Futi v. Ogunkoya, 2023 ONSC 446

COURT FILE NO.: FC-22-1511

DATE: 2023/01/23

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MWAKU GUY FUTI

Applicant

– and –

OLUFUNKE OLUBUKOLA OGUNKOYA

Respondent

Jonathan M. Richardson, for the Applicant

Valerie Akujobi, for the Respondent

HEARD: in writing.

Costs decision

Audet J.

1On October 25, 2022, I released my decision (2022 ONSC 6013) in this matter following a motion heard on October 6, 2022. The sole issue raised by this motion was the determination of the child’s habitual residence pursuant to s. 22 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), namely, Ontario or Nigeria. I ruled in favour of the mother and allowed the child to be returned to Nigeria.

2If the parties were unable to agree on costs, I invited them to provide me with written submissions and I would decide. Having received submissions from both parties, this is my decision on costs.

The Parties’ Positions

3The mother seeks an order for costs in the amount of $65,046.33¹ payable on a full recovery basis. While her actual legal fees amounted to $36,079.16 (including disbursements and HST), she had to incur various expenses (hotel costs, re-booked flight tickets and meals) which she states she would not otherwise have had to incur but for the father’s litigation. Acknowledging that the father already made a partial contribution to those costs, she claims the offset amount of $17,767.19.

4The mother takes the position that for one and a half months, the father engaged in a brazen attempt to deceive the Court, cause her mental distress and conducted himself unreasonably, leading to legal, living and travel costs. In her view, the father’s show of bad faith should be sanctioned by the imposition of costs on a full indemnity basis as a deterrent against those who may try to use emergency judicial procedures for malign purposes in the future.

5While the father acknowledges that the mother was the successful party in the motion, he takes the position that the costs claimed by the mother are not consistent with the objectives of costs indemnification under s. 24 of the Family Law Rules, O.Reg. 114/99 as am., (“the Rules”). He denies any bad faith and argues that his conduct throughout these proceedings was consistent with the conduct of a party during a litigious, “all-or-nothing” court proceeding such as the one at hand.

Legal Framework

6This Court has held that modern family cost rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement, and; (3) to discourage and sanction inappropriate behaviour by litigants (Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, at para. 8; Fong v. Chan (1999), 1999 2052 (ON CA), 46 O.R. (3d) 330 (C.A.), at para. 22). Rule 2(2) of the Rules adds a fourth fundamental purpose: to ensure that cases are dealt with justly. Rule 24(12), which sets out factors relevant to setting the amount of costs, specifically emphasizes “reasonableness and proportionality” in any costs award.

Analysis

7It is not disputed that the mother was the successful party in this motion. As such, she is presumptively entitled to her costs on a partial indemnity basis.

8I find that both parties made reasonable offers to settle, presenting reasonable alternatives to the all-or-nothing nature of this dispute. The terms of the offer to settle made by the mother essentially reflected the order that she obtained at the motion. Therefore, it cannot be said that the outcome achieved by the mother at trial was “more favourable than” what she had offered to settle for. This is typical in these all-or-nothing cases which are not amenable to compromises.

9I find as a fact that the father’s conduct throughout this proceeding was unreasonable. My decision on the motion is replete with factual conclusions which support this finding. Among other things, I found that the father failed to make full and frank disclosure when he appeared before the Court on his ex-parte motion, and that he willfully misled the Court in several material ways for the purpose of obtaining an order preventing the mother from removing the child from Ottawa without his consent. I also found that most of the evidence provided by the father to establish that Ottawa was the child’s habitual residence was evidence that he unilaterally created after the parties’ dispute over the family’s impending return to Nigeria was well on its way.

10I am also taking note of the mother’s assertion, which was not denied or explained by the father in his own submissions, that the father failed to obey existing disclosure orders, sent mocking messages to the mother that she had hired a bad lawyer who was just trying to “milk her”, and that he tried to interfere with a witness by making her feel intimidated (this last allegation had been raised before me at the outset of the motion hearing and I had deferred dealing with it until my decision on costs).

11While I find that the father behaved unreasonably, I do not find that his conduct amounted to bad faith. The stakes were high for both parties, as the issue raised in this case concerned where they would be required to pursue litigation in relation to their young daughter following their separation. I am not prepared to conclude that the father’s behaviour was primarily intended to inflict harm to the mother, although I do acknowledge that it likely had that effect.

12I find that the mother’s legal fees spent in this matter were reasonable in light of the relative complexity of the issue in this case, her counsel’s level of experience, and the context of high urgency within which the parties were required to present their case at the motion. This case required three motion hearings (ex parte motion, urgent motion and actual motion) and three conferences in the span of five weeks. While the mother did not participate in the ex parte motion, ultimately her counsel had to review and respond to all the allegations made by the father before the Court during that hearing.

13It is noteworthy that the father’s own legal fees incurred in the context of the two virtual conferences held prior to the motion (to deal with procedural issues and timelines) and the motion itself amounted to $20,290 (exclusive of HST). This is because the father was represented by a different counsel during the ex parte motion and urgent motion. This leads me to conclude that the legal fees charged by the mother’s counsel were indeed quite reasonable and proportional.

14I am permitted, based on s. 40(3) of the CLRA, to order the payment of the cost of reasonable travel and other expenses of the child and any parties once I declined jurisdiction under s. 22. However, I am not prepared to order the father to pay the entire amount sought by the mother in this case.

15Firstly, I wish to acknowledge that the page limitation that I imposed on the parties did not allow the mother to provide a full account of her expenses, with copies of receipts. Therefore, she can hardly be blamed for not having provided same in her original submissions. This said, it is readily apparent by looking at the father’s responding submissions that these documents were provided to him, given that he objects to specific expenditures made by the mother and for which she seeks compensation. Specifically, the father takes objections to the following expenses claimed by the mother:

• Hotel stay in the amount of $15,285.25. In the father’s view, nothing precluded the mother from remaining in the parties’ shared residence at Minto Suites until this matter was completed. I completely disagree. It was entirely reasonable for the mother, in light of the circumstances of this case (as set out in my decision), to want to live physically separated from the father until a decision was made;

• $441.61 in takeout and food delivery from UBER, as well as $1,716.47 in UBER transportation costs. I agree with the father on this. The mother (and child) would have been required to eat and transport themselves from place to place whether they were living in Ottawa or in Nigeria;

• $6,325.00 for the alleged value of two designer bags which she claims are in the father’s possession. I agree with the father that this is a property issue that needs to be addressed in the matrimonial proceedings in Nigeria.

16The father, on consent, paid the mother $5,600.00 per month in both September and October (the mother left the joint residence at the end of August) in interim support, for a total of $11,200.00. This was very reasonable on his part and this ought to have covered a large portion of the mother and child’s housing and living expenses while being forced to remain in Ontario until my decision was released. The father is to be commended for having paid interim support, and this weighted heavy in my decision not to award any additional compensation on account of added expenses. The issue of the mother and child’s expenses while remaining in Canada can also be addressed by the parties in the context of their matrimonial litigation in Nigeria.

17In light of all the above, I find that it is appropriate to impose on the father an obligation to pay costs in the amount of $30,000 (all inclusive), payable forthwith.

Footnotes

1. 1I believe this is a mistake. That amount is the total of the mother’s legal fees ($36,079.16) and living expenses while in Ottawa ($28,967.17). However, the mother acknowledges that the father has contributed $11,200 in interim support, resulting in a balance of $17,767.17 for living expenses which she claims from him. Therefore, on a full indemnity basis, she would be seeking $53,846.33, and not $65,046.33.