OSHAWA COURT FILE NO.: FC-24-00001326-0000 DATE: 14 February 2025 ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT BETWEEN: HITANSHU CHAWLA Kristy Maurina Applicant – and – ANISHA RAO MARAKANI Respondent Farrah Hudani/Katherine Allen HEARD : November 6, 2024; Costs submissions delivered January 16, 2025 Application under The Hague Convention on the Civil Aspects of International Child Abduction – Costs Ruling JUSTICE L. E. FRYER I. Introduction [ 1 ] I heard the Applicant (Father)’s application under 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”] on November 6, 2024. I ruled in favour of the Applicant (Father) and found that the habitual residence of the parties’ child: Miraya Devi Chawla, born May 14, 2024, was Champaign, Illinois, USA, and that she had been wrongfully retained by the Respondent (Mother) in Ontario since September 16, 2024. [ 2 ] I did not find, based on the evidence before me, that the Article 13(b) exception of the Hague Convention applied, that Miraya would be at grave risk of harm should she be returned to her habitual residence, as argued by the Mother. [ 3 ] The Father is seeking full recovery costs of $36,356.06. [ 4 ] The Mother submits that there should be no costs payable, on the basis that she was acting in the child’s best interests, that she is unable to pay, and that a costs award would hurt her ability to financially care for Miraya. II. COSTS [ 5 ] Costs are governed by s. 131 of the Courts of Justice Act , R.S.O. 1990, c. C.43, and Rule 24 of the Family Law Rules , O. Reg. 114/99. [ 6 ] In addition, Article 26 of the Hague Convention states: 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. [ 7 ] Rule 24 of the Family Law Rules was recently amended to emphasize that costs shall be determined promptly and in a summary manner following the event. The basic principles applicable to determining costs remain largely unchanged. [ 8 ] In Serra v. Serra , 2009 ONCA 105 , 93 O.R. (3d) 161, the Court of Appeal confirmed that modern costs rules are designed to foster three fundamental purposes: (i) partial indemnification of the cost of litigation for successful litigants, (ii) encouragement of settlement between parties, and (iii) deterrence and sanctioning of inappropriate behaviour by litigants. Ultimately, costs should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful party. [ 9 ] Subrule 2 (2) of the Family Law Rule s adds a fourth fundamental purpose for costs: to ensure that the primary objective of the rules is met – that cases are dealt with justly: Sambasivam v. Pulendrarajah , 2012 ONCJ 711 ; Mattina v. Mattina , 2018 ONCA 867 . [ 10 ] These same principles are applicable to applications under the Hague Convention: Article 26; Lawrence v. Lawrence , 2017 ONCJ 431 , 96 R.F.L. (7th) 456, at paras. 70-73 . [ 11 ] There is a presumption that the successful party is entitled to costs of the application: Rule 24(3), subject to the other provisions of Rule 24; Mattina , at para. 12 , citing Berta v. Berta , 2015 ONCA 918 , 128 O.R. (3d) 730, at para. 94 . [ 12 ] The Family Law Rules only expressly contemplate full recovery costs in specific circumstances such as where a party has behaved unreasonably, in bad faith or has beat an offer to settle under r. 18(14) (now r. 24(12)): Mattina , at para. 15 ; Beaver v. Hill , 2018 ONCA 840 , 143 O.R. (3d) 519). [ 13 ] I concur with Curtis J. when she held as follows in Lawrence , at paras. 73-74 : 73. 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: Beatty v. Schatz , 2009, B.C.S.C., supra , para 16. 74. The 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, as well as 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 CarswellOnt 8639, 2013 ONSC 4318 , [2013] W.D.F.L. 3211, [2013] W.D.F.L. 3326, [2013] W.D.F.L. 3329, [2013] W.D.F.L. 3331, [2013] O.J. No. 2960, 229 A.C.W.S. (3d) 457, 33 R.F.L. (7 th ) 120 (Ont. Sup. Ct.), para 10 . [ 14 ] A costs award is discretionary and must reflect an amount that the court finds reasonable and proportionate: Beaver , at para. 12 . [ 15 ] The Father was the successful party. [ 16 ] The Mother’s behaviour was unreasonable in that she sought a finding that Miraya’s habitual residence was in Ontario when the evidence, including her own evidence, overwhelmingly contradicted that assertion. This claim, advanced late in the day, was without foundation and occupied considerable time at the hearing. [ 17 ] The Mother’s claim that Article 13(b) of the Hague Convention applied was less unreasonable even though she was not successful. There were a number of concerning allegations made. The Father was subject to criminal charges. Ultimately, I did not rule in her favour but unlike the abducting parent in Lawrence who “called almost no evidence on the issue”, I would not characterize this part of the Mother’s claim as frivolous. [ 18 ] Rule 24(14) of the Family Law Rules sets out a number of factors for the court to consider in setting the amount of costs. I find that the Father was the more reasonable party in terms of his position on the issues, as discussed above, and his litigation conduct. The Father agreed to some additional undertakings at the hearing to facilitate the return of Miraya to Illinois in an orderly fashion. These undertakings included: delaying the pursuit of a divorce in Illinois which might jeopardize the Mother’s U.S. immigration status; leaving her with the family car; vacating the matrimonial home in Illinois; agreeing to pay the carrying costs on the home; and agreeing to pay a monthly sum to the Mother as support. [ 19 ] The Mother’s litigation conduct was less reasonable. She did not follow the court’s directions with respect to the materials for the hearing, instead she attempted to rely on materials outside of the scope set by the case management judge. The Mother sought to amend her Answer and withdraw her earlier admission that Illinois was the child’s habitual residence after the Father had served his evidence for the application. [ 20 ] The nature of these proceedings is such that parties must prepare detailed and complex materials quickly; it should be anticipated that significant costs will be incurred. The Mother did not share what she paid her lawyers, but as she does not dispute the amount of fees incurred by the Father (except that she objects to the costs of the pre-hearing conferences being included), r. 24(16) of the Family Law Rules does not apply. I find that the amount of time spent by the Father’s lawyers was reasonable and appropriate as was the rate of fees charged. [ 21 ] Rule 24(1) of the Family Law Rules requires the court to fix costs promptly after each step in the case or to reserve costs. However, r. 24(2) of the Family Law Rules (formerly r. 24(11) ) states that a failure to fix costs does not prevent the court from awarding costs at a later step in the case. I generally subscribe to the view set out by Kurz J. in Cameron v. Cameron , 2018 ONSC 6823 , where he held that a failure of the judge to fix or reserve costs of an event creates a rebuttable presumption that a costs award was not warranted. However, the conferences with Leef J. were for the purpose of organizing the orderly and timely hearing of the Hague Convention application which is somewhat different than the multi-faceted purpose of conference in a domestic family proceeding. In these latter conferences, the court will canvass compromise and settlement as well as procedural issues and costs. This application under the Hague Convention presented a binary choice, and the Father was successful in his position therefore the preparatory events are properly considered in the claim for costs even though not specifically reserved. [ 22 ] There were no written offers to settle which is not surprising or necessary expected, again, given the binary nature of the issue. See Lawrence ; Rasmussen v. Omotayo, 2014 ONCJ 42 . [ 23 ] The Mother argues that she should not be required to pay costs as she cannot afford it and that a costs award would have a negative impact on Miraya. [ 24 ] Family law litigants are responsible for and accountable for the positions they take in the litigation: Heuss v. Surkos , 2004 ONCJ 141 . I adopt the comments of McGee J. in Mohr v. Sweeney , 2016 ONSC 3238 , at para. 17 , citing Balaban v. Balaban , 2007 7990 (ON SC) , 2007 CarswellOnt 1518 (Ont. S.C.J.), at para. 7 : “[T]hose who can least afford to litigate should be most motivated to seriously pursue settlement, and avoid unnecessary proceedings.” However, I am not persuaded that the Mother is impecunious. Nor am I persuaded that a costs award will significantly impact her ability to care for Miraya as per M. (C.A.) v. M.(D.) (2003), 2003 18880 (ON CA) , 67 O.R. (3d) 181 (Ont. C.A.). The Mother has a job with TD Bank. She resides with her family when in Canada and would thus have minimal housing expenses. The Father’s undertakings at least in the short-term assist with her living expenses in Illinois. In my reasons for judgment, 2024 ONSC 6307 , at paras. 221-224 , I found that the Mother had access to funds including the parties’ wedding money that she transferred from the parties’ joint account into her sole account. I have little other evidence with respect to the Mother’s financial circumstances that might support her position. [ 25 ] Having regard to all the foregoing, I find that the amount that is fair and reasonable for the Mother to pay is the sum of $33,000 inclusive of HST and disbursements. III. ORDER:
- The Respondent shall pay costs of this Application to the Applicant in the amount of $33,000 inclusive of HST and disbursements payable within 90 days. Justice L. E. Fryer