Child Abduction & Costs: Tulchinsky v. Shuster

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”.

This Post Has 2 Comments
  1. We often find that on emergency motions costs are not awarded. The wrongdoer is often not punished for his or her wrongdoing. Emergency motions, whether on notice or ex parte, are costly to the Applicant who, through not fault of their own, are forced to bring a matter to court usually prior to an Application ever being commenced. In order to bring the emergency motion the Applicant must prepare the Notice of Motion and the sworn Affidavit of the party and any third parties, an Application must be issued at the same time accompanied in many circumstances with a sworn financial statement. It is a costly venture. Costs should be awarded at every stage and certainly at the motion.

    Justice Power did the right thing and sent the correct message in ordering costs against the wrongdoing mother who, without sufficient reason, unilaterally “abducted” her child, presumably to gain an advantage in the eventual proceeding to set a status quo. Justice Power would have none of that and put the parties back to where they were prior to the child’s removal. Justice Power sent a strong message in the use of costs against the Mother in ordering costs on a full indemnity scale and cited her behaviour as “bad faith” in accordance with the Rules.

  2. The trend towards punishing mothers who fail to act in accordance with the best interests of the children re: custody/access issues, continues. Certainly recent cases such as of Jamieson and L. (A.G.) v. D. (K.B.) offer significant and heretofore unheard of consequences for alienation and failure to ensure maximum contact with the non-custodial parent. With Tulchinsky v. Shuster, the consequences also turn economic. The award of costs of the motion (both attendances) on a substantial indemnity basis (to the tune of $25,000.00) sends a clear message to custodial parents that such conduct will result in changes in custody, likely significant in favour of the other parent and punitive economic consequences.

    The days of mothers doing as they please with the children (keeping them from dad, taking them from the home and not telling dad where they are, denying access, etc…) without regard to the rights of the father, may be over. Certainly, it appears that the reasonable conduct, maximum contact and meaningful access are the prevailing factors.

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