J.W. v. C.W., 2009 SKQB 373

• Judge: Dufour, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: September 22, 2009
• Jurisdiction: Saskatchewan
• Citations: 2009 SKQB 373;(2009), 342 Sask.R. 140 (QB)

J.W. v. C.W. (2009), 342 Sask.R. 140 (QB)

MLB headnote and full text

Temp. Cite: [2009] Sask.R. TBEd. OC.024

J.W. (petitioner) v. C.W. (respondent)

(2007 Div. No. 639; 2009 SKQB 373)

Indexed As: J.W. v. C.W.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Dufour, J.

September 22, 2009.

Summary:

Parents of a now seven year old daughter ended a tumultuous marriage involving many separations and reconciliations over a five year period. In October 2008, the mother threatened to move with the daughter to her native Norway. The father obtained an ex parte order preventing them from leaving Saskatoon. Both sought custody of the daughter. The mother sought the court's permission to move to Norway with the daughter.

The Saskatchewan Court of Queen's Bench, in a judgment reported (2009), 329 Sask.R. 62, awarded the parents joint custody, with the daughter's principal residence remaining in Saskatoon. The daughter was to spend equal time with each parent on a one-week rotating basis. The father, who was largely successful at trial but financially devastated by legal costs, sought solicitor and client costs. He had incurred $144,740 in legal costs. Prior to judgment, contrary to court order, the mother returned to Norway with the daughter. Her whereabouts were unknown and the father had been unable to speak with his daughter for over one year.

The Saskatchewan Court of Queen's Bench held that notwithstanding the father deserved solicitor and client costs, the costs award had to be tempered by the financial reality of leaving the mother in a financial position to support the daughter. The court awarded the father $65,000 in costs, $15,000 payable immediately, followed by $10,000 installments on April 1 every year for five years.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Family Law - Topic 2189

Custody and access - Practice - Costs - Parents of a now seven year old daughter ended a tumultuous marriage involving many separations and reconciliations over a five year period - In October 2008, the mother threatened to move with the daughter to her native Norway - The father obtained an ex parte order preventing them from leaving Saskatoon - Both sought custody of the daughter - The mother sought the court's permission to move to Norway with the daughter - The trial judge awarded the parents joint custody, with the daughter's principal residence remaining in Saskatoon - The father was largely successful, but the victory was for naught - He financially devastated himself by incurring $144,740 in legal costs - Contrary to the court order, the mother, with the help of the Norwegian government surreptitiously supplying her with new passports for the daughter, fled to Norway before judgment and her whereabouts were unknown - The father had not spoken with his daughter for over one year - The father sought solicitor and client costs - The Saskatchewan Court of Queen's Bench held that an award of solicitor and client costs was justified, given the mother's unfounded allegations of sexually inappropriate conduct by the father, the mother's untruthfulness in court and the time wasted by forcing the father to rebut her evidence, the father's offer to settle the custody matter in terms substantially the same as ordered by the court, and the mother's absconding to Norway in contravention of a court order - However, the mother had limited finances - The father was planning to commence Hague Convention proceedings to have the child returned - If successful, the mother's job opportunities would be less remunerative than in Norway and she would have to have sufficient resources to be able to support the daughter - The court awarded the father $65,000 in costs, $15,000 payable immediately, followed by $10,000 installments on April 1 every year for five years.

Practice - Topic 7465

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Divorce actions (incl. custody) - [See Family Law - Topic 2189 ].

Cases Noticed:

R.B.G. v. P.M.S. (2008), 341 Sask.R 4; 2008 SKQB 387, refd to. [para. 7].

Talarski v. Pool (1996), 142 Sask.R. 77 (Q.B.), refd to. [para. 8].

Gold v. Gold (1994), 106 D.L.R.(4th) 452 (B.C.C.A.), refd to. [para. 8].

P.H. v. D.H. (2000), 189 Nfld. & P.E.I.R. 294; 571 A.P.R. 294; 5 R.F.L.(5th) 333 (Nfld. U.F.C.), refd to. [para. 8].

Counsel:

S. Fitzsimmons, for the petitioner;

G. Kuse, for the respondent.

This matter was heard before Dufour, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on September 22, 2009.