Mitchell v. Mitchell 2009 Ont. S.C.J. “Costs in a Hague Application”
Mr. Mitchell (“father”) brought an application under the Hague Convention to have his son returned to Florida from Canada. On February 4, 2009, the judge granted him his application determining that the child, born in April 1998, had been wrongfully removed from Florida by Ms. Mitchell (“mother”).
This case deals with costs as the father now seeks costs on a complete indemnity basis for his application. The applicant father submitted that the matter involved the wrongful removal of a child contrary to the Hague Convention and the conduct was egregious. The father argued that the mother knew and deliberated about each wrongful step. In support of his position, the father noted that he had been completely successful in his application and acted in a bona fide matter throughout. He also noted that he had made an Offer to Settle on January 6, 2009 that he claimed was identical to the final decision rendered by the judge. The father stated that the mother clearly had the financial means to pay for costs or else she would not have been able to retain the services of Borden Ladner Gervais. Finally, the father argued that the mother should pay the entire financial burden as she was the one who took the child “from the only home he has ever known…”
The mother’s position was that it would be inappropriate to award costs against her because she had initially been self-represented and believed that she had the right to relocate the child. Furthermore, she submitted that the father increased his legal costs through his unreasonable conduct. The mother also noted that the father had not paid child support since May 2008 and that she did not have the financial means to pay further costs.
The judge, in his analysis, noted that costs in this matter are within the discretion of the Court and should be exercised in light of the factors enumerated in Rule 24 of the Family Law Rules. Pursuant to Rule 24, the successfully party is presumed to be entitled to his or her costs unless his or her behaviour was unreasonable during the case and justifies another order. The father was clearly the successfully party and according to the judge his behaviour was not at all unreasonable during the case. The judge stated that the father’s actions were a direct result of the wrongful actions of the mother. The judge was in fact highly suspicious of the mother’s actions and intentions throughout and believed that it was she who had behaved unreasonably. The judge, however, was not prepared to find that she acted in bad faith, which represents a very high standard of misconduct.
The judge did not see merit in the mother’s submission that the father did not pay child support since May 2008 and found this position disingenuous. The judge was also not convinced by the mother’s submission that she did not have the financial means to pay for costs. She had not provided cogent evidence concerning her financial status. In addition, she was able to retain Borden Ladner Gervais and her legal fees to that firm totalled approximately $31,000.00. The judge affirmed that it was the mother’s wrongful conduct which caused her loss of income and her wrongful conduct should not shield her from paying costs to the father.
Based on the above analysis, the judge concluded that it was fair and reasonable for the mother to pay costs in the amount of $35,000 inclusive of GST and disbursements.