Court File and Parties

Newmarket Court File No.: FC-22-2046-00 Date: 2023-03-22 Ontario Superior Court of Justice

Between: Linda Virginia Mar, Applicant And: Yangfeng Wu Wu, Respondent

Counsel: K.A. Maurina, Counsel for the Applicant

Heard: In Writing

Ruling on Costs in Respect of Civil Aspects of International Child Abduction

A. Himel J.:

Background

[1] The Applicant (“mother”) commenced this Application on November 28, 2022, seeking a declaratory order that the child, Vivian Wu (age 12) was wrongfully retained by the father in Mexico City since August 14, 2022. The child was not returned to the mother’s care following her parenting time with the Respondent (“father”) in July 2022.

[2] The mother requested relief pursuant to Articles 3 and 15 of the Convention on the Civil Aspects of International Child Abduction (the “Hague Convention” or the “Convention”). She also requested relief pursuant to sections 40 and 46(5) of the Children’s Law Reform Act (or “CLRA”) and Articles 7, 8 and 12 of the Hague Convention.

[3] In accordance with Family Law Rule 37.2(5), a first meeting was convened within seven days, on December 6, 2022. The father did not attend the virtual court (“Zoom”). The matter was adjourned to January 10, 2023, and the father opted not to participate or to file any materials. On that date I granted the “chasing order” for the relief sought by the mother (2023 ONSC 281).

[4] To the credit of the Court in Mexico, a hearing was convened on February 23, 2023. The Court ordered that the child be returned to Ontario. She returned to Ontario with the mother on March 7, 2023.

[5] The mother seeks costs on a full recovery basis in the amount of $24,597 inclusive of disbursements and HST. She also requests her expenses related to her efforts to have the parties’ daughter, Vivian Wu, returned home including the costs of her, Joy and Vivian’s flights to/from Mexico as permitted by the Hague Convention. The mother’s expenses total $9,799.11. The mother argues that the father’s actions in the matter amount to bad faith. The father has filed no responding materials.

[6] The mother was entirely successful. My order provided that costs could be addressed after 45 days and if no costs submissions were received within 60 days, there would be no costs. I delayed the receipt of the costs submissions to enable the father to voluntarily return the child, a factor I would have considered in my costs determination. However, as stated above it was the Court in Mexico, and not the father’s voluntary compliance with my order, that facilitated the child’s return.

Law and Analysis

[7] Cost rules are designed to foster three fundamental purposes (a) to indemnify successful litigants for the cost of litigation; (b) to encourage settlements, and (c) to discourage and sanction inappropriate behaviour by litigants. As noted by the Ontario Court of Appeal, two touchstone considerations must be applied to costs decisions: 1) proportionality, and 2) reasonableness.

[8] Pursuant to Rule 24(12), a judge fixing costs shall consider the importance, complexity or difficulty of the issues, the reasonableness or unreasonableness of each party's behaviour in the case; the lawyer’s rates; the time properly spent on the case, expenses properly paid or payable; and any other relevant matter. A Court has discretion to award an amount of costs that is just in all of the circumstances after taking into account the factors set out in Rule 24(12).

[9] If a party is found to have acted in bad faith, the Court is required to decide costs on a full recovery basis to be paid immediately. The conduct of a parent who attempts to deprive the child of a loving relationship with the other parent amounts to bad faith (Vantriet v. Oguto, 2020 ONSC 50, paras 20 & 30).

[10] It is the mother’s position that the father’s egregious conduct in retaining Vivian in Mexico, a country she had never resided in or even visited without the mother until 2022, his failure to return her despite the mother’s pleas and efforts to have her returned, including travelling to Mexico herself (in July and December 2022) in an effort to have Vivian returned, and his failure to respond in any manner to this court proceeding, amounts to bad faith and should be sanctioned by an order for costs on a full recovery basis pursuant to Rule 24(8) of the Family Law Rules. I agree.

[11] The requested amount of $24,597 in on the high end of the scale, however, I recognize the vast amount of work that was required within a relatively short period of time. It is the counsels’ effort and diligence that the child was returned to her habitual residence within three (3) months of the commencement of this Application.

[12] This proceeding was solely necessitated by the father’s wrongful retention of Vivian in Mexico. The father’s actions in retaining Vivian in Mexico not only disrupted her life (for example, she missed a large portion of her school year in Ontario) but disrupted her relationships with her mother and sister (the mother was extremely concerned that the father was influencing Vivian and turning her against her family) and has caused damage to Vivian which the mother must now work to undo. His actions forced the mother to commence a Hague Proceeding to be heard in Mexico, putting her to additional significant cost and effort. The Mexico Court has since ruled on the matter and ordered Vivian’s return to Ontario.

[13] While Article 26 of the Hague Convention deals with costs in a Hague Application, the Family Law Rules are equally applicable. In Landman Husid v. Daviau, 2012 ONSC 2383, para 5, Justice Perkins of the Ontario Superior Court explained that Article 26 of the Hague Convention does not serve to interfere with the normal authority of the courts of a country to award costs in a court case. Article 26 also seeks to expand the type of expenses that could be awarded by a court as incidental to an order for return of a child to include expenses beyond those ordinarily considered costs of a court case. In particular, Article 26 of the Convention specifically provides that the left behind parent is entitled to costs incurred to locate and return the abducted child (Husid v. Daviau, 2012 ONCA 655, para 40).

[14] The lawyers’ rates and the disbursements are reasonable considering the lawyers’ years of call, their experience practicing exclusively in the area of family law and, in particular, their expertise in international abduction cases, the effectiveness of their representation and the complexity of the issues. Significant time preparing was done by a junior associate (who speaks Spanish), and an articling student, to reduce costs. I note that the mother does not seek costs recovery for both counsel who attended at the final hearing.

[15] I find that the number of hours billed by the various counsel, being approximately 62 hours for what amounted to an uncontested hearing with only two attendances, to be somewhat higher than is reasonable. For that reason I am reducing the overall request by 10%.

[16] Costs in the amount of $22,137.30, inclusive, is reasonable and proportionate. The mother is also entitled to full recovery of her travel expenses, in the amount of $9,799.11. These amounts are payable by the father to the mother within thirty (30) days. Order to go.

[17] The mother may send a draft order to the JA for my review and execution. The father’s consent is hereby dispensed with.

Released: March 22, 2023 Justice A. Himel