Court File and Parties

COURT FILE NO.: 20-75 DATE: 2021/01/05 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Chamberlin Chidi Onuoha, Applicant AND: Irene Onuoha, Respondent

BEFORE: The Honourable Madam Justice L. Madsen

COUNSEL: Gloria Antwi, Agent for the Applicant Gloria Ichim, Counsel for the Respondent

HEARD: In Chambers

Costs Endorsement

[1] This is my costs endorsement in relation to the decision rendered November 10, 2020, ordering the Respondent, Irene Onuoha [“Ms. Onuoha”] to return the parties’ two children to Nigeria within 30 days.

[2] For the reasons set out below I find that the fair and reasonable amount for Ms. Onuoha to pay to the Applicant, Chamberlin Chidi Onuoha [“Mr. Onuoha”] on account of costs is $25,000.00, payable as set out below.

A. Brief Background

[3] The parties are Nigerian and are the parents of two children, Angel and Princess. The parties separated in Nigeria in 2012, and in 2018 entered parenting terms on consent, whereby they have joint custody and each is to have unfettered access to the children. The terms were set out in their Nigerian divorce order, made July 13, 2018 [the “divorce order”].

[4] After their divorce, Ms. Onuoha sought Mr. Onuoha’s consent to move with the children to Canada. In my decision, I found that Mr. Onuoha did not consent to the move.

[5] Nevertheless, on October 19, 2019, Ms. Onuoha brought the children to Canada. Immediately upon learning of the children’s removal from Nigeria to Canada, Mr. Onuoha started legal proceedings in Nigeria seeking their return.

[6] In January 2020, Mr. Onuoha brought a motion in Ontario seeking the children’s return to Nigeria. There were several adjournments of the matter, and then COVID-19 slowed proceedings in the Superior Court of Justice for a time. On September 30, 2020, the father’s motion for the return of the children was heard.

[7] In summary, I found the following: a. The parties had a valid and subsisting custody order in Nigeria. The mother wanted better opportunities for herself and the children and was unable to obtain the father’s consent to move to Canada. Faced with that reality, she took matters into her own hands and brought the children to Canada without the father’s consent. b. The mother planned far in advance, coming to Canada to take a pharmacy exam in the summer of 2019. She obtained permanent residence and laid the groundwork for the children to have that status in Canada as well. c. The mother wished to give the children what she saw as a good life, with the best opportunities. Her goal was to provide them with a positive and nourishing environment. d. However, as a parent in a joint/shared parenting relationship, with an existing court order, it was simply not open to the mother to make this change on behalf of the children unilaterally. However ardently she wished to immigrate with the children, it was, on the facts of this case, not an option without the father’s consent or a Nigerian court order authorizing the move.

[8] I concluded that: a. The father had not attorned to the jurisdiction of the Ontario court; b. The parties’ 2018 divorce order should be recognized under s. 41 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as am. [“CLRA”]; c. The children were not habitually resident in Ontario under s. 22 of the CLRA, because they were abducted, within the meaning of s. 22(3) of the CLRA; d. On a balance of probabilities, the children were not at risk of serious harm if returned to Nigeria, such that this court should assume jurisdiction under s. 23 of the CLRA; e. Recognition of the divorce order under s. 41(1) of the CLRA required an Order for the return of the children under ss. 40 and/or 41(4) of the CLRA to give effect to the same; f. The test to supersede the divorce order under ss. 42 or 43 of the CLRA was not met.

[9] I ordered that the children be returned to Nigeria within 30 days; that the cost of the children’s travel be borne by the father; that upon return to Nigeria the terms of the 2018 divorce order with respect to parenting should resume; and police enforcement.

B. Materials Received in relation to Costs, including New Evidence

[10] In my endorsement, I invited costs submissions, with a bill of costs, on a set schedule. Both parties complied with that schedule.

[11] On January 4, 2021, I received a 14 B motion from Mr. Onuoha requesting that I consider a further affidavit from him with new information not available when his cost submissions were put before the court. That motion was accompanied by a brief affidavit sworn December 14, 2020. Both were served on the mother, who in turn served and filed a brief responding affidavit.

[12] In his affidavit sworn December 14, 2020, Mr. Onuoha stated that subsequent to my endorsement ordering the return of the children, Ms. Onuoha applied to the Divisional Court for a stay of my order. In her affidavit sworn for the stay application, the mother disclosed that the children’s permanent residency in Canada had been cancelled in November 2019, that she was in the process of appealing that decision, and advised for the first time that exclusion (removal) orders were issued against the children in July 2020. She also stated that she has commenced a judicial review application in relation to the exclusion decisions. The information regarding the exclusion orders was not before the court when the father’s motion for return of the children was heard on September 30, 2020, although was clearly available to the mother. The father argued that this showed an intention to mislead the court and is further evidence of the mother’s bad faith.

[13] In her responding affidavit, the mother did not ask that the father’s affidavit not be considered, and did not deny having failed to advise the court of the exclusion orders against the children. However, she stated that she only received “formal” notice on December 23, 2020 implying that she was not “fully aware” of the immigration decision when the motion for the return of the children was argued in this court. She also stated that the father chose to proceed by motion and did not seek disclosure orders.

[14] The exclusion orders, copies of which were attached to the mother’s responding affidavit were dated July 14, 2020, two and a half months before the motion in this court was argued. Those orders found that the children are in breach of section 41 (a)and 20(1) (a) of the Immigration and Refugee Protection Act. The mother also provided the transcript of the proceeding wherein it is evident that the children had counsel when the matter was heard on July 14, 2020. The orders were made that date at the hearing.

C. Positions of the Parties

Mr. Onuoha

[15] Mr. Onuoha seeks costs in the amount of $79,900.00.

[16] Mr. Onuoha argues that he is entitled to costs on a full recovery basis for reasons including the following: that he was wholly successful on the motion; that Ms. Onuoha acted unreasonably and in bad faith in her removal of the children from Nigeria, her failure to update the court regarding the exclusion orders against the children, and her overall conduct of the case; that a finding of bad faith requires payment of costs on a full recovery basis; and on the basis that the case was important to the parties and raised issues not routinely raised in family litigation. Mr. Onuoha argues that “abducting children from their home and repeatedly swearing false affidavits claiming to have received consent is the epitome of bad faith.”

[17] Mr. Onuoha also argues that a party’s lack of ability to pay cannot and should not override other factors in the determination of costs.

Ms. Onuoha

[18] Ms. Onuoha seeks an order that there be no costs, or in the alternative, an order for costs in the amount of $5,000.00, payable at a rate of $30.00 per month.

[19] Ms. Onuoha argues that: she is the primary residential parent; that Mr Onuoha has not paid child support since she arrived in Ontario with the children in October 2019; that Mr. Onuoha’s costs are excessive; that she did not act in bad faith but on the basis of that she believed was in the children’s best interests; and that she is simply unable to pay the cost award sought by Mr. Onuoha. She also argues that the court should consider that this case took place in the context of a pandemic and that any increase in costs occasioned by limitations of the court system should not be borne by her.

D. Applicable Legal Principles

[20] The determination of costs is governed by Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as am., and Rule 24 of the Family Law Rules, O. Reg. 114/99, as am. [the “Family Law Rules” or the “Rules”]. Rule 24 must be interpreted in the context of the Rules more generally, in particular Rule 2. Rule 2 provides that the primary objective of the Rules is to deal with cases justly.

[21] Courts have held that modern Ontario costs rules have four fundamental purposes: to partially indemnify the successful litigant; to encourage settlement; to discourage and sanction inappropriate behaviour by litigants; and, to ensure that cases are dealt with justly under Rule 2(2) of the Family Law Rules. Serra v. Serra, 2009 ONCA 395; Mattina v Mattina, 2018 ONCA 867.

[22] Reasonableness and proportionality are the touchstone considerations in fixing the amount of costs in family law matters. Beaver v. Hill, 2018 ONCA 840.

[23] The objective of any costs determination is to determine an amount that is fair and reasonable for the unsuccessful party to pay: see Boucher v. Public Accountants Council (Ontario), 71 O.R. (3d) 291, 2004 CarswellOnt 2521; Selznick v. Selznick, 2013 ONCA 35, Jackson v. Mayerle, 2016 ONSC 1556.

Rule 24(1), Success

[24] Under Rule 24(1) of the Family Law Rules, the successful party is presumptively entitled to costs. This presumption of entitlement to costs is the starting point of the analysis. See Sims-Howarth v. Bilcliffe.

Rule 24(8), Bad Faith

[25] Rule 24(8) provides that if a party has acted in bad faith, the court shall decide costs on a full recovery basis and order the party to pay them immediately.

[26] The meaning of bad faith has been explored and developed in a number of important decisions and the following principles have been articulated. See for example, S.(C.) v. S.(M.), 2007 CarswellOnt 3485; Scipione v. Del Sordo, 2015 ONSC 5982; Jackson v. Mayerle, 2016 ONSC 1556, which decisions in turn cite an extensive body of caselaw. These principles include the following: a. Bad faith requires a “fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made.” Jackson at para. 56; Scipione at para 99. b. Bad faith is not synonymous with bad judgment or negligence; rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. Bad faith involves intentional duplicity, obstruction, or obfuscation. Scipione at para. 96. c. There is a difference between bad faith and unreasonable behaviour. The essence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose. It is done knowingly and intentionally. d. To establish bad faith the court must find some element of malice or intent to harm. Harrison v. Harrison, 2015 ONSC 2002 at para. 9. e. In order to come within the meaning of bad faith, behaviour must be “shown to be carried out with the intent to inflict financial or emotional harm on the other party or other persons affected by the behaviour, to conceal information relevant to the issues, or to deceive the other party or the court. A misguided but genuine intent to achieve the ostensible goal of the activity, without proof of intent to inflict harm, to conceal relevant information or to deceive, saves the activity from being found to be in bad faith.” S.(C.) v. S.(M.) at para. 17; Harrison at para 8. f. The court can determine that there shall be full indemnity only for one piece of the litigation where bad faith was demonstrated. Scipione at para. 97. The court may find bad faith in relation to aspects of a party’s behaviour. In that circumstance, full recovery costs should be awarded in relation to the issues affected by the bad faith and then the whole picture should be looked at in light of the considerations in (former) Rule 24(11) “and then the discretion in that provision should be used as necessary to produce the correct overall result.” S.(C.) v. S.(M.) at para. 24. g. Even where the "full recovery" provisions of the Rules are triggered such as by a finding of bad faith, quantification of costs still requires an overall sense of reasonableness and fairness. Goryn v. Neisner, 2015 ONCJ 318 at paras. 42-47. The Rules do not require the court to allow the successful party to demand a blank cheque for their costs. Slongo v. Slongo 2015 ONSC 3327 at para. 23. The court retains a residual discretion to make costs awards which are proportional, fair and reasonable in all the circumstances. Jackson at para. 91.

[27] Wrongful removal of children, in and of itself, does not necessarily constitute bad faith. It may, or it may not, depending on the circumstances. Bad faith will be found only where the conduct is egregious: a. In Vantriet v. Ogutu, 2020 ONSC 50, for example, the court found that the mother’s failure to disclose the children’s whereabouts when ordered to do so by a Nevada court, and concealing information, constituted bad faith. In that case the father sought costs in Ontario of $139,705 and the mother was required to pay $36,240. b. By contrast, in Pascual v. Pascual, 2015 ONSC 1303, the court rejected the father’s argument that the mother had acted in bad faith in removing the children from Brazil. The court found that the mother’s conduct did not reach the level of bad faith because it could not be said “to have been carried out with the intent to inflict financial or emotional harm on the father, nor was it intended to conceal information or deceive the court.” See para. 30. The court found the mother’s conduct to be unreasonable rather than in bad faith. c. See also Solem v. Solem, 2013 ONSC 4318 in which the court held that abducting the child was clearly a contravention of the applicant’s rights but did not rise to the high standard necessary for a finding of bad faith. The court suggested that such a determination would be better made by a court in the children’s home country, in that case Norway. See para. 23. d. Further, see Mitchell v. Mitchell, 2009 CarswellOnt 1628 in which the mother removed the parties’ child from Florida to Ontario. In ordering the return of the child, the court held that while the mother acted unreasonably, her behaviour did not rise to a level of bad faith, stating, “while these proceedings were necessary because of Ms. Mitchell’s wrongful actions in removing and retaining [the child], I am not prepared to find that she acted in bad faith. The case law with respect to Rule 24 and bad faith findings sets out a very high standard of misconduct to be met.”

[28] Perjury, however, does constitute bad faith. Thus, in Achakzad v. Zemaryalai, 2011 ONCJ 721, in which the father brought an unsuccessful Hague Application, he was found to have acted in bad faith when he perjured his testimony. The court stated, “An honest belief in the rightness of his cause may excuse some types of misguided conduct, but it does not excuse perjury. Perjury strikes at the heart of the justice system.” See para 15.

Rule 24(12), Setting Costs Amounts

[29] Rule 24(12) provides that in setting the amount of costs, the court shall consider: (a) The reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues: i. each party’s behaviour, ii. the time spent by each party, iii. any written offers to settle, including offers that do not meet the requirements of rule 18, iv. any legal fees, including the number of lawyers and their rates, v. any expert witness fees, including the number of experts and their rates, vi. any other expenses properly paid or payable; and (b) Any other relevant matter.

[30] It is under Rule 24(12) that an unsuccessful party’s unreasonable behaviour is considered. As seen above, numerous cases in the abduction context have found unreasonable behaviour where the threshold for bad faith has not been made out.

[31] The reasonable expectations of the unsuccessful party can assist in determining an amount that is fair and reasonable in the circumstances of the case. A comparison of the costs incurred by each party can assist in what is within the reasonable expectation of the unsuccessful party. M. (C.M.) v. C.(D.G.), 2015 ONSC 3582 at para. 48. See also Delellis v. Delellis, 2005 CarswellOnt 4956 at para. 9.

[32] Ability to pay is a relevant consideration under Rule 24(12). The financial situation of the parties can be taken into account in setting the amount of costs. See M.(A.C.) v. M.(D.), [2003] O.J. No. 3707. Ability to pay goes not to liability for costs but to quantum. See M.(L.C.) v. V.(C.A.), [2003] O.J. No. 4843.

[33] However, “inability to pay costs, or impecuniosity, is not a shield from liability; it cannot be used to excuse a party’s litigation conduct.” Vantriet v. Ogutu, above. Ability to pay alone cannot and should not override other factors in Rule 24(12). Peers v. Poupore, 2008 ONCJ 615 at para. 42.

E. Application

[34] In applying the legal principles set out above to the facts of this case, I make the following findings: a. Mr. Onuoha is the successful party on this motion. This court recognized the Nigerian divorce order, as sought, and ordered the return of the children to Nigeria. b. Leaving aside, for the moment, the issue of the purported travel consent document which is discussed extensively in my decision, I do not find that the conduct of Ms. Onuoha in removing the children from Nigeria without Mr. Onuoha’s consent reaches the egregious level of conduct required for a finding of bad faith. In my view, it was clear on the motion that Ms. Onuoha believed that in removing the children to Canada, she was offering them a better life, with greater opportunities. She was focused on what she saw as the children’s enhanced educational opportunities and a safe, secure life. c. In my view, at the level of “the case”, Ms. Onuoha did not remove the children from Nigeria out of malice, or with the purpose of harming Mr. Onuoha emotionally or financially (although no doubt her conduct has had both effects). d. Having said that, I have considered very carefully the issue of the purported travel consent document, and Ms. Onuoha’s statements to the court to the effect that Mr. Onuoha did consent to the children’s travel. I found in my decision that I did not accept the authenticity of the travel consent document tendered by Ms. Onuoha, and that Mr. Onuoha’s alleged consent was consistent neither with his conduct before or after the removal of the children, nor, for that matter with Ms. Onuoha’s own conduct. As seen above, perjury does constitute bad faith, as it strikes at the heart of the justice system. e. In this case, I find that Ms. Onuoha’s representations to the court about the travel consent were egregious and intended to deceive the court. Her conduct in respect of the purported travel consent was in bad faith. I make this finding notwithstanding that I find her overall conduct, excepting this issue, does not reach the level of bad faith. Ms. Onuoha engaged in a dishonest act in a case in which she did not have a dishonest or malicious purpose. f. Having said the foregoing, I have little difficulty concluding under Rule 24(12), that Ms. Onuoha behaved unreasonably in the steps she took to achieve her goal of a better life for the children. She ignored a valid and subsisting Nigerian court order. She knew Mr. Onuoha was not consenting but left Nigeria with the children anyway. This was not reasonable. She should have accepted that without Mr. Onuoha’s consent or a Nigerian court order, she could not move with the children. She put Mr. Onuoha to significant expense to assert his rights under the Nigerian order. g. Ms. Onuoha’s failure to update the court regarding the exclusion orders made against the children was also unreasonable. She swore an affidavit on September 17, 2020 in which she updated the court on other matters, including her employment situation in Canada. She should have told the court about the change in the children’s immigration status. That the matter did not proceed by trial is no excuse for failure to disclose salient facts. I do not find, however, that this omission constitutes bad faith as I am not of the view that it was motivated by malice or intent to harm Mr. Onuoha. Rather, this was another poor choice made in furtherance of her broader goal of keeping the children in Canada. h. Mr. Onuoha’s costs’ claim is very significant – more akin to a trial than a motion. Notwithstanding the importance of the case to the parties, $79,900.00 is not a reasonable sum in the circumstances. Mr. Onuoha would have known, as the case progressed, that he was incurring fees at a rate for which Ms. Onuoha would be unable to indemnify him. i. I recognize that Mr. Onuoha’s costs include expenses related to obtaining affidavits in Nigeria, which evidence assisted the court in being able to reach its conclusion. I also recognize that some time reflected on the detailed bill of costs is shown as “no charge” or at a discounted rate. Nevertheless, the fees are not reasonable or proportionate to the process. j. Ms. Onuoha’s Bill of Costs reflects expenses of $16,303.00. As noted above, Ms. Onuoha’s own costs may provide some measure of what she could reasonably be expected to pay if not successful on the motion. k. The costs order must recognize the dishonest act in relation to the travel consent. It must also recognize the finding of unreasonableness set out above. l. Ms. Onouha submits that she does not have the ability to pay a substantial costs order. This speaks not to liability to pay, but to quantum. The evidence on the motion was that she is presently employed full-time in Ontario at an hourly rate of $21.45. m. I have considered the applicable legal principles and the facts in this case including but not limited to the following: Mr. Onuoha’s success on the motion; Ms. Onuoha’s unreasonable behaviour and her bad faith in relation to the issue of the travel consent; the overall fees having regard to the fact that this was a motion, not a trial; and Ms. Onuoha’s financial reality. I have kept at the forefront the overriding principles of reasonableness, fairness, and proportionality which apply even in the face of the limited finding of bad faith, set out above. I have applied my discretion to arrive a determination that I view as just within the meaning of Rule 2. n. In all of the circumstances, I find that the fair, reasonable, and proportionate amount for Ms. Onuoha to pay to Mr. Onuoha on this motion is $25,000.00 inclusive of HST and disbursements. She shall pay that amount at the rate of $250 per month, on the first day of each month. The payments shall start on February 1, 2021.

L. Madsen, J. Date: January 5, 2021