Balogun v. Wint-Rose, 2012 NSSC 166

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Balogun v. Wint-Rose, 2012 NSSC 166 Date: 20120501 Docket: SFHMCA074795 Registry: Halifax Between: Babatunde Balogun Applicant v. Gabrielle Wint-Rose Respondent LIBRARY HEADING Judge: The Honourable Justice Moira C. Legere Sers Written Submissions: Kenzie MacKinnon for Babatunde Balogun on November 15, 2011 Nicole Figueira for Gabrielle Wint-Rose on October 19, 2011 Subject: Costs

Summary: Respondent seeking costs. Result: Both parties to absorb their own costs in these proceedings.

THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Balogun v. Wint-Rose, 2012 NSSC 166 Date: 20120501 Docket: SFHMCA074795 Registry: Halifax Between: Babatunde Balogun Applicant v. Gabrielle Wint-Rose Respondent DECISION ON COSTS Judge: The Honourable Justice Moira C. Legere Sers Heard: July 26, 2011 and September 28, 2011 in Halifax, Nova Scotia Written Submissions: Kenzie MacKinnon for Babatunde Balogun on November 15, 2011

Nicole Figueira for Gabrielle Wint-Rose on October 19, 2011 Counsel: Kenzie MacKinnon for Babatunde Balogun Nicole Figueira for Gabrielle Wint-Rose By the Court: [ 1 ] This matter came before the Court for a contesting hearing respecting mobility on July 26, 2011 from 9:59 to 12:01. [ 2 ] After discussing the outstanding issues with the parties, an agreement was reached between the parties which is outlined in the running file. [ 3 ] The matter was left with the mother's counsel for drafting of the order. [ 4 ] Counsel were unable to agree on the terms of the order.

On August 29, 2011 at the request of counsel the matter was submitted to have the Court settle the terms of the order in accordance with the agreement. [ 5 ] The matter was set down for a conference in chambers on September 28, 2011 between 12:59 and 1:41.

With the assistance of the Court the drafting of the order was completed. [ 6 ] The mother's counsel requested to be heard on the issue of costs involved in having the order issued. [ 7 ] Counsel for the mother filed written submissions on October 19, 2011; counsel for the father filed written submissions on November 15, 2011. [ 8 ] A review of the litigation history indicates that the father filed Notice of Motion on April 11, 2011. An interim hearing on the issues of jurisdiction, custody and access was held before Justice Gass on May 6, 2011.

An Interim Order resulted. [ 9 ] The matter then came before Justice Gass again on June 7, 2011 as the mother was seeking to return to Ontario. [ 10 ] The organization pre-trial occurred on June 7, 2011 and the settlement pre-trial on July 4 and 5, 2011. No settlement was reached. [ 11 ] The matter was adjourned for a custody and mobility hearing for two days before Justice Williams on July 7 and 8, 2011. There was a Direction to Disclose on July 18, 2011 with a deadline of July 25, 2011 and a formal direction from the Court on July 12, 2011.

The father did not file his documentation. [ 12 ] The matter was subsequently set before me for July 26, 2011 during which time the parties reached agreement.

[ 13 ] The Consent Order was eventually signed on October 20, 2011. [ 14 ] The difficulty with the form of consent order before me related specifically to the clause regarding the father's access in Ontario. This occurred in part because the presentations before the Court by the father on July 26, 2011 appeared to confirm that he would be staying in Nova Scotia.

On that basis, access was crafted to require the mother to provide transportation of the child to and from his residence to give her an opportunity to confirm where he was visiting when he visited Toronto from Nova Scotia. [ 15 ] However, almost immediately after the Court granted the Interim Order, the father relocated to Ontario.

Thus, the terms of the order had to be adjusted to reflect his residence in Ontario. [ 16 ] Much of the delay, the failure to file documentation, the difficulty with the interim hearing relates to hearings and directions that took place in another court outside the particular issue before me. [ 17 ] The only matter before me related specifically to the consent arrived at on July 26, 2011. This appearance lasted two hours and two minutes.

The September 28, 2011 discussions which resulted in a the settlement of the terms of the order, lasted 42 minutes. [ 18 ] All other matters that were difficult between the parties occurred before other Justices. [ 19 ] Essentially, the issue before me resulted because the parties reached an agreement with expectations that the father would remain in Nova Scotia.

When that changed, the order for convenience needed to reflect the underlying assumptions with respect to transportation and access. [ 20 ] This issue would have had to been addressed in any event in Ontario whether the father moved or not. [ 21 ] Another court would have to look after a variation application if the parties did not arrive at a resolution. [ 22 ] The discussions before the Court were an attempt to resolve the matter to avoid having to bring the matter back to court in Ontario. [ 23 ] If it could not be resolved, counsel wished to have the order reflect the assumptions on which the order was made before the change in circumstances.

This would not only assist the parties in Ontario before another court, it might also assist the judge in understanding the parties original consent order. [ 24 ] The father was content to have an order reflect that the mother continued to do the transportation regardless of his residence while the mother wanted a specific indication that it was not anticipated that she would be required to do the transportation in the long term. [ 25 ] Without this clarification, the mother would have had to show a court in Ontario that there had been a change in circumstances that was not anticipated at the time of the order. [ 26 ] On the face of it, the father was unreasonable in that he presented one position for the consent order and then immediately changed his mind, wishing to rely on the transportation provisions.

It would be unreasonable, practically speaking, to require the mother to do the bulk of the transportation, particularly once the father became settled in Ontario. It would not be an ordinary situation for the custodial parent to be responsible fully for the transportation. [ 27 ] However, both parties would have been required to go before the Ontario court to have this matter resolved and chose to attempt to resolve it in Nova Scotia. That having been said, it was an issue that needed to be resolved, arising out of the circumstances of

their poor relationship. In the end they were able to enter into a consent. [ 28 ] Given the limited amount of time these parties spent before me and the fact that much of the dispute was resolved in these two appearances and the fact that their difficulties with respect to costs likely relate to previous proceedings when costs could have been addressed, I have decided to allow both parties to absorb their own costs in these proceedings. Legere Sers, J.