This recent decision by Justice Fryer of the Superior Court of Justice is a well written decision that provides a very good summary of the law of costs. However, it also serves as a caution to family law litigants as to the costs of litigation, and reminds litigants that even if they feel as though they were largely successful with respect to the outcome of the case, this does not necessarily mean that they will be receiving their costs of the litigation on a full indemnity basis.
The Respondent mother in this case removed her daughter from the home to a shelter claiming emotional cruelty. The Applicant father then brought an emergency motion arguing for the child’s return. Justice Roy, on September 25, 2008, determined that the matter appeared to be an emergency, and thus, on consent, adjourned the matter to October 6th, 2008. On October 6th, 2008, Justice Power determined the Respondent mother’s conduct which gave rise to the emergency motion to be unreasonable, unjustifiable and not permissible, and thus, concluded that she had “abducted” the child within the meaning of the Children’s Law Reform Act. According to the judge, there were no significant events present in this particular case to warrant the mother’s departure from the home. Further, there was no evidence of any abuse by the father against the child and Respondent. Instead, the judge felt that the abduction was premeditated, and was not at all in the best interests of the child. Both parents, according to the judge, were actively involved in the child’s care and upbringing.
In the result, the judge attempted to reinstate the status quo as it existed prior to the said abduction. Further, the judge made an award of costs on a full indemnity scale (with the caveat that the time expended by counsel in this case was a bit much) in favour of the Applicant father, concluding that the conduct of the Respondent amounted to “bad faith” conduct within the meaning of Rule 24(8) of the Rules of Civil Procedure. The judge fixed the costs of the motion, including the appearance before Justice Roy at $25,000.00. Costs of which were payable by the Respondent to the Application “forthwith”.