Court File and Parties

COURT FILE NO.: FC-19-179-0 DATE: 2019/05/03 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

OLIVIER HABIMANA Applicant – and – MARTINE MUKUNDWA Respondent

Counsel: Allan T. Hirsch, for Applicant Selim James Levy, for the Respondent

HEARD: By way of Written Submissions on Costs

DECISION ON COSTS

M. Linhares de Sousa J.:

[1] I have now had the opportunity of reading the parties’ submissions on costs in this matter, which was an application brought by the applicant, Mr. Habimana, against the respondent, Ms. Mukundwa, pursuant to the Hague Convention, to have their two children returned to Hong Kong. That Hong Kong was the habitual residence of the two children was conceded, and the sole issue to be determined on the application was whether there was risk of harm to the children in returning them to that habitual residence.

[2] I ordered that the children be returned to Hong Kong on the basis that the case of risk of harm was not made out by Ms. Mukundwa. I further imposed certain undertakings on both parties, on an interim basis, pending the return of the children to Hong Kong.

[3] In my view there is no question that Mr. Habimana has been the successful party in this application. Presumptively, pursuant to Rule 24(1) of the Rules of Family Law, O. Reg. 114/99 (RFL), he is entitled to his costs, including those legal costs expended in Hong Kong to commence the application, unless his conduct in any way during the litigation might preclude his being awarded his costs. I have no such evidence before me.

[4] Rule 24(5) of the RFL mandates this court to consider the reasonableness of both parties’ behavior in considering the question of costs. Ms. Mukundwa’s decision to remove the children from Hong Kong in the way she did, without the knowledge of Mr. Habimana, is part of this consideration. In my view it was neither justified nor necessary. I cannot accept that she had no other alternative way of dealing with her unhappy marriage. She had had access to legal counsel in Hong Kong and had the presence and support of her sister who assisted her greatly in removing the children from their habitual residence. She was not devoid of family support and resources in Hong Kong. I find her conduct to have been unreasonable. While Ms. Mukundwa’s removal of the children from Hong Kong without their father’s knowledge was underhanded, I cannot find that it was done in bad faith, which demands a very high standard. As misguided as it was, what Ms. Mukundwa did was perceived by her to be in the best interests of her children.

[5] Both parties attempted to resolve this matter by exchanging offers to settle. Mr. Habimana provided two, dated February 7, 2019 and March 4, 2019, both of which were very similar except for a return date change. Mr. Habimana’s offers essentially provided for the return of the children to Hong Kong and that they were to remain there until the issues of custody and access could be decided by a Hong Kong court. There was also a waiver of costs according to timing of the acceptance of the offer. There is no provision in the offers of Mr. Habimana for the financial support of the family or their living arrangements, in the interim, pending return and the commencement of legal proceedings in Hong Kong. Given the nature of the dispute between the parties, that interim arrangement had to be dealt with to get the children back to Hong Kong as was done in my final order, this lacuna is a failing in Mr. Habimana’s offers.

[6] Ms. Mukundwa’s offer was made on March 7, 2019. In her offer Ms. Mukundwa conceded that the habitual residence of the children was Hong Kong and that she had wrongfully removed the children to Canada and had retained them there. Her offer then went into a specificity of undertakings to be made by Mr. Habimana, that were to be incorporated into a court order in Hong Kong and that dealt with what can be considered as decisions on the merits of this matrimonial dispute, a conclusion and exercise that I refused to make in this application given its limited issues, legislatively mandated.

[7] While my order did include a number of undertakings that would “secure the safe, prompt and seamless return of the children” and to provide for the transition period between the time when a Canadian court makes a return order and the time at which the children are placed before the courts of Hong Kong in the best interests of the children, many of them, as is clear from my order, were consented to by Mr. Habimana, in the course of his counsel’s argument. I cannot disagree with counsel for Mr. Habimana that a number of conditions found in Ms. Mukundwa’s offer might have been found to be prejudicial to him on a hearing of the same issues on their merits, such as accepting only supervised access to the children and conceding that the children’s primary residence would be with the mother. These types of questions have to be left to the court hearing the matrimonial case. By including them as a condition in an offer to settle, one of the purposes of the making of an offer to settle, which is to advance the case to a fair and complete resolution of all of the matters was compromised.

[8] In my view, for the reasons given above, none of the offers triggers the automatic application of Rule 18(14) of the RFL.

[9] In deciding the question of costs, I also must consider the factors enumerated in Rule 24(12) of the RFL. Given the international dimensions of this case, the issues can be regarded as somewhat complex, involving the extra cost of international communication, and analyzing the relevant aspects of two juridical jurisdictions. The issues were clearly important for the parties. Given the significance of the Hague Convention as an instrument to deal with the international abduction of children, consideration of the existing jurisprudence under the Convention had to be undertaken so as to permit the objectives of the Convention to be respected.

[10] I have already dealt with the respective behavior of the parties and their offers to settle.

[11] I have examined the bill of costs filed with both counsel. Given the experience of counsel I find them to be reasonable. Given the legal representation of Ms. Mukundwa and the bill of costs of her lawyer, I have no difficulty in concluding that she was fully aware of the potential costs liability she might incur in this case if she were to not succeed on her case. Furthermore, given the specific bill of costs of her own lawyers, both in Hong Kong and in Canada, I must conclude that she was also aware of the magnitude of costs she could likely incur in this case if she were not to succeed in her case. (See Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (C.A.)).

[12] Finally, I consider the limited independent resources of Ms. Mukundwa. Any costs award against her must not prevent her from continuing to parent the children, contrary to the best interests of the children. From another perspective, however, the family at this time is totally financially supported by Mr. Habimana. There is evidence to suggest that the parties will be co-parenting their children until their matrimonial case can be heard by a Hong Kong court. In view of that to deny Mr. Habimana his costs, given his existing financial responsibility for his family would be unfair to him and could also impede his ability to parent the children.

[13] For all of these reasons, I award Mr. Habimana his costs that I fix in the amount of $25,000 payable by Ms. Mukundwa. These costs include the costs of Mr. Habimana’s legal fees in Hong Kong and in Canada as well as the transportation costs to return the children and their mother back to Hong Kong, all of which are recoverable under the Convention legislation.

M. Linhares de Sousa J. Released: May 3, 2019