte Motion before Justice Roger. Order granted deeming the Father’s motion as urgent and allowing it to proceed on August 16, 2016, without a Case Conference and authorizing short service on the Mother. The short service was served by email. Costs of that motion were reserved;

ii. August 16, 2016: Hague Application before Justice Phillips. Orders were made declaring that the Mother was withholding Luca from his habitual place of residence; that Luca was being wrongfully detained in Vienna, Austria by the Mother; ordering Luca’s return to Ottawa, with the assistance of local police; that the Mother surrender Luca’s Canadian and Austrian passports to the Father; authorizing the Father to travel with Luca from Vienna to Ottawa; and awarding the Father interim sole custody and primary care of Luca until the determination of the parenting issues on a final basis on the trial that was scheduled to take place in September 2016. Costs of the motion were awarded but no amount was specified;

iii. September 6, 2016: Ex Parte Motion by the Mother before Justice MacLeod seeking leave to bring a motion to stay or vary the Order of Justice Phillips, (the “Phillips Order”) on the basis that the Mother did not have proper notice of the Hague Application and on the basis of submissions by the Mother’s counsel that the term of the Phillips Order that required the Mother to deliver Luca to the Father was an impediment to her returning to Canada for the trial because the Father had never had care of the child. The motion was granted. The Endorsement also states: “the Court might be prepared to stay the custody Order provided the respondent books a flight and commits to return to Ottawa with the child in advance of the trial but this cannot be done without hearing from both parties.” The motion was adjourned to be brought back on notice within one week. The Order was silent on costs; and

iv. September 14, 2016: Motion by the Mother before this court, for an Order suspending the Phillips Order and for costs. In her supporting affidavit, the Mother asserted that she had not been unlawfully withholding Luca and that the Order obtained by the Father was “in order to gain a leg up in the relocation issue”, the main issue to be determined in the trial, scheduled to commence on September 26, 2016. As of September 14, 2016 the Mother had not returned to Ottawa with Luca but her counsel confirmed that she had obtained a copy of the Phillips Order by August 23, 2016. I determined that I had no jurisdiction to stay the Phillips Order and dismissed the Mother’s motion and awarded the Father his costs of the Hague Application. Counsel for the Father estimated that her client’s costs were $25,000.00 but did not bring a Bill of Costs to the hearing. For that reason, I awarded the quantum of costs to be determined by the trial judge in an amount to be determined by the trial judge.

Positions of Parties

[4] The Father seeks his costs on a substantial indemnity basis. As per his Bill of Costs, filed, the Father incurred a total of $18,847.78 in fees, disbursements and HST. He calculates his substantial indemnity costs to be $16,963.00, representing 90% of the total costs he incurred.

[5] In support of his claim for costs on a substantial indemnity basis, he relies on the following:

a. that he was entirely successful at each stage of the proceeding;

b. that the Hague Application was necessary by reason of the Mother’s failure to return to Ottawa from her trip to Vienna with Luca which was supposed to be from July 6 to July 26, 2016 on the basis of an ear infection but without providing any medical proof of her illness or offering any reasonable alternate dates for her return;

c. that she had still not returned by August 4, 2016 and advised that she would not be returning to Ottawa “for several weeks” and then unilaterally reduced the frequency of communications between the Father and Luca to once per week;

d. that Justice Phillips determined that the Mother was unlawfully withholding Luca in Vienna; that even after receiving a copy of the Phillips Order, the Mother did not return Luca to Ottawa but, instead, retained a new lawyer whom she instructed to move to set aside the Phillips Order;

e. that the motion before this court on September 14, 2016 was dismissed for want of jurisdiction and that I awarded the Father his costs of the Hague Application;

f. that the Mother kept Luca in Vienna for a total of 77 days; and

g. that despite this court’s Order of September 14, 2016, the Mother brought another motion, returnable during the first week of trial and a further motion on October 18, 2016 seeking an Order preventing the Father from removing Luca from the jurisdiction. The Father acknowledges that the costs of those latter two Orders do not form part of the costs awarded by this court on September 14, 2016.

[6] The Mother asserts that the Father is not entitled to his costs of the motions of August 9 and August 16, 2016 as those costs were incurred unnecessarily “based on false pretenses of an abduction, which he admitted in the trial, were false.” She further asserts that the cost of the motion brought by the Mother on September 14, 2016 should be awarded to her, as those costs were incurred for the same reason.

[7] The Mother asserts that the Father was not successful on the Hague Application because:

a. she and Luca returned to Ottawa “as planned, when medically possible”;

b. there is been no final determination of the Hague Application;

c. the results obtained by the Father were obtained unfairly and did not adhere to the Family Law Rules or to the Hague Convention on the Civil Aspects of International Child Abduction.

[8] The Mother seeks to rely on evidence given at the trial to support the above arguments. Among other things, in her written costs submissions, the Mother repeats her allegation she had medical reasons for not returning Luca to Ottawa; that there was no reason that the Father could not fly to Austria, when she had invited him to do so in August, (although she does go so far as to claim that she invited the Father to take Luca home with him to Ottawa on that trip); and that the Father had acted unreasonably throughout the Hague Application and breached the spirit of the Hague Convention in seeking Luca’s return to Ottawa for the primary purpose of obtaining a “leg up on the trial that was set to be heard one month later.”

[9] The Mother also argues that the Father spent more on the costs of the motion then he would have spent on purchasing himself a plane ticket to Vienna where he could have visited Luca. Finally, the Mother asserts that the Father attempted to deter the Mother from returning to Ottawa by stopping his August 17, 2016 support payment.

[10] The trial of the Mother’s application was heard by this court in the week of September 26 to 30, 2016 and from January 23 to January 30, 2017. I have not yet rendered my decision. I did, however, render my decision with respect to the Hague Application on September 14, 2016. On that date, I awarded costs of the Hague Convention proceeding to the Father. I did not know or even anticipate that I would be the trial judge. As per this court’s Endorsement of that date, I left the determination of the quantum of costs to the trial judge because the Father’s counsel did not have a Bill of Costs available on September 14, 2016.

[11] I determine that there is no basis upon which I ought to change my Order of September 14, 2016, in which I awarded costs to the Father. Rather, I determine the Father’s costs of the Hague Application ought to be fixed in accordance with the applicable case law and the factors set out in Rule 24 of the Family Law Rules.

[12] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395 has provided guidance to the courts in identifying the three fundamental purposes of the costs rules:

1. to indemnify successful litigants for the costs of litigation;

2. to encourage settlement; and

3. to discourage and sanction inappropriate behaviour by litigants.

Factors

[13] Rule 2(2) of the Family Law Rules (O. Reg 114/99) (the “FLR”) provides the starting point for this cost decision. It states that: “the primary objective of these rules is to enable the court to deal with cases justly.”

[14] The case law is clear that a successful party is presumed to be entitled to costs (Berta v. Berta, 2015 ONCA 918). Rule 24 of the FLR lists the factors that the court shall consider in setting the amount of costs. Those factors include the reasonableness of the behaviour of each party; any offer to settle; any acts of bad faith by any party; the importance, complexity, or difficulty of the matter; the scale of costs; the hourly rates and time spent; and the reasonable expectations of the losing party.

Success

[15] Whatever the outcome of the trial, the Father was entirely successful at each stage of his Hague Application.

[16] At the conclusion of the first week of trial, and when it was clear that the trial could not be resumed until 2017, the parties consented to an Order regarding Luca’s custody and access, which was different from the Phillips Order. However, that consent Order does not take away from the Father’s entitlement to costs related to the Orders that he sought and was granted in a Hague Application and made prior to the commencement of trial.

[17] I am satisfied that the Hague Application was brought in good faith. I am not entirely satisfied that the Mother would have brought Luca back to Ottawa without a court Order. By contrast, I am entirely satisfied that the Hague Application was not brought by the Father in order to give him a “leg up” on the trial. Rather, he took the steps he believed were reasonably necessary to seek the return of Luca to Ottawa. There is no doubt whatsoever that the Mother wants to live with Luca in Vienna, which was the central issue of the trial. I am less confident that her decision to stay with Luca in Vienna was entirely by reason of her health as opposed to her seeking to get a “leg up” on her application to relocate with Luca to Vienna.

Complexity and Importance

[18] I accept the submissions of the Father that Luca’s return to the jurisdiction was of great importance and that the proceedings were complex. The interpretation of the applicable legislation as well as the implementation and enforcement in Austria of the Phillips Order was complicated and required the involvement of the Ontario Central Authority and the Austrian Central Authority.

Unreasonable Behaviour or Bad Faith

[19] Under this factor, the Mother has repeated her submissions that the Father’s resort to the Hague Convention was for a litigation advantage in the trial. I have already rejected those arguments.

[20] The Mother further asserts that the Father was attempting “to bankrupt the Mother when he saw she was having financial difficulties.” I also reject that submission. This litigation has required each party to incur extensive legal costs that neither can afford and has likely caused each of them financial difficulties.

[21] The Mother submits that the Order obtained by the Father “abruptly and radically changed Luca’s care and with no access to the Mother.” Which she overlooks in making those submissions is the consent Order that was made on September 30, 2016 by which the parties agreed to share parenting of Luca on an equal basis in accordance with a 2/2/3 parenting schedule. Having had Luca for 77 uninterrupted days in Austria, the Mother had deprived the Father of his usual and agreed-upon regular access as well as any extended summer access. It hardly lies in her mouth to complain about Luca spending some time with the Father, whom he had not seen for 77 days before the Mother decided to return with him to Ottawa on September 20, 2016, three days before the commencement of the trial. The Mother also ignores the accommodation offered by the Father not to enforce the Phillips Order for a day to allow her and Luca to get over their jet lag upon their return to Ottawa from Vienna.

[22] I conclude that it was the Mother who acted unreasonably in failing to return Luca to Ottawa as she had agreed to do and which was the basis upon which the Father gave his consent to allow Luca to travel to Vienna in July 2016.

[23] I conclude that the Mother continued to act unreasonably in refusing to return Luca to Ottawa in the face of the Phillips Order and, instead, to move, without success, to stay or set aside the Philips Order. Further, even in the face of this court’s Order of September 14, 2016 dismissing her motion, the Mother did not return to Ottawa with Luca using the tickets that she had filed with the court. In fact, they took a different flight and did not return until September 20, 2016.

Offers to Settle

[24] The parties agree that no offers to settle the Hague Application were exchanged prior to September 14, 2016. The Mother goes on to assert that the Father was “not even willing to enter into negotiations for parenting arrangement for when the applicant returned to Ottawa with Luca.” I understand that the Mother sought to negotiate a change to the Phillips Order as a condition of her returning to Ottawa with Luca. The Father cannot be criticized for failing to negotiate with the Mother on those terms and under those conditions. While it has no impact upon this costs decision, in view of the above-referenced criticism by the Mother, it may be fair to note that the Father did consent to a variation of the provisions of the Phillips Order on September 30, 2016. By that consent Order, the Father compromised his entitlement under the Phillips Order and agreed to an equal parenting schedule.

Scale of Costs, Hourly Rates, Time Spent and Proportionality

[25] In her submissions, the Mother does not separately address hourly rates or time spent by the Father’s counsel but asks the court to consider the Mother’s inability to fund a cost award as she has been unemployed and has no savings. By comparison, she argues that the Father can afford to bear his own costs because “he has a high paying job and income from Mexico and should bear his own costs for bringing a motion that was entirely meritless, unfounded and served no constructive purpose.”

[26] On the issue of time spent and hourly rates, the Mother’s counsel has provided a Bill of Costs. Although it is not perfectly clear, I understand that this Bill of Costs relates to the Mother’s motion to stay the Phillips Order argued before this court on September 14, 2016. If my understanding is correct then the Mother’s counsel reports having spent a total of 6.2 hours on this motion, which includes 0.9 hours in meetings, telephone calls and correspondence with his client and opposing counsel; 3.2 hours to prepare for the motion; and 2.1 hours for the court appearance. By contrast, the Father’s counsel records a total of 16.8 hours to review the motion materials and prepare responding affidavit materials and prepare for and attend on the motion. However, included in that total is time spent to follow up with the Ontario Central Authority for a status update in Austria. I conclude that the 16.8 hours might be somewhat excessive for that motion.

[27] The Father’s lawyer charges $260.00 per hour and was called to the bar in 2006. The Mother’s lawyer charges $175.50 per hour and was called to the bar in 2008. The Mother has not argued that the hourly rate charged by the Father’s lawyer is too high. Also, it is not argued, nor do I conclude, that the disparity between the hourly rates charged by counsel is a basis to find that the hourly rate charged by counsel for the Father is unreasonable.

Amount the Unsuccessful Party Would Reasonably Expect to Pay

[28] In her costs submissions, the Mother does not address this issue. However, in oral submissions on the motion, her counsel disclosed that she had incurred legal fees of $75,000.00 with her previous counsel whose retainer ended sometime prior to July 5, 2016 on which date the Mother filed a Notice of Change in Representation, by which she elected to act in person. She subsequently retained her current lawyer, who represented her on the Hague Application and, later, at trial. I conclude therefore that the Mother is relatively well-informed with respect to her own legal fees. Having said that, it is possible that until this decision, neither party has received a cost award from the other.

[29] The task of this court is to determine what amount is fair and reasonable for the unsuccessful party to pay in the circumstances of this case (see Delellis v. Delellis, 2005 36447).

Disposition

[30] I have considered the evidence, the submissions made by the parties, the applicable case law and provisions of the FLR. I have determined that it is fair and reasonable for the Mother to pay the costs of the Hague Application to the Father $11,500.00 plus disbursements of $241.45 plus HST of $1,526.39 for a total of $13,267.84.

L. Sheard J.

Released: March 27, 2017

COURT FILE NO.: FC-2854-1 DATE: 2017/03/27 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: KIMOKO URIU Applicant – and – FRANCISCO RIVADENEYRA Respondent DECISION REGARDING COSTS OF HAGUE CONVENTION APPLICATION Sheard J. Released: March 27, 2017