Overview

[1] The Applicant father brought an application for an order directing the return of the child, Asma Ahmadi (the “child”) to her habitual place of residence in Saint-Pierre-du-Mont in France under the Convention on the Civil Aspects of International Child Abduction, 25 October 1980, 1343 U.N.T.S. 89, Can. T.S. 1983 No. 35 (the “Hague Convention”).

[2] The father’s application was successful (see 2022 ONSC 2238). I found that the child was habitually resident in France on September 22, 2021, when the mother wrongfully removed the child and took her to Toronto. Pursuant to Article 12 of the Hague Convention , I ordered that the child be returned to France forthwith. The following orders were made:

The child shall be returned to her place of habitual residence in Saint- Pierre-du-Mont, France pursuant to Article 12 of the Hague Convention within 20 days of this Order.
Unless the parties reach an agreement in writing by April 14, 2022, as to how the child shall be returned to her place of habitual residence of Saint-Pierre-du-Mont, France, the following orders shall apply.
The Applicant Maarouf Ahmadi or someone on his behalf is authorized to apprehend the child and return the child to her habitual residence in Saint-Pierre-du-Mont, France, pursuant to s. 36(1) of the Children' s Law Reform Act. The Applicant shall advise the Respondent, through counsel, of the travel arrangements made for the return of the child.
The Respondent shall no later than April 15, 2022, deliver all government and travel documents for the child to the Applicant’s counsel. This includes all documents held pursuant to the Honourable Justice Shore's Order dated February 22, 2022. These documents shall be released to the Applicant or his designate for the purposes of facilitating the child's return to her habitual residence.
The Respondent shall fully cooperate with the child's return and deliver the child to the Applicant within 48 hours of the date of travel as identified by the Applicant and/or his counsel.
The police in the area where the child may be located, including but not limited to the Toronto Police, York Regional Police, Peel Regional Police, the Ontario Provincial Police or the Royal Canadian Mounted Police and all other police, security, and governmental forces and/or agencies having jurisdiction in any area where it appears that the child shall enforce this Order.
For the purposes of the travel as set out above, this Order and a copy of the child's passport shall be forthwith brought to the attention of the Canadian Border Services Agency, and/or the Immigration and Refugee Services Canada, to assist with the child's return to France
Pending the child's return to her habitual residence, the Respondent, or anyone on her behalf, are restrained from removing the child from the City of Toronto.
The Respondent shall forthwith provide the Applicant with full particulars of the whereabouts and location of the child, including addresses and telephone numbers of all locations where the child is staying pending her return.

[3] The mother did not comply with the orders.

[4] The parties did reach an agreement on how the child would be returned to her place of habitual residence of Saint-Pierre-du-Mont, France. It was agreed that the mother would return the child. The father paid for the mother and child’s airfare from Toronto to Bordeux France. He also rented the mother an apartment near the child’s place of residence and agreed on a without prejudice basis to pay the mother’s rent until the issues were decided by the family court in France.

[5] The mother and child flew to Paris on April 23, 2022 but did not continue the trip to Bordeaux as agreed. She and the child did not board the second flight. When they landed in Paris, the mother was escorted to the police station in the terminal and questioned. She was released before the flight to Bordeaux departed. However, she did not board the flight. It is the father’s understanding that the mother and child are in an unknown location in Paris, France.

[6] The father is now in the process of seeking urgent relief from the court in France to have the child returned to her habitual residence in Saint-Pierre-du-Mont, France.

[7] The parties have not been able to agree on the costs of the father’s application.

positions on costs

[8] The father seeks full recovery costs in the amount of $40,413. This consists of costs under Family Law Rule 24 that total $27,449 and $12,964 for expenses incurred to seek the return of the child pursuant to Article 26 of the Hague Convention. He says that full recovery of costs is justified because the mother’s conduct is egregious, and she acted in bad faith. She abducted the child and now refuses to follow this court’s orders.

[9] The father’s Article 26 expenses cover the following: fees incurred in France to prepare the return Application to the Central Authority (€3,600 x 1.36441 =CAD $4,911.84), the mother and child’s return flights to Bordeaux, France (€1891.38 x 1.3644=CAD $2,137.25), extra baggage fees that the mother requested (CAD $240), fees incurred to retain an expert in France, Marianne Caplanne to prepare an expert report in this Hague Application, (€3,000/$4,174.50 CAD, $40 CAD for Wire Fee, and CAD $104.36 for credit card fee), and the translation of Ms. Caplanne’s report from French to English (€1,062 x 1.27692 = CAD $1,356.06). The father has provided supporting documentation for the Article 26 expenses that total $12,964.

[10] The mother argues that full recovery should not be awarded because the father does not live or work in Canada, he did not serve an offer to settle, the fees and disbursements are excessive and the mother “has no means to pay costs”. The fact that he does not live or work in Canada is not a relevant factor when deciding costs.

[11] The mother filed her costs submission eight days after the father’s submission was served and filed. She does not address, in any way, her failure to return the child as ordered by the court.

Legal Framework

[12] The Family Law Rules, O. Reg. 114/99 are designed to foster four fundamental purposes: to indemnify successful litigants for the cost of litigation, to encourage settlements, to discourage and sanction inappropriate behaviour by litigants, and to ensure that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867 (Ont. C.A.).

[13] Pursuant to rule 24(1) there is a presumption that a successful party is entitled to costs. This presumption is subject to the factors in rule 24(12) that the court "shall consider" in "setting the amount of costs" as follows:

(12) 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.

[14] As this rule states, proportionality and reasonableness are the "touchstone considerations" to be applied when fixing the amount of costs: Beaver v. Hill, 2018 ONCA 840 (Ont. C.A.) at para. 12.

[15] Finally, the Family Law Rules expressly contemplate that a party shall receive full recovery costs in specific circumstances: when a party has acted in bad faith - rule 24(8) and when a party has beat an offer to settle - rule 18(14).

[16] Article 26 gives the court jurisdiction to order the mother to pay the father’s expenses as follows:

Upon ordering the return of a child or issuing an order concerning rights of access under this Convention, the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child, or who prevented the exercise of rights of access, to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child.

[17] As stated in Beatty v. Schatz 2009 BCSC 769 at para. 16:

Article 26 has three objectives: to compensate the left behind parent for costs incurred in locating and recovering the abducted child; to punish an abducting parent; and to deter other parents from attempting to abduct their children. The objectives of the Hague Convention would be defeated if the left behind parent were required to fund the process of locating the abducted child and obtaining that child's return.

[18] The Hague Convention anticipates that all necessary expenses incurred to secure the children's return will be shifted to the abductor, both to restore the applicant to the financial position he would have been in had there been no removal or retention, and to deter such conduct from happening in the first place: Dalmasso v. Dalmasso, 9 P.3d 551 (U.S. Kan. S.C. 2000); Beatty v. Schatz, 2009, B.C.S.C., supra, para 17; Solem v. Solem, 2013 ONSC 4318; Vantriet v. Ogutu, 2020 ONSC 50; Brown v. Pulley, 2015 ONCJ 238.

analysis

Rule 24 Costs

[19] The father was successful and is entitled to costs.

[20] Applications for return of a child under the Hague Convention are complex. The stakes are high when a child has been wrongfully removed. The outcome for the father was extremely important, and time was of the essence.

[21] Father’s counsel worked as a team. Work was delegated to junior counsel and law clerks as appropriate. The fees and hours billed are reasonable and proportionate to the issues. The work done reflects the complexity of the issues.

[22] No offers to settle were exchanged.

[23] The mother says that she has “no means” to pay a costs order but has not provided any evidence to support this argument. While a party’s limited financial circumstances is a factor for the court to consider, it should not be used as a shield against liability for costs and should only be taken into account regarding the quantum of costs, particularly when the party has acted unreasonably and in bad faith. I have considered the mother’s submission but in the circumstances of this case full recovery of costs is justified.

[24] The father has incurred significant costs because of the mother’s wrongful actions. The court must send a strong message to parents that resorting to self-help and wrongfully removing children from their habitual residence is unacceptable. There will be significant costs consequences for doing this.

[25] The mother acted unreasonably and at times in bad faith during this proceeding. The mother wrongfully removed the child from her habitual residence in France without the father's knowledge or consent. She cut off all contact and concealed the child's location from the father for months. The mother initially refused service of the father's Hague Application and refused to cooperate in any solution, as evidenced by the endorsement of the Honourable Justice Sharma dated February 16, 2022. The mother agreed through counsel to return the child to France as ordered. The father obviously trusted her to follow the order. The mother’s decision to disappear with the child when she landed in Paris was a flagrant breach of this court’s orders and is bad faith.

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

[27] The father’s Article 26 expenses are documented and reasonable.

[28] Given the mother’s unreasonable and bad faith conduct, the father is entitled to full recovery costs under Family Law Rule 24 in the amount of $27,449, and full recovery of his Article 26 expenses in the amount of $12,964, for a total of $40,413. This is a reasonable costs order given the circumstances of this case.

conclusion

[29] I make the following order: The respondent shall pay the applicant costs in the amount of $40,413.

C. Horkins J.

Date: June 13, 2022

COURT FILE NO.: FS-21-00026675-0000

DATE: 20220613

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Maarouf ahmadi

Applicant

– and –

Aazadah Basir ahmad

Respondent

REASONS FOR COSTS DECISION

C. Horkins J.

Released: June 13, 2022

Ahmadi v. Aazadah, 2022 ONSC 3538

Case Summary

Overview

positions on costs

Legal Framework

analysis

Rule 24 Costs

conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Financial Outcomes

Issues

Statutory Provisions 2

Legal Tests 2

Legislation 1