Rechsteiner v. Kendell, (1998) 75 O.T.C. 114 (GD)

• Judge: Philp, J.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: July 16, 1998
• Jurisdiction: Ontario
• Citations: (1998), 75 O.T.C. 114 (GD)

Rechsteiner v. Kendell (1998), 75 O.T.C. 114 (GD)

MLB headnote and full text

Temp. Cite: [1998] O.T.C. TBEd. JL.134

Andreas Rechsteiner (applicant) v. Susan Kendell (respondent)

(F507/98)

Indexed As: Rechsteiner v. Kendell

Ontario Court of Justice

General Division

Family Court Branch

Philp, J.

July 16, 1998.

Summary:

A mother wrongfully removed a child from Switzerland and brought her to Ontario. The father invoked the Convention on the Civil Aspects of International Child Abduction (the Hague Convention) and petitioned for the return of the child to Switzerland. The father also sought custody of the child. The mother eventually returned to Switzerland with the child following hearings on return and custody. Both parties claimed costs.

The Ontario Court (General Division), Family Court Branch, held that because of art. 16 of the Hague Convention, the father should not have included an application for custody. "By so doing, he unduly complicated the issue and thereby created additional expense, time, confrontations and animosity between the parties" which was "clearly not" in the best interests of the child. The court awarded the father costs for the return application but reduced them by 25% to take account of the custody issue. The court awarded no costs to the mother.

Family Law - Topic 2162

Custody and access - Enforcement of orders - International conventions - See paragraphs 1 to 34.

Family Law - Topic 2189

Custody and access - Practice - Costs - See paragraphs 1 to 34.

Practice - Topic 7028

Costs - Party and party costs - Entitlement - Successful party - Exceptions - Unfounded or excessive or unnecessary actions or claims - See paragraphs 1 to 24.

Statutes Noticed:

Convention on the Civil Aspects of International Child Abduction, art. 16 [para. 7]; art. 26 [para. 14].

Courts of Justice Act, R.S.O. 1990, c. C-43, sect. 131 [para. 16].

Hague Convention - see Convention on the Civil Aspects of International Child Abduction.

Counsel:

Brinley Evans, for the applicant;

Thomas N. Basciano and L. Sapiano, for the respondent.

This matter was heard by Philp, J., of the Ontario Court (General Division), Family Court Branch, who released the following decision on July 16, 1998.