Gallardo Bazan v. MacDonald, 2011 ONCJ 612

Brampton Registry No. 1552/10 DATE: 2011·XI·22 CITATION: Gallardo Bazan v. MacDonald , 2011 ONCJ 612 ONTARIO COURT OF JUSTICE BETWEEN: MARIA ELIZABETH GALLARDO BAZAN, Applicant, — AND — BRADLEY D. MacDONALD, Respondent. Before Justice Manjusha B.

Pawagi Reasons for Judgment released on 22 November 2011 CIVIL PROCEDURE — Costs — Entitlement or liability — Presumption of entitlement for successful party — Grounds for rebutting presumption — Court’s residual discretion to deny costs — Cases with no middle ground for reasonable settlement — Certain custody- and-access cases (such as those with mobility issue) leave no middle ground but only two extreme choices, which make settlement difficult and make party’s choice to litigate seem not unreasonable — In this case, mother was certainly successful in her application under (Hague) Convention on the Civil Aspects of International Child Abduction for return of her child to Peru, but father’s opposition to her claim was not unreasonable since court had found that he had some evidence to support his position that mother had consented or acquiesced to child’s remaining in Canada, although that evidence failed to meet high legal test of “clear and cogent” evidence of “unequivocal” consent or acquiescence — His opposition was even further reasonable when faced with criminal abduction proceedings in Peru begun by mother and prospect of jail there that would make him fearful of appearing before Peruvian court to litigate custody or access case — Thus, father had stark all-or-nothing choice of contesting Hague application or risk never seeing his son again — Court declined to award costs.

Sarah E. Mott-Trille ...................................................................... counsel for the applicant mother Cynthia T.C. Mancia .................................................................... counsel for the respondent father For previous proceedings, see Gallardo Bazan v. MacDonald , 2011 ONCJ 600 , [2011] O.J. No. 5408, 2011 Cars​well​Ont 13392 (Ont. C.J.), per Justice Manjusha B. Pawagi. [ 1 ] JUSTICE M.B.

PAWAGI:— The court thanks both counsel for their very thorough submissions on the issue of costs, particularly in response to the court’s request regarding whether there are or there are not outstanding criminal charges against the respondent father in Peru that are preventing him from participating in the family court proceeding in Peru regarding custody and access. [ 2 ] The applicant mother provides an affidavit from Peruvian attorney Miguel Chavez Chilet, sworn on 26 July 2011 wherein he attests at paragraph 2 that “There are no outstanding charges against the respondent father Bradley D.

MacDonald in Peru that are preventing him from participating in the family court proceeding in Peru regarding custody and access.” [ 3 ] However, I find that, although there may not be a “criminal charge” outstanding as we understand the term in Canada, there is a criminal proceeding under way in Peru that has the effect of discouraging, if not preventing outright, the respondent’s return to Peru. [ 4 ] The applicant’s material confirms that the criminal proceeding in Peru is a:

. . . trial versus the respondent father Bradley D. MacDonald in Peru before the 26th Criminal Court of Lima, Case File Number 30917-2010, for the offence against the family — violation of parental rights in mode of child abduction. ( affidavit of Mr.

Chilet, at paragraph 6 ) There is no outstanding warrant for the respondent’s arrest as there was not sufficient evidence to require him to be detained pending trial. [ 5 ] However, the respondent’s affidavit sworn on 6 October 2011, exhibit B, paragraph 6, explains that the criminal offence of a parent’s abducting a minor child carries with it a penalty of “imprisonment no less than two years.” Thus, although the respondent will not be arrested upon entering Peru, if he returns and loses the criminal trial, he could face incarceration of more than two years.

This is a substantial impediment to his ability to participate in the custody-and-access proceeding in Peru. [ 6 ] Although there is a presumption that the successful party is entitled to costs, the court has residual discretion with respect to the awarding of costs. As the respondent points out, in certain custody-and-access proceedings, such as those involving mobility, settlement is difficult as there is often no middle ground but only two extreme choices, which makes the choice to litigate seem not unreasonable.

Here, although the applicant was successful in her Hague application in obtaining the return of the child to Peru, the position of the respondent in contesting her application was not unreasonable. The court found that there was some evidence to support the father’s position that the mother consented or acquiesced to the child’s remaining in Canada, although it did not meet the high legal test of “clear and cogent” evidence of “unequivocal” consent or acquiescence.

And furthermore, the respondent’s position to contest the Hague application is also reasonable in light of the fact that he was faced with an all-or-nothing proposition given the criminal proceeding and prospect of incarceration that would make him fearful of returning to Peru to seek custody or access to the child. He had the stark choice of contesting the Hague application or risk never seeing his son again. [ 7 ] Thus, there shall be no order as to costs.